# STATE OF GOA v. PANDURANG MOHITE - **Citation:** [2008] 17 S.C.R. 176 - **Court:** Supreme Court of India - **Decided:** 2008-12-08 - **Case number:** Criminal Appeal Nos. 598-599 of 2002 - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-goa-v-pandurang-mohite-24045 - **Pages:** 35 ## Headnote A B c (2008] 17 S.C.R. 176 STATE OF GOA II. PANDURANG MOHITE (Criminal Appeal Nos. 598-599 of 2002) DECEMBER 8, 2008 . · · . [DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM SHARMA, JJ.] Penal Code, 1860: Ss.302, 392 and 201 - Conviction by trial court on the basis of circumstantial evidence relating to accused last seen with deceased - Acquittal by High Court - Held: Conviction can be based solely on circumstantial evidence but it should o be tested by the touch-stone of Jaw relating to circumstantial evidence - In the instant case, the evidence of two witnesses to have seen the accused with the deceased at the same time at different places seems to be an impossibility - . Judgment of High Court warrants no interference - E Circumstantial evidence -Code of Criminal Procedure, 1973 - s.378 - Appeal against acquittal""" Constitution of India, 1950 - Article 136. - On 2.3.1998 at 7 .15 A.M. a report was lodged at the Police Station that complainant's son was missing. It was F stated that on 1.3.1998 at about 7.30 A.M. whenrthe I complainant along with his son was returning from the -+-· annual fair, his son stayed behind and thereafter did not reach home. When the complainant returned from the Police Station, PW 3 told him that he saw his son with the G accused at 7.15 P.M the previous day. The matter was reported to the police and the acc1:1sed was taken to the police sta~ion on 2.3.1998 itself. At the instance of the ,,_ accused, dead body of the son of the complainant was ' rec9vered from the jungle. The trial court relying up'?~ the H 176 STATE OF GOA v. PANDURANG MOHITE 177 - last seen theory ·and the evidence of PWs 3 and 8 in this A regard, convicted and sentenced the accused u/ss 302, 392 and 201 IPC. However, the High Court set aside the conviction. Aggrieved, the State filed the appeal. Dismissing the appeal, the Court B HELD:1.1. 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 c the guilt of any other person. 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. D [Para 7] [185-A-D] ... Bhagat Ram v. State of Punjab AIR 1954 SC 621; Hukam Singh v. State of Rajasthan AIR't977 SC 1063; Eradu -1 and Ors. v. State of Hyderabad AIR 1956 SC 316; E Earabhadrappa v. State of Karnataka AIR 1983 SC 446; State Qf 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; C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193; Padala F ~ Veera Reddy v. State of A.P. and Ors. AIR 1990 SC 79 and .... State of U.P. v. Ashok Kumar Srivastava, 1992 Crl.LJ 1104, relied on. 'Wills' Circumstantial Evidence" (Chapter VI), referred to. G ~ 1.2. 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. [Para 12] (187-8-C] H --{ • 178 SUPREME COURT REPORTS [2008) 17 S.C.R. A Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, AIR 1952 SC 343; Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622; State of Rajasthan v. Raja Ram 2003 (8) SCC.180; State of Haryana v. Jagbir Singh and Anr. 2003 (11) SCC 261 and Kusuma B Ankama Rao v State of A.P. 2008(10) SCR 89, referred to. 1.3. So far as the last seen aspect in the instant case is concerned, PWs 3 and 8 claimed to have seen the accused a~ the same time and to have carried him in the C motor cycle which itself is an impossibility. Additionally, neither PW 3 nor PW 8· claimed to have seen the other Witness along with ## Text _Characters 0–39,468 of 64,480. This is a partial read: ask again with offset=39468 for what follows._ A B c (2008] 17 S.C.R. 176 STATE OF GOA II. PANDURANG MOHITE (Criminal Appeal Nos. 598-599 of 2002) DECEMBER 8, 2008 . · · . [DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM SHARMA, JJ.] Penal Code, 1860: Ss.302, 392 and 201 - Conviction by trial court on the basis of circumstantial evidence relating to accused last seen with deceased - Acquittal by High Court - Held: Conviction can be based solely on circumstantial evidence but it should o be tested by the touch-stone of Jaw relating to circumstantial evidence - In the instant case, the evidence of two witnesses to have seen the accused with the deceased at the same time at different places seems to be an impossibility - . Judgment of High Court warrants no interference - E Circumstantial evidence -Code of Criminal Procedure, 1973 - s.378 - Appeal against acquittal""" Constitution of India, 1950 - Article 136. - On 2.3.1998 at 7 .15 A.M. a report was lodged at the Police Station that complainant's son was missing. It was F stated that on 1.3.1998 at about 7.30 A.M. whenrthe I complainant along with his son was returning from the -+-· annual fair, his son stayed behind and thereafter did not reach home. When the complainant returned from the Police Station, PW 3 told him that he saw his son with the G accused at 7.15 P.M the previous day. The matter was reported to the police and the acc1:1sed was taken to the police sta~ion on 2.3.1998 itself. At the instance of the ,,_ accused, dead body of the son of the complainant was ' rec9vered from the jungle. The trial court relying up'?