REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1348 OF 2013
SHIVAJI CHINTAPPA PATIL …Appellant(s)
VERSUS
STATE OF MAHARASHTRA
…Respondent(s)
J U D G M E N T
B.R. GAVAI, J.
This appeal assails the judgment and order delivered by the
Division Bench of the High Court of Judicature at Bombay in
Criminal Appeal No. 46 of 2005, thereby dismissing the appeal of
the appellant and maintaining the conviction and sentence of the
appellant as passed by the Additional Sessions Judge, Islampur in
Sessions Case No. 39 of 2003 for offence punishable under Section
302 of the Indian Penal Code (For short ‘IPC’).
2. The prosecution case in brief as could be gathered from the
material placed on record is as under:-
1
Deceased Jayashree was married to the accused prior to
about 8 or 9 years from the date of the incident. They were blessed
with two issues. PW-3-Anandibai is the mother of deceased.
PW-5-Ramchandra Chintappa is the brother of the appellant, who
was residing separately in different part of the same house. It is the
case of the prosecution, that the appellant was addicted to liquor
and used to abuse and beat the deceased forcing her to get money
from her mother. On the fateful night of 23rd March 2003, the
accused and deceased went to sleep in their house. At the dawn of
24th March 2003, PW-5 gave a call to the appellant, so that they
could go to their field for harvesting jawar crop. The accused
opened the door and expressed his inability to accompany him to
the field stating, that Jayashree had committed suicide by hanging.
PW-4-Ramchandra Shankar resides near the house of the appellant
as well as PW-5. PW-5 informed PW-4 about the incident. PW-5
went to the village Panumbre to inform the mother of deceased and
other relatives about the incident. PW-5 went to Kokrud Police
Station and gave information about death of the deceased. On the
basis of information received from PW-5, initially Ad No.13/2003
came to be registered. Subsequently, crime came to be registered
for the offence punishable under Section 302 IPC. As per the
advance death certificate, the probable cause of death was
2
asphyxia due to strangulation. The charge-sheet came to be filed
before the jurisdictional Magistrate, First Class.
3. The case was committed to the learned Sessions Judge.
Charge was framed for the offence punishable under Section 302
IPC. The appellant pleaded not guilty and claimed to be tried. At
the conclusion of the trial, the learned trial judge convicted the
accused for the offence punishable under Section 302 IPC and
sentenced him to imprisonment for life. Being aggrieved thereby,
the appellant preferred an appeal before the High Court, which
came to be dismissed. Hence, the present appeal.
4. We have heard Shri M. Qamaruddin, learned amicus curiae
appearing on behalf of the appellant and Shri Sachin Patil, learned
counsel appearing on behalf of the State.
5. Shri Qamaruddin, learned counsel for the appellant submitted,
that the case rests entirely on the circumstantial evidence. He
submitted, that unless and until the prosecution proves its case
beyond all reasonable doubt, conviction in a case of circumstantial
evidence would not be warranted. The learned counsel submitted,
that merely on the basis of suspicion, conviction would not be
3
sustainable. He relies in this respect on the judgment of this Court
in the case of G. Parshwanath v. State of Karnataka1
.
6. The learned counsel submitted, that in the present case, the
prosecution has not been in a position to establish, that the death of
the deceased was homicidal. He submitted, that if the evidence of
PW-6-Dr. Kishor Patki is considered, it would reveal, that the
evidence is inconsistent with the theory of homicidal death. In this
respect, the learned counsel relies on the judgment of this Court in
the case of Eswarappa alias Doopada Eswarappa v. State of
Karnataka2
.
7. Insofar as the finding of the learned trial court and the High
Court with regard to the burden of the accused in view of Section
106 of the Evidence Act is concerned, the learned counsel
submitted, that unless the initial burden is discharged by the
prosecution, the burden would not shift on the appellant. Reliance
in this respect is placed on the judgments of this Court in
Subramaniam v. State of Tamil Nadu and Another3 and Gargi v.
