K. Lahiri, J.
1. On 16-9-1981, upon hearing the parties and on threadbare scrutiny of the evidence the conviction and sentence passed against the appellant were set aside. We expressed that a reasoned judgment will follow. We now deliver the reasoned judgment.
2. The appellant was convicted Under Section 395/397 IPC and sentenced to 5 years R. I. by the Additional Deputy Commissioner, Karbi Anglong. The prosecution case is that on 24-6-1975 at or about 2.30 P. M., Loknath Mukherjee since dead, a senior office clerk of Lahorijan T. E. along with PW-4, Paulush Guria were returning with cash from Dimapur. When they reached near the Tea Estate, a gang of 7/8 persons over-powered them and snatched away Rs. 3,300/- from PW-4, Paulush Guria, at pistol point. Some nearby persons including PW-3 and pW-5 raised alarm, chased the gang and a few personnel of the 4th Assam Police Battalion rendered help and one of them caught a person, later identified as Monbahadur Thapa. The police arrested Monbahadur and an Ejahar was lodged by Loknath Mukherjee wherein the name of the accused appears. The police, on completion of investigation, submitted a charge-sheet against the appellant and Monbahadur Under Section 395/397 IPC The prosecution examined as many as 9 witnesses. The case was tried by the Additional Deputy Commissioner, Karbi Anglong at Diphu under 'The Rules for the Administration of Justice and Police in Mikir Hills District'. Both the ap-' peliants were convicted Under Section 395/ 397 I. P. C, and each sentenced to five years R. I. Dhira Choudhury the appellant has preferred this appeal.
3. Mr. P. Das Gupta, learned Counsel for the appellant, advanced weighty arguments dealing with circumstantial evidence. Counsel contended that there was no legal evidence against the appellant, The learned Counsel made two-pronged assault on the evidence. Counsel submitted that the alleged circumstantial evidence, the foundation for conviction, was neither 'evidence' nor circumstantial evidence as the facts alleged and proved were not compatible with the guilt of the appellant. Counsel has also pointed out that the learned Magistrate admitted and used inadmissible evidence when he used the statements of Loknath Mukherjee who had died before the commencement of the trial. Counsel submitted that the statements in the Ejahar was not substantive evidence and could not be so used to bear up the prosecution case. Counsel further submitted that the said statement of late Loknath Mukherjee about his claim of recognition stood completely demolished and wrecked by the testimony of the witnesses examined by the prosecution as none of them affirmed that late Loknath Mukherjee could name or place any culprit at or about the time of the occurrence,
4. The allegation against the accused is dacoity. It is the bounden duty of the prosecution to prove beyond reasonable doubt that (1) robbery was committed or attempted, (2) five or more persons committed or attempted to commit the robbery; (3) such persons acted conjointly and the appellant was one of such persons who had acted conjointly.
5. Counsel for the appellant rightly did not contest the factum of commission of dacoity. The focal point, according to the learned Counsel, is whether the accused was one of the decoits.
6. 'They also serve,' in commission of dacoity. 'who stand and wait' to facilitate assist or come-in-aid to the dacoits, if need be. However, innocent by-standers cannot be dubbed as dacoits. In the absence of any trace of intent to aid, assist or facilitate the commission of dacoity, mere suspicion cannot take the place of proof. It is not possible to infer things which are not in evidence. Some overt act or omission must be there, from which one can reach a judicious conclusion that the by-stander was a member of the gang of dacoits, for all intents and purposes. 'Suspicion amongst thoughts are like bats anfong the birds; they ever fly by twilight' said Becon. When we roam in twilight zone we are prone to accept suspicious facts and circumstances as sure proof of guilt. Suspicious mind reigns in the 'twilight.' In the twilight, half-light or nightfall we see things, imagine things and accept unreal or vague, imagined or imaginary as apparent and real. Therefore, it is the duty of the prosecution to take the case from the twilight zone to day-break where one can see things clearly, where there is no scope to accept 'open to doubt,' dubious and shady things as above board, clear and unsuspicious. No conviction can be sustained on open to doubt, doubtful and incredulous material.
