Case: Vijay Vs. State of Maharashtra

aware of the principle that in a case which depends wholly upon circumstantial evidence, the circumstances must be of such a nature as to be capable of supporting the exclusive hypothesis that the accused is guilty of the crime of which he is charged. That is to say the circumstances relied upon as establishing the involvement of the accused in the crime must clinch the issue of guilt very often circumstances which establish the commission of an offence in the abstract are identified as circumstances which prove that the prisoner before the Court is guilty of the crime imputed to him. An a priori suspicion that the accused has committed the crime transforms itself into a facile belief that it is he who has committed the crime. Human mind plays that trick on proof of the commission of 9 crime by resisting the frustrating feeling that no one can be identified as the author of that crime. In the case before us, there is no doubt that five persons were murdered. Unquestionably, every effort had to be made to find out who committed those murders. But the duty is not done by holding someone or the other guilty somehow or other. In the instant case, the circumstances attendant upon the incident militate entirely against the conclusion that the five murders were committed by the appellant. The very pattern of the crime belies that conclusion. We are unable to share the High Courts view that the evidence showing that the appellant was present with the deceased persons on the evening of Nov. 8, 1980 and he was then missing from there on the next morning proves the offences alleged against the appellant beyond any shadow of doubt. In support of its conclusion that the appellant had committed the murders, the High Court has even pressed into service the circumstances that the appellant was not present at the place from which the dead bodies were recovered the next morning. These are equivocal circumstances on which it is hazardous to base the conviction. Considering the aforesaid principle laid down by the Apex Court, in our view, the fact mentioned in Marg report. (Exh. 4. 9) to the effect that yesterday night by closing the door again went to sleep being of an incriminating character is inadmissible under Section 25 of the Evidence Act. ( 13 ) FURTHER, the Apex Court in the case of Prem Thakur v. State of Punjab (supra), where the accused was seen with others in the company of the deceased, observed that there was nothing unnatural in the appellant being in the company of them, and did not find the circumstance that the appellant was last seen in the company of the deceased, though accepted as proved, sufficient to draw an inference there from that the appellant therein had committed the murder. In the present case, admittedly besides the accused there were other members of his family in the house and, therefore, even if it is assumed that the accused was last seen in the company of the deceased, it cannot be inferred from the said circumstance that it was the appellant who committed the murder of his wife.( 14 ) ADMITTEDLY, a report on the basis of which Marg (Exh. 49) was registered has not been produced on record for the reasons best known to the prosecution. Similarly, an author of Marg (Exh. 49) has also not been examined. It is contended by the prosecution that Marg (Exh. 49) bears the signature of the accused but no specific question in this behalf was put to the accused when he was examined under Section 313 of Criminal Procedure Code. The portion yesterday night by closing the door again went to sleept appearing in the said Marg (Exh. 49) being of an incriminating character in our view is not admissible as is barred under Section 25 of the Evidence Act. In this view of the matter we find considerable force in the aforesaid submission made by Shri Daga the learned Counsel for the appellant/accused. We also find that the learned trial Judge erred in placing much reliance on the said Marg report (Exh. 49). It is well-established that inference of guilt can be justified only where all incriminating facts are found incompatible with the innocence of the accused. In the present case in our view, if this Marg report (Exh. 49) is discarded, then there remains no other clinching evidence on record to prove the complicity of the accused regarding the offence in question particularly when in support of his plea of alibi, the accused has adduced the evidence of D. W. 1 Kawdu Jadhav whose evidence in our view has been wrongly discarded by the learned trial Judge only on the ground that no petrol pump man where the accused purchased the petrol in that night was examined and no receipt for the purchase of petrol was produced by him on record. ( 15 ) IT is true that in F. I. R. (Exh. 39) on the basis of which the present crime was registered, the accused made a confessional statement that he himself committed the murder of his wife Mala. In this behalf the Apex Court has consistently held that a confessional statement made by the accused to the police which forms the basis of the F. I. R. is inadmissible under Section 25 of the Evidence Act. In Khatris case cited supra also the Apex Court took similar view. It is true that the trial Court has not placed any reliance on the aforesaid confessional statement made by the accused in F. I. R. (Exh. 39) and, in our view, rightly. So this document is also of no avail to the prosecution for establishing its case against the accused. ( 16 ) IN this view of the matter we find that the evidence which was led by the prosecution to prove its case was not such on the basis of which the appellant/accused could have been convicted.