Vs. State of A.P. Tr. Pub. Pros.  INSC 779 (16 April 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 744 OF 2009
(Arising out of SLP (Crl.) No. 1073 of 2008) Gamparai Hrudayaraju ..Appellant
Versus State of A.P. thr. Public Prosecutor ..Respondent
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a Division Bench of the Andhra Pradesh
High Court dismissing the appeal filed by the present appellant who was found
guilty of offence punishable under Sections 302 and 203 of the Indian Penal
Code, 1860 (in short the `IPC'). Appellant was found guilty by VII Additional
Sessions Judge, Fast Track Court, Visakhapatnam.
facts in a nutshell are as follows:
One Kuda Ammaji
(hereinafter referred to as the `deceased') married one Samareddy
Surayanarayana (PW-6). They were blessed with a son and a daughter.
Subsequently, the deceased secured employment as A.N.M. and shifted her
residence to Munchingput. Thereafter, the appellant who is a neighbour
developed illicit intimacy with the deceased and started living with her. As
the appellant did not allow the children of deceased to stay with her, PW-1 the
sister of the deceased brought them to Serivayalu village and was looking after
While so, on
21.6.2001, at 06.00 p.m., one Gampari Baburao told P.W. 5 that the deceased was
seriously ill and asked him to bring ambulance of Primary Health Center,
immediately. When P.W. 5 brought the same, the deceased sent him back saying
that she was not ill. Thereafter, within ten minutes, the appellant and Baburao
asked P.W. 5 to come with the ambulance on the ground that the deceased was
sick. The deceased was shifted into the ambulance by the appellant in his arms
and taken to Primary Health Center. At about 09:00 p.m., on the same day, she
was declared dead.
On 22.6.2001, at
about 7.30 a.m. based on the report presented by the appellant, the Sub
Inspector of Police (P.W. 10) registered a case in crime No. 26 of 2001 under
Section 174 of Code of Criminal Procedure, 1973 (in short the `Code'). Later,
during the inquest on the report given by P.W. 1, the sister of the deceased,
P.W.10 altered the sections of law to Sections 498-A and 306 IPC and issued
altered First Information Report. On 23.6.2001, on his surrender before P.W.10,
the appellant was arrested and remanded to judicial custody. On 30.6.2001, the
Sub Inspector of Police, P.W. 9, based on the questionnaire, Ex. P6, given by
the Civil Assistant Surgeon (PW-8) altered the section of law to Section 302
IPC and after completion of investigation, PW-11 filed the charge sheet. As
accused pleaded innocence, trial was held.
support of its case the prosecution examined PWs 1 to 11 and marked Exs. P1 to
P11. On behalf of defence Exs. D1 and D2 (relevant portions in the statements
of PWs and 2) recorded under section 161 of Code were marked.
Trial Court came to the conclusion that though the prosecution failed to
establish a strong motive for the appellant to cause the death of the deceased,
in view of the circumstantial evidence held that the death of the deceased was
homicidal. Since only the appellant and the deceased were staying in the house
at the relevant point of time, it found the appellant guilty, convicted him and
sentenced him to undergo imprisonment for life and SI for three months for the
offences punishable under Sections 302 and 203 respectively.
the High Court it was stated that there was no material to show that the death
of the deceased was homicidal. It was pointed out that in case of smothering,
the death would have been instantaneous. But the trial Court recorded a finding
that the deceased was alive till 9.00 p.m. and, therefore, it cannot be said
that the death was homicidal. It was also pointed out that the doctor who
treated the deceased was not examined. The stand of the State was that there
was a fracture to thyroid cartilage and this certainly was not due to the
natural death. The High Court held that the case was one of circumstantial
evidence. Strangely, the High Court did not analyse the evidence of PWs 4 and
5. The High Court found that the prosecution case although rested on
circumstantial evidence, it clearly established the guilt of the accused.
support of the appeal, learned counsel for the appellant submitted that the
circumstances highlighted do not in any way fasten the guilt of the accused.
counsel for the respondent on the other hand supported the judgment.
find that the High Court has not referred to any circumstance which could
fasten guilt on the accused. PWs 1 and 2 i.e. sisters of the deceased stated
that the ill feelings prevailed in between the appellant and the deceased with
regard to the children of the deceased born through her first husband (PW-6).
PWs 4 and 5 stated that the deceased came to the house of PW-4 and just wished
her and left the house. Ten minutes thereafter the appellant came to her and
informed that he was going to Primary Health Centre to bring ambulance to
attend to the deceased. Then she went to the house of the appellant and found
that the deceased was all right and when the ambulance came the deceased sent
the same back saying that she was doing well. After some time, ambulance came
and the appellant and the deceased went in it. The evidence of PWs 5 and 6
cannot constitute sufficient evidence against the accused to fasten the alleged
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 the guilt of any other person. (See Hukam Singh
v. State of Rajasthan AIR (1977 SC 1063);
Eradu and Ors. v.
State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR
1983 SC 446); State of U.P. v. Sukhbasi and Ors.
(AIR 1985 SC 1224);
Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v.
State of M.P. (AIR 1989 SC 1890). 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. In Bhagat Ram v. State of Punjab (AIR
1954 SC 621), it was laid down 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.
may also make a reference to a decision of this Court in C. Chenga Reddy and
Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
"In a case based
on circumstantial evidence, the settled law is that the circumstances from
which the 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
Further the proved
circumstances must be consistent only with the hypothesis of the guilt of the
accused and totally inconsistent with his innocence....".
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 following tests:
7 "(1) the
circumstances from which an inference of guilt is sought to be drawn, must be
cogently and firmly established;
circumstances should be of a definite tendency unerringly pointing towards
guilt of the accused;
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.
State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out
that great care 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 established and the cumulative
effect of all the facts so established must be consistent only with the
hypothesis of guilt.
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 is always on the party who asserts
the existence of any fact, which infers legal accountability; (3) in all cases,
whether of direct or circumstantial evidence the best evidence must be adduced
which the nature of the case admits; (4) in order to justify the inference of
guilt, the inculpatory facts must be incompatible with the innocence of the
accused and incapable of explanation, upon any other 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".
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.
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 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
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."
reference may be made to a later decision in Sharad Birdhichand Sarda v. State
of Maharashtra, (AIR 1984 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 be based on circumstantial evidence, must be fully
established. They are:
(1) the circumstances
from which the conclusion 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 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.
aspects were highlighted in State of Rajasthan v. Rajaram (2003 (8) SCC 180),
State of Haryana v. Jagbir Singh and Anr. (2003 (11) SCC 261)
being so, the prosecution has failed to establish the accusations, and the
conviction cannot be maintained and is set aside. The appellant shall be set at
liberty forthwith unless required to be in custody in connection with any other
appeal is allowed.
..................................J. (Dr. ARIJIT PASAYAT)