State of Haryana4
.
1 (2010) 8 SCC 593
2 (2019) 16 SCC 269
3 (2009) 14 SCC 415
4 (2019) 9 SCC 738
4
8. The learned counsel submitted, that in the case of
circumstantial evidence, motive plays an important role and the
prosecution has utterly failed to prove the case as to motive.
Reliance in this respect is placed on the judgment of this Court in
the case of Babu v. State of Kerala5
.
9. Lastly, the learned counsel submitted, that when two views
are possible, one leaning towards acquittal and another towards
conviction, the benefit should be given to accused. Reliance in this
respect placed on the judgment of this Court in the case of Devi Lal
v. State of Rajasthan6
.
10. Shri Sachin Patil, learned counsel appearing on behalf of the
State submitted, that no interference is warranted in the concurrent
findings of the trial court and the High Court. He submitted, that the
trial court as well as the High Court have rightly relied on the
judgment of this Court in the case of State of Rajasthan v. Kashi
Ram7
for convicting the accused.
11. The law with regard to conviction on the basis of
circumstantial evidence has been very well crystalised in the
5 (2010) 9 SCC 189
6 (2019) 19 SCC 447
7 (2006) 12 SCC 254
5
judgment of this Court in the case of Sharad Birdhichand Sarda v.
State of Maharashtra8
:-
“153. A close analysis of this decision would show that
the following conditions must be fulfilled before a case
against an accused can be said to be fully established:
(1) the circumstances from which the
conclusion of guilt is to be drawn should be
fully established.
It may be noted here that this Court indicated that the
circumstances concerned “must or should” and not “may
be” established. There is not only a grammatical but a
legal distinction between “may be proved” and “must be
or should be proved” as was held by this Court in Shivaji
Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC
793 where the observations were made : [SCC para 19,
p. 807 : SCC (Cri) p. 1047]
“19. …..Certainly, it is a primary principle that
the accused must be and not merely may be
guilty before a court can convict and the
mental distance between ‘may be’ and ‘must
be’ is long and divides vague conjectures from
sure conclusions.”
(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.
8 (1984) 4 SCC 116
6
154. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based on
circumstantial evidence.”
12. In the light of these guiding principles, let us examine the facts
in the present case.
13. In the present case, PW-6-Dr. Kishor Patki has been
examined as a medical expert. He has conducted the autopsy
along with his senior medical officer Dr. Tamboli. In the advance
death certificate (Exh.-15), issued on 24th March 2003, under the
signature of PW-6, the probable cause of death was ‘asphyxia due
to strangulation’. However, in the Post-Mortem Report (Exh.-16)
which is signed by Dr. Kishor Patki as well as Dr. Tamboli on 19th
June 2003, the cause of death was ‘cardio respiratory arrest due to
asphyxia due to hanging’. The only explanation for inordinate delay
of almost 3 months in signing the Post-Mortem Report as given in
his evidence by PW-6 is, that he was busy in some other work.
14. It will be relevant to refer to cross-examination of PW-6:-
“It is correct that in both cases of suicidal or homicidal
hanging the ligature mark around the neck shall go
upwards ears. It is correct that while issuing advance
death certificate it did not consult senior medical officer
and after consulting of senior medical officer and going
through the books I concluded that it was a case of
hanging. Article No. 1 can be used for suicidal hanging
and in case of homicidal hanging or homidic strangulation
7
the bodily resistance would have reflected other recorded
in my presence wise.”
15. It is thus clear, that the medical expert has admitted, that in
both the cases of suicidal or homicidal hanging, the ligature marks
around the neck shall go upwards ears. He has further admitted,
that after consulting his senior medical officer and going through the
books, he concluded that it was a case of hanging. He has further
admitted, that Article No. 1 which is a rope, which is found on the
spot, can be used for suicidal hanging. He has further admitted,
that in case of homicidal strangulation, the bodily resistance would
have been reflected.
