[2012] 12 S.C.R. 299

ARVINDKUMAR ANUPALAL PODDAR

STATE OF MAHARASHTRA (Criminal Appeal No. 53 of 201 O)

JULY 26, 2012

[SWATANTER KUMAR AND FAKKIR MOHAMED

IBRAHIM KALIFULLA, JJ.]

Penal Code:

ss. 302134 and 201134 - Murder - Circumstantial evidence - Appellant stated to have killed his first wife - Trial court convicting him and his brother - High Court upholding the conviction of appellant but acquitting his brother - Held:

The circumstances are consistent leading to the hypothesis 0 of guilt of the appellant alone and none else and excluding every other hypothesis - The motive along with the chain of circumstances stood proved against the appellant go to show that the appellant alone was responsible for the killing of the deceased.

Evidence:

Circumstantial evidence - Conviction - Conditions to be fulfilled in a case of circumstantial evidence - Reiterated.

The appellant along with his brother (A-2) was F prosecuted for causing the death of his first wife. The case of the prosecution was that in the morning of 6.12.2001, the appellant and his brother were seen by PW- 1 and PW-6 going along with the deceased; that in the evening the two accused returned alone and their clothes G were found to have been blood stained. On the following day, i.e. 7.12.2001, the appellant was stated to have proclaimed that the deceased had run away from home.

In the morning of 8.12.2001, it was noticed that the 299 H

A appellant along with his family was in the process of

leaving the village. On information, the police reached the village. The appellant informed the 1.0. that he had killed his wife. At his instance, a blood stained knife was recovered and the dead body was fished out which was B found to have been partly eaten out by aquatic animals.

At the instance of A-2 the blood stained clothes were seized. The trial court convicted both the accused u/ss 302/34 and 201/34 IPC and sentenced them to imprisonment for life. The High Court acquitted A-2, but C maintained the conviction and sentence of the appellant.

Dismissing the appeal, the Court

HELD: 1.1 This Court in the case of Sharad Birdhichand Sarda* has held that in a case of D circumstantial evidence, the following conditions must be fulfilled:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established; the E circumstances concerned 'must or should' and not 'may be' established; it is a primary principle that the accused must be and not merely may be guilty before a court can convict him.

(2) the facts so established should be consistent only F 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 G nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved.

(5) there must be a chain of evidence so complete as

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MAHARASHTRA

not to leave any reasonable ground for the conclusion A consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." [para 11] [311-A-H; 312-A-B]

*Sharad Birdhichand Sarda v. State of Maharashtra 1985 8

(1) SCR 88 =1984 (4) SCC 116; and Shivaji Sahabrao Bobade v. State of Maharashtra 1974 (1) SCR 489 = 1973

(2) sec 793 - relied on

1.2 In the case on hand, the conviction of the appellant I based on circumstantial evidence. The C circumstances stated by the trial court and concretized by the High Court, in the instant case were: the deceased and the accused were last seen together on 06.12.2001 as per the version of PWs 1 and 6; the body of the deceased was recovered at the instance of the appellant D as stated by PW-7; the recovery by the 1.0. of the weapon, namely, the knife, from the place of occurrence, the knife containing blood stains; the nature of injuries found on the body of the deceased; as per the version of PW-5, the doctor who .conducted the post mortem, the death was homicidal and the injurie~ could have been caused with the weapon marked in the case; frequent quarrels between the deceased and the accused as stated by PWs 1 and 2; the theory of the deceased having run away from the matrimonial home not properly explained by the appellant apart from the fact that no steps were taken by him to trace his wife; the appellant wanted to flee from

the town itself and the clothes seized from the appellant were found containing human blood.

