State of
Maharashtra Vs. Mangilal [2009] INSC 513 (6 March 2009)
Judgment
IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 23
OF 2002 State of Maharashtra ...Appellant Mangilal ...Respondent
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 2 "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 3 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 4 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 5 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 6 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, 7 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, 8 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 9 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 10 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.
11
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.
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.
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. 14 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....".
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 16 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.
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:
18 (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 19 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.
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.
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