Raju Vs. The State, by
Inspector of Police  INSC 371 (19 February 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 334 OF 2009
(Arising out of SLP (Crl.) No.4467 of 2008) Raju .....Appellant Versus The
State by Inspector of Police .....Respondent
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a Division Bench of the Madras High Court
altering the conviction of the appellant from offence punishable under Section
302 of the Indian Penal Code, 1860 (in short the `IPC') to Section 341 Part I
IPC and sentencing him to undergo rigorous imprisonment for seven years.
the common judgment two Criminal Appeals were disposed of. Appeal filed by K.
Periyapandian, the co-accused, was allowed and he was acquitted.
facts in a nutshell are as follows:
PW-1 is the wife of
Virupachi Gounder @ Palanichami Gounder (hereinafter referred to as the
`deceased') and PWs 3 and 4 are the sons of the deceased. PWs 3 and 4 were
living in Virupachi. PW-1 and the deceased were living in Balassamudhram. The
deceased was doing money lending business and accused Nos. 1 and 2 were
actually working as brokers for commission under the deceased and they were
aggrieved that proper commission was not paid to them. The accused complained
to P.Ws.3 and 4 about the conduct of the deceased and in turn P.Ws.3 and 4 have
informed P.W.1 that their father should take care since both the accused might
While the matter
stood thus, P.W.7, who had got financial transactions with the deceased, on the
date of occurrence, i.e. 05.04.2005, went to Balasamudhram to get some amount
from the deceased, got down from the bus, went to the nearby tea shop and
enquired about the deceased.
He was informed that
the deceased, along with both the accused, was proceeding to his place and when
P.W.7 went over there he found accused Nos.1 and 2 and the deceased were
quarreling over the payment of commission and at that time P.W.7 was asked by
the deceased what was the reason for his visit. P.W.7 answered that he had come
to get some money and P.W.7 was informed by the deceased that he had no money
and he was asked to come after four days and P.W.7 in turn returned leaving the
deceased and accused 1 and 2 there.
Till 9.00 p.m. on
05.04.2005 the deceased did not return home and hence at about 9.30 p.m. P.W.1
went in search of her husband and she found at the place of occurrence the dead
body of her husband. Immediately she informed to P.W.2, who in turn informed to
P.Ws.3 and 4 who, also came there and saw the dead body. Thereafter, P.W.1
proceeded to the Police Station, gave a complaint, (which is marked as Ex.P-1)
to P.W.13, the Head Constable, at about 4.00 a.m. on 06.04.2005. On the
strength of Ex.P-1, P.W.13 registered a case in Crime No.293/2005 under Section
302 IPC and prepared Ex.P-12, the First Information Report and the same was
despatched to the Court through PW-11, the Head Constable.
The Inspector of
Police (PW-15) received the copy of the FIR, proceeded to the place of
occurrence, made an observation in the presence of witnesses and prepared
Ex.P-5, the observation mahazar and also drew Ex.P-17, the rough sketch. He
caused the place of occurrence to be photographed in different angles by P.W.8,
the photographer and Ex.P-2 series are the photographs and their negatives. He
recovered M.O.1, the torch light, M.O.2, the umbrella, M.O.3, the bloodstained
dhoti, M.O.4, the bloodstained Shawl, M.O.5, the bloodstained earth and M.O.6,
the sample earth from the place of occurrence under a cover of mahazar,
attested by P.W.10 and another, marked as Ex.P-6. Thereafter, he conducted
inquest on the body of the deceased between 7.30 am. and 9.30 am. in the
presence of panchayatdars and witnesses and prepared Ex.P-18, the inquest
Thereafter, he sent
the body for the purpose of autopsy through P.W.12, the Head Constable.
