GOA II. PANDURANG MOHITE (Criminal Appeal Nos. 598-599 of 2002) DECEMBER 8 v. PANDURANG MOHITE last seen theory ·and the evidence of PWs 3 & Ors.

presumption of his innocence is certainly not weakened A but reinforced, reaffirmed and strengthened by the trial court. In Chandrappa's case* this Court has culled out the general principles regarding powers of the appellate court while dealing with an appeal against order of acquittal. [Paras 23 and 24] [192-G-H;193-B-C] B )., -f - - ~ . +- ---.:: .. *Chandrappa and Ors. v. State of Kamataka 2007 (4) SCC 415; Prandas v. State AIR 1954 SC 36; Surajpal Singh v. State 1952 SCR 193; Ajmer Singh v. State of Punjab 1953 SCR 418; At/ey v. State of U.P. AIR 1955 SC 807; Aher Raja c Khima v. State of Saurashtra (1955) 2 SCR 1285; Sanwat Singh v. State of Rajasthan (1961) 3 SCR 120; M.G. Agarwal v. State of Maharashtra (1963) 2 SCR 405; Shivaji Sahabrao Bobade v. State of Maharashtra 1973 (2) SCC 793; K. Gopal Reddy v. State of A.P (1979) 1 SCC 355; Ramesh Babula/ Doshi v. State of Gujarat (1996) 9 SCC 225; Allarakha K. Mansuri v. State of Gujarat (2002) 3 SCC 57; Bhagwan Singh v. State of M.P. (2002) 4 SCC 85; Harijana Thirupala v. Public Prosecutor, High Court of A.P. (2002) 6 SCC 470; Ramanand Yadav v. Prabhu Nath Jha (2003) 12 SCC 606 and Kallu v. State of M.P. (2006) 10 SCC 313, referred to. D E Sheo Swarup v. R. Emperor (1934) 61 IA 398 and Nur Mohd. v. Emperor AIR 1945 PC 151, referred to.

2.2. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is of a higher degree, there is, no absolute standard. What degree of probability amounts to "proof' is an exercise particular to each case. [Para 48] [208-F] F G State of U.P. v. Krishna Gopal 1988 (4) SCC 302 and Krishnan and Anr. v. State represented by Inspector of Police 2003 (7) sec 56, referred to . H 180 SUPREME COURT REPORTS [2008] 17 S.C.R. A· • "The Mathematics of Proof //": Glanville Williams, Criminal Law Review, 1979, by Sweet and Maxwell, p.340- 342, -referred to.