7. It is indubitable that only two witnesses have deposed about the alleged circumstantial evidence against the appellant. They are P.W. 3. Harkhrishna Dev and PW-5 Samar Dutta. The condensation of their testimony is that (1) the appellant was seen standing about 150 feet away from the place of stick-up; (2) the appellant is son of an ex-tea garden workman of Lahorijan T. E-; (3) the appellant was known to them from before; (4) the appellant did not take any precaution to cover his identity and was seen standing openly in broad daylight; (5) the place where the appellant was standing was also frequented by others including PWs-3 and 5 and there was nothing abnormal for the appellant to be at the place of occurrence; and, (6) when the witnesses shouted 'Dacoits, Dacoits' the appellant ran away, not along with the accused or towards the accused, but, towards a different direction. None of the witnesses had any reason to suspect the appellant as a member of the gang, nor had they noticed any overt or covert act or omission of the appellant. As the accused was found 150 feet away from the place of incident, the learned Magistrate concluded that it was a circumstantial evidence sufficient to carry home the charge of dacoity against the appellant.
8. Now, let us consider the true meaning of the expression, 'circumstantial evidence.' In other words, what is the nature and character of circumstantial 'evidence' in law. The moot question is whether the very fact that the accused was standing about 150 feet from the place of occurrence by itself was sufficient to hold that he was a member of the gang of dacoits. Nobody saw the appellant taking any part in the dacoity. None saw him abetting, assisting or instigating or facilitating the commission of the offence in any form whatsoever. If we turn to the conduct of the appellant, we find that there was nothing abnormal. He stood in open day light, though known to all and sundry. His action and conduct never roused any suspicion in the minds of the two witnesses who saw him standing. They never stated that the appellant was a party to the dacoity.
9. Circumstantial evidence means a fact on which an inference is to be founded; it is the testimony of a witness to other facts, that is, facts other then those in issue which are relevant facts from which the fact in issue may be inferred. In order to be a circumstantial evidence, the facts themselves must be closely knitted with each other and must form a strong body which must carry conviction to the mind of a Judge. It may be proof of mere 'satisfactory sort'. Evidence which proves or tends to prove the 'factum probandum' indirectly, by means of certain inferences or deductions to be drawn from its existence and their connection with 'facts probantia', is 'circumstantial evidence.' We infer or presume things from collateral circumstances. Therefore the nature of the evidence is often styled as 'collateral evidence', it is often stated that circumstantial evidence cannot lie, but it is not true for all occasions, as appears from every day experience, as circumstances do lie cruelly. The innocent often succumbs to the unfounded suspicious circumstances which appear to tell strongly against him, the true bearing of which the accused has neither the opportunity nor often the means to explain. Circumstantial evidence has its peculiar excellencies and defects. Some of the golden principles governing admissibility and use of circumstantial evidence are;
(1) The facts alleged as the basis of any legal inference must be clearly proved and connected with the 'factum probandum:'
(2) The burden of proof is always on the party who asserts the existence of any fact which infers legal accountability:
(3) In all cases, whether direct or circumstantial, the best evidence must be adduced which the nature of the case admits;
(4) In order to justify the inference of guilt the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt; and,
(5) If there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.
