In a matter of circumstantial evidences, the law doesn’t require a particular number of circumstances to establish the chain, it only depends on nature: Bombay High Court

 on 09 04 2021 on 13 04 rsk 1 23APPEAL 974 19.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAYCRIMINAL APPELLATE JURISDICTIONCRIMINAL APPEAL NO. 974 OF 2019Sandip Baburao WaidandeAge: 35 years R o. Banpuri Taluka Atpadi District Sangli.….Appellant VersusThe State of MaharashtraThrough Kurlap Police Station District Sangli.….RespondentMr. Amit Manefor the appellant.Mrs. M. M. Deshmukh learned APP for the Respondent. CORAM : PRASANNA B. VARALE & S. M. MODAK JJ.RESERVED ON : 3 MARCH 2021PRONOUNCED ON : 9 APRIL 2021JUDGMENT :31503 2007AIR BOM R 552 on 09 04 2021 on 13 04 rsk 5 23APPEAL 974 19.odtmade before us. Hon ble Supreme Court has already laid downgolden principles while appreciating circumstantial evidence. Theystill holds good. So the following are the principles: a)The circumstance relied upon must be fully established.b)They must be consistent with the hypothesis of guilt of theaccused.c)They should be conclusive in nature. Only inference about guiltof the accused is to be inferred.d)There should be complete chain of evidence so as not to leadany doubt about involvement of the accused.11.So we have to apply these principles to the facts before us. TrialCourt while convicting the appellant has blamed the accused for notgiving explanation also considered evidence on the point of motivesatisfactorily and has also drawn an inference against the accused fornoticing blood of group B on his shirt. We have read the findings ofthe Court. We think trial Court committed fault on two aspects firsttrial Court has forgotten the difference between suspicion and proof.Secondly trial Court forgotten to put to the accused circumstance of last seen together as evidenced by PW 2 first informant. So for thesereasons we are inclined to set aside the conviction. We will givereasons hereinafter. The findings of the trial Court are as follows:ON THE POINT OF LAST SEEN TOGETHER12.On the basis of evidence of PW 2 Bhausaheb first informant trial Court believed last seen theory. As deceased and accused are on 09 04 2021 on 13 04 rsk 6 23APPEAL 974 19.odthusband and wife their joint company is considered natural. That iswhy trial Court casted burden on accused to explain probable cause ofdeath of deceased. Trial Court referred to Section 106 of the EvidenceAct. Trial Court considered it as an additional link in chain ofcircumstancesof the constitution. At the same time Court42009 AIR(Supp) 654 on 09 04 2021 on 13 04 rsk 11 23APPEAL 974 19.odtis not debarred from considering the answers given by the accused.These were the provisions existing earlier to 2009. AMENDMENT28.In order to achieve the involvement of the prosecutor as well asthe defence counsel Court may take their help in preparing relevantquestions. Even filing of a written statement by the accused has beenstatutorily recognized. It is by way of incorporating sub sectiontoSection 313 of Code of Criminal Procedure. We have to address to thegrievance about failure to put questions in the light of this amendedsub section. Mean to say that by incorporating such provisionwhether the accused cannot make a grievance of not putting thequestion On this issue no direct judgment has been placed before us.29.There are numerous occasions for the Courts to consider thewritten statement filed by the accused in the light of Section 313 ofthe Criminal Procedure. The question of interpretation of Section 313sub sectionhad arisen under different circumstances. In case ofUnited Phosphorus Ltd. v s. Sunita Narain & anr.5 Delhi High Courtdealt with the question of dispensing from the personal appearance ofthe accused for the purpose of examination and instead permitted himto file written statement. Court has refused to interfere in the ordergranting exemption to an accused in a prosecution involvingsummons case. Whereas in the case of Mintu Dubey v s. Union ofIndia through SP CBI Jabalpur6 Madhya Pradesh High Court has52001 Cri. L.J. 207762017 Cri.L.J.1185 on 09 04 2021 on 13 04 rsk 12 23APPEAL 974 19.odtdealt with an appeal against conviction. Therein the appellant hassubmitted a written reply as provided under Section 313(5) of theCode of Criminal Procedure. That was a case arising out of thePrevention of Corruption Act. On the basis of examination andwritten statement filed under Section 313(5) of the Code of CriminalProcedure High Court of Madhya Pradesh has dealt with appealagainst conviction. Court was required to decide whether theexplanation given by the accused can be considered or not.30.This Courtin the case of Mrs.Fatima C.Fernandes Vs. State of Goa7 has taken a note of filing of written statement as contemplated under Section 313(5) of the Code ofCriminal Procedure. That was an appeal against conviction underSection 302 of IPC.31.In the case of Mahesh Mahadev Tari v s. State of Goa8 thisCourt while dealing with an appeal against conviction under Section302 of IPC has considered the fact of filing of written statement underSection 313(5) of the Code of