#3. In view of the conclusions of the High Court considered in the background of the P.rinciples laid down by this Court, the appeals are without merit. [Para 52] (210-B] ' Case Law Reference AIR 1977 SC 1063 relied on AIR 1956 SC 316 relied on AIR 1983 SC 446 relied on· ... AIR 1985 SC 1224 relied on AIR 1987 SC 350 relied on '. AIR 1989 SC 1890 · AIR 1954 SC 621 (1996) 10 sec 193 AIR 1990 SC 79 relied on relied on relied on relied on 1992 Crl.LJ 1104 relied on AIR 1952 SC 343 referred to Para 7 Para 7 Para 7 Para 7 Para 7 Para 7 Para 7 Para 8 Para 9 Para 10 Para 13 AIR 1984 SC 1622 2003 (8) sec 180 2003 c11) sec 261 2008(10) SCR 89 2005 (3) sec 114 2006 c10) sec 112 2005 (12) sec 438 referred to Para 14 referred to referred to referred to referred to referred to referred to Para 15 I Para 15 Para 15 Para 16 Para 17 Para 18 B c D E F G H e -y - --1 _,. ). • --¥ - ..... STATE OF GOA v. PANDURANG MOHITE [DR. ARIJIT PASAYAT, J.] 181 (1934) 61 IA 398 referred to Para 26 A AIR 1945 PC 151 referred to AIR 1954 SC 36 1952 SCR 193 1953 SCR 418 referred to referred to referred to Para 29 Para 30 Para 32 B Para 33 AIR 1955 SC 807 referred to Para 34 (1955) 2 SCR 1285 referred to (1961) 3 SCR 120 referred to Para 35 c Para 36 (1963) 2 SCR 405 1973 (2) sec 793 (1979) 1 sec 355 (1996) 9 sec 225 (2002) 3 sec sr c2002) 4 sec 85 c2002) 6 sec 410 (2003) 12 sec 60& (2006) 10 sec 313 2001 (4) sec 415 1988 (4) sec 302 2003 (7) sec 56 referred to Para 37 referred to referred to - referred to referred to referred to Para 38 Para 40 D Para 41 Para 42 Para 43 E referred to Para 44- referred to referred to referred to referred to referred to Para 45 Para 46 Para 47 Para 50 Para 51 F G CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 598-599 of 2002. From the final Judgment and Order dated 6/7.11.2001 of the High Court of Bombay Bench at Goa in Criminal Appeals No. 11 of 2000 & 14 of 2000. H -1- --,...- • ~ -- • --J ,,.. - ~ ---.: ,,_,.. ' \ 182 SUPREME COURT REPORTS 1 [2008] 17 S.C.R. A A Subhashyini for the Appellant. K. Sarda Devi for the Respondent. .. The Judgment of the Court was delivered by B DR. ARIJIT PASAYAT, J.1. Challenge in these appeals is to the judgment of a Division Bench of Bombay High Court at Goa directing acquittal of the respondent. The accused faced trial for offences punishable under Section 302, 392 and 201 of the Indian Penal Code, 1860 (in short the 'IPC'). The learned c Additional Sessions Judge, Mapusa found the accu~ed guilty of offence punishable under Sections 302, 392 and 201 IPC and convicted him to undergo imprisqnment for life, seven years and one years with different fines with default stipulations. r ·--( _; D

#2. In appeals the High Court found. the evidence t~ be inadequate and directed acquittal. .

#3. Prosecution version in a nutshell is as follows: ~- F Chandrakant Mahadeshwar and his son Shyam E Mahadeshwar (hereinafter referred to as the ~deceased') had gone for the ann~al fair to sell sweets at the. village Zarme. On · 1.3.1998, in the morning they were returning home. At about 7.30A.M. when they reached at village Valpoi, Shyam told his father that he would stay behind and father should proceed ahead"to his house and that he would follow him after some time. So, Chandrakant left behind Shyam at Valpoi and went to his Village at Thana. Till 1.00 p.m. on that day Shyam did not return home. So he started searching for Shyam. Ultimately, o_n 2.3.1998, at about 8.30 a.m. he lodged report at the Valpoi Police Station that Shyam was missing. On the basis of that report, the missing case No.6/98 was registered at the police station. l_ • • • - G On 2.3.1998 itself when Chandrakant was at Valpoi, Ramjatan Vishwakarma (PW3) told him that he had taken ,H Shyam and the accused to Hedode Bridge on the previous day • - ... y ~ STATE OF GOA v. PANDURANG MOHITE [DR ARIJIT PASAYAT, J.] 183 at about 7 .15 a.m, and he had left them there. Ramjatan then A took Chandrakant to the house of the accused, but the accused was not there. The matter was also reported to the police. The police visited the house of the accused on 2.3.98 at about 11 a.m., but the accused was not there. On 2.3.1998, at about noon time, when Chandrakant returned home, he saw that the accused was at his home and accused told him that Shyam would be returning home by evening. Thereafter, the police came there. The accused was taken to the police station. There was one bicycle. It was seized c by the police. B On 2.3.1998 itself, the brotner of the accused i.e. Baburao as well as brother-in-law of the accused i.e. Jaidev Paryekar were also called at the police station and inquiries were made with them. A shirt worn by Baburao and a pant worn by Jaidev 0 Paryekar were seized by the police under a Panchanama. The accused was interrogated and he made a statement that he would point out the place where dead body of Shyam was lying. Then the police, panchas and the accused went by police jeep to Hedode Bridge. From there, the accused took them in a jungle at distance of about one and half kilometre and pointed out to the dead body of the deceased. Since it was night time, Inspector Dessai who had taken the accused and the panchas to that place, could not prepare the panchanama of the dead body and therefore, he kept some policemen to keep watch on the dead body and returned to the police station. t F On returning to the police station, inspector Dessai himself lodged F.1.R. at about 1.30 a.m. on 3.3.1998. He gave all the details as to how the dead body was recovered and alleged G. that the accused had committed the offence. of murder of Shyam and had taken away cash and other valuables from the body of the deceased. So, crime was registered for the offences punishable under Sections 302, 392 and 201 of l.P.C. It was crime No.18/98. H ..,., r, ·+ ~ "r - '-;' ~ 184 SUPREME COURT REPORTS [2008] 17 S.C.R. A Inspector Dessai himself took up the investigation. In the morning of 3.3.1998, Inspector Dessai again went to the place in the jungle where dead body was lying.· He prepared panchanama of the place of the offence and from there he recovered a pair of chapples and a knife. He also prepared s inquest panchanama of the dead body. He found that there were some injuries on the person of the deceased· and there were also burn injuries. He sent the dead body for post mortem examination to Goa Medical College at Bambolim. " Dr. Silvano Dias Sapeco conducted post mortem C examination on the dead body and gave his opinion that the cause of death was due to post mortem burns.

