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CASE NO.: Appeal (crl.)  579 of 2005

PETITIONER: Sattatiya @ Satish Rajanna Kartalla

RESPONDENT: State of Maharashtra

DATE OF JUDGMENT: 16/01/2008

BENCH: G.P. Mathur & G.S. Singhvi

JUDGMENT: J U D G M E N T  

Per G.S. Singhvi J.

       This appeal by special leave is directed against the judgment of  the Bombay High Court, which upheld the conviction of the appellant  under Section 302 I.P.C. and sentence of life imprisonment awarded to  him by Additional Sessions Judge, Greater Bombay in Sessions Case  No.28/1995.          On 1.10.1994, PW1 Dr. Rasiklal Dwarkadas Dani, a resident of  Pratap Building 173, Dadiseth Agyari Lane, Mumbai, telephonically  informed Assistant Police Inspector (API), PW14 R.R. Gaekwad of  Police Station Tilak Nagar that a man, who was later on, identified as  Satish, was lying on the right side of the stairs of the building in a pool  of blood.  API Gaekwad reached the spot and removed that person to  G.T. Hospital, where he was declared brought dead.  PW14 recorded  the information given by Dr. Dani as Ex.P6 and treated the same as  FIR.  He then handed over the investigation to PW13 Shamsherkhan  Wazirkhan Pathan, who was acting as night Police Inspector at L.T.  Marg Police Station.  The latter prepared Panchnama of the dead body.  From the papers found in the pocket of the clothes of the deceased,  the police contacted his brother, PW3 Rajaiyya Pochyya Bandapalli on  1.10.1994 itself and recorded his statement.  After two days, the  appellant and one Devabhuma Badapatti were arrested.  On the day of  his arrest i.e. 3.10.1994, the appellant is said to have made a  statement and then took the police to Room No.45 of the third floor of  the building known as \021Ganesh Bhuvan\022 Dadiseth Agyari Lane, Mumbai  and got recovered his pant and shirt which are said to be having stains  of blood.  On 4.10.1994, the appellant was medically examined by  PW10 Shiv Narain Daund, who found that the thumb and index finger  of the appellant\022s right hand had been injured sometime back.  On the  next day i.e., 5.10.1994, the appellant took the police to PW7 Mohd.  Farid Abdul Gani, who claims to have sold the handkerchief, which was  found near the body of the deceased.  On 6.10.1994, the appellant is  said to have given some more information to the police and got  recovered half blade (marked as Article 7) which was lying under the  wooden platform in front of \021Ganesh Bhuvan\022.   The clothes of the  deceased, the pant and shirt belonging to the appellant and blade  were sent for chemical examination. As per the Chemical Examiner\022s  Report, the clothes of the deceased were having human blood of \021O\022  group.  The pant and shirt, allegedly recovered at the instance of the  appellant also had blood stains, but it could not be established whether  the same was human blood of \021O\022 group.  The stain on the blade was  also said to be of human blood but its identity could not be established  by the chemical examiner.           After completing the investigation, the police submitted challan  in the Court of the Metropolitan Magistrate who committed the case to  the Court of the Sessions, Greater Bombay.

