REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 23 OF 2002

State of Maharashtra …Appellant

Vs.

Mangilal …Respondent

J U D G M E N T

DR. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of acquittal passed by a

Division Bench of the Bombay High Court,  Nagpur Bench,  allowing the

appeal  filed  by the  respondent  while  answering  negatively  the  reference

made  by  the  trial  Court  for  confirmation  of  death  sentence  in  terms  of

Section 366 of the Code of Criminal Procedure, 1973 (in short the ‘Code’).

The respondent was found guilty of offence punishable under Sections 302

and 201 of the Indian Penal Code, 1860 (in short the ‘IPC’).  Four persons

lost their lives in the night between 19th of August 1998 and 20th of August,

1998.  

2. The case of the prosecution is that one Mahadeo the husband of the

first victim Durgabai lived at Katepurna.  His brothers were also living in

the same village though in different localities. Mahadeo committed suicide

about  three  years  prior  to  the  incident,  leaving  his  widow  Durgabai,

daughter Yogita aged about 15 years, son Vinod aged about 12 years and

the youngest Maroti aged about 10 years, to stay in the house belonging to

Mahadeo.   The  house  was  situated  near  an  open  ground  where  weekly

market is held. In front of the house, there was a Flour Mill and by one side

of the house, there appeared to be a row of petty shops, One Laxman Kakad

(PW-1) was said to be residing by the side of the Flour Mill. He was a loner

and  an  old  man  of  75  years  of  age,  living  on  whatever  help  which  he

received from others by doing their petty jobs like taking the children to the

school or doing such sundry works to provide him food and living in a small

room.  After  the  death  of  Mahadeo,  his  widow  Durgabai  and  her  three

children were living in the house and there appeared to be no clear means of

survival  to  these persons  and from the evidence  of  P.  Ramkrishna More

(PW-3),  the  local  Police  Patil,  Durgabai  was  known  in  the  village  as

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“quarterwali”, thereby suggesting her association with dealings in liquor, as

could  be  popularly  understood,  together  with  people  visiting  her  house

because of such reputation of Durgabai. In this background, the prosecution

alleged that the accused Mangilal, of the age of 30 years, developed illicit

relations with Durgabai. The activity did not stop at that stage because of

the presence of Yogita, the first daughter of Durgabai. Slowly, during a span

of  couple  of  years,  he  was  said  to  have  developed  illicit  relations  with

Yogita and this was the aspect, which was alleged to have been a matter of

disturbance  to  Durgabai.   Though  Durgabai  tolerated  the  access  of  the

accused  to  her,  the  aspect  of  access  further  extending  to  Yogita,  was

unacceptable to her and she protested. It was retaliated by the accused in

quarreling  with  her,  which  drove  her  to  give  a  report  regarding  that

sometime on 20th July, 1998 against the accused to the police. Her grievance

was that the accused used to visit her house and was unnecessarily creating

quarrels and giving threats to her life because of which she was required to

give report against him. The presence of Durgabai and her two sons - Vinod

and Maroti  was  a  matter  for  irritation  to  the  accused  in  maintaining  his

amorous  relations  with  Yogita.  The  prosecution  also  adduced  certain

material to contend, as its case, that even till the earlier day of the incident,

Durgabai  had  a  grievance  to  make  regarding  the  threats  given  by  the

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accused to her life and to the lives of her two sons. In this background, the

incident  of  murders  in  question  occurred.  During  the  eventful  night,  the