#4. On completion of investigation charge sheet was filed and the accused faced trial. There was no eye witness to the D occurrence. Prosecution version rested on circumstantial evidence. The prosecution rested its version on the last seen theory contending that the accused and the deceased were last seen together. For that purpose it relied on the evidence of PWs 3 & 8. As noted above the trial court placed reliance on the' E .. evidence of PWs 3 & 8 and directed conviction which in appeal was set aside by the High Court. F

#5. Learned counsel for the appellant-State submitted that the High Court should not have discarded the evidence of PWs 3 & 8. According to PW 3 he had carried both the accused and the deceased on his motor cycle betw~en 7 to 7.15 AM. Thereafter the accused was seen alone between 9.15 to 9.30 AM. PW 8 saw the accused going near the place of occurrence between 9 AM to 9.30 AM and had carried him on his motor cycle. This, according to learned counsel for the appellant, was G sufficient to fasten the guilt on the accused.

#6. Learned counsel for the respondent on the other hand supported the judgment of the High Court. It was submitted that keeping in view parameters relating to appeal against-judgment H of acquittal, this appeal is sans merit. '\.,. I STATE OF GOA v. PANDURANG MOHITE [DR. ARIJIT PASAYAT, J.] 185

#7. It has been consistently laid down by this Court that A 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); B Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Kamataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Ba/winder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The c 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 D 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.

#8. We may also make a reference to a decision of this E Court in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 sec 193, wherein it has been observed thus: "In a case based on circumstantial evidence, the settled law is that the circumstances from which the F 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 .... ". G

#9. 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 H ! -~- ' 186 SUPREME COURT REPORTS [2008] 17 S.C.R. A 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." B c D

#10. In State of u:P. v. Ashok Kumar Srivastava, (1992 E Crl.LJ 1104), it was pointed out that greatcare 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 F established and the cumulative effect of all the ·facts so established must be consistent only with the hypothesis of guilt. I G

#11. 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 i's always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of H direct or circumstantial evidence the best evidence must be e ,.... ,' ..., ~ 7 1 I -~ I }-- ~ I l ...._ ' y r-- I .... '·· STATE Of GOAv. PANDURANG MOHITE [DR. ARIJIT PASAYAT; J.] 187 .... addJced which the nature of the ca~e admits; (4) in order to A justify. the Inference of guilt, the inculpatory facts must be incompatible-with the innocence of the accused and incapable of explanation, upon any oth~r 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". B

#12. 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: c

#13. 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 D 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 E 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 ~he accused." F

#14. A reference may be made to a later decision in Sharad Birdhichand Sarcia v. State of Maharashtra, (AIR 1984 G 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 H . ..-. ' --< 188 SUPREME COURT REPORTS [2008) 17 S.C.R. A be based on circumstantial evidence, must be fully established. They are: , (1) the circumstances from which the conclusioQ 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 ariy 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." B c D E