Vithal Eknath Adlinge
Vs. State of Maharshtra  INSC 451 (27 February 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 662 OF 2007 Vithal
Eknath Adlinge ...Appellant Versus State of Maharashtra ...Respondent
Dr. ARIJIT PASAYAT,
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').
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.
12 witnesses to substantiate its accusations and the trial was held as the
accused pleaded innocence.
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.
support of the appeal, learned counsel for the appellant submitted that the
circumstances have not been established to find him guilty.
counsel for the respondent-State on the other hand supported the judgment.
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;
3 (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.
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 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
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
Further the proved
circumstances must be consistent only with the hypothesis of the guilt of the
accused and totally inconsistent with his innocence....".
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:
circumstances from which an inference of guilt is sought to be drawn, must be
cogently and firmly established;
circumstances should be of a definite tendency unerringly pointing towards
guilt of the accused;
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.
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.
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".
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.
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 7 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."
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;
(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.
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).
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 9 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."
Ramreddy Rajeshkhanna Reddy v. State of A.P. [2006 (10) SCC 172] it was noted
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).)"
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),
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 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.
(Dr. ARIJIT PASAYAT)