~ the H 176 STATE OF GOA v. PANDURANG MOHITE 177 - last seen theory ·and the evidence of PWs 3 and 8 in this A regard, convicted and sentenced the accused u/ss 302, 392 and 201 IPC. However, the High Court set aside the conviction. Aggrieved, the State filed the appeal. Dismissing the appeal, the Court B HELD:1.1. 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 c the guilt of any other person. 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. D [Para 7] [185-A-D] ... Bhagat Ram v. State of Punjab AIR 1954 SC 621; Hukam Singh v. State of Rajasthan AIR't977 SC 1063; Eradu -1 and Ors. v. State of Hyderabad AIR 1956 SC 316; E Earabhadrappa v. State of Karnataka AIR 1983 SC 446; State Qf 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; C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193; Padala F ~ Veera Reddy v. State of A.P. and Ors. AIR 1990 SC 79 and .... State of U.P. v. Ashok Kumar Srivastava, 1992 Crl.LJ 1104, relied on. 'Wills' Circumstantial Evidence" (Chapter VI), referred to. G ~ 1.2. 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. [Para 12] (187-8-C] H --{ • 178 SUPREME COURT REPORTS [2008) 17 S.C.R. A Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, AIR 1952 SC 343; Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622; State of Rajasthan v. Raja Ram 2003 (8) SCC.180; State of Haryana v. Jagbir Singh and Anr. 2003 (11) SCC 261 and Kusuma B Ankama Rao v State of A.P. 2008(10) SCR 89, referred to. 1.3. So far as the last seen aspect in the instant case is concerned, PWs 3 and 8 claimed to have seen the accused a~ the same time and to have carried him in the C motor cycle which itself is an impossibility. Additionally, neither PW 3 nor PW 8· claimed to have seen the other Witness along with the accused at the relevant point of time. The High Court noticed that PW 3 stated that on 1.3.1998 he had taken the accused and the deceased, to Hedode Bridge and he was available in the police station D on 2.3.1998 at 11 PM. The High Court found it strange that his statement was not recorded on that day. On 2.3.1998 police was treating the respondent as an accused and had started inyestigation. That being 1 so there was no difficulty in recording the statement of PW 3 on 2.3.1998. E [Paras ·16 and 19] [189-G-H; 190-A-D] ' - ' /' State of U.P. v. Satish 2005 (3) SCC 114; Ramreddy Rajeshkhanna Reddy v. State of A.P. 2006 (10) SCC 172 and Jaswant Gir v. State of Punjab 2005 (12) SCC 438, referred F to. 2.1.· Though no restrictions have been imposed by the legislature on the powers of the appellate court in dealing with appeals against acquittal, it' cannot be forgotten that in case of acquittal, there is a double G presumption in favour of the accused. Firstly, the presu_mption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person should be presumed. to be innocent unless he is proved to be guilty by a competent court of law. Secondly, H the accused having secured an acquittal, the .. I -j> STATE OF GOA v. PANDURANG MOHITE 179 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 *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/ D Doshi v. State of Gujarat (1996) 9 SCC 225; Allarakha K. Mansuri v. State of Gujarat (2002) 3 SCC 57; Bhagwan Singh -f 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. 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 F 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. G [Para 48] [208-F] ---.:: 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 e 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- -y 342, -referred to. - ' 3. In view of the conclusions of the High Court B 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 --1 _,. AIR 1977 SC 1063 relied on Para 7 c AIR 1956 SC 316 relied on Para 7 AIR 1983 SC 446 relied on· Para 7 ... AIR 1985 SC 1224 relied on Para 7 D AIR 1987 SC 350 relied on Para 7 AIR 1989 SC 1890 · relied on Para 7 ). '. AIR 1954 SC 621 relied on Para 7 E (1996) 10 sec 193 relied on Para 8 AIR 1990 SC 79 relied on Para 9 1992 Crl.LJ 1104 relied on Para 10 F AIR 1952 SC 343 referred to Para 13 AIR 1984 SC 1622 referred to Para 14 • --¥ - 2003 (8) sec 180 referred to Para 15 I 2003 c11) sec 261 referred to Para 15 G Para 15 2008(10) SCR 89 referred to 2005 (3) sec 114 referred to Para 16 ..... 