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       The prosecution examined PW1 Dr. Rasiklal Dwarkadas Dani,  PW2 Dinesh Dubey, with whom Devabhuma Badapatti is said to have  worked till September 1994, PW3 Rajjaiyya (brother of the deceased),  PW4 Hari Oval and PW8 Ranjit Bishram Jaiswal, who acted as panches  for recovery of the clothes from Room No.45 of \021Ganesh Bhuvan\022, PW5  Salim Sheikh, who acted as panch for recovery of half blade beneath  wooden board in front of \021Ganesh Bhuvan\022, PW6 Shankar Shripati  Ulalkar, who was engaged in the work of shaving and cutting hair  outside shop No.1 of \021Ganesh Bhuvan\022, Dadiseth Agyari Lane,   PW7  Mohd. Farid Abdul Gani, who claims to have sold the handkerchief to  the appellant, PW9 Balu Shivram Nalwada, who is said to have  witnessed the sale of handkerchief by PW7 to the appellant, PW10  Shivraj Narayan Daund, who examined the appellant on 4.10.1994,  PW11 Raju Chandu Poojari, who claims to have seen the accused  persons with the deceased on the night of the incident i.e. 30.9.1994,  PW12 Dr. Avinash Janardan Pujari, who performed the autopsy on the  dead body, PW13 PI, Shamsherkhan Vazirkhan Pathan and PW14 API,  R.R. Gaikwad.  Thereafter, the statements of the appellant and  Devabhuma Badapatti were recorded under Section 313 Cr.P.C.  Both  of them denied having committed the crime.         The motive of the crime, as projected by the prosecution, was  that the appellant was having illicit relation with Lakshmi \026 wife of the  deceased and Devabhuma Badpatti was having animosity with the  latter because of the alleged murder of his father.  The prosecution  relied on the circumstantial evidence of last scene, recovery of blood  stained pant and shirt from Room No.45, \021Ganesh Bhuvan\022 Building,  blood stained half blade and handkerchief found near the body of the  deceased to prove the appellant\022s involvement in the crime.         The learned Additional Sessions Judge did not accept the  prosecution\022s theory regarding motive but relied on the circumstantial  evidence and convicted both the accused under Section 302 read with  Section 34 I.P.C. and sentenced them to life imprisonment.  On  appeal, the Division Bench of the High Court upheld the conviction of  the appellant and confirmed the sentence of life imprisonment  awarded to him, but acquitted Devabhuma Badpatti on the premise  that there was no evidence to show that he was a party to the crime.           Shri Ajit Kumar Pande assailed the findings recorded by the  learned Additional Sessions Judge, which as mentioned, were  confirmed by the High Court by arguing that the entire story was  fabricated by the police to falsely implicate the appellant.  Learned  counsel invited our attention to the serious discrepancies in the  statement of PW 11, Raju Poojari, who claims to have seen the  appellant with the deceased at 10.45 p.m. on 30th September 1994  and argued that the deliberate attempt made by the witness to conceal  the fact that he was engaged in the business of illicit liquor and was  arrested by the police in connection with the said business should have  been treated by the learned Additional Sessions Judge and High Court  sufficient for discarding his testimony.  Shri Pande then argued that  the recovery of the blood stained pant and shirt from Room No.45 of  \021Ganesh Bhuvan\022 and half blade from under the wooden board in front  of \021Ganesh Bhuvan,\022 are highly suspicious and no credence should  have been given to such recoveries for holding the appellant guilty of  serious offence like murder because they were not proved to be  stained with human blood of \021O\022 group.  He lastly argued that version  of PW7 Mohd. Gani regarding sale of handkerchief to the appellant is  unbelievable because there was nothing from which he could identify  the handkerchief allegedly sold more than one month before the  alleged murder. Shri Sushil Karanjakar, learned counsel for the State  supported the judgment under challenge and argued that the High  Court rightly upheld the conviction of the appellant and the sentence  awarded to him.         We have thoughtfully considered the entire matter.  It is settled  law that an offence can be proved not only by direct evidence but also  by circumstantial evidence where there is no direct evidence.  The  Court can draw an inference of guilt when all the incriminating facts

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and circumstances are found to be totally incompatible with the  innocence of the accused.  Of course, the circumstances from which an  inference as to the guilt 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 Hanumant Govind Nargundkar v. State of M.P. [AIR 1952 SC  343], which is one of the earliest decisions on the subject, this court  observed as under: \023It 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.\024

       In Padala Veera Reddy v. State of A.P. [(1989) Supp (2) SCC  706], this court held that when a case rests upon circumstantial  evidence, the following tests must be satisfied:

\023(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 the 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.\024

       In Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4  SCC 116], it was held that the onus was on the prosecution to prove  that the chain is complete and falsity or untenability of the defence set  up by the accused cannot be made basis for ignoring serious infirmity  or lacuna in the prosecution case.  The Court then proceeded to  indicate the conditions which must be fully established before  conviction can be based on circumstantial evidence.  These are:  \023(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

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(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.\024

       In State of U.P. v. Ashok Kumar Srivastava [(1992) 2 SCC 86], 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.         The above noted propositions have been reiterated in Bodhraj  alias Bodha and Others vs. State of Jammu and Kashmir [(2002) 8  SCC 45]; Bharat vs. State of M.P. [(2003) 3 SCC 106]; Jaswant Gir vs.  State of Punjab [(2005) 12 SCC 438]; Reddy Sampath Kumar vs.  State of A.P. [(2005) 7 SCC 603]; Deepak Chandrakant Patil vs. State  of Maharashtra [(2006) 10 SCC 151]; Ramreddy Rajesh Khanna Reddy  and Another vs. State of A.P. [(2006) 10 SCC 172] and State of Goa  vs. Sanjay Thakran and Another [(2007) 3 SCC 755].         In Ramreddy Rajesh Khanna Reddy and Another vs. State of A.P.  [(2006) 10 SCC 172], this Court while reiterating the settled legal  position, observed:  \023It is now well settled that with a view to base a conviction  on circumstantial evidence, the prosecution must establish  all the pieces of incriminating circumstances by reliable  and clinching evidence and the circumstances so proved  must form such a chain of events as would permit no  conclusion other than one of guilt of the accused.  The  circumstances cannot be on any other hypothesis.  It is  also well settled that suspicion, however grave it may be,  cannot be a substitute for a proof and the courts shall take  utmost precaution in finding an accused guilty only on the  basis of the circumstantial evidence.\024   

