REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  662  OF 2007

Vithal Eknath Adlinge …Appellant

Versus

State of Maharashtra ...Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a Division Bench of the

Bombay High Court upholding the conviction of the appellant  for offence

punishable under Section 302 of the Indian Penal Code, 1860 (in short the

‘IPC’).  

2. Prosecution version in a nutshell is as follows:

On 13.2.1986 Police Head Constable Dinkar Shankar Dumbre (PW-

1)  was  attached  to  Railway  Police  Head  Quarters  at  Ghatkopar.  At  the

relevant  time,  his  nature  of  work was  to  receive  the telephonic  message

from outside and convey the said message to the Railway Reserve Inspector.

On 13.2.1986  at  about  1845 hrs.  Mr.  Gavade  Head Constable  came and

informed Dinkar Dumbre (PW1) that in Room No.41 of building No.24, one

lady is lying in injured condition in a pool of blood. The said constable also

informed that he came to know about the said fact from the ladies residing

in  the  said  building.  On  receipt  of  this  message  Dinkar  Dumbre  (PW1)

proceeded to the place of  incident.  He noticed one lady lying in pool  of

blood in the bath room of the house. Dinkar Dumbre (PW1) appointed one

police  constable to guard the said  place of  incident  and he proceeded to

inform the said fact to RSI, Caze. Dinkar Dumbre (PW1) also informed the

above said fact to Tilak Nagar police station. The police from Tilak Nagar

police station arrived at the place of incident.  The statement of PWI was

recorded  by  Tilak  Nagar  police  which  was  treated  as  First  Information

Report.  After investigation, charge sheet was filed.  

Prosecution examined 12 witnesses to substantiate its accusations and

the trial was held as the accused pleaded innocence.  

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The trial Court found the evidence to be sufficient to fasten the guilt

on  the  accused.  Questioning  the  conviction  and  the  sentence  of

imprisonment  for  life  as  awarded  by learned  Additional  Sessions  Judge,

Greater Bombay, an appeal was filed before the Bombay High Court which

came to be dismissed by the impugned judgment.   As the case rested on

circumstantial  evidence  the  trial  Court  and  the  High  Court  analysed  the

evidence with great detail and held the accused guilty. The appeal did not

bring any relief.  

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

that the circumstances have not been established to find him guilty.  

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

the judgment.  

5. The circumstances highlighted by the trial Court and the High Court

to find the accused persons are as follows:

(i) That the accused and the victim were last seen together;

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(ii) The victim was lying dead in the pool of blood and the

accused was not there.  

(iii) Previous enmity and therefore intention to kill is proved;

(iv) PWs 6 and 7 clearly refer to the conduct of the accused

for  ill  treating  and  harassing  the  victim prior  to  the  date  of

incident.  

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.

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

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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....”.

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;

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(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

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

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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.   

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

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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:

(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;

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(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)  and  Kusuma  Ankama Rao v  State  of  A.P. (Criminal  Appeal

No.185/2005 disposed of on 7.7.2008).

15. So far as the last seen aspect is concerned it is necessary to take note

of two decisions of this court.  In State of U.P. v. Satish [2005 (3) SCC 114]

it was noted as follows:

“22. The  last  seen  theory  comes into  play  where  the time-gap  between  the  point  of  time when  the  accused and  the  deceased  were  seen  last  alive  and  when  the deceased is found dead is so small that possibility of any person  other  than  the  accused  being  the  author  of  the crime becomes impossible. It would be difficult in some cases to  positively establish that  the deceased was last seen  with  the  accused  when  there  is  a  long  gap  and possibility of other persons coming in between exists.  In the absence of any other positive evidence to conclude that  the  accused  and  the  deceased  were  last  seen together, it would be hazardous to come to a conclusion

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of  guilt  in  those  cases.   In  this  case  there  is  positive evidence  that  the  deceased  and the accused  were  seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2.”  

16. In  Ramreddy Rajeshkhanna Reddy v.  State of A.P. [2006 (10) SCC

172] it was noted as follows:

“27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last  seen alive and the deceased is found dead is so small that possibility of any person  other  than  the  accused  being  the  author  of  the crime  becomes  impossible.  Even  in  such  a  case  the courts should look for some corroboration”.

(See also  Bodh Raj v.  State of J&K (2002(8) SCC 45).)”

17. Similar view was also taken in Jaswant Gir v. State of Punjab [2005

(12) SCC 438], Kusuma Ankama Rao’s case (supra) and Manivel and Ors.

v. State of T.N. (Crl.A. No. 473 of 2001 disposed of  on August 8, 2008),   

18. The  cumulative  effect  of  the  circumstances,  as  highlighted  above,

when considered in the background of legal principles stated supra it is but

clear  that  the  accusations  have been established  by the  prosecution.  The

circumstances highlighted by the trial Court and the High Court to find the

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accused  guilty  cannot  be  termed as  perverse.   Though  the  High  Court’s

judgment  is  not  very  elaborate,  but  that  cannot  take  away  the  effect  of

elaborate discussions made by the trial Court to find the accused persons

guilty.  The conduct  of the accused cannot be also lost sight  of. He was

absconding for 7 days. Above being the position, there is no merit in this

appeal which is accordingly dismissed.    

…..…............…………………….J. (Dr. ARIJIT PASAYAT)

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

New Delhi, February 27, 2009

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