prosecution alleged, that Durgabai had taken care in asking Laxman Kakad

to be present in the Chapri’ during the night as she needed some support or

protection because of apprehension day and   and accordingly alongwith her

children and Laxman they were all sleeping  in the ‘chapri’ covered by the

tin shed during that night. Laxman was said to have woken up on hearing

the  sound  of  something  being  heavily  struck.  He  got  up,  and  saw  the

accused  present  there.  The  accused  threatened  him  with  consequences

similar to the one in which he was engaged. He was assaulting Durgabai and

her children and was killing them. Laxman saw this, however, due to fear

and the threats given by the accused, he had left the place and gone away. In

the next day morning, around 9.00 a.m., the local Police Patil, who was on

his usual way of taking round in the village, came across a crowd gathered

in front of the house of Durgabai and villagers were looking in the direction

of that house,  suggestive of some happening which attracted Ramrkishna

More (PW-3), the local Police Patil  to approach the place and to see the

ghastly scene of the country cot, on which Durgabai must have slept, lying

with one of its supporting raft broken and the four dead bodies lying there

drenched in blood. The country quilts, which were spread on the bed, were

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also drenched with blood. The bodies of three children were lying on the

floor by the side of the other cot, as there were two cots;  nearby them a

heavy object  like a grinding stone,  domestically used in the kitchen was

seen. Neck of Durgabai was seen to have not only suffered incised wound,

but almost it was on the verge of getting separated from rest of the body.

There were incised wounds on the heads of the children, though Yogita’s

face also seemed to have been smeared with earth and having sunk in the

middle  suggestive  of  a  fact  that  it  must  have  been  smashed  with  heavy

object.  Having  observed  this,  PW-3,  Ramkrishna  More,  the  Police  Patil,

telephoned by about 9.00 a.m. Police Station at Borgaon Manju, a place of

about 8 Kms away from Katepurna. But then by a return response, he was

told to go to the police station and lodge his report. Accordingly, the Police

Patil went to the Police Station and lodged his report Exhibit-15. By that

time, the investigating officer - Police Inspector Tayde (PW 19) who seems

to  be  the  main  figure  in  investigating  the  crime  and  playing  a  role  in

collecting the evidence, had reached the spot. The Police Patil, after lodging

the report  returned to the  spot.  The report  was acted upon by the police

station, who registered a crime and then from the police station, the original

complaint so also the opening of the case diary were despatched to the spot

alongwith a Constable. At about 12.30 in the noon, Police Inspector Tayde

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appeared to have given a direction to his Assistant -P.S.I. Pathan (P.W. 14)

to make a search for the accused against whom suspicion was expressed in

the F.I.R. Exhibit-15 and to bring the accused before him. P.W.14 - P.S.I.

Pathan accordingly had a round in the small village when he came across

the accused present at the local bus stand. The accused was then taken by

P.S.I. Pathan before the Police Inspector who directed P.S.I. Pathan to take

him to the police station, cause his arrest, get him medically examined and

to bring him back to the spot, which P.S.I. Pathan did. The accused was put

under arrest  by about  1.35 p.m. by taking him to  the police  station.  P.1.

Tayde  had  also  given  instructions  to  collect  the  nail  clippings  of  the

accused, which was done by the Medical officer of Borgaon Manju, soon

after the arrest of the accused and the nail clippings so collected were then

kept in a sealed bottle forwarded by the Medical officer to the Police Station

for  an  eventual  chemical  analysis.  Requisition  to  get  him  medically

examined  by the  local  Doctor  of  the  Primary Health  Centre  at  Borgaon

Manju was given. The doctor examined him, and issued a certificate that

there were no marks of any fresh injury on the person of the accused. After

the arrest panchnama which was already done and the opinion of Doctor in

certifying that no injury mark on the person of the accused was seen by the

Doctor, the accused was taken under arrest back to the spot at about 2.00

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p.m. The inquest panchanarna was done and by the time the requisition sent

for a dog squad appears to have worked and the dog squad from Amravati

arrived at  the spot  via police station Borfegaon Manju.  The accused was

interrogated by Police Inspector  Tayde. The dog squad was said to  have

worked  in  its  own way. Smell  of  certain  articles  like  a  tumbler  glass,  a

liquor bottle, small mirror like piece of glass from the spot was given to the

dog and the dog was required to track the culprit. Accordingly, the dog was

said  to  have  tracked  upto  the  house  of  the  accused,  entered  it  and  then

