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Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.     53      OF     2010   

Arvindkumar Anupalal Poddar …Appellant

VERSUS

State of Maharashtra                …Respondent

J     U     D     G     M     E     N     T   

Fakkir Mohamed Ibrahim Kalifulla, J.

1. Accused No.1 is the appellant.  The appeal is directed  

against the judgment of the High Court of Bombay in  

Criminal Appeal No.564 of 2006 dated 24.4.2008. By the  

judgment of the trial Court dated 25 & 28.11.2005 the  

appellant was convicted and sentenced to undergo life  

imprisonment apart from imposition of fine along with  

accused No.2 for offences under Section 302 read with  

Section 34, Indian Penal Code, and for causing  

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disappearance of evidence under Section 201 read with  

Section 34, IPC and fine of Rs. 5,000/-each was also  

imposed and in default to suffer further rigorous  

imprisonment in custody.  Both the accused preferred  

appeals before the High Court and the appeal preferred by  

accused No.2 in Criminal Appeal No.563 of 2006 was allowed  

and he was acquitted of the charges punishable under  

Section 302 and 201, IPC while the appellant’s appeal came  

to be dismissed confirming the conviction and sentence  

imposed on him by the learned Sessions Judge.

2. The case of the prosecution was that deceased Sita  

Devi was the first wife of the appellant, that on the date of  

occurrence, namely, on 06.12.2001 at 8 a.m. the appellant  

was seen going along with the deceased Sita Devi and  

accused No.2, who is none other than his brother.  

According to Sachidanand Baleshwar (PW-1) who is closely  

related to the deceased, the appellant told him that he is  

going with his wife for a stroll.  It was stated that the  

appellant and A-2 were seen in the evening and the deceased  

was not with them at that time while their clothes were  

blood stained.  On the next day, i.e. on 07.12.2001,  

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appellant stated to have proclaimed that the deceased ran  

away from the matrimonial home.   

3. On 08.12.2001, it was noticed that the appellant and  

his family were in the process of leaving the village by  

packing all their materials, the same was informed to  

Malvani police station, that PW-3 Sub-Inspector of Police of  

Malvani police station went to the residence of the appellant  

by around 12 noon when he was informed that the deceased  

was missing for the last two days and that the appellant and  

his second wife were planning to run away from the village.  

According to PW-3 the appellant informed that he took the  

deceased on 06.12.2001 in the morning to Gorai Creek  

where she was killed by him with the aid of a knife. PW-3  

stated to have forwarded the complaint based on the  

information gathered by him to Borivali police station since  

the place of occurrence fell within their jurisdiction. All the  

papers stated to have been transferred around 1-1.30 p.m.  

along with the accused to the said police station.   

4. Subsequently, at the instance of PW-4, A-2 was also  

stated to have been apprehended through whom the clothes  

were also seized.  At the instance of the appellant, the dead  

body of the deceased Sita Devi was stated to have been  

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fished out from Gorai Creek and the same was found to have  

been lying entangled in the weeds and parts of the body were  

also found to have been eaten away by aquatic animals.  

PW-1 stated to have identified the body with the aid of toe  

ring and the petticoat of the deceased.  The motive for the  

alleged offence was stated to be that both the wives of the  

appellant were indulging in frequent fights which irked the  

appellant and this ultimately resulted in the killing of his  

first wife Sita Devi.   

5. The appellant and his brother A-2 were tried for  

offences under Section 302 read with Section 34, IPC as well  

as Section 201 read with Section 34, IPC.  As stated earlier  

while the conviction and sentence imposed on the appellant  

came to be confirmed by the impugned common order of the  

High Court, the conviction and sentence imposed on the  

second accused came to be set aside for want of proof.  For  

the prosecution, PWs 1 to 10 were examined and Exhibits 1-

26 were marked.  When the accused were questioned under  

Section 313 Cr.P.C. they simply denied the offence alleged  

against them.  None was examined on the defence side.  It  

was, therefore, based on the circumstances which linked the  

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appellant to the death of the deceased, the conviction and  

sentence came to be imposed on him.

6. Assailing the judgment impugned in this appeal the  

learned counsel for the appellant contended that since the  

body of the deceased was found in mutated condition; half of  

which was eaten away by aquatic animals, the identification  

of the same was not proved.  Learned counsel, therefore,  

contended that the conviction of the appellant based on  

such slender evidence cannot be sustained. The learned  

counsel also contended that there were very many missing  

links in the chain of circumstances and, therefore, the  

conviction imposed on the appellant is liable to be set aside.  

7. As against the above submissions, learned counsel  

appearing for the respondent State submitted that the  

appellant was last seen with the deceased on 06.12.2001 by  

PW-1, that he was also seen on the same evening with blood  

stained clothes when the deceased was not found along with  

him, that at the instance of A-2 blood stained clothes were  

recovered as stated by PW-4 and that the theory of running  

away of the deceased from the matrimonial home was never  

pleaded before the Courts below.  Learned counsel also  

contended that at no point of time the appellant disputed  

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the identity of the body of the deceased in the course of trial.  

It was, therefore, contended that if the deceased had run  

away from the matrimonial home, it was for the appellant to  

explain the said situation in a satisfactory manner which the  

appellant failed to do.  Learned counsel, therefore, contended  

that the impugned judgment does not call for interference.  

8. Having heard learned counsel for the appellant as  

well as the respondent and having perused the judgment  

impugned in this appeal and all other material papers placed  

before us, we are also convinced that there is no merit in  

this appeal.  The chain of circumstances noted by the Court  

below and approved by the High Court were that the  

deceased was last seen on 06.12.2001 at 8 a.m. along with  

the appellant and his brother, that even according to the  

appellant he was going to Gorai Creek for a stroll with his  

first wife, namely, the deceased Sita Devi, that when on the  

evening of the same day, the accused alone returned leaving  

behind the deceased and their clothes were found to be  

blood stained they were questioned as to the whereabouts of  

the deceased to which the appellant stated that she ran  

away from the home.  The knife used was stated to have  

been recovered through the I.O.  PW-2, the landlady in her  

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evidence stated that she used to hear the frequent fights of  

the appellant with the deceased Sita Devi, that when the  

appellant was making preparations to leave the village on  

08.12.2001, on suspicion the information was sent to the  

police and, at the instance of the appellant, the body of the  

deceased was recovered in a decomposed state from the  

Creek.  PW-5 the doctor who did the post mortem on  

09.12.2001 at about 5.30 p.m. noted the following injuries:-

“External Injuries:

Swelling and bloating of trunk eyes. Eyes absent due to PM animal bites.  Soft portions of  

face like lips, ear, nose, cheek portions eaten by  animals.

Tongue inside mouth.  There is a mouth gag of blouse  portion inside mouth inserted from left of mouth  (corner).

Column 16-position of limbs Lower extremities straight

Left forehead from elbow joint present and preserved but  remaining portion up to shoulder joint  muscular part eaten by animals.

Right humeros without muscles was present/lower  forehead absent missing.

A- Except cervical verterbra all neck soft tissues  and organs missing.

B- Sternum alongwith ribs upto costo chondrai  junction missing.

- from L/3 of oesohaus present. 1) 3 cm x 0.5 cm incised would cut mark seen over  

C4/5 verterbra body obliquely placed inflittration  staining seen at the marginer.

2) 1.0 cm x 0.5 cm IW of 0.5 cm x 0.5 cm over middle  phalex of left thumb over palmer surface.

Internal injuries:

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1) Brain  Membrance loose, matter softened due to advanced  decomposition. Liquefying stag. Thorax walls, ribs, cartilages absent as 17,13 order ribs  loosed out and displaced. Pleura, Larynx, Trachea and Bronchi missing due to  animal bites. Abdomen-stomach and its contents L/3 onwards preserved alongwith stomach The following items were kept back for C.A. and blood  grouping:

1. Stomach and intestine 2. Liver/Spleen/Kideny for C.A. 3. Hairs, two teeth alongwith roots and lower  

end of hammerous bones for blood grouping. 4. skull preserved for superimposition  

technique.”

