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CASE NO.: Appeal (crl.)  624 of 2001

PETITIONER: Harishchandra Ladaku Thange

RESPONDENT: State of Maharashtra

DATE OF JUDGMENT: 30/08/2007

BENCH: Dr. ARIJIT PASAYAT & P.P. NAOLEKAR

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO. 624 OF 2001

Dr. ARIJIT PASAYAT, J.    1.      Challenge in this appeal is to the judgment of the  Bombay High Court upholding the conviction of accused  appellant for the offences punishable under Sections 302 and  394 of the Indian Penal Code, 1860 (in short the ’IPC’).

2.      The trial Court i.e. learned Sessions Judge, Thane in  Sessions Case No.586/89 found the accused guilty of the  aforesaid offences and sentenced the accused to undergo  rigorous imprisonment for life and 5 years respectively with  default stipulation.  

3.      Background facts in a nutshell are as follows:

       On 1.7.1989 Dwarkabai (hereinafter referred to as the  ’deceased’) had gone to her field alongwith Sulbha (PW-2). As  the latter was fasting as it happened to be a Monday, she was  asked by the deceased to return home. Her son (PW-1) and his  brother had gone out for some other work. When they  returned they did not find their mother around 6.00 p.m. and  therefore PW-1 asked his wife (PW-2) as to where their mother  was. She replied that deceased had asked her to return home.  Then PW-1 and others searched for his mother but did not  find her that day and on the next two days and on 4.7.1989 he  went to his sister’s house and returned on 5.7.1989 when the  FIR was lodged of accidental death. Subsequently, on 6.7.89  the accused was arrested and recoveries of sickle, the weapon  of assault and some ornaments were made on the basis of the  alleged disclosure made by the appellant.  

       After completion of investigation charge sheet was filed  and the accused faced trial.  There was a motive indicated for  the commission of the crime i.e. threat given by the accused to  teach the deceased a lesson for not paying his dues. Certain  circumstances were highlighted by the prosecution to  substantiate its accusations. The trial Court found the  circumstances to be sufficient to fasten the guilt on the  accused and accordingly the conviction was recorded.  

4.      In appeal, the High Court affirmed the conviction and  sentence as afore-noted.  

5.      In support of the appeal, learned counsel for the

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accused-appellant submitted that there was no evidence to  link the accused with the crime. Recovery of the sickle was  discarded by the High Court. As the blood group of the  deceased and that of the accused was same, mere presence of  blood on the clothes of the accused was not sufficient to fasten  the guilt on the accused.  

6.      Learned counsel for the respondent-State on the other  hand submitted that not only the recovery of sickle made but  also the accused and the deceased were last seen together  around 12.30 p.m. Thereafter, the deceased was not seen  alive. According to him, circumstances highlighted by the trial  Court were sufficient to hold the accused guilty. The  circumstances highlighted by the trial Court are as follows:

(i) Deceased Dwarkabai has met with a homicidal  death and        the    ornaments which she was wearing on  her person at the time of her death were stolen and  found missing when her dead body was discovered. (ii)    The accused had left his job with Dwarkabai  on 27th June, 1989 but he was found present in  her field on 1st July, 1989 at 13.00 hours when   Dwarkabai was alone in the field and Dwarkabai  was not seen alone any time after 1.7.1989. (iii)   The accused shirt is having the blood stains of  blood group of deceased. (iv)  The       recovery        of      the     ornaments belonging  to deceased Dwarkabai at the instance of accused  and they were tied in the piece of cloth having blood  stains of the blood group of the deceased as per the  Chemical Analyser’s report at Exh. 36. (v) The accused had demanded Rs.3,000/- on  27.6.89 and on refusal to pay the said amount by  Dwarkabai and P.W. 1-Dnyanadeo, the accused had  threatened them that he would see how they did not  pay the same and they would come to know about  the same within four days. 7.      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 which are so closely associated with the  fact in issue which taken together form a chain of  circumstances from which the existence of the principal fact  can be legally inferred or presumed.  8.      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 & Ors. (AIR 1985 SC 1224),  Balwinder Singh alias Dalbir 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

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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.  9.      We may also make a reference to a decision of this Court  in C. Chenga Reddy & Ors. 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."  

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

11.     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.  12.     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

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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.  13.     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.  14.     In Hanumant Govind Nargundkar and another 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 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."  

15.     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 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.            16.    So far as the last seen plea of the prosecution is  concerned, it is to be noted that PW-4 had not actually seen  the accused and the deceased together.  What he had said was  that the accused was present at some distance nearby the  field. That actually does not bring in the concept of accused  and the deceased being seen together last. If that was so, the

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logic equally applies to PW-4 also.  

17.     So far as the recovery is concerned, the trial Court itself  had discarded the plea of recovery so far as the alleged weapon  of assault i.e. sickle is concerned. Interestingly, the alleged  incident took place on 1.7.89. Till 5.7.89 the dead body was  not seen by anybody. According to PW-1 he and others had  searched for the dead body. Curiously, the dead body was  found in the field next to the one where the deceased was  purportedly working. Even on 5.7.89 the case of accidental  death was reported by the informant PW-1.  

18.     Above being the position, it cannot be said that the  complete chain of circumstances to hold the accused guilty  has been established by the prosecution. The conviction  cannot be maintained and is set aside. The accused-appellant  is acquitted of the charges. The bail bonds executed to release  him on bail stand discharged.  

19.     The appeal is allowed.