IMPORTANT POINTS
1. Circumstantial evidence can be reasonably made the basis of an accused person s conviction if it is of such a character that it is wholly inconsistent with innocence of accused and is consistent only with his guilt.
2. Declaration of a witness to be hostile does not ipso facto reject the evidence and portion of evidence being advantageous to parties may be taken advantage of but Court shall have to be extremely cautious and circumspect in such acceptance.

JUDGMENT

Banerjee, J.-It is stated that Shankar and Balu, the two brothers were admittedly having some differences and disputes over the family property but subsequently the disputes were admittedly resolved and a deed of partition was entered into between the brothers. It is in pursuance of the same however that Shankar was fencing his portion of the land when he was said to have been brutally axed by his brother Balu. Prosecutor s version in the appeal presently under consideration against the confirmation of the conviction and sentence by the High Court stands out to be the truth is stronger than fiction, more so by reason of involvement of blood relations.

2. The prosecution case proceeds on the basis that on 8th July 1984, while Shankar was putting the fencing round his plot, he was brutally axed, resulting in his death. It has been the definite case for the prosecution that the axe blow was given by Balu, the younger brother and in support of its case placed on witness-box two material witnesses - one of whom however was declared hostile, since the case in the First Information Report stands completely contradicted. The other witness is said to be an independent witness though said to be related to both the brothers. This particular witness (PW 4) while foisting liability on to the other brother has taken recourse to certain circumstances which prompted him to depose as regards to identify the killer. The details thereof would be dealt with immediately hereafter, but before so doing it would be convenient to note the well-established rule in criminal jurisprudence as regards the acceptability of circumstantial evidence and the role of the law courts in regard thereto:

3. The word of caution introduced in the judgment of this Court about five decades ago in that direction however still stands as an acceptable guide. This Court in Hanumant Govind Nargundkar & Anr. v. State of Madhya Pradesh (AIR 1952 SC 343) stated:

"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."

4. Subsequently, the Constitution Bench of this Court in M.G. Agarwal and Anr. vs. State of Maharashtra (AIR 1963 SC 200) in the similar vein and without any contra note stated the law with utmost lucidity in the manner noted below:

"It is a well established rule in criminal jurisprudence that circumstantial evidence can be reasonably made the basis of an accused person s conviction if it is of such a character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. If the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt, then the accused is entitled to the benefit of doubt. There is no doubt or dispute about this position. But in applying this principle, it is necessary to distinguish between facts which may be called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to the proof of basic or primary facts, the Court has to judge the evidence in the ordinary way, and in the appreciation of evidence in respect of the proof of these basic or primary facts there is no scope for the application of the doctrine of benefit of doubt. The court considers the evidence and decides whether that evidence proves a particular fact or no