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CASE NO.:

Appeal (crl.) 367 of 1999

PETITIONER:

Vilas Pandurang Patil

RESPONDENT:

State of Maharashtra

DATE OF JUDGMENT: 06/05/2004

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT, J.

Appellant (also described as accused) calls in

question legality of the judgment rendered by a Division

Bench of the Bombay High Court holding the appellant

guilty for the offence punishable under Sections 302 and

404 of the Indian Penal Code 1860 (in short 'the IPC')

by reversing the judgment of acquittal rendered by the

Trial Court. Sentence of imprisonment of life and two

years respectively were imposed for the aforesaid two

offences.

Background facts which led to trial of the accused

are as follows:

Suman (hereinafter referred to as the 'deceased')

was the first wife of the accused. Since her

relationship with the accused and her in-laws was

strained she along with her 3 daughters Suvarana (PW-2),

Vanita (PW-4) and Vaishali and a son Vijay stayed

separately in village Sangli. In the said village in

another house, accused along with his second wife

Sushila, his parents and three brothers lived.

On 17.9.1983, the accused came to deceased's house.

At about 11.00 a.m. a quarrel between him and Suman took

place. The same was seen by Vanita (PW-4). Thereafter at

about 3.00 p.m. the same day, deceased went along with

the accused who was having a sickle and a rope to bring

fodder. In the evening, the accused returned alone to

the house and told Vanita (PW-4) that deceased had gone

to Nagaon Kavathe. The same evening at about 8.00 p.m.

the accused went to the house of one Yeshwant Pandurang

Jadhav (PW-6) and confessed to him that he had murdered

his wife. Later around 1.00 to 1.30 a.m. he went to the

house of the police Patil, Bhagwan Vithoba Patil (PW-5)

and also confessed before him that he murdered his wife

and had thrown the corpse into a well. Both Yeshwani

Jadhav and Bhagwan Patil are said to have asked the

accused to report the matter to the police. In the

morning Bhagwan Patil along with village Kotwal and some

others went to the well situated in the field of Bhimrao

Kadam and found the corpse of Suman floating on the

water inside it. He asked the village Kotwal to guard

it and himself proceeded to police station Tasgaon with

the accused. On 18.9.1983 at about 10.30 a.m. the

accused went to Tasgaon Police Station and gave

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information that his wife Suman accidentally died and

her corpse was floating in the well situated in the land

of one Bhimrao Kadam. On the said report (Ex. 29) a case

of accidental death was registered and investigation was

undertaken. During investigation, several materials were

collected and the charge sheet was filed.

In order to further its accusations, during trial

prosecution placed reliance on the evidence tendered by

ten witnesses. The accused pleaded innocence. Since

there was no eye witnesses to the occurrence,

prosecution relied on following circumstances in support

of its case. They are as follows:

1. Motive.

2. Conduct of the respondent immediately before

and after the incident;

3. Extra judicial confession;

4. Discovery of blood stained articles and

mangalsutra in the pointing out of the

respondents; and

5. Finding of the blood in the nail cuttings of

the respondent.

The Trial Court by a cryptic order held that the

circumstances were not substantially established and,

therefore, directed acquittal.

The State of Maharashtra questioned correctness of

the said judgment. By the impugned judgment the High

Court held that there was no proper application of mind

and that erroneous conclusions have been arrived at by

the trial court. Accordingly the conviction was made and

sentence imposed as afore-noted.

In support of the appeal, learned counsel for the

accused submitted that the Trial Court had analysed the

factual position and the evidence on record in detail.

Without being conscious of the fact that the appeal was

against the judgment of acquittal, the High Court placed

reliance on unimportant aspects and reversed the finding

of acquittal. It was pointed out that the alleged extra

judicial confessions were not admissible in law and the

conduct of accused or recoveries of articles or finding

of blood on the nail clippings of the accused on which

the High Court has placed strong reliance are really of

no circumstance.

In response, learned counsel for the State

submitted that the High Court has elaborately detailed

as to why it felt the conclusions of the Trial Court to

be erroneous. No infirmity in the conclusions has been

pointed out.

Before analysing factual aspects it may be stated

that for a crime to be proved it is not necessary that

the crime must be seen to have been committed and must,

in all circumstances be proved by direct ocular evidence

by examining before the Court those persons who had seen

its commission. The offence can be proved by

circumstantial evidence also. The principal fact or

factum probandum may be proved indirectly by means of

certain inferences drawn from factum probans, that is,

the evidentiary facts. To put it differently,

circumstantial evidence is not direct to the point in

issue but consists of evidence of various other facts

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which are so closely associated with the fact in issue

which taken together they form a chain of circumstances

from which the existence of the principal fact can be

legally inferred or presumed.

It has been consistently laid down by this Court

that where a case rests squarely on circumstantial

evidence, the inference of guilt can be justified only

when all the incriminating facts and circumstances are

found to be incompatible with the innocence of the

accused or the guilt of any other person. (See Hukam

Singh v. State of Rajasthan (AIR 1977 SC 1063), Eradu v.

State of Hyderabad (AIR 1956 SC 316), Earabhadrappa v.

State of Karnataka (AIR 1983 SC 446), State of U.P. v.

Sukhbasi (AIR 1985 SC 1224), Balwinder Singh v. State of

Punjab (AIR 1987 SC 350) and Ashok Kumar Chatterjee v.

State of M.P. (AIR 1989 SC 1890). The circumstances from

which an inference as to the guilt of the accused is

drawn have to be proved beyond reasonable doubt and have

to be shown to be closely connected with the principal

fact sought to be inferred from those circumstances. In

Bhagat Ram v. State of Punjab (AIR 1954 SC 621) it was

laid down that where the case depends upon the

conclusion drawn from circumstances the cumulative

effect of the circumstances must be such as to negative

the innocence of the accused and bring home the offences

beyond any reasonable doubt.

We may also make a reference to a decision of this

Court in C. Chenga Reddy v. State of A.P. (1996 (10) SCC

193), wherein it has been observed thus :

"21. In a case based on circumstantial

evidence, the settled law is that the

circumstances from which the conclusion

of guilt is drawn should be fully proved

and such circumstances must be

conclusive in nature. Moreover, all the

circumstances should be complete and

there should be no gap left in the chain

of evidence. Further, the proved

circumstances must be consistent only

with the hypothesis of the guilt of the

accused and totally inconsistent with

his innocence."

In Padala Veera Reddy v. State of A.P. (AIR 1990 SC

79) it was laid down that when a case rests upon

circumstantial evidence, such evidence must satisfy the

following tests:

1) the circumstances from which an

inference of guilt is sought to be

drawn, must be cogently and firmly

established;

(2) those circumstances should be of a

definite tendency unerringly pointing

towards guilt of the accused;

(3) the circumstances, taken

cumulatively, should form a chain so

complete that there is no escape from

the conclusion that within all human

probability the crime was committed by

the accused and none else; and

(4) the circumstantial evidence in order

to sustain conviction must be complete

and incapable of explanation of any

other hypothesis than that of guilt of

the accused and such evidence should not

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only be consistent with the guilt of the

accused but should be inconsistent with

his innocence."

In State of U.P. v. Ashok Kumar Srivastava (1992

Crl. LJ 1104) it was pointed out that great care must be

taken in evaluating circumstantial evidence and if the

evidence relied on is reasonably capable of two

inferences, the one in favour of the accused must be

accepted. It was also pointed out that the circumstances

relied upon must be found to have been fully established

and the cumulative effect of all the facts so

established must be consistent only with the hypothesis

of guilt.

Sir Alfred Wills in his admirable book `Wills'

Circumstantial Evidence' (Chapter VI) lays down the

following rules specially to be observed in the case of

circumstantial evidence: (1) the facts alleged as the

basis of any legal inference must be clearly proved and

beyond reasonable doubt 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

of direct or circumstantial evidence 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.

There is no doubt that conviction can be based

solely on circumstantial evidence but it should be

tested by the touchstone of law relating to

circumstantial evidence laid down by this Court as far

back as in 1952.

In Hanumant Govind Nargundkar v. State of M.P. (AIR

1952 SC 343) it was observed thus:

"It is well to remember that in cases

where the evidence is of a

circumstantial nature, the circumstances

from which the conclusion of guilt is to

be drawn should be in the first instance

be fully established, and all the facts

so established should be consistent only

with the hypothesis of the guilt of the

accused. Again, the circumstances should

be of a conclusive nature and tendency

and they should be such as to exclude

every hypothesis but the one proposed to

be proved. In other words, there must be

a chain of evidence so far complete as

not to leave any reasonable ground for a

conclusion consistent with the innocence

of the accused and it must be such as to

show that within all human probability

the act must have been done by the

accused."

A reference may be made to a later decision in

Sharad Birdhichand Sarda v. State of Maharashtra (AIR

1984 SC 1622). Therein, while dealing with

circumstantial evidence, it has been held that the onus

was on the prosecution to prove that the chain is

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complete and the infirmity of lacuna in the prosecution

cannot be cured by a false defence or plea. The

conditions precedent in the words of this Court, before

conviction could be based on circumstantial evidence,

must be fully established. They are :

(1) the circumstances from which the

conclusion of guilt is to be drawn

should be fully established. The

circumstances concerned must or should

and not may be established;

(2) the facts so established should be

consistent only with the hypothesis of

the guilt of the accused, that is to

say, they should not be explainable on

any other hypothesis except that the

accused is guilty;

(3) the circumstances should be of a

conclusive nature and tendency;

(4) they should exclude every possible

hypothesis except the one to be proved;

and

(5) there must be a chain of evidence so

complete as not to leave any reasonable

ground for the conclusion consistent

with the innocence of the accused and

must show that in all human probability

the act must have been done by the

accused.

It was rightly contended by learned counsel for the

State that the Trial Court had proceeded in the matter

rather casually and there was no proper application of

mind or even discussions regarding all the relevant

evidence on record. Since the Trial Court had failed to

properly analyse the evidence, the High Court was duty

bound to examine the matter in greater detail and to

record its conclusions. It is true that when on the

evidence brought on record two views are possible and

the Court has taken a view which is possible

interference by the Appellate Court would not be proper.

But where the consideration reflects total non-

application of mind, interference is not only desirable

but proper. We find that extra judicial confession which

was claimed to be before PWs 5 and 6, was unjustifiably

discarded by the Trial Court. The evidence of PW-6 was

discarded on the ground that he was not very close to

the accused and not a person on whom the accused could

repose confidence. It is brought on record that the

accused and PW-6 were in fact at earlier point of time

classmates and schoolmates. They also used to live

close to each other. Obviously, it is not impossible

that the accused could repose confidence on him. The

extra judicial confession before PW-6 was clear, cogent

and appears to have been made in the normal course

without any pressure. The conduct of the accused after

the incident and discovery of blood stained articles and

the mangalsutra have been established by tendering

cogent evidence. The presence of blood in the nail

clippings of the accused was also a vital circumstance.

As noted by this Court in Dayanidhi Bisoi v. State of

Orissa (2003 (9) SCC 310), the presence of blood in the

nail clipping may not be sufficient by itself to fasten

guilt on the accused; but when it is considered with

other evidence and found acceptable can provide

additional weightage to the prosecution case. The Trial

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Court did not seem to consider objectively the evidence

in the right perspective and had merely on surmises and

conjectures, without proper application of mind directed

acquittal. The High Court analysed the evidence in

greater detail and exhaustively having regard to the

perfunctory manner of consideration undertaken by the

trial Court. We find no infirmity in the reasoning

indicated by the High Court to discard the view of the

trial Court. The disclosure made in the post mortem

examination as to the nature of injuries found on the

body of the deceased- head, knee joints etc., would

belie the claim of drowning or death by suicide. The

cause of death as per medical opinion was stated to be

"shock due to big sub-dural hematoma of fracture of base

of the skull". Any affirmance of the judgment of the

trial Court in this case, by the first appellate Court

would have resulted in grave miscarriage of justice.

The judgment of the High Court though one of reversal

was well merited supported by sound reasons and based on

overwhelming evidence and therefore does not warrant

interference. Appeal is accordingly dismissed. The bail

bonds of the accused are cancelled and he shall

surrender to custody to serve remainder of sentence.