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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

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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  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

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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 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

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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  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

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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 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

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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.