2006 c10) sec 112 referred to Para 17 H 2005 (12) sec 438 referred to Para 18 STATE OF GOA v. PANDURANG MOHITE 181 [DR. ARIJIT PASAYAT, J.] (1934) 61 IA 398 referred to Para 26 A -1AIR 1945 PC 151 referred to Para 29 --,...- AIR 1954 SC 36 referred to Para 30 1952 SCR 193 referred to Para 32 B 1953 SCR 418 referred to Para 33 AIR 1955 SC 807 referred to Para 34 (1955) 2 SCR 1285 referred to Para 35 c (1961) 3 SCR 120 referred to Para 36 (1963) 2 SCR 405 referred to Para 37 1973 (2) sec 793 referred to Para 38 (1979) 1 sec 355 referred to Para 40 D - • (1996) 9 sec 225 ~ referred to Para 41 (2002) 3 sec sr referred to Para 42 c2002) 4 sec 85 referred to Para 43 E c2002) 6 sec 410 referred to Para 44- (2003) 12 sec 60& referred to Para 45 (2006) 10 sec 313 referred to Para 46 F ~ 2001 (4) sec 415 referred to Para 47 -- ,,.. - 1988 (4) sec 302 referred to Para 50 2003 (7) sec 56 referred to Para 51 • G -J 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 \ 182 SUPREME COURT REPORTS 1 [2008] 17 S.C.R. A A Subhashyini for the Appellant. r 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. 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: ~- 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 F ahead"to his house and that he would follow him after some • time. So, Chandrakant left behind Shyam at Valpoi and went • • l_ - • - ... 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 G Police Station that Shyam was missing. On the basis of that report, the missing case No.6/98 was registered at the police station. y 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 STATE OF GOA v. PANDURANG MOHITE 183 [DR ARIJIT PASAYAT, J.] 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 B returned home, he saw that the accused was at his home and r, 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. 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 t 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 F the dead body and therefore, he kept some policemen to keep ~ "r - watch on the dead body and returned to the police station. 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 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. 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 F 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 185 [DR. ARIJIT PASAYAT, J.] 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 G innocence .... ". 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 H circumstantial evidence, such evidence must satisfy the e 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; B (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively should form a 7 chain so complete that there is no escape from the c 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 I conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused }-- D and such evidence should not only be consistent with the ~ I guilt of the accused but should be inconsistent with his l innocence." 1 ...._ 10. In State of u:P. v. Ashok Kumar Srivastava, (1992 I 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 -~ 11. Sir Alfred Wills in ·his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following G 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 r-- connected with the factum probandum; (2) the burden of proof y I 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 STATE Of GOAv. PANDURANG MOHITE 187 [DR. ARIJIT PASAYAT; J.] 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 touchstone 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 F ' 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." 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: , B c D E (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." 15. 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) and Kusuma Ankama F Rao v State of AP. (Criminal Appeal No.185/2005 disposed of on 7.7.2008) G H 16. So 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) sec 114] it was noted as follows: "22. The last seen theory comes into play where the timegap 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 -~ STATE OF GOA v. PANDURANG MOHITE 189 [DR. ARIJIT PASAYAT, J.] becomf!S impossible. It would be pifficult in some cases A 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 B hazardous to come to a conclusion 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." 17. In Ramreddy Rajeshkhanna Reddy v. State of AP. c [2006 (1 O) sec 172] it was noted as follows: "27. The 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 D deceased Js 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 E 45).)" 18. A similar view was.also taken in Jaswant Gir v. State of Punjab [2005 (12) SCC 438] and Kusuma Ankama Rao's case (supra). F \ ,.,...... 