     At this stage, we also deem it proper to observe that in exercise  of power under Article 136 of the Constitution, this Court will be  extremely loath to upset the judgment of conviction which is confirmed  in appeal.  However, if it is found that the appreciation of evidence in a  case, which is entirely based on circumstantial evidence, is vitiated by  serious errors and on that account miscarriage of justice has been  occasioned, then the Court will certainly interfere even with the  concurrent findings recorded by the trial court and the High Court \026  Bharat vs. State of M.P. [(2003) 3 SCC 106].          In the light of the above, we shall now consider whether in the  present case the prosecution succeeded in establishing the chain of  circumstances leading to an inescapable conclusion that the appellant  had committed the crime.           A careful reading of the judgments of the Additional Sessions  Judge and High Court shows that the conviction of the appellant was  based on the following circumstances: \023(i) that both the accused were with the deceased when he was last  seen alive in the night of 30/9/1994.

(ii)    the accused had residence in the vicinity of the place where the  injured was found while the injured did not reside in the vicinity.

(iii)   accused No.1 had an injury which could be caused by user of the  blade (Art.7) and had knowledge where the piece of blade could be  found by the Police.

(iv)    there was human blood on the piece of blade and stains of  human blood on the clothes of accused No.1 were not explained to be

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the stains of blood of his own.

(v)     the handkerchief purchased by accused No.1 was found near the  injured with stains of blood of the injured indicative of presence of  accused No.1 in the vicinity after the injured had sustained bleeding  injuries.

(vi)    Accused No.2 used to be with accused No.1 many times and had  been sleeping at the place of accused No.1 for three nights and  accused No.2 had borrowed Rs.300/- in the night of 30th September,  1994 and

(vii)     they were caught when they were together.

       We shall first scrutinize the evidence of last scene, which is in  the form of statement of PW11 Raju Poojari.  In the first instance, the  witness denied his acquaintance with Babu Poojari but then  volunteered to admit that he knew the latter.   He gave out that he  was residing in a temporary shed at Sonapur, Chandanwadi, which  was used as tailoring shop.  Later on, he made an improvement by  saying that he was doing work at the tailoring shop.  According to him  both the accused had passed in front of the shop on 30th September,  1994 at 10.45 p.m.  He demonstrated his acquaintance with both the  accused by saying that they used to come to the tailoring shop.  When  two photographs of the deceased (marked as Article 8) were shown to  him, PW11 stated that the said person had come with the accused for  getting their clothes stitched from the shop.  He expressed his  ignorance about the time when they came to the shop and then stated  that they came at 10.30 p.m. 2-4 days before the police came to make  enquiries from him.  According to PW11 his signatures were obtained  at the police station but nothing was read out to him.  He then stated  that something was read out at the police station ten days back when  he was called there and was shown photographs (marked as Article 8).   He admitted the existence of a liquor shop near the tailoring shop, but  gave out that the same was owned by one John.  He denied his  involvement in the business of illicit liquor.  At that stage the public  prosecutor sought and was granted permission to ask questions in the  nature of cross examination.  In reply to the querries put by the public  prosecutor, PW11 denied the suggestion that he was doing business of  illicit liquor and expressed his ignorance about the statement given to  the police that he was engaged in such business.  He also denied  having stated before the police that the accused had come to the  liquor shop with the person in the photograph and that they were  offering liquor to him and also asked Babu Poojari to pour more liquor  in his glass because he was their guest.  PW11 then stated that the  person shown in the photograph was totally drunk when he came with  two accused and they were supporting him while walking and this  happened 4-5 days before when he was called to the police station.   He expressed his ignorance about the number of false cases registered  against him.  In cross examination he denied having indulged in any  activity other than tailoring work.  He also gave out that he did not  know the names of the accused when they passed in front of the  tailoring shop.         A critical analysis of the statement of PW11 shows that the same  is full of contradictions.  In the examination-in-chief, he demonstrated  his acquaintance with the accused by saying that they used to come to  tailoring shop but in cross examination he admitted that he did not  know their names when they were passing in front of the tailoring  shop.  The second important contradiction relates to his recognition of  the person shown in the photograph.  In the first instance he gave out  that the said person had come with the accused for getting their  clothes stitched from the shop but, later on, stated that he came with  the accused and was heavily drunk and was being helped by the  accused.  Yet another contradiction which is apparent from the  statement of PW11 relates to his acquaintance with Babu Poojari.  In