16. It will be apposite to refer to the judgment of this Court in the
case of Eswarappa alias Doopada Eswarappa (supra), wherein
this Court relied on Modi’s Medical Jurisprudence and Toxicology
and observed thus:-
“7. In Modi's Medical Jurisprudence and Toxicology, 23rd
Edn., p. 572 it is observed as follows:
“Homicidal hanging, though rare, has been
recorded. Usually, more than one person is
involved in the act, unless the victim is a child
or very weak and feeble, or is rendered
unconscious by some intoxicating or narcotic
drug. In a case, where resistance has been
offered, marks of violence on the body and
marks of a struggle or footprints of several
persons at or near the place of the occurrence
are likely to be found.”
8
None of the well-known signs referred to by the learned
author are present in this case.”
17. In the present case also, admittedly, there are no marks on
the body which would suggest violence or struggle. In any case, the
medical expert himself has not ruled out the possibility of suicidal
death. On the contrary, the Post-Mortem Report shows, that the
cause of death was ‘asphyxia due to hanging’.
18. In the light of this evidence, we find, that the trial court as well
as the High Court have erred in holding, that the prosecution has
proved that the death of the deceased was homicidal.
19. That leads us to the reliance placed by the High Court as well
as the trial court on the provisions of Section 106 of the Evidence
Act. In the case of Subramaniam (supra), this Court had occasion
to consider the similar case of the husband and wife remaining
within the four walls of a house and death taking place. It will be
relevant to refer to the following observations of this Court:-
“23. So far as the circumstance that they had been living
together is concerned, indisputably, the entirety of the
situation should be taken into consideration. Ordinarily
when the husband and wife remained within the four walls
of a house and a death by homicide takes place it will be
for the husband to explain the circumstances in which she
might have died. However, we cannot lose sight of the
fact that although the same may be considered to be a
strong circumstance but that by alone in the absence of
9
any evidence of violence on the deceased cannot be held
to be conclusive. It may be difficult to arrive at a
conclusion that the husband and the husband alone was
responsible therefor.”
20. In the case of Subramaniam (supra), reliance was placed on
behalf of the State on the judgments of this Court in Trimukh
Maroti Kirkan v. State of Maharashtra9 and Ponnusamy v. State
of Tamil Nadu10. This Court observed thus:-
“26. In both the aforementioned cases, the death
occurred due to violence. In this case, there was no mark
of violence. The appellant has been found to be wholly
innocent. So far as the charges under Section 498-A or
Section 4 of the Dowry Prohibition Act is concerned, the
evidence of the parents of the deceased being PW 1 and
PW 2 as also the mediators, PWs 4 and 5 have been
disbelieved by both the courts below. That part of the
prosecution story suggesting strong motive on the part of
the appellant to commit the murder, thus, has been ruled
out……”
21. It will also be relevant to refer to the following observations of
this Court in the case of Gargi (supra):-
“33.1. Insofar as the “last seen theory” is concerned,
there is no doubt that the appellant being none other than
the wife of the deceased and staying under the same
roof, was the last person the deceased was seen with.
However, such companionship of the deceased and the
appellant, by itself, does not mean that a presumption of
guilt of the appellant is to be drawn. The trial court and
the High Court have proceeded on the assumption that
Section 106 of the Evidence Act directly operates against
the appellant. In our view, such an approach has also not
9 (2006) 10 SCC 681
10 (2008) 5 SCC 587
10
been free from error where it was omitted to be
considered that Section 106 of the Evidence Act does not
absolve the prosecution of its primary burden. This Court
has explained the principle in Sawal Das v. State of Bihar,
(1974) 4 SCC 193 in the following: (SCC p. 197, para 10)
“10. Neither an application of Section 103 nor
of 106 of the Evidence Act could, however,
absolve the prosecution from the duty of
discharging its general or primary burden of
proving the prosecution case beyond
reasonable doubt. It is only when the
prosecution has led evidence which, if
believed, will sustain a conviction, or which
makes out a prima facie case, that the
question arises of considering facts of which
the burden of proof may lie upon the
accused.””