returned. Since many submissions have been made on the aspect of presence

of accused and its effect on the dog squadding, it needs to be mentioned at

this  stage  that  the  accused  was  present  in  the  village  during  the  time

between  2.00  p.m.  to  5.00  p.m.  upto  which  the  recording  of  the

memorandum and  the  seizure  of  jersey  allegedly  at  the  instance  of  the

accused from out of the septic tank adjoining to his house was said to have

been  duly  done.  On the  Memorandum statement,  it  was  the  case  of  the

prosecution that accused showed the place near his house where he burnt

remains of clothes alongwith the metal hook of pant were discovered so also

the  place  of  the  septic  tank  adjoining  to  his  house  from which  a  jersey

drenched in the water was removed by means of a hook and the rope and

that jersey, on observing the same, appeared to have some stains of blood,

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which came to  be seized  before  the panchas.  All  this  took place  on 20th

August, 1998. Obviously, the steps were taken to forward the dead bodies

for post mortem examination.  The accused was then taken under arrest back

to the police station. He was produced before the Magistrate and remand

was obtained against  him for  a police custody.  During the  course of  his

police custody, he was further said to have disclosed to the police the place

where  ‘Kadbatodi’  (Fodder  Cutter)  was  kept/hidden.  Since  heavy

submissions were made on this aspect as to the purpose of Section 27 of the

Indian  Evidence  Act,  1872  (in  short  the  ‘Evidence  Act’)  the  actual

utterances of the accused, the authenticity of what was disclosed and what

was  discovered  and  whether  the  entire  process  was  voluntarily  at  the

instance  of  the  accused  or  was  a  foisted  affair.  What  the  accused  said

assumed  importance  and,  therefore,  in  describing  the  progress  through

which the  case passed through, investigation steps seemed to have taken

place in obtaining police custody, in stating certain grounds for so obtaining

the police custody, in getting a clue as admitted by Police Inspector Tayde

that during interrogation the accused had given certain information to the

police on 21st August, 1998 itself to enlighten the investigating machinery

about the place where the weapon was kept hidden, viz.  the same septic

tank  adjoining to the house of the accused. In respect of this information,

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criticism has been made on behalf of the accused regarding the steps which

were  taken  during  the  investigation.  But  as  a  fact,  the  Police  Inspector

endeavoured  to  state  that  he  learnt  about  this  on  interrogation  on  23rd

August  1998, whereas a Memorandum under Section 27 of the Evidence

Act seems to have been recorded on 24th August 1998 pursuant to which

the steps which,  by that  time were already taken in  calling a  municipal

vehicle with a big ladder to get into it and to drain out the water by means of

a motor  pump, though in actuality the draining out  of the water was not

done, but by means of a ladder and by means of assistance of a sweeper

P.W.10 Ramesh Saude, the weapon, which was said to be ‘Kadbatodi’ was

recovered from the septic tank, in which there was obviously a drain water

of some level. The septic tank had an adequate level of water in which the

weapon allegedly recovered was said to be lying and through the help of the

sweeper the weapon was taken out. On observation, the prosecution alleges

to have collected an evidence regarding traces of the blood stains on the

handle at some portion where the blade is fixed to the handle, where there

appeared  a  hole  like  portion.  The  weapon  was  allegedly  seized  in  the

presence of panchas and sealed at the spot of the septic tank from where it

was recovered. As a part of the further steps during the investigation, the

articles  observed with  stains  of  blood and seized,  namely the  jersey,  the

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weapon (‘Kadbatodi’), nail clippings, blood stained clothes seized from the