19. It is interesting to note that PWs 3 & 8 claimed to have seen the accused at the same time and to have carried him in the motor cycle which itself is impossibility. Additionally neither PW 3 nor PW 8 claimed to have seen the other witness along G with the accused at the relevant point of time. The High Court noticed that PW 3 Ramjathan stated that on 1.3.1998 he had ..__., taken the accused and the deceased to Hedode Bridge and he was available in the police station on 2.3.1998 at 11 PM. The High Court found it strange that his statement was not H e . 190 . SUPREME COURT REPORTS [2908] 17 S.C.R. ..... A recorded on thatday. It rejected the stand of the leamed counsel for State that the crime was registered. at about 1.30 AM on ,, 3.3.1998 and thereafter _the investigation started and therefore, statement of PW 3 was recorded afterwards. hi ordinary circumstances it could have been accepted as sufficient B explanation. Strangely, the police claimed.to have seized the bicycle of the accused before registration of the crime and to have recorded his statement as an accused. According to the prosecution on the basis of the aforesaid statement seizure was 7 made. Not only that, th,e alleged memorandum of statement of c the accused was prepared on 2.3.1998 and thereafter as per the prosecution the accused took them to the j1:1ngle where dead body was lying and discovery panchnama was *-also '1"" prepared on 2.3.1998. The discovery panchnama is Exhibit 6/ A which was marked by PW 6. The signature of the accused D was obtained as an accused. In other words on 2.3.1998 police was treating the respondent as an accusec;t and had started investigation. That being so there wa~ no difficulty in recording the statement of PW 3 on 2.3.1998. 'r 20. It is proper to consider and clarify 1the legal position E regarding appeal and acquittal. Chapter XXIX (Sections 372394) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the present Code") deals with appeals. Section 372 expressly declares that no appeal shall lie from any judgment or order of a criminal court except as provided,by the F Code or by any other law for the time being in force. Section 373 provides for filing of appeals in certain cases. Section 374 -~· allows appeals from convictions. Section 375 bars appea1s in cases where the accused pleads guilty. Likewise, no appeal is maintainable in petty cases (Section 376). Section 377 permits · G appeals by the State for enhancement of sentence. Section 378 confers power on the State to present an appeal to the High Court from an order of acquittal. The said section is material 'r" and may be quoted in extenso: ,. H "378(1) Save as otherwise provided in sub-section (2) and .··STATE OF GOA v. PANDURANG MOHITE 191 [DR. ARIJIT PASA VAT, J.] subject to the provisions of sub-sections (3) and (5),- A ;.,;, (a) the District Magistrate may; 'in any case, direct the Public Prosecutor to present an Appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; B ' (b) the State Government may, in any case, direct the Public Prosecutor to present an Appeal to the High Court from an original or appellate order of an acquittal passed by any Court other thari a High Court [not being an order under clause (a)] or an order of acquittal passed by the c '->· Court of Session in revision. (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi D Special Police Establishment Act, 1946 (25. of 1946) or by any other agency empowered to make investigation into -; an offence under any Central Act other than this Code, [the Central Government may, subject to the provisions of subsection (3), also direct the Public Prosecutor to present an E Appeal- (a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; F I (b) to the High Court from an original or appellate order of +-- an acquittal passed by any Court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision. (3) No Appeal to the High Court under sub-section (1) or G sub.;.section (2) shall be entertained except with the leave ~"" · ·of the High Court. ~ (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an H e 192 SUPREME COURT REPORTS [20018] 17 S.C.R. ·-.. A application made to it by the complainant ir,1 this behalf, grants special leave to appeal from the orde1r of acquittal, .!"'- the complainant may present such an appe~.il to the High Court. B (5) No application under sub-section (4) for the grant of special leave to appeal from an order of acqu1ittal shall be entertained by the High Court after the expiry o~ six months, where the complainant is a public servant, anc1 sixty days ·1 in every other case, computed from the date of that order c of acquittal. (6) If, in any case, the application under sub-section (4) for ....... the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2)." D 21. Whereas Sections-379-380 cover special ca1ses of appeals, other sections lay down procedure to be followed by 'r appellate courts. E 22. It may be stated that more or less similar provisions were found in the Code of Criminal Procedure, 1898 (hereinafter referred to as "the old Code") which came up for consideration before various High Courts, Judicial Committee of the Privy Council as also before this Court. Since in the present appeal, we have been called upon to decide the ambit F and scope of the power of an appellate court in an appeal against an order of acquittal, we have confined ourselves to one -+- aspect only i.e. an appeal against an order of acquittal. 