9. According to PW-5, the death of the deceased was due  

to the cut injury in her throat and neck and the other  

injuries which were found to be fatal.  He also opined that  

such injuries could have been caused by a sharp edged  

weapon like the one marked in the case.  The suggestion  

that the injuries could have been caused if the person had  

fallen on a blunt surface was ‘denied’.  The clothes seized  

from the appellant were found to contain human blood.   

10. The circumstances narrated above clearly establish  

the guilt of the appellant in the killing of the deceased who  

was his first wife and he had a clear motive to eliminate her  

since there were constant fights between the deceased  on  

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the one side and the appellant and his second wife on the  

other which he could not tolerate.  

11. As in the case on hand conviction imposed on the  

appellant is only based on circumstantial evidence, we feel  

that the various decisions of this Court laying down the  

principles of appreciating the circumstantial evidence while  

imposing the sentence can be highlighted.  The earliest case  

on this subject was reported as Hanumant Govind  

Nargundkar & Anr. v. State of Madhya Pradesh -AIR  

1952 SC 343.  In para 10, the position has been succinctly  

stated as under:

“10. xxx xxx xxx xxx

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 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.  In spite of the forceful arguments addressed to us by the  learned Advocate-General on behalf of the State we have  not been able to discover any such evidence either  intrinsic within Ex.P-3A or outside and we are  constrained to observe that the Courts below have just  

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fallen into the error against which warning was uttered  by Baron Alderson in the above mentioned case.”

The decision in Hanumant Govind (supra) was followed  

in the Constitution Bench decision of this Court reported as  

Govinda Reddy Krishna & Another v. State of Mysore -  

AIR 1960 SC 29.  The said position was subsequently  

reiterated in the decision reported as Naseem Ahmed v.  

Delhi Administration - 1974 (3) SCC 668.  In para 10 of  

the decision in Naseem Ahmed (supra), the legal position  

has been stated as under:

“10. This is a case of circumstantial evidence and  it is therefore necessary to find whether the  circumstances on which prosecution relies are capable  of supporting the sole inference that the appellant is  guilty of the crime of which he is charged.  The  circumstances, in the first place, have to be  established by the prosecution by clear and cogent  evidence and those circumstances must not be  consistent with the innocence of the accused.  For  determining whether the circumstances established on  the evidence raise but one inference consistent with  the guilt of the accused, regard must be had to the  totality of the circumstances.  Individual  circumstances considered in isolation and divorced  from the context of the over all picture emerging from a  consideration of the diverse circumstances and their  conjoint effect may by themselves appear innocuous.  It is only when the various circumstances are  considered conjointly that it becomes possible to  understand and appreciate their true effect.  If a  person is seen running away on the heels of a murder,  the explanation that he was fleeing in panic is  

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apparently not irrational.  Blood stains on the clothes  can be attributed plausibly to a bleeding nose.  Even  the possession of a weapon like a knife can be  explained by citing a variety of acceptable answers.  But such circumstances cannot be considered in  water-tight compartments.  If a person is found  running away from the scene of murder with blood- stained clothes and a knife in his hand, it would in a  proper context, be consistent with the rule of  circumstantial evidence to hold that he had committed  the murder.”

In the decision reported as Sharad Birdhichand  

Sarda v. State of Maharashtra -1984 (4) SCC 116, this  

Court has laid down the cardinal principles regarding  

appreciation of circumstantial evidence and held that  

whenever the case is based on circumstantial evidence, the  

following features are required to be complied with which  

has been set out by this Court in para 153 at page 185  

which reads as under:

“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 where the following observations were  made [SCC para 19, p.807: SCC (Crl.) p. 1047].

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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.”

The above principles have been followed and reiterated  

in the recent decision of this Court reported as Mustkeem @  

Sirajudeen v. State of Rajasthan -2011 (11) SCC 724.   