10. From the evidence of the prosecution witnesses we find that PW-3, Harekrishna Dev and FW-5, Samar Dutta were present at the time of incident. PW-4, Paulush Guria, was the escort from whom cash was looted. PW-3 Phanindra Ghose turned up at the scene immediately after the occurrence. None of them said that the name of the appellant had been alluded to by anybody, either as a dacoit or as a suspect. Late Loknath Mukherjee was the other victim of the dacoity. Nobody testified in court that Loknath Mukherjee could name the appellant as one of the dacoits or even as a suspect. Therefore, we find that none of the prosecution witnesses stated that— (l) the appellant was one of the dacoits, or (2) that he was a suspect. None of the living witnesses stated that they had ever suspected the appellant as one of the dacoits or had noticed the appellant abetting or aiding or assisting the dacoits. Even the persons who saw the appellant standing never claimed that they had any suspicion on the appellant as a person involved in the dacoity. The learned Magistrate overlooked all these facets to brand the appellant as dacoit, as he was standing about 150 feet away from the place of occurrence, oblivious of the fact that pWs. 3 and 5 were also at a distance of about 200 feet. Therefore, standing somewhere near the place of occurrence in the setting was not a circumstance to establish the guilt of the appellant. There was nothing unnatural or abnormal for the appellant t0 be near the tea estate, presence of the appellant near the scene of occurrence by itself was neither culpable nor blameworthy to impute criminal intent to the appellant, Fleeing away after hearing alarms 'Dacoits' Dacoits' was a natural reaction of a young person in his late teens. Judged by applying the test of human probabilities we find the conduct as innocent. As judges of facts, we cannot infer things or pluck something which is not there and use our wings of imagination to drew adverse inferences against the appellant at the first possible opportunity. Science has not invented any gadget or mechanical device to test human minds. The apparent must be considered as real until it is shown that reasons exist to believe that the apparent is not real. In dealing with criminal cases we must start with the presumption that the accused is innocent, as a corollary to the principle, we must start with some presumption of innocence while dealing with his action and conduct unless it is established that the innocent acts were not so but these are culpable, blame-worthy, nefarious, vicious or wicked, we must treat them as neutral factors. In criminal cases the onus is heavy as opposed to nominal because the burden of the prosecution is to prove its case beyond reasonable doubt. To justify an inference of guilt on the basis of circumstantial evidence, the inculcator fact must be incompatible with the innocence of the accused, and incapable of any explanation upon any other reasonable hypothesis that of guilt. If the prosecution story does not accord with human probabilities, it must be turned down. We cannot swallow any and every story paraded before us by the prosecution, a 'may be true case” is not enough, as the prosecution must bring its case into the domain of 'must be true case.' Judging the evidence before us by applying the test of human probabilities, we find that the prosecution has completely failed to bring home the charges against the accused on the basis of the alleged circumstances.
11. Therefore, what remains to be considered is the use and admissibility of the statement of late Loknath Mukherjee contained in the ejahar. It is strange how the ejahar, which was sent to the Officer-in-charge of Lahorijan Supply Check Post, Dimapur in Naga-land, could go to Bokajan Police Station in Assam without any endorsement on the ejahar. Shri I. Hussain, Officer-in-charge of Bokajan Police Station has not been examined to explain the mystery. Be that as it may, we find that there is a 'type-written' ejahar of late Loknath Mukherjee wherein it was stated that he could recognise the appellant as one of the dacoits. An ejahar is not a substantive evidence. Loknath Mukherjee could not be examined as a witness as he had died before the trial of the case. The statement is not admissible Under Section 32 of the Indian Evidence Act as it is not a statement as to the cause of death of any person nor it is admissible Under Section 33 of the said Act. Therefore, we conclude that it is not a substantive evidence. We hold that the learned Magistrate was wrong in using it as substantive evidence. Assuming that it was a substantive evidence, .the claim of recognition by Loknath was completely demolished by the prosecution witnesses as well as by the conduct of the author (late Loknath Mukherjee) at or about the time of occurrence. The dacoity was committed, police personnel came from a nearby check-post, one culprit was apprehended, many persons converged at the place of occurrence but Loknath remained mum throughout about the recognition. He did not tell anybody that he could place or recognise any of the culprits. Therefore, the so-called assertion of Loknath Mukherjee, in the ejahar stands completely wrecked by the oral evidence of PWs. 2, 3. 4 and 5. It is hardly possible to place any reliance on the statement of Loknath Mukherjee in the ejahar in view of absence of any corrobora-tion emanating from any witness about his alleged claim of recognition. Silence of Loknath is eloquent enough to conclude that he could not recognise the appellant.
12. The irresistible conclusion is that the prosecution has failed to establish any case against the appellant beyond reasonable doubt, so he was given his entitlement, that is, benefit of reasonable doubt and was acquitted of the charges on 16-9-1981.