bodies of victims, samples of the blood of victims were all sent for chemical

analysis  on  4th October,  1998.  Prior  to  that,  Dr.  Nikam (PW9) who had

performed the post mort examination on the four dead bodies, was required

to  forward  his  opinion  on  observing  the  weapon,  whether  the  incised

wounds observed by him could be caused by that weapon. As a matter of

fact, having regard to the ordinary observations in relation to the weapon

and the description of the injuries which were sustained by the victims, we

find the circumstance to be so clean enough, that the weapon if used can

cause such injuries. Dr. Nikam, attached to the General Hospital at Akola,

appeared to be on leave for some days although a requisition was said to

have been sent to him on 29th August 1998. Dr. Nikam seems to have taken

place on 10th September, 1998 and Dr. Nikam opined that the weapon could

cause those incised wounds and by this weapon the fatal injuries sustained

by the victims were possible. During the course of investigation, it appears

that the sample of the accused’s blood was also collected so also the sample

of his sperms. The blood groups, with which the court is concerned, are of

three categories, viz, the blood groups of the victims and the blood group of

the accused. The prosecution did not lead any evidence with respect to the

blood group of the accused. The accused contended that  his blood group

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was “B” positive and in his examination under Section 313 of the Code,

asserted  this  fact  in  giving  a  written  statement  and also producing  some

copies of some certificates and the blood group of the victims was classified

by  the  Chemical  Analyser  to  be  “B”  in  relation  to  victim Durgbai  and

Yogita and “O” in relation to victims Vinod and Maroti. Chemical Analyser

certified that the weapon ‘Kadbatodi’ was noticed to have stains of blood

group “B”. The jersey was shown to have stains of blood of blood group

“B”.  Nail clippings were found to contain remains of blood of blood group

“B”.  On the strength of the collection of evidence of Laxman Kakad, the

eye  witness  and  the  four  circumstances  which   have  been  agitated  and

finally relied upon by the prosecution to bring its case viz, motive to commit

murders founded on illicit relations of the accused with Durgabai and later

also  with  Yogita.  Quarrels  and  obstruction  or  resistance  in  maintaining

relations with Yogita  driving the accused to form a motive and then the

actual incriminating objects such as nail clippings, jersey and ‘Kadbatodi’

discovered at the instance of the information given by the accused, about his

knowledge  and  the  place  where  the  articles  were  kept  and  his  conduct

together  was  said  to  have  enabled  the  prosecution  to  file  charge  sheet

against the accused for committing the two crimes in question.

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Eventually, after initiation of the prosecution upon a charge sheet, the

committal of the case to the Court of Sessions, framing of a charge for the

two offences, trial was held.  

As the case rested on circumstantial evidence the trial Court analysed

the various circumstances and came to the conclusion that the respondent

accused was responsible  for  the  murder  of  four  persons  and accordingly

awarded the death sentence. The respondent questioned his conviction while

reference was made for confirmation of death sentence awarded by the trial

Court. As noted above, the High Court found that the circumstances do not

make out a case for the conviction. The High Court found that though PW-1

the eye witness resiled from the statement made during investigation  the

natural presumption was that he on account of the side of the defence must

have been subjected to threaten to his life as a result of which he did not

ultimately support the prosecution case.  The High Court found that once

PW-1  did  not  support  the  prosecution  version  the  case  rests  on

circumstantial  evidence.  The  High  Court  found  that  the  circumstances

highlighted  did  not  establish  a  complete  chain  and,  therefore,  directed

acquittal as noted above.  

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3. In  support  of  the  appeal,  learned  counsel  for  the  appellant-State

submitted that in a case of such gruesome murder the High Court ought not

to  have  interfered  when  the  most  important  witness  did  not  support  the

prosecution version. It was writ large that the accused was threatening him

and/or had managed to get him to their side. In that background the trial

Court’s judgment was justified.  

4. Learned counsel for the respondent on the other hand supported the

judgment of the High Court.  

5. It is true that four people had lost their lives and the accused does not

seem to be a person of high morals, but that itself would not be a ground to

record his conviction in the absence of reliable material and evidence.  The

circumstances highlighted by the prosecution are as follows:

1. Ilicit Relations between deceased Durgabai and accused.

2. Illicit  relations  between  accused  and  Durgabai’s

daughter Yogita (15 years old).

3. Complaint  made  by  deceased  Durgabai  on  20.7.1998

against accused regarding threat to kill.

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4. Complaint made by deceased Durgabai  one day before

the incident regarding threat by accused.

5. Statement of PW-1 Laxman recorded under Section 164

of the Code.

6. Beating  up  of  PW-1  Laxman  by  Prakash  Bole  to

dissuade him from giving evidence in support of prosecution.

7. Police dog traced the scent from the place of incident to

the house of the accused thereby connecting the accused to the

ghastly murders.

8. Blood  stained  nail  clippings  of  accused  taken  upon

medical examination immediately upon arrest.

9. Recovery of blood stained jersey of accused from septic

tank in the house of the accused and burnt pant at his instance.  

6. 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 and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v.

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State of  Karnataka  (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors.

(AIR 1985 SC 1224);  Balwinder Singh v.  State of Punjab (AIR 1987 SC

350);  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 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 the offences home beyond

any reasonable doubt.

7. We may also  make  a  reference  to  a  decision  of  this  Court  in  C.

Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has

been observed thus:

“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....”.

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8. In Padala Veera Reddy v. State of A.P. and Ors.  (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 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.

9. 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

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fully established and the cumulative effect  of  all  the facts  so established

must be consistent only with the hypothesis of guilt.

10. 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 guilt, (5)

if there be any reasonable doubt of the guilt of the accused, he is entitled as

of right to be acquitted”.

11. There  is  no  doubt  that  conviction  can  be  based  solely  on

circumstantial  evidence but it  should be tested by the touch-stone of law

relating to circumstantial evidence laid down by the this Court as far back as

in 1952.   

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12. In  Hanumant  Govind  Nargundkar  and  Anr. V.  State  of  Madhya

Pradesh, (AIR 1952 SC 343), wherein 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.”

13. 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  onus  was  on  the

prosecution to prove that the chain is complete and the infirmity of lacuna in

prosecution  cannot  be  cured  by  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:

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(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.      

14. These aspects  were highlighted  in  State  of  Rajasthan v.  Raja Ram

(2003 (8) SCC 180),  State of Haryana v. Jagbir Singh and Anr. (2003 (11)

SCC  261),  Kusuma  Ankama  Rao v  State  of  A.P.  (Criminal  Appeal

No.185/2005 disposed of  on 7.7.2008)  and  Manivel  and Ors. v.  State of

Tami Nadu (Criminal Appeal No.473 of 2001 disposed of on 8.8.2008).

15. So far as circumstance No.4 is concerned the trial Court observed that

the prosecution failed to produce any evidence about the same.  The police

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dog traced the scent from the place of incident to the house of the accused is

really no evidence in the eye of law. So far as the blood stains are concerned

medical  examination  revealed  that  the  ladies  had  ‘B’ blood  group  while

boys had ‘O’ blood group. Merely because blood stains were found on the

jersey of the accused from septic tank in the house of the accused and burnt

pant, that is inconsequential  since as noted above his blood group is also

‘B’.  The trial Court observed that the weapon used was stone whereas the

weapon  recovered  from  the  septic  tank  is  stated  to  be  ‘Kadbatodi’.

Unfortunately, no finger printing was done.   

16. It  is  noted  that  though the  blood of  the  accused was collected  the

same was not sent for chemical analyzer.  

17. In view of the position in law highlighted above it cannot be said to

be  a  case  where  the  prosecution  has  established  a  complete  chain  of

circumstances which rules out possibility of the involvement of any other

person and unerringly points fingers at the accused to be the author of the

crime.  

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18. It  needs  no  emphasis  that  in  a  case  of  gruesome  murder,  police

protection  should  be  given  to  witnesses  so  that  they  can  depose  freely.

Unless that is done result would be that justice would be done to the victim.

The accused persons with money and power can trample any witness who

dares to depose against them. The victor will be injustice and it would be a

slur on the criminal justice system if it  so happens. In view of the above

conclusions, the appeal is dismissed.             

……………………………………J. (Dr. ARIJIT PASAYAT)

……………………………………J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, March 06, 2009

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