Criminal Procedure.32.However the issue of causing prejudiceneeds to be decided in the light of the newly inserted sub sectionto Section 313 of the Code of Criminal Procedure. Nodoubt it is true that this sub section is inserted so that assistance ofthe prosecutor and defence can be taken for preparing the questions72018 ALL MR95082018 ALL MR788 on 09 04 2021 on 13 04 rsk 13 23APPEAL 974 19.odtto be put to the accused. Whether it is mandatory or directory to takeassistance If we read the wordings of sub section we can find thatthe word ‘may’ has been used. If we take the literal meaning of theword ‘may’ we can find that taking the assistance by the Court canonly be said to be directory. If it is to be considered directory itmeans Court may take assistance or Court may not take assistance. IfCourt has chosen not to take the assistance it means Court has notavailed of that assistance. If it is so then one cannot have a grievancethat other side cannot make a grievance about omission to putquestions. This is one angle of looking to the question. There isanother angle also. If sub sectioncontemplates taking of theassistance by the Court it does not mean to say that the Prosecutor orthe defence counsel cannot on their own can offer assistance If suchassistance is offered no doubt any Court will not refuse to accept suchassistance.33.Coming to the facts of the case we have perused the recordwith assistance of both the sides. Nothing is pointed out to us byeither of the side that Court has taken assistance or the Prosecutor ordefence has offered any assistance to the Court. On this backgroundthere is a reason to believe that neither the Court nor both the sideshave taken cognizance of this newly inserted sub section. In view ofthis it may not be proper to decide the grievance of omission to putquestions in the light of newly inserted sub section. So the grievanceneeds to be decided in the light of interpretation given in thejudgments referred herein above. on 09 04 2021 on 13 04 rsk 14 23APPEAL 974 19.odt34.Question also arises whether this Court can remand the matterback to the trial Court for the purpose of putting that circumstance tothe accused There are various judgments on this issue. In some ofthe judgments the Court has refused to remand the matter. Whereasin few other cases Court has remanded the matter. Similar situationarose before Hon’ble Supreme Court in case of Nar Sing Vs. State ofHaryana reported in1 SCC 496. Question was raised beforeSupreme Court about not putting the forensic science laboratoryreport to the accused. It was a case based on circumstantial evidence.Though the analysis of the report was not put to the accused the trialCourt as well as High Court consider it as one of the circumstance.Hon’ble Supreme Court after taking overview of different judgment was pleased to remit back the matter before the trial Court withdirection to record fresh statement of the accused. While consideringvarious courses available before the trial Court in such a situation following courses of action were shortlisteda)The Appellate Court can examine the accused and shall considerthe answers.b)The Appellate Court can hear and decide the matter upon themerits if Appellate Court finds that no prejudice is caused orthere is no failure of justice.c)If there is failure of justice or prejudice retrial from the stageof recording of statement can be ordered.d)The Appellate Court can decide the appeal on its merits bydeclining to remit the matter and by considering the prejudice if any caused to the accused. on 09 04 2021 on 13 04 rsk 15 23APPEAL 974 19.odt35.Considering the facts of the case Hon’ble Supreme Court hasdecided to opt for the option of remitting the matter to the trial Court.If we consider the various judgments referred in the said judgment we can find that there is no straight jacket formula for deciding whichcourse of action can be adopted. So ultimately it remains a questionof fact. In a case before us we are not inclined either to remit thematter or to put the questions to the accused. We are inclined todecide the matter on merits. There are reasons for taking this courseof action. The accused is behind bar from 4th January 2016 i.e. almostfive years have expired. Secondly even if the circumstance of lastscene together is considered we do not think that other circumstancesare sufficient enough to prove the guilt of the accused i.e. neitherrecovery at the instance of the accused nor there is direct evidence.Even evidence on the point of motive is insufficient. So certainly weare of the opinion that prejudice is caused to the accused. The aboveobservations are on the basis of the facts of this case.36.It is an admitted fact that questions were not put to the accusedin 313 statement on the basis of facts stated by PW No.2 the firstinformant. It is certainly the duty of the Court to put the questions onthe basis of incriminating materials. The trial Court has not put thoserelevant questions. It may not be proper to use that incriminatingmaterial as evidenced in the testimony of PW No.2 and use it againstthe accused unless it is put to him. Certainly it