These circumstances, as held by the courts below, were all established without any doubt and were conclusive in G nature. They were not explainable with any other possibilities. [para 11-13] [312-H; 313-A-E]

1.3 The circumstances are consistent which lead to the only hypothesi~ of the guilt of the appellant alone and H

A none else and exclude every other hypothesis. They show that in all probabilities, the killing of the deceased could have been done .only by the appellant. The deceased was the first wife of the appellant and he had a clear motive to eliminate her since there were constant 8 fights between the deceased on the one side and the appellant and his second wife on the other, which he could not tolerate. The motive along with the chain of circumstances, which stood proved against the appellant, only go to show that the appellant alone was responsible C for the killing of the deceased. The appellant has miserably failed to show any missing link in the chain of circumstances demonstrated by the prosecution for the offence alleged against him. He did not dispute the identity of the body at any point of time nor did he state

0 anything in his statement u/s 313 CrPC, about the running away of his wife. If according to the appellant the deceased ran away from the matrimonial home he should have established the said fact to the satisfaction of the court as it was within his special knowledge. This Court is in full agreement with the conclusions of the High Court E and there is no reason to interfere with the same. [para 13 and 14] [313-E-H; 314-A-C]

Rukia Begum & Ors. v. State of Karnataka 2011 (4) SCR 711 = 2011 (4) SCC 779; Hanumant Govind F Nargundkar & Anr. v. State of Madhya Pradesh AIR 1952

SCR 1091 = 1952 SC 343; and Prithipal Singh & Ors v. State of Punjab 2012 (14) SCR 862 = 2012 (1) SCC 10 - relied on.

Govinda Reddy Krishna & Another v. State of Mysore - G AIR 1960 SC 29; Naseem Ahmed v. Delhi Administration 1974 (2) SCR 694 = 1974 (3) SCC 668; Mustkeem @ Sirajudeen v. State of Rajasthan 2011 (9) SCR 101 = 2011

(11) sec 724 - referred to.

ARVINDKUMAR ANUPALAL PODDAR v. STATE OF 303

MAHARASHTRA

Case Law Reference: A

1952 SCR 1091 relied on para 11

AIR 1960 SC 29 referred to para 11

197 4 (2) SCR 694 referred to para 11 B

. 1985 (1) SCR 88 relied on para 11

2011 (9) SCR 101 referred to para 11

2011 (4) SCR 711 relied on para 11 c

2012 (14) SCR 862 relied on para 14

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 53 of 2010.

From the Judgment & Order dated 24.04.2008 of the High o Court of Bombay in Criminal Appeal No. 564 of 2006.

Gopal Prasad for the Appellant.

Sachin Pitale (for Asha Gopalan Nair) for the Respondents.

The Judgment of the Court was delivered

FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1.

Accused No.1 is the appellant. The appeal is directed against

the judgment of the High Court of Bombay in Criminal Appeal F No.564 of 2006 dated 24.4.2008. By the judgment of the trial Court dated 25 & 28.11.2005 the appellant was convicted and sentenced to undergo life imprisonment apart from imposition of fine along with accused No.2 for offences under Section 302 read with Section 34, Indian Penal Code, and for causing disappearance of evidence under Section 201 read with G Section 34, IPC and fine of Rs. 5,000/-each was also imposed and in defauli to suffer further rigorous imprisonment in custody.

Both the accused preferred appeals before the High Court and the appeal preferred by accused No.2 in Criminal Appeal

A No.563 of 2006 was allowed and he was acquitted of the charges punishable under Section 302 and 201, IPC while the appellant's appeal came to be dismissed confirming the conviction and sentence imposed on him by the learned Sessions Judge.

2. The case of the prosecution was that deceased Sita Devi was the first wife of the appellant, that on the date of occurrence, namely, on 06.12.2001 at 8 a.m. the appellant was seen going along with the deceased Sita Devi and accused No.2, who is none other than his brother. According to C Sachidanand Baleshwar (PW-1) who is closely related to the deceased, the appellant told him that he is going with his wife for a stroll. It was stated that the appellant and A-2 were seen in the evening and the deceased was not with them at that time while their clothes were blood stained. On the next day, i.e. on D 07.12.2001, appellant stated to have proclaimed that the deceased ran away from the matrimonial home.

3. On 08.12.2001, it was noticed that the appellant and his family were in the process of leaving the village by packing all E their materials, the same was informed to Malvani police

station, that PW-3 Sub-Inspector of Police of Malvani police station went to the residence of the appellant by around 12 noon when he was informed that the deceased was missing for the last two days and that the appellant and his second wife F were planning to run away from the village. According to PW-

3 the appellant informed that he took the deceased on 06.12.2001 in the morning to Gorai Creek where she was killed by him with the aid of a knife. PW-3 stated to have forwarded the complaint based on the information gathered by him to G Borivali police station since the place of occurrence fell within their jurisdiction. All the papers stated to have been transferred around 1-1.30 p.m. along with the accused to the said police station.