22. It could thus be seen, that it is well-settled that Section 106 of
the Evidence Act does not directly operate against either a husband
or wife staying under the same roof and being the last person seen
with the deceased. Section 106 of the Evidence Act does not
absolve the prosecution of discharging its primary burden of proving
the prosecution case beyond reasonable doubt. It is only when the
prosecution has led evidence which, if believed, will sustain a
conviction, or which makes out a prima facie case, that the question
arises of considering facts of which the burden of proof would lie
upon the accused.
11
23. In the present case, as discussed hereinabove, the
prosecution has even failed to prove beyond reasonable doubt, that
the death was homicidal.
24. Another circumstance relied upon by the prosecution is, that
the appellant failed to give any explanation in his statement under
Section 313 Cr.P.C. By now it is well-settled principle of law, that
false explanation or non-explanation can only be used as an
additional circumstance, when the prosecution has proved the chain
of circumstances leading to no other conclusion than the guilt of the
accused. However, it cannot be used as a link to complete the
chain. Reference in this respect could be made to the judgment of
this Court in Sharad Birdhichand Sarda (supra).
25. The High Court and the trial court have then relied on
Section 8 of the Evidence Act about the conduct of the accused. It
will be relevant to note, that PW-5-Ramchandra Chintappa who was
the first informant, has stated in his evidence, that when he went to
call the accused for going to the field for harvesting the crop of
jawar, he informed him, that the deceased had committed suicide by
hanging. Not only this, but on the basis of the report of the said
witness, initially Ad No.13 of 2003 came to be registered. The
evidence of this witness is also duly corroborated by the evidence of
12
PW-4-Ramchandra Shankar. Both these witnesses are prosecution
witnesses. We find, that the High Court and the trial court have
failed to take into consideration the evidence of these witnesses.
26. Though in a case of direct evidence, motive would not be
relevant, in a case of circumstantial evidence, motive plays an
important link to complete the chain of circumstances. The motive
relied on by the prosecution is the ill-treatment by the appellant
meted out to the deceased for not arranging the money from her
mother. In this respect, the prosecution relies on the evidence of
PW-3-Anandi, mother of the deceased. It will be relevant to refer to
the cross-examination of the said witness:-
“….The accused and deceased had been to my house
and stayed for four days few days prior to the incident…..”
27. PW-3-Anandi, mother of the deceased has stated, that the
accused and deceased had been to her house and stayed for four
days few days prior to the incident. It would thus show, that the
relations between the deceased and accused were cordial. It will
not be safe to rely on the uncorroborated evidence of such a
witness.
28. The prosecution has sought to rely on the evidence of PW-1-
Nivrutti. However, his evidence is full of improvements and
13
omissions. Even the trial court and the High Court have disbelieved
his evidence.
29. It will be relevant to refer to a recent judgment of this Court in
the case of Anwar Ali and Another v. State of Himachal
Pradesh11:-
“24. Now so far as the submission on behalf of the
accused that in the present case the prosecution has
failed to establish and prove the motive and therefore the
accused deserves acquittal is concerned, it is true that
the absence of proving the motive cannot be a ground to
reject the prosecution case. It is also true and as held by
this Court in Suresh Chandra Bahri v. State of Bihar 1995
Supp (1) SCC 80 that if motive is proved that would
supply a link in the chain of circumstantial evidence but
the absence thereof cannot be a ground to reject the
prosecution case. However, at the same time, as
observed by this Court in Babu [Babu v. State of Kerala,
(2010) 9 SCC 189, absence of motive in a case
depending on circumstantial evidence is a factor that
weighs in favour of the accused. In paras 25 and 26, it is
observed and held as under: [Babu v. State of Kerala,
(2010) 9 SCC 189], SCC pp. 200-01)
“25. In State of U.P. v. Kishanpal, (2008) 16
SCC 73, this Court examined the importance
of motive in cases of circumstantial evidence
and observed: (SCC pp. 87-88, paras 38-39)
‘38. … the motive is a thing which is primarily
known to the accused themselves and it is not
possible for the prosecution to explain what
actually promoted or excited them to commit
the particular crime.