has caused prejudiceto the accused. He has been denied opportunity to give an on 09 04 2021 on 13 04 rsk 16 23APPEAL 974 19.odtexplanation. Hence that circumstance as appearing in the evidenceof PW No.2 has to be excluded from the evidence.MOTIVE37."Suspecting the character of the deceased" is the motivesuggested by the prosecution. PW 4 Muktabai Pandharinath Landage mother of the deceased is the only witness examined. She had a talkwith deceased 2 days earlier to the incident on phone. There thedeceased disclosed about "accused suspecting the character of thedeceased and beating her" The trial Court gave following findings:"Trial Court believed the evidence of the mother. It isbut natural for the deceased to disclose aboutharassment to the near and dear one. While arriving atthis conclusion trial Court also referred to the opinionof first informant PW 2 Bhausaheb about cordialrelations in between the spouses. But it is not accepted(paragraph 24)"38.On minute scrutiny of the evidence of mother we can find thatshe has narrated the disclosure made during telephoniccommunication. Motive is the purpose reason for which offence iscommitted. Motive crops up in the mind of the culprit. We canunderstand the motive only when it is manifested by some conduct. Ifthe accused scolds become angry and even beats the deceased it ismanifestation. A person may like or dislike the act conduct ofanother. There are ways to protest. So also it depends upon tolerance on 09 04 2021 on 13 04 rsk 17 23APPEAL 974 19.odtlimit of person. A trifle act may make another person angry and ablunder may not make a person angry. So it is difficult to opine whichobjectionable acts may compel another to take law into his own hand.39.No doubt man always wants his wife to be loyal to him and ifwife has shifted loyalty towards another person her husband neverlikes. It is true for wife also. Coming to the evidence part there issolitary incident of telephonic communication. PW 4 Muktabai is noteyewitness to this beating by the accused. Except her there is no otherwitness. We are told that there are witnesses whose statements arerecorded by police during investigation on this point but they werenot examined. Let us not talk about what is not there. But even whatis there according to us is insufficient to believe about reason forscolding. The opinion of group head PW 2 Bhausaheb about cordialrelations is also important. He resides in the immediate vicinity. TrialCourt wrongly inferred about motive as proved. We disagree with thesame.ARREST OF ACCUSED40.The incident took place in the intervening night of 29 12 2015and 30 12 2015. The accused was not found at the spot. He came tobe arrested by Police Constable PW 8 Mithun Pardhi. He was attachedto Atpadi Police Station. When accused came in their territory witnessarrested him . He noticed blood stains on the clothes of accused.They were in soaked condition. He brought him to police station andinformed to Kurlap Police station where offence is registered. on 09 04 2021 on 13 04 rsk 18 23APPEAL 974 19.odt41. Whereas PW 11 Police Head constable Bokad from KurlapPolice Station went to Atpadi Police Station on 4 1 2016 and arrestedaccused. While appreciating the evidence of PW No.8 Police NaikPardhi the Court has rightly excluded the facts allegedly stated by theaccused to him at the time of taking him into custody. This factpertain to the incident that took place in the intervening night on 29thDecember 2015 and 30th December 2015. Those facts suggestconfession given by the accused. In every eventuality that has to beexcluded being stated to police.42.It is very well true that after noticing accused near Bankpuri andafter confirming the identity of the accused the witness Pardhi hasnot prepared any document. One may understand that it might nothave clicked him. Even nothing is tendered in evidence about givingof a report by him to higher police officers once he brought theaccused to Atapadi police station. It is also admitted fact that witnessPardhi has not prepared any arrest panchnama. It has also not comein evidence that except giving oral intimation on a telephone toKurlap police station witness Paradhi has not made anycorrespondence. 43.Even when witness police Hawaldar Bokad PW No.11 when hereached Atapadi police station it has not come in the evidence of boththese witnesses that any written communication is made in betweenthem. Witness Bokad simply went to police station Atapadi and gave on 09 04 2021 on 13 04 rsk 19 23APPEAL 974 19.odtreport and then took the custody of the accused. Admittedly saidreport is not tendered in evidence. He admits that while takingcustody from Aatapadi police station no panchnama is prepared.44.It simply means that except the bare words of these twowitnesses there is nothing in writing since the time PW No.8 noticedthe accused till the time of custody of the accused is handed over toPW No.11. Even PW No.13 PI Kamble investigating officer statedabout arrest of the accused on 4.1.2016. He does not say aboutpreparing the arrest panchnama. He referred about the letter givenby Atapadi Police Station but that has not been