4. Subsequently, at the instance of PW-4, A-2 was also H

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stated to have been apprehended through whom the clothes A were also seized. At the instance of the appellant, the dead body of the deceased Sita Devi was stated to have been fished out from Gorai Creek and the same was found to have been lying entangled in the weeds and parts of the body were <1lso found to have been eaten away by aquatic animals. PW-1 stated to have identified the body with the aid of toe ring and the petticoat of the deceased. The motive for the alleged offence was stated to be that both the wives of the appellant were indulging in frequent fights which irked the appellant and this ultimately resulted in the killing of his first wife Sita Devi.

5. The appellant and his brother A-2 were tried for offences under Section 302 read with Section 34, IPC as well

as Section 201 read with Section 34, IPC. As stated earlier while the conviction and sentence imposed on the appellant came to be confirmed by the impugned common order of the D High Court, the conviction and sentence imposed on the second accused came to be set aside for want of proof. For the prosecution, PWs 1 to 10 were examined and Exhibits 1- 26 were marked. W11en the accused were questioned under Section 313 Cr.P.C. they simply denied the offence alleged E against them. None was examined on the defence side. It was, therefore, based on the circumstances which linked the appellant to the death of the deceased, the conviction and sentence came to be imposed on him.

6. Assailing the judgment imugned in this appeal the learned counsel for the appellant contended that since the body

of the deceased was found in mutated condition; half of which was eaten away by aquatic animals, the identification of the same was not proved. Learned counsel, therefore, contended that the conviction of the appellant b<!_sed on such slender G evidence cannot be sustained. The learned counsel also contended that there were very many-missing links in the chain of circumstances a'nd, therefore, the conviction imposed on the appellant is liable to be set aide.

7. As against the above submissions, learned counsel appearing for the respondent State submitted that the appellant was last seen with the deceased on 06.12.2001 by PW-1, that he was also seen on the same evening with blood stained clothes when the deceased was not found along with him, that B at the instance of A-2 blood stained clothes were recovered as stated by PW-4 and that the theory of running away of the deceased from the matrimonial home was never pleaded before the Courts below. Learned counsel also contended that at no point of time the appellant disputed the identity of the body C of the deceased in the course of trial. It was, therefore, contended that if the deceased had run away from the matrimonial home, it was for the appellant to explain the said situation in a satisfactory manner which the appellant failed to do. Learned counsel, therefore, contended that the impugned D judgment does not call for interference.

8. Having heard learned counsel for the appellant as well as the respondent and having perused the judgment impugned in this appeal and all other material papers placed before us, we are also convinced that there is no merit in this appeal. The E chain of circumstances noted by the Court below and approved by the High Court were that the deceased was last seen on 06.12.2001 at 8 a.m. along with the appellant and his brother, that even according to the appellant he was going to Gorai Creek for a stroll with his first wife, namely, the deceased Sita F Devi, that when on the evening of the same day, the accused

alone returned leaving behind the deceased and their clothes were found to be blood stained they were questioned as to the whereabouts of the deceased to which the appellant stated that she ran away from the home. The knife used was stated to G have been recovered through the 1.0. PW-2, the landlady in her evidence stated that she used to hear the frequent fights of the appellant with the deceased Sita Devi, that when the appellant was making preparations to leave the village on 08.12.2001, on suspicion the information was sent to the police and, at the H instance of the appellant, the body of the deceased was

ARVINDKUMAR ANUPALAL PODDAR v. STATE OF 307

MAHARASHTRA (FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

recovered in a decomposed state from the Creek. PW-5 the A doctor who did the post mortem on 09.12.2001 at about 5.30 p.m. noted the following injuries:-

"Extemal Injuries:

Swelling and bloating of trunk eyes.

Eyes absent due to PM animal bites. Soft portions of face like lips, ear. nose, cheek portions eaten by animals.

Tongue inside mouth. There is a mouth gag of blouse C portion inside mouth inserted from left of mouth (comer).

Column 16-position of limbs

Lower extremities straight

Left forehead from elbow joint present and preserved but remaining portion up to shoulder joint muscular part eaten by animals.

Right humeros without muscles was present/lower E forehead absent missing.

A- Except cervical verterbra all neck soft tissues and organs missing.