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the beginning he flatly denied that he knew Babu Poojari and then  made a u-turn by voluntarily stating that he knows Babu Poojari.  He  also denied having stated before the police that he was doing the  business of selling illicit liquor in association with Babu Poojari and that  the accused offered liquor to the deceased and also asked Babu Poojari  to pour more liquor in his glass.  These contradictions are evident from  the following extracts of the statement of PW11: \023I know Satish Bandapalli and Devaanna Bandapalli and  they were passing in front of my shop at about 10.45 p.m.  I do not know where they were going.  I had been knowing  those 2 persons as they used to come to the tailoring  shop.\024

\023These 2 accused had not done anything else when they  passed in front of my tailoring shop.  I did not know their  names at that time.\024

\023I had seen the person whose 2 photographs from Article 8  are now shown to me, but I do not know his name.  When  I last saw the person in this photograph, he had been with  the 2 accused before this court.  Those 3 together had  come to my shop.  Those 3 had come for getting their  clothes stitched from the shop where I used to be.  I do  not remember the time when they had come to the shop.   Now I say that they had come at 10.30 p.m. 2-4 days  before the police came to make enquiries from me.  The  police had taken me in the police station.  At the police  station my signature was obtained and I was permitted to  go.  The police did not read out anything to me at the time  they had taken me to the police station and obtained my  signature but something was read out to me 10 days back  when I had been called here.  At the time my signature  was taken I was shown the photographs Article 8.\024

\023It did not happen that Babu Poojari came to me and  agreed to work with me and we both started doing the  business of illicit liquor.  I had not stated so to any one at  any time.  I can not say why portion marked \021A\022 to that  effect has been so recorded.  It did not happen that these  2 accused had come to my illicit liquor business with the  person in the photograph.  I had not stated so to any one  at any time.  I can not say why portion marked \021B\022 to that  effect has been so recorded in my alleged statement dated  5.10.1994.  I had not seen these 2 accused offering liquor  to the person in the photograph and also asking Babu  Poojari to pour more liquor in his glass as he was their  guest.  I had not stated so to any one at any time.  I  cannot say why portion marked \021C\022 to that effect has been  so recorded in my alleged statement dated 5.10.1994.   The person in the photograph now shown to me Article 8  was totally drunk when he had come with these 2 accused  to our shop.  The person in the photograph was so drunk  that these 2 accused had to support the person in the  photograph Article 8 for making him walk away and in that  condition I last saw them walking away from the tailoring  shop 4-5 days before police took me to the police station.   At present I have been wrongly apprehended by the police  in a case when there was a raid on the illicit liquor shop in  the neighbourhood.  I do not know in how many false  cases I have been involved after being wrongly  apprehended.\024

       It is significant to note that even though PW11 denied having  made statements marked \021A\022, \021B\022 and \021C\022 before the police but the