tendered in evidence.45.Police Officers are not layman. They are the officers having theresponsibility to carry out the investigation as per the police manualand as per the provisions of the Criminal Procedure Code. They needto substantiate their stand on the basis of documents which arecreated simultaneously.46.We find no explanation coming forward from the prosecutionfor not creating and not producing the single document to show thisentire arrest exercise. So we give least evidenciary value to what PWNo.8 has stated about noticing so called blood stains clothes of theaccused. It is at the time when he saw him at Aatpadi village. TrialCourt believed testimony of both the witnessesthe Hon ble Supreme Courthas dealt with the effect of time gap in between timing of last seentogether and timing of death. Merely because there is a huge time gapin between the timing of last seen together and probable timing ofdeath the evidence of last seen together can not be rejected in allcases. It is further observed that “when the time gap in between thepoint of time when both were found together alive and probabletiming of death is small than the possibility of any other person being on 09 04 2021 on 13 04 rsk 22 23APPEAL 974 19.odtwith the deceased can completely be ruled out”.(PRASANNA B. VARALE J.) 

Summary: Law does not require a particular number of circumstances so as to establish the chain. It altogether depends upon the nature of the transaction. In a particular case, there may be few circumstances that are strong enough which leads to the guilt of the accused. There may be more circumstances that may be relied upon by the prosecution. It depends upon the facts and circumstances of each case. This remarkable judgment was passed by the Bombay High Court in the matter of SANDIP BABURAO WAIDANDE V THE STATE OF MAHARASHTRA [CRIMINAL APPEAL NO. 974 OF 2019] by Honourable Justice Prasanna B. Varale and Justice S. M. Modak. This case was a criminal appeal filed against the judgment and conviction under section 302 of IPC by Sessions Judge and the HC was required to upon the issue of circumstantial evidence through a narrow compass since the issue involved in this appeal is whether the link in between the incident of murder and the accused is established on the basis of proved circumstances. In the present case, the accused and his wife were labourers and on the day of the incident, both the accused and deceased went from duty a little early due to the stomach pain of the accused and then slept. On next day when the first informant went to wake them up, he saw Nirmala’s dead body but did not notice the accused and went and lodged a complaint. Police arrested accused and filed a charge sheet for the offence punishable under Section 302 of IPC. The prosecution relied upon the circumstances of- Last seen theory, Motive, noticing soaked blood stains on the clothes of the accused and Absconding himself from the spot of the incident even though his wife is murdered. The Court in this regard stated that they will rely on the golden principles laid down for appreciating circumstantial evidence. “The principles are: –  The HC relied on the Supreme Court’s decision in State of Goa v. Sanjay Thakran, (2007) 3 SCC 755 and stated, “last seen circumstance has to be proved just like any other circumstance. The only difference is once the prosecution will prove that both the deceased and accused were found lastly together then certainly it is for the accused to explain about whereabouts or what has happened about his companion. In this exercise, the time of last seen and time of death also plays important role.” The Court observed that “Section 313 of the Code of Criminal Procedure empowers the Court to put questions in two eventualities. One is optional and it may be at any stage of the proceeding. Whereas 2nd is mandatory and it is after prosecution witnesses were examined” and decided to neither remit the matter nor put the questions to the accused since “the circumstance of the last seen together is considered, we do not think that other circumstances are sufficient enough to prove the guilt of the accused i.e., neither recovery at the instance of the accused nor there is direct evidence. Even evidence on the point of motive is insufficient. So, certainly, we are of the opinion that prejudice is caused to the accused.” Additionally, High Court found the Trial Court’s decision about the arrest of the accused to be flawed since there were no supporting documents. Also, the Bench stated that, “merely because there was a huge time gap in between the timing of last seen together and probable timing of death the evidence of last seen together could not be rejected in all cases.” Thus, on basis of analyzing the witnesses and the prosecution and accused statements and submissions, the Court stated, “Prosecution had sufficiently proved the circumstances of last seen together. However, the Court opined that the circumstance of motive is not proved and evidence on the point of arrest and seizure of clothes was not trustworthy. So, Court felt that the chain of circumstances was not established.”