B- Sternum alongwith ribs upto costo chondrar F junction missing.

- from U3 of oesohaus present.

1) 3 cm x 0.5 cm incised would cut mark seen over G C4/5 verterbra body obliquely placed inflittration staining s.een at the marginer.

2) 1.0 cm x 0.5 cm IW of 0.5 cm x 0.5 cm over middle phalex of left thumb over palmer surface.

A Internal injuries:

1) Brain

Membrance loose, matter softened due to advanced decomposition. Liquefying stag.

Thorax walls, ribs, cartilages absent as 17,13 order ribs loosed out and displaced.

Pleura, Larynx, Trachea and Bronchi missing due to nimal bites.

Abdomen-stomach and its contents

U3 onwards preserved alongwith stomach

The following items were kept back for C.A. and blood grouping:

1. Stomach and intestine

2. Liver/Spleen/Kideny for C.A.

3. Hairs, two teeth alongwith roots and lower end of hammerous bones for blood grouping.

4. skull preserved for superimposition technique."

9. According to PW-5, the death of the deceased was due to the cut injury in her throat and neck and the other injuries which were found to be fatal. He also opined that such injuries could have been caused by a sharp edged weapon like the one marked in the case. The suggestion that the injuries could have G been caused if the person had fallen on a blunt surface was 'denied'. The clothes seized from the appellant were found to contain human blood.

10. The circumstances narrated above clearly establish the guilt of the appellant in the killing of the deceased who was his H first wife and he had a clear motive to eliminate her since there

ARVINDKUMARANUPALAL PODDAR v. STATE OF 309

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were constant fights between the deceased on the one side A and the appellant and his second wife on the other which he could not tolerate.

11. As in the case. on hand conviction imposed on the appellantJs only based on circumstantial evidence, we feel that B the various decisions of this Court laying down the principles of appreciating the circumstantial evidence while imposing the sentence can be highlighted. The earliest case on this subject was reported as Hanumant Govind Nargundkar & Anr. v. State of Madhya Pradesh -AIR 1952 SC 343. In para 10, the position c has been succinctly stated as under:

"10. JOO( JOO( JOO( JOO(

It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which D the conclusion of guilt is to be drawn should in the first instance be fully established, aild 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 E be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a

.I 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 F that within all human probability the act must have been done by the accused. In spite of the forceful arguments addressed to us by the learned Advocate-General on behalf of the State we have not been able to discover any such evidence either intrinsic within Ex.P-3A or outside and G we are constrained to observe that the Courts below have just fallen into the error against which warning was uttered by Baron Alderson in the above mentioned case."

The decision in Hanumant Govind (supra) was followed in the Constitution Bench decision of this Court reported as H

A Govinda Reddy Krishna & Another v. State of Mysore - AIR

1960 SC 29. The said position was subsequently reiterated in the decision reported as Naseem Ahmed v. Delhi Administration - 1974 (3) SCC 668. In para 10 of the decision in Naseem Ahmed (supra), the legal position has been stated B as under:

"10. This is a case of circumstantial evidence and it is therefore necessary to find whether the circumstances on which prosecution relies are capable of supporting the sole inference that the appellant is guilty of the crime of which he is charged. The circumstances, in the first place, have to be established by the prosecution by clear and cogent evidence and those circumstances must not be consistent with the innocence of the accused. For determining whether the circumstances established on the evidence raise but one inference consistent with the guilt of the accused, regard must be had to the totality of the circumstances.

Individual circumstances considered in isolation and divorced from the context of the over all picture tmerging from a consideration of the diverse circumstances and their conjoint effect may by themselves appear innoc1Jous. It is only when the various circumstances are C<Jnsidered conjointly that it becomes possible to under, stand and appreciate their true effect. If a person is seen running away on the heels bf a murder, the explanation that: he was fleeing in panic is apparently not irrational. Blood stains on the clothes can be attributed plausibly to a bleeding nose. Even the possession of a weapon like a kriife can be explained by citing a variety of acceptable a~1swers.

But such circumstances cannot be considered in watertight compartments. If a person is found running away from the scene of murder with blood-stained clothes and a knife in his hand, itwould in a proper context, be consiste.nt with the rule of circumstantial evidence to hold that he had committed the murder."