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investigating officer, PW13 categorically asserted that Raju Poojari did  make those statements.         The learned Sessions Judge as also the High Court noted  contradictions in the statement of PW11 but ignored the same by  describing them as minor.  In the opinion of the learned Sessions  Judge the variation in the previous statement of PW11 stands  explained by his desire not to incriminate himself.  He also observed  that the defence had not brought anything from the cross examination  of PW11 to discredit his testimony.  The High Court adopted the same  line of reasoning for placing reliance on the evidence of last scene.         In our view, the testimony of PW11 is wholly untrustworthy.  He  appears to be a doctored witness, who came forward to support the  prosecution cause with a view to win favour from the police in the  cases registered against him in connection with the raid of illicit liquor  shop.  This is the reason why he made vacillating statement regarding  the identity of two accused and the deceased and the purpose of their  coming to the so-called tailoring shop where he was residing and also  working.  It is difficult, if not possible, to believe that even though the  accused persons used to come to the tailoring shop for getting their  clothes stitched, where PW11 is said to be working, he did not know  their names.  His attempt to conceal his acquaintance with Babu  Poojari who was his associate in the business of illicit liquor is  inexplicable. The suggestive conjecture made by the learned Additional  Sessions Judge that PW11 retracted from the statement made before  the police because he did not want to incriminate himself in offences  relating to business of illicit liquor cannot be accepted because the fact  of the matter is that the witness was arrested by the police in  connection with the said business and there was every reason for him  to come forward to support the police case.  The testimony of PW11 is  also discredited by the fact that he made self contradictory statements  regarding the presence of the accused and the deceased at the shop.   In one breath he stated that they were passing in front of the shop  and thereafter sought to identify them by stating that they had come  for stitching the clothes.         The next thing which is to be seen is whether the evidence  relating to the recovery of clothes of the appellant and the half blade,  allegedly used for commission of crime, is credible and could be relied  on for proving the charge of culpable homicide against the appellant.   In this context, it is important to note that the prosecution did not  produce any document containing the recording of statement allegedly  made by the appellant expressing his desire to facilitate recovery of  the clothes and half blade.  The prosecution case that the accused  volunteered to give information and took the police for recovery of the  clothes, half blade and purchase of handkerchief is highly suspect.  It  has not been explained as to why the appellant gave information in  piecemeal on three dates i.e. 3.10.1994, 5.10.1994 and 6.10.1994.   Room No.45 of \021Ganesh Bhuvan\022 from which the clothes are said to  have been recovered was found to be unlocked premises which could  be accessed by any one.  The prosecution could not explain as to how  the room allegedly belonging to the appellant could be without any  lock.  The absence of any habitation in the room also cast serious  doubt on the genuineness and bonafides of recovery of clothes.  The  recovery of half blade from the road side beneath the wooden board in  front of \021Ganesh Bhuvan\022 is also not convincing.  Undisputedly, the  place from which half blade is said to have been recovered is an open  place and everybody had access to the site from where the blade is  said to have been recovered. It is, therefore, difficult to believe the  prosecution theory regarding recovery of the half blade. The credibility  of the evidence relating to recovery is substantially dented by the fact  that even though as per the Chemical Examiner\022s Report the blood  stains found on the shirt, pant and half blade were those of human  blood, the same could not be linked with the blood of the deceased.   Unfortunately, the learned Additional Sessions Judge and High Court  overlooked this serious lacuna in the prosecution story and concluded  that the presence of human blood stains on the cloths of the accused

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and half blade were sufficient to link him with the murder.         The over jealous efforts made by the prosecution to link the  handkerchief allegedly found near the body of the deceased of the  appellant lends support to the argument of the learned counsel for the  appellant that the police had fabricated the case to implicate the  appellant.  In his statement, PW7 Mohd. Farid Abdul Gani, who is said  to have sold the handkerchief to the appellant, admitted that he was  not selling branded handkerchiefs and that there were no particular  marks on the goods sold by him.  He, however, recognized the  handkerchief by saying that the accused made a lot of bargaining and  he was amused by the latter\022s statement that he will soon become an  actor.         Both the learned Additional Judge and High Court accepted the  testimony of PW7 along with the statement of PW9 ignoring the  admission made by the former that he did not put any special mark on  the handkerchief sold by him; that he purchased the handkerchiefs in  wholesale from the market and removed the label of manufacturer  before selling the same and that there are 4 or 5 other persons  carrying on the same business in the locality.  Likewise both the courts  ignored the fact that PW9 could not confirm the exact identity of the  handkerchief (marked as Article 3), he could only say that the  handkerchief of the appellant was just like Article 3.         In our opinion it is extremely difficult to believe that a person  engaged in the business of hawking would remember what was sold to  a customer almost two months after the transaction and that to  without identity of the goods sold having been established.         On the basis of above discussion we held that the prosecution  failed to establish the chain of circumstances which could link the  appellant with the crime.  The learned Trial Court and the High Court  committed a serious error by relying on the circumstantial evidence of  last scene, the recovery of pant and shirt from Room No.45 of \021Ganesh  Bhuvan\022 building, half blade from under the wooden board and the sale  of the handkerchief by PW7 to the appellant.           In the result the appeal is allowed.  The judgment under appeal  and the one of the Trial Court are set aside and the appellant is  acquitted.  He shall be released forthwith if not required in connection  with any other offence.