VILAS PANDURANG PATIL A v.

STATE OF MAHARASHTRA

MAY 6, 2004

[DOAISWAMY RAJU AND ARIJIT PASAYAT, JJ.] B

Penal Code, 1860-Sections 302 and 404-Murder-Prosecution for-Circumstantial evidence-Extra-judicial confession-Recovery of blood-stained articles at the behest of accused and presence of blood in his nail clippings-Acquittal by trial Court-On re-appreciation of evidence C conviction by High Court-On appeal, held: Conviction justified in view of the circumstances of the case.

Criminal Trial : D Circumstantial evidence-Evidentiary value and nature of-A crime can be proved by circumstantial evidence-The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans-ln such evidence guilt can be justified when all the incriminating facts are found to be incompatible with innocence of accused E or guilt of any other person-The circumstances have to be proved beyond reasonable doubt-The onus lies on the prosecution-Evidence Act, 1872.

Code of Criminal Procedure, 1973-Section 378-Appeal against acquittal-Interference of appellate Court-Scope of-Held : When on F evidence two views are possible and the Court has taken one view, interference by appellate Court is not proper-But when the view reflects total non-application of mind, interference is proper.

Appellant was alleged to have killed his first wife (the deceased).

Prosecution case was that the accused had gone with deceased but did G not return with her. He made extra judicial confession to PWs 5 and 6 of having killed his wife and thrown the dead body in a well. Next day accused gave information to police that his wife accidentally died and her body was found in a well. Blood stained articles were recovered and blood was found in the nail clippings of the accused. The cause of H

A death as per medical opinion was stated to be "shock due to big subdural hematoma of fracture of base of the skull". During trial accused pleaded innocence. Trial Court acquitted the accused holding that the circumstances of the case were not substantially established. High Court convicted him on reappreciating the evidence. Hence the appeal.

B Dismissing the appeal, the Court

HELD : I.I. Trial Court had proceeded in the matter rather casually and there was no proper application of mind or even discussions C regarding all the relevant evidence on r<!cord. Since the trial Court had failed to properly analyse the evidence, 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 D reflects total non-application of mind, interference is not only desirable but proper. 1404-F-G]

1.2. 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 E 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 F 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. 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 G other evidence and found acceptable, can provide additional weightage to the prosecution case. There is 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 H of drowning or death by suicide. The cause of death as per medical

V.P. PATIL v. STATE 397

opinion was stated to be "shock due to big sub-dural hematoma of A fracture of base of the skull". (404-H; 405-A-F)

Dayanidhi Bisoi v. State of Orissa, [2003) 9 SCC 310, relied on.

1 2.1. For a crime to be proved it is not necessary that the crime must B be sen 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. Circumstantial evidence is not direct to the C point in issue but consists of evidence of various other facts 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. (401-B-DJ

D 2.2. 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. The circumstances from which an inference as to the guilt of the accused is drawn have to be E proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. (401-E-GJ

2.3. Great care must be taken in evaluating circumstantial F evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. 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. (402-G-H; 403-A)

2.4. In circumstantial evidence the onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in the prosecution cannot be cured by a false defence or piea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence must be fully established. They are : (I) the H

A circumstance 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 B 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 C the act must have been done by the accused. [404-A-E)

Hukum 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; Ba/winder Singh v. Srate of Punjab, AIR (1987) SC 350; Ashok D Kumar Chatterjee v. State ofM.P., AIR (1989) SC 1890; Bhagat Ram v.

State of Punjab, AIR (1954) SC 621; C. Chenga Reddy v. State of A.P.,

[1996) 10 SCC 193; Padala Veera Reddy v. State of A.P., AIR (1990) SC 79; State of U.P. v. Ashok Kumar Srivastava, (1992) Crl. W. ll04; Hanumant Govind Nargundkar v. State a/MP., AIR (1952) SC 343 and E Sharad Birdhichand Sarda v. State of Maharashtra, AIR (1984) SC 1622,

relied on.

"Wills' Circumstantial Evidence" (Chapter VI), referred to.

f CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.

367 of 1999.

From the Judgment and Order dated 29.7.98 of the Bombay High Court in Crl.A. No. 358 of 1985.

G Sushi! Karanjkar and Vishwajit Singh for the Appellant.

Manish Pitale, S.S. Shinde and Ravindra Keshavrao Adsure for the

Respondents.

H The Judgment of the Court was delivered by

ARIJIT PASAYAT, J.: Appellant (also described as accused) calls A 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 oflife and two years respectively were imposed B 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 C 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 E 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 F 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 G proceeded to police station Tasgaon with the accused. On 18.9.1983 at about l 0.30 a.m. the accused went to T asgaon Police Station ar:d gave. 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 H

A 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 B innocence. Since there was no eye witnesses to the occurrence, prosecution relied on following circumstances in support of its case. They are as follows:

Motive.

Conduct of the respondent immediately before and after the incident;

Extra judicial confession;

D 4.

Discovery of blood stained articles and mangalsutra in the pointing out of the respondents; and

Finding of the blood in the nail cuttings of the respondent.

E The Trial Court by a cryptic order held that the circumstances were not substantially established and, therefore, directed acquittal.

The State ofMaharashtra questioned correctness of the said judgment.

By the impugned judgment the High Court held that there was no proper F 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 G 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 H 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 C 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 which D 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 E 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 UP. v. Sukhbasi, AIR (1985) F

SC 1224, Ba/winder Singh v. State of Punjab, AIR (1987) SC 350 and Ashok Kumar Chatterjee v. State of MP., 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 G 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.

A 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 E 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 only be consistent with the guilt of the accused but should be inconsistent with his innocence."

G 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 H 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 basi!i' of any

legal inference must be clearly proved and beyond reasonable doubt B 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, C upon any other reasonable hypothesis than that of his guilt; and (5) ifthere 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 D 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 MP., 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 F 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 G 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 H

SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is 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 B 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.

F 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 G 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 H 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 A 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 B 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 C 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 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 D 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- E 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 F 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.

K.K.T.

Appeal dismissed.