ARVINDKUMAR ANUPALAL PODDAR v. STATE OF 311

MAHARASHTRA [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.)

In the decision reported as Sharad Birdhichand Sarda v.

A State of Maharashtra -1984 (4) SCC 116, this Court has laid down the cardinal principles regarding appreciation of circumstantial evidence and held that whenever the case is based on circumstantial evidence, the following features are required to be complied with which has been set out by this B Court in para 153 at page 185 which reads as under:

"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may o be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji

Sahabrao Bobade v. State of Maharashtra where the following observations were made [SCC para 19, p.807: E sec (Crl.) p. 1047].

Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.

(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 G 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 H

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."

The above principles have been followed and reiterated in the recent decision of this Court reported as Mustkeem @ Sirajudeen v. State of Rajasthan -2011 (11) SCC 724.

In the decision reported in Rukia Begum & Ors. v. State of Kamataka -2011 (4) SCC 779, this Court again restated the principles as under:

"17. In order to sustain conviction, circumstantial evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused.

Such evidence should not only be consistent with the guilt of the accused but inconsistent with his innocence. No hard-and-fast rule can be laid to say that particular circumstances are conclusive to establish guilt. It is basically a question of appreciation of evidence which exercise is to be done in the facts and circumstances of each case.

18. Here in the present case the motive, the recoveries and abscondence of these appellants immediately after the occurrence point out towards their guilt. In our opinion, the trial Court as also the High Court on the basis of the circumstantial evidence rightly came to the conclusion that the prosecvtion has been able to prove its case beyond all reasonable doubt so far as these appellants are concerned."

12. When we apply the above principles to the case on hand, the circumstances stated by the trial Court and H concretized by the High Court, namely, were that the deceased

ARVINDKUMAR ANUPALAL PODDAR v. STATE OF 313 fv1AHARASHTRA [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.)

and the accused were last seen together on 06.12.2001 as per A the version of PWs 1 and 6, the body of the deceased was recovered at the instance of the appellant as stated by PW-7, the recovery of knife by the 1.0. from the place of occurrence, the frequent quarrels between the deceased and the accused as stated by PWs 1 and 2, the theory of the deceased having B run away from the matrimonial home not properly explained by the appellant apart from the fact that no steps ere taken by him to trace his wife, the weapon used, namely, the knife containing blood stains, that the nature of injuries found on the body of the deceased, that as per the version of PW-5, the post C mortem doctor, the death was homicidal and that the injuries could have been caused with the weapon marked in the case , that the appellant wanted to flee from the town itself and that the clothes seized from the appellant were found containing human blood.

13. When the above .circumstances relied upon by the Courts below for convicting the appellant are examined, we find that the principles laid down by this Court in the above referred

to decisions are fully satisfied. The circumstances narrated above , as held by the Courts below were all established without E any doubt and are conclusive in nature. They were not explainable with any other possibilities. The circumstances are consistent which leads to the only hypothesis of the guilt of the appellant alone and none else and the said circumstances exclude every other hypothesis and show that in all F probabilities, the killing of the deceased could have been done only by the appellant. The motive along with the chain of circumstances stood proved against the appellant only go to show that the appellant alone was responsible for the killing of the deceased. The appellant has miserably failed to show any G missing link in the chain of circumstances demonstrated by the prosecution for the offence alleged against him.

14. We are in full agreement with the above conclusions of the High Court and we find no good grounds to interfere with the same. As rightly argued by learned counsel for the H '

A respondent the appellant did not dispute the identity of the body at any point of time, that he did not state any thing in the course of 313 questioning about the running away of his wife and that there was no missing link in the chain of circumstances demonstrated before the Courts below. If according to the B appellant the deceased ran away from the matrimonial home he should have established the said fact to the satisfaction of the Court as it was within his special knowledge. In this context it will be worthwhile to refer to the recent decision of this Court reported as Prithipa/ Singh & Ors v. State of Punjab - 2012 C (1) SCC 10. In para 53, it has been held that a fact which is especially in the knowledge of any person then the burden of proving that fact is upon him and that it is impossible for the prosecution to prove certain facts particularly within the knowledge of the accused.

15. Having regard to our above conclusions, we do not find any merit in this appeal. The appeal fails and the same is dismissed.

R.P.

Appeal dismissed.