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CASE NO.: Appeal (crl.)  367 of 1999

PETITIONER: Vilas Pandurang Patil

RESPONDENT: State of Maharashtra

DATE OF JUDGMENT: 06/05/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: J U D G M E N T   

ARIJIT PASAYAT, J.

       Appellant (also described as accused) calls 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 of life and two years  respectively were imposed 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 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 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 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 proceeded to police  station Tasgaon with the accused. On 18.9.1983 at about 10.30 a.m.  the accused went to Tasgaon Police Station and 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 investigation  was undertaken. During investigation, several materials were

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

1.      Motive. 2.      Conduct of the respondent immediately before and after  the incident; 3.      Extra judicial confession; 4.      Discovery of blood stained articles and mangalsutra in  the pointing out of the respondents; and  5.      Finding of the blood in the nail cuttings of the  respondent.

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

       The State of Maharashtra questioned correctness of the said  judgment. By the impugned judgment the High Court held that there  was no proper 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 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 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 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 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 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 (AIR 1985 SC 1224), Balwinder 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

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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 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.  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 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."  

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.  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  incompatible with the innocence of the accused and incapable of  explanation, upon any other reasonable hypothesis than that of his

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guilt; and (5) if there 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 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 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 be 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."  

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.  

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 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

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judicial confession which was claimed to be before PWs 5 and 6, was  unjustifiably discarded 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 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 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 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 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- 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 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.