In the decision reported in Rukia Begum & Ors. v.  

State of Karnataka -2011 (4) SCC 779, this Court again  

restated the principles as under:

“17. In order to sustain conviction, circumstantial  evidence must be complete and incapable of  explanation of any other hypothesis than that of the  guilt of the accused.  Such evidence should not only be  consistent with the guilt of the accused but  

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inconsistent with his innocence.  No hard-and-fast rule  can be laid to say that particular circumstances are  conclusive to establish guilt.  It is basically a question  of appreciation of evidence which exercise is to be done  in the facts and circumstances of each case.

18. Here in the present case the motive, the  recoveries and abscondence of these appellants  immediately after the occurrence point out towards  their guilt.  In our opinion, the trial Court as also the  High Court on the basis of the circumstantial evidence  rightly came to the conclusion that the prosecution  has been able to prove its case beyond all reasonable  doubt so far as these appellants are concerned.”

12. When we apply the above principles to the case on  

hand, the circumstances stated by the trial Court and  

concretized by the High Court, namely, were that the  

deceased and the accused were last seen together on  

06.12.2001 as per the version of PWs 1 and 6, the body of  

the deceased was recovered at the instance of the appellant  

as stated by PW-7, the recovery of knife by the I.O. from the  

place of occurrence, the frequent quarrels between the  

deceased and the accused as stated by PWs 1 and 2, the  

theory of the deceased having run away from the  

matrimonial home not properly explained by the appellant  

apart from the fact that no steps were taken by him to trace  

his wife, the weapon used, namely, the knife containing  

blood stains, that the nature of injuries found on the body of  

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the deceased, that as per the version of PW-5, the post  

mortem doctor, the death was homicidal and that the  

injuries could have been caused with the weapon marked in  

the case , that the appellant wanted to flee from the town  

itself and that the clothes seized from the appellant were  

found containing human blood.  

13. When the above circumstances relied upon by the  

Courts below for convicting the appellant are examined, we  

find that the principles laid down by this Court in the above  

referred to decisions are fully satisfied.  The circumstances  

narrated above as held by the Courts below were all  

established without any doubt and are conclusive in nature.  

They were not explainable with any other possibilities. The  

circumstances are consistent which leads to the only  

hypothesis of the guilt of the appellant alone and none else  

and the said circumstances exclude every other hypothesis  

and show that in all probabilities, the killing of the deceased  

could have been done only by the appellant. The motive  

along with the chain of circumstances stood proved against  

the appellant only go to show that the appellant alone was  

responsible for the killing of the deceased. The appellant has  

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miserably failed to show any missing link in the chain of  

circumstances demonstrated by the prosecution for the  

offence alleged against him.

14. We are in full agreement with the above conclusions  

of the High Court and we find no good grounds to interfere  

with the same.  As rightly argued by learned counsel for the  

respondent the appellant did not dispute the identity of the  

body at any point of time, that he did not state any thing in  

the course of 313 questioning about the running away of his  

wife and that there was no missing link in the chain of  

circumstances demonstrated before the Courts below. If  

according to the appellant the deceased ran away from the  

matrimonial home he should have established the said fact  

to the satisfaction of the Court as it was within his special  

knowledge.  In this context it will be worthwhile to refer to  

the recent decision of this Court reported as Prithipal  

Singh & Ors v. State of Punjab - 2012 (1) SCC 10.  In  

para 53, it has been held that a fact which is especially in  

the knowledge of any person then the burden of proving that  

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fact is upon him and that it is impossible for the prosecution  

to prove certain facts particularly within the knowledge of  

the accused.   

15. Having regard to our above conclusions, we do not  

find any merit in this appeal.  The appeal fails and the same  

is dismissed.

…..……….…………………………...J.                   [Swatanter Kumar]

  ……………. ………………………………J.

           [Fakkir Mohamed Ibrahim Kalifulla]

New Delhi; July 26, 2012

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