The doctor (PW-9)
attached to Government Hospital, Palani, on receipt of Ex.P-3, the requisition,
from the Investigator conducted postmortem on the body of the deceased and gave
Ex.P-4, the postmortem certificate, opining that the deceased appeared to have
died of shock and haemorrhage due to head injury, 14 to 18 hours prior to
autopsy. After postmortem, PW.12, the Head Constable, recovered M.Os. 10 to 13,
the personal wearing apparels and ornaments of the deceased, from the dead body
and handed them over to the Inspector of Police.
investigation, P.W.15, the Investigator, arrested both the accused on
07.04.2005 and at that time both the accused came forward to give voluntary
confessional statements and the same were recorded in the presence of
witnesses. Ex.P-7 is the admissible portion of the confessional statement given
by accused No.1, pursuant to which accused No.1 produced M.O.7, the spade
handle, which was recovered under Ex.P-9, the mahazar.
Accused No.1 also
produced M.O.9 the bloodstained full shirt and the same was recovered under
Ex.P-11, the mahazar. Ex.P-8 is the admissible portion of the statement given
by A-2 pursuant to which A-2 produced M.O.8 the bloodstained shirt and the same
was recovered under Ex.P-10, the Mahazar attested by witnesses. Thereafter,
both the accused were sent for judicial remand. P.W.15 continued the
investigation, examined some witnesses and recorded their statements. He gave
Ex.P-13, the requisition, to the Court to subject the material objects for
P.W.14 is the
Magisterial Clerk and on receipt of Ex.P-13 requisition, the material objects
were sent to Forensic Department for chemical analysis under Ex.P-14, the
letter of the Court, which resulted in two reports, namely Ex.P-15, the
Chemical Examiner's report and Ex.P-16, the Serologist's Report.
On completion of the
investigation, P.W. 15, the Investigator, filed the charge sheet against both
the accused under Section 302 read with Section 34 IPC before the concerned
Magistrate's Court. As the accused persons pleaded innocence, trial was held.
were examined to further the prosecution version.
The trial Court found
that the evidence adduced by the prosecution was substantial in nature. Placing
reliance on the evidence of PW-1, the widow and PW-7 the trial Court held the
appellant guilty of offence punishable under Section 302 IPC. The co-accused
was found guilty of offence punishable under Section 302 read with Section 34
IPC and Section 341 IPC. In appeal, it was submitted that the circumstances
highlighted do not form a complete chain of circumstances and in any event
PW-7's evidence is not acceptable. The High Court did not find any substance in
the appeal filed by the appellant and found him guilty but the conviction as
noted above was altered.
support of the appeal, learned counsel for the appellant submitted that the
occurrence allegedly took place at 10'o clock in the night and the complaint
was filed on 6.4.2005 around 4.00 a.m. The presence of PW-7 according to him is
highly doubtful. It is submitted that it is unusual that if he had found the
accused persons in angry mood and appellant No.1 was holding a weapon he should
have waited to see whether there was any further trouble.
counsel for the respondent-State on the other hand supported the judgment of
the High Court.
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
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:
8 "(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 of the 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 11 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. Raja Ram (2003 (8) SCC 180),
State of Haryana v. Jagbir Singh and Anr. (2003 (11) SCC 261), Kusuma Ankama
Rao v State of A.P. (Criminal Appeal No.185/2005 disposed of on 7.7.2008) and
Manivel and Ors. v. State of Tami Nadu (Criminal Appeal No.473 of 2001 disposed
of on 8.8.2008).
evidence is clear and cogent. His presence at the spot has been established. He
used to have business transactions with the deceased.
He stated about the
present appellant holding a handle of soil cutter. Though the deceased and the
present appellant were engaged in exchange of hot words that could not have
given an impression to PW-7 that accused would take the life of the deceased.
Therefore, the fact that he left the place on being told by the deceased to do
so cannot be a ground to dis-believe his evidence. According to him he had seen
the deceased and the accused engaged in wordy tussle around 9.00 p.m. The wife
of the deceased PW-1 found his dead body at about 9.30 p.m. The time gap when
the deceased was last seen alive in the company of the accused and when his
dead body was seen is not very large. Admittedly, the bone of contention
between the deceased and the accused was non payment of the commission on
account of which they were quarreling. The trial Court and the High Court have
rightly held the appellant to be the author of the crime. We find no infirmity
in the conclusion of the High Court to warrant interference.
appeal is accordingly dismissed.
(Dr. ARIJIT PASAYAT)
(Dr. MUKUNDAKAM SHARMA)