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]( 12 ) UNDISPUTEDLY the prosecution case basically hinges upon an important circumstance based on the theory of last seen together. It isthat in a case of circumstantial evidence where evidence of the accused and the deceased having been last seen together before the murder is relied upon and there is failure of the accused to satisfactorily account for the disappearance of the deceased the circumstance of the deceased having been last seen alive in the company of the accused will have to be taken as a circumstance of incriminating character. It is no doubt true that in Kanda Padayachis case cited supra on behalf of the State it is held by the Apex Court that on an admission of a fact however incriminating but by not itself establishing the guilt of the maker of such admission does not amount to confession and admissibility of such statement is not barred under Section 26. However, in Rhatris case cited supra on behalf of the appellant I accused, the Apex Court held that a confessional statement made by the accused to the police is inadmissible as is barred under Section 25 of the Evidence Act. Further, in a decision in Prem Thakur v. State of Punjab (supra) the Apex Court observed as under:117 The circumstances that the appellant was last seen in the company of the deceased can be accepted as proved but no inference can arise therefrom that appellant had committed their murder. The appellant was working with the deceased and others and there was nothing unnatural in the appellant being in the company of his companions on the evening before the murders were committed. In the present case admittedly, the prosecution depends wholly uponcircumstantial evidence and when the prosecution case hinges only upon circumstantial evidence then the Apex court in its aforesaid decision held in paragraph No. 11 as under: 11. The High Court could not but be aware of the principle that in a case which depends wholly upon circumstantial evidence, the circumstances must be of such a nature as to be capable of supporting the exclusive hypothesis that the accused is guilty of the crime of which he is charged. That is to say the circumstances relied upon as establishing the involvement of the accused in the crime must clinch the issue of guilt very often circumstances which establish the commission of an offence in the abstract are identified as circumstances which prove that the prisoner before the Court is guilty of the crime imputed to him. An a priori suspicion that the accused has committed the crime transforms itself into a facile belief that it is he who has committed the crime. Human mind plays that trick on proof of the commission of 9 crime by resisting the frustrating feeling that no one can be identified as the author of that crime. In the case before us, there is no doubt that five persons were murdered. Unquestionably, every effort had to be made to find out who committed those murders. But the duty is not done by holding someone or the other guilty somehow or other. In the instant case, the circumstances attendant upon the incident militate entirely against the conclusion that the five murders were committed by the appellant. The very pattern of the crime belies that conclusion. We are unable to share the High Courts view that the evidence showing that the appellant was present with the deceased persons on the evening of Nov. 8, 1980 and he was then missing from there on the next morning proves the offences alleged against the appellant beyond any shadow of doubt. In support of its conclusion that the appellant had committed the murders, the High Court has even pressed into service the circumstances that the appellant was not present at the place from which the dead bodies were recovered the next morning. These are equivocal circumstances on which it is hazardous to base the conviction. Considering the aforesaid principle laid down by the Apex Court, in our view, the fact mentioned in Marg report. (Exh. 4. 9) to the effect that yesterday night by closing the door again went to sleep being of an incriminating character is inadmissible under Section 25 of the Evidence14 ) ADMITTEDLY, a report on the basis of which Marg (Exh. 49) was registered has not been produced on record for the reasons best known to the prosecution. Similarly, an author of Marg (Exh. 49) has also not been examined. It is contended by the prosecution that Marg (Exh. 49) bears the signature of the accused but no specific question in this behalf was put to the accused when he was examined under Section 313 of Criminal Procedure Code. The portion yesterday night by closing the door again went to sleept appearing in the said Marg (Exh. 49) being of an incriminating character in our view is not admissible as is barred under Section 25 of the Evidence Act. In this view of the matter we find considerable force in the aforesaid submission made by Shri Daga the learned Counsel for the appellant/accused. We also find that the learned trial Judge erred in placing much reliance on the said Marg report (Exh. 49). It isthat inference of guilt can be justified only where all incriminating facts are found incompatible with the innocence of the accused. In the present case in our view, if this Marg report (Exh. 49) is discarded, then there remains no other clinching evidence on record to prove the complicity of the accused regarding the offence in question particularly when in support of his plea of alibi, the accused has adduced the evidence of D. W. 1 Kawdu Jadhav whose evidence in our view has been wrongly discarded by the learned trial Judge only on the ground that no petrol pump man where the accused purchased the petrol in that night was examined and no receipt for the purchase of petrol was produced by him on15 ) IT is true that in F. I. R. (Exh. 39) on the basis of which the present crime was registered, the accused made a confessional statement that he himself committed the murder of his wife Mala. In this behalf the Apex Court has consistently held that a confessional statement made by the accused to the police which forms the basis of the F. I. R. is inadmissible under Section 25 of the Evidence Act. In Khatris case cited supra also the Apex Court took similar view. It is true that the trial Court has not placed any reliance on the aforesaid confessional statement made by the accused in F. I. R. (Exh. 39) and, in our view, rightly. So this document is also of no avail to the prosecution for establishing its case against the16 ) IN this view of the matter we find that the evidence which was led by the prosecution to prove its case was not such on the basis of which the appellant/accused could have been convicted.