39. The motive may be considered as a
circumstance which is relevant for assessing
the evidence but if the evidence is clear and
unambiguous and the circumstances prove
the guilt of the accused, the same is not
11 (2020) 10 SCC 166
14
weakened even if the motive is not a very
strong one. It is also settled law that the
motive loses all its importance in a case
where direct evidence of eyewitnesses is
available, because even if there may be a
very strong motive for the accused persons to
commit a particular crime, they cannot be
convicted if the evidence of eyewitnesses is
not convincing. In the same way, even if there
may not be an apparent motive but if the
evidence of the eyewitnesses is clear and
reliable, the absence or inadequacy of motive
cannot stand in the way of conviction.’
26. This Court has also held that the absence
of motive in a case depending on
circumstantial evidence is a factor that weighs
in favour of the accused.
(Vide Pannayar v. State of T.N., (2009) 9 SCC
152.””
30. In the present case, we are of the considered view that the
prosecution has utterly failed to prove motive beyond doubt. As
such, an important link to complete the chain of circumstances is
totally absent in the present case.
31. Insofar as the reliance placed by the learned counsel for the
State on the judgment of Kashi Ram (supra) is concerned, it would
reveal, that this Court had used the factor of non-explanation under
Section 313 Cr.P.C. only as an additional link to fortify the finding,
that the prosecution had established chain of events unquestionably
leading to the guilt of the accused and not as a link to complete the
15
chain. As such, the said judgment would not be applicable to the
facts of the present case.
32. It is more than settled principle of law that if two views are
possible, the benefit shall always go to the accused. It will be
apposite to refer to the following observations of this Court in the
case of Sharad Birdhichand Sarda (supra):-
“163. We then pass on to another important point which
seems to have been completely missed by the High
Court. It is well settled that where on the evidence two
possibilities are available or open, one which goes in
favour of the prosecution and the other which benefits an
accused, the accused is undoubtedly entitled to the
benefit of doubt. In Kali Ram v. State of Himachal
Pradesh (1973) 2 SCC 808, this Court made the following
observations : [SCC para 25, p. 820 : SCC (Cri) p. 1060]
“Another golden thread which runs through
the web of the administration of justice in
criminal cases, is that if two views are
possible on the evidence adduced in the
case, one pointing to the guilt of the accused
and the other to his innocence, the view which
is favourable to the accused should be
adopted. This principle has a special
relevance in cases wherein the guilt of the
accused is sought to be established by
circumstantial evidence.””
33. This Court, recently, in the case of Devi Lal (supra) observed
thus:-
“19. That apart, in the case of circumstantial evidence,
two views are possible on the case of record, one
pointing to the guilt of the accused and the other his
innocence. The accused is indeed entitled to have the
16
benefit of one which is favourable to him. All the judicially
laid parameters, defining the quality and content of the
circumstantial evidence, bring home the guilt of the
accused on a criminal charge, we find no difficulty to hold
that the prosecution, in the case in hand, has failed to
meet the same.”
34. In the present case, we are of the considered view that let
alone establishing chain of events which are so interwoven to each
other leading to no other conclusion than the guilt of the accused,
the prosecution has failed even to prove a single incriminating
circumstance beyond reasonable doubt. As such, the appeal is
allowed and the conviction and sentence passed by the trial court
as affirmed by the High Court is set aside. The appellant is
acquitted of all the charges and he is directed to be released
forthwith if not required in any other case.
………………………...J.
[R.F. NARIMAN]
..……………………….J.
[B. R. GAVAI]
NEW DELHI;
MARCH 02, 2021.
17