23. Bare reading of Section 378 of the present Code G (appeal in case of acquittal) quoted above, makes it clear that no restrictions have been imposed by the legislature on the powers of the appellate court in dealing with appeals against ,.-- acquittal. When such an appeal is filed, the High Court has full power to reappreciate, review and reconsider the evidence at ~' H large, the material on which the order of acquittal is founded STATE OF GOA v. PANDURANG MOHITE 193 [DR ARIJIT PASAYAT, J.] and to reach its own conclusions on such evidence. Both A questions of fact and of law are open to determination by the High Court in an appeal against an order of acquittal. 24. It cannot, ho,ver, be forgotten that in case of acquittal, there is a double presumption in favour of the accused. Firstly, B the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by a competent court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence c is certainly not weakened but reinforced, reaffirmed and ' strengthened by the trial court. - 25. Though the above principles are well established, a different note was struck in several decisions by various High Courts and even by this Court. It is, therefore, appropriate if we D consider some of the leading decisions on the point. ..,, 26. The first important decision was rendered by the Judicial Committee of the Privy Council in Sheo Swarup v. R. Emperor(1934) 61 IA 398). In Sheo Swarup the accused were E acquitted by the trial court and the local Government directed the Public Prosecutor to present an appeal to the High Court from an order of acquittal under Section 417 of the old Code (similar to Section 378 of the present Code). At the time of hearing of appeal before the High Court, it was contended on F \ behalf of the accused that in an appeal from an order of +- acquittal, it was not open to the appellate court to interfere with the findings of fact recorded by the trial Judge unless such findings could not have been reached by him had there not been some perversity or incompetence on his part. The High Court, G however, declined to accept the said view. It held that no condition was imposed on the High Court in such appeal. It "'-y accordingly reviewed all the evidence in the case and having formed an opinion of its weight and reliability different from that ~ of the trial Judge, recorded an order of conviction. A petition I was presented to His Majesty in Council for leave to appeal H 194 SUPREME COURT REPORTS [2008] 17 S.C.R. A on the ground that conflicting views had been expressed by the High Courts in different parts of India upon the question whether · in· an appeal from an order of acquittal, an appellate court had · the power to interfere with the finding$'!!Qf fact r~corded by the ·trial Judge. Their Lordships thought it'tit to _clarify the legal B position and accordi·ngly upon 'the "humble advice of their Lordships", leave was.granted by His Majesty. The case was; thereafter, argued. The ·Committee considered the scheme and · · interpreting Section 417' of the Code (old Code) observed that . · there was no indication in the Code of any limitation or . c restriction on the Higt{Court in exercise of powers as an Appellate Tribunal. ·The Code also made no .distinCtion as regards powers of the High Court in dealing with ·an appeal ·. ag~ilist acquittal and an appeal against conviction. Though several authorities v.1ere cited revealing different vi~ws by the · High Courts dealing with an appeal from an order of acquittal, D . the Committee did not think it proper to discuss all the cases. E F 27'. Lord Russel summed up the legal position thus: "There is, in their opinion, no foundation for the view, appare·ntly supported by the judgments of some courts in .· ' India, that the High Court has no power or jurisdiction to . reverse an order of acquittal on a matter of fact, except in cases inwhi.ch the lower court has ·'obstinately blundered', or has 'through inq()rripetence; stupidity or perversity' reached such 'distorted conclu.sions as to produce a · positive miscarriag~ of justice', .or has in some o.ther way so cq:nducted or.,jtlis¢onducted itself as to produce a glaring miscarriage of justice, or has beenJricked by the defencescfas to produce-a·slmil~fr'result." · ·· !'. . -~ G · His Lordship, then pr6c~kded to obser\le: