VILAS PANDURANG PATILversusSTATE OF MAHARASHTRA

                    VILAS PANDURANG PATIL                                A
                                   v.
                    STATE OF MAHARASHTRA

                             MAY 6, 2004

         [DOAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]
                                                                         B

      Penal Code, 1860-Sections 302 and 404-Murder-Prosecution
for-Circumstantial evidence-Extra-judicial confession-Recovery of
blood-stained articles at the behest of accused and presence of blood in
his nail clippings-Acquittal by trial Court-On re-appreciation ofevidence C
conviction by High Court-On appeal, held: Conviction justified in view
of the circumstances of the case.

     Criminal Trial :
                                                                         D
      Circumstantial evidence-Evidentiary value and nature of-A crime
can be proved by circumstantial evidence-The principal fact or factum
probandum may be proved indirectly by means ofcertain inferences drawn
from factum probans-ln such evidence guilt can be justified when all the
 incriminating facts are found to be incompatible with innocence ofaccused E
 or guilt of any other person-The circumstances have to be proved beyond
 reasonable doubt-The onus lies on the prosecution-Evidence Act, 1872.

      Code of Criminal Procedure, 1973-Section 378-Appeal against
acquittal-Interference of appellate Court-Scope of-Held : When on F
evidence two views are possible and the Court has taken one view,
interference by appellate Court is not proper-But when the view reflects
total non-application of mind, interference is proper.

     Appellant was alleged to have killed his first wife (the deceased).
Prosecution case was that the accused had gone with deceased but did G
not return with her. He made extra judicial confession to PWs 5 and
6 of having killed his wife and thrown the dead body in a well. Next
day accused gave information to police that his wife accidentally died
and her body was found in a well. Blood stained articles were recovered
and blood was found in the nail clippings of the accused. The cause of H
                                  395
    396               SUPREME COURT REPORTS [2004) SUPP. 2 S.C.R.

A death as per medical opinion was stated to be "shock due to big sub-
    dural hematoma of fracture of base of the skull". During trial accused
    pleaded innocence. Trial Court acquitted the accused holding that the
    circumstances of the case were not substantially established. High
    Court convicted him on reappreciating the evidence. Hence the appeal.
B
          Dismissing the appeal, the Court

           HELD : I.I. Trial Court had proceeded in the matter rather
    casually and there was no proper application of mind or even discussions
C   regarding all the relevant evidence on r<!cord. Since the trial Court had
    failed to properly analyse the evidence, 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
D   reflects total non-application of mind, interference is not only desirable
    but proper. 1404-F-G]

        1.2. 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
E 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
F 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. 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
G other evidence and found acceptable, can provide additional weightage
  to the prosecution case. There is 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
H of drowning or death by suicide. The cause of death as per medical
                           V.P. PATIL v. STATE                        397

opinion was stated to be "shock due to big sub-dural hematoma of A
fracture of base of the skull". (404-H; 405-A-F)

        Dayanidhi Bisoi v. State of Orissa, [2003) 9 SCC 310, relied on.


    1
      2.1. For a crime to be proved it is not necessary that the crime must B
be s~en 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. Circumstantial evidence is not direct to the C
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. (401-B-DJ
                                                                            D
     2.2. 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. The circumstances from
which an inference as to the guilt of the accused is drawn have to be E
proved beyond reasonable doubt and have to be shown to be closely
connected with the principal fact sought to be inferred from those
circumstances. (401-E-GJ

     2.3. Great care must be taken in evaluating circumstantial F
evidence and if the evidence relied on is reasonably capable of two
inferences, the one in favour of the accused must be accepted. 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. (402-G-H; 403-A)
                                                                            G
     2.4. In circumstantial evidence 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 piea. The conditions
precedent in the words of this Court, before conviction could be based on
circumstantial evidence must be fully established. They are : (I) the H
    398                SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A circumstance 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
B 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
C the act must have been done by the accused. [404-A-E)

          Hukum 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; Ba/winder Singh v. Srate of Punjab, AIR (1987) SC 350; Ashok
D   Kumar Chatterjee v. State ofM.P., AIR (1989) SC 1890; Bhagat Ram v.
    State of Punjab, AIR (1954) SC 621; C. Chenga Reddy v. State of A.P.,
    [1996) 10 SCC 193; Padala Veera Reddy v. State of A.P., AIR (1990) SC
    79; State of U.P. v. Ashok Kumar Srivastava, (1992) Crl. W. ll04;
    Hanumant Govind Nargundkar v. State a/MP., AIR (1952) SC 343 and
E   Sharad Birdhichand Sarda v. State of Maharashtra, AIR (1984) SC 1622,
    relied on.

          "Wills' Circumstantial Evidence" (Chapter VI), referred to.

f         CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
    367 of 1999.

         From the Judgment and Order dated 29.7.98 of the Bombay High
    Court in Crl.A. No. 358 of 1985.

G         Sushi! Karanjkar and Vishwajit Singh for the Appellant.

          Manish Pitale, S.S. Shinde and Ravindra Keshavrao Adsure for the
    Respondents.

H         The Judgment of the Court was delivered by
                  V.P. PATIL v. STATE [PASAYAT, J.]                   399

      ARIJIT PASAYAT, J.: Appellant (also described as accused) calls A
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 oflife and two years respectively were imposed B
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 C
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.
                                                                            D
       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 E
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 F
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 G
proceeded to police station Tasgaon with the accused. On 18.9.1983 at
about l 0.30 a.m. the accused went to Tasgaon Police Station ar:d 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 H
    400                SUPREME COURT REPORTS [2004) SUPP. 2 S.C.R.

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

             I.   Motive.

c            2.   Conduct of the respondent immediately before and after the
                  incident;

             3.   Extra judicial confession;

D            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.

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

           The State ofMaharashtra questioned correctness of the said judgment.
    By the impugned judgment the High Court held that there was no proper
F   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
G   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
H   on the nail clippings of the accused on which the High Court has placed
                  V.P. PATIL v. STATE [PASAYAT, J.]                    401

strong reliance are really of no circumstance.                               A
                     '\
     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.                                                                          B
      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 C
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 D
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 E
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 ofHyderabad, AIR (1956) SC 316, Earabhadrappa v. State
of Karnataka, AIR (1983) SC 446, State of UP. v. Sukhbasi, AIR (1985) F
SC 1224, Ba/winder Singh v. State of Punjab, AIR (1987) SC 350 and
Ashok Kumar Chatterjee v. State of MP., 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 G
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.                                         H
    402                SUPREME COURT REPORTS (2004] SUPP. 2 S.C.R.

A        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
B
             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
c            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:
D
         (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
E 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

F         (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."

G         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
H   fully established and the cumulative effect of all the facts so established
                  V.P. PATIL v; STATE [PASAYAT, J.]                   403

must be consistent only with the hypothesis of guilt.                       A
      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 basi!i' of any
legal inference must be clearly proved and beyond reasonable doubt B
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, C
upon any other reasonable hypothesis than that of his guilt; and (5) ifthere
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 D
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 MP., AIR (1952) SC
343 it was observed thus:                                                   E
         "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 F
         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 G
         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 H
    404                SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A 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
B 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;

c            (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
D
             tendency;

             (4) they should exclude every possible hypothesis except the one
             to be proved; and

E            (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.

F       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
G 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
H by the Trial Court. The evidence of PW-6 was discarded on the ground
                  V.P. PATIL v. STATE [PASAYAT, J.]                  405
that he was not very close to the accused and not a person on whom the A
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 B
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 C
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 D
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- E
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 F
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.
                                                                           G
K.K.T.                                                Appeal dismissed.