Syed Hakkim & ANR.
Vs. State Rep. by Dy Suptd. of Police [2009] INSC 398 (23 February 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2009 (Arising
out of SLP (Crl.) No. 522 of 2008) Syed Hakkim and Anr. ..Appellants Versus
State rep. by Dy. Superintendent ..Respondent Of Police, Karur District, Tamil Nadu
Dr. ARIJIT PASAYAT,
J.
1.
Leave
granted.
2.
Challenge
in this appeal is to the judgment of a Division Bench of the Madras High Court
dismissing the appeal filed by the appellants. Seven accused persons faced
trial. Appellants-accused were numbers as A-1 and A-2 respectively in the trial
Court and before the High court. Out of seven accused persons who faced trial
A-1 to A-5 and A-7 were convicted for offence punishable under Section 498-A of
the Indian Penal Code, 1860 (in short the `IPC') while A-1 to A-5 were also
convicted for offence punishable under Section 302 IPC. In appeal the High
Court set aside the conviction so far as A3, A4 and A5 are concerned in respect
of offence punishable under Section 302 IPC.
3.
Prosecution
version in a nutshell is as follows:
The marriage between
the first accused and Syed Ali Fathima (hereinafter referred to as `deceased')
took place on 22.4.2001. A2 is the brother of Al. A3 and A4 are the sisters of
Al and AS is the mother and A6 is the father of Al. A7 is the aunt of Al. P.W.l
is the mother of the deceased.
At the time of
marriage, P.W.l paid Rs.5,000/- and three sovereigns of gold jewels and after a
period of two months, the first accused went to Mumbai seeking for a job. All
the other accused ill-treated the deceased stating that the dowry demand was
not met. Prior to the occurrence, the first accused came from Mumbai. PW-1 was
summoned. At that time, there was a demand from accused Nos. 1, 2 and 7 that 10
sovereigns of gold and a sum of Rs.5,000/- towards "Seevarisai" for
Ramzan must be paid immediately.
A-7 who was present
at that time informed PW-1 that she can pay the said demand within a period of
two months.
P.W.2 is closely
related to P.W.1. On 6.3.2000, he came to Pallapatti and went to the house of
P.W.1. P.W.2 was informed by P.W.1 that there was a dowry demand from the side
of the accused. A marriage was scheduled to take place in the house of a
resident which is next to the house of the first accused and hence on 8.3.2002,
P.W.2 came to the house between 11 am and 12 noon. He was talking to the said
neighbour. Since P.W.2 knew that there was a dowry demand, he decided to meet
the deceased in her house for that purpose. When he was just getting down
through the staircase, he was able to see the house of the deceased Fathima.
A window was kept
open through which he was able to see within 10 feet.
At that time, Al and
A2 strangulated the deceased Fathima with a rope and A3 and A4 caught hold of
both the arms. On seeing this, P.W.2 was shocked. When he was witnessing the
occurrence, A2 saw P.W.2.
Immediately, P.W.2
went to the place of PW-1. But he could not meet anybody and he went to his
native place, Salem and returned on the next day i.e. 9.3.2002.
On the day of
occurrence, i.e., 8.3.2002, the son of the 2nd accused proceeded to the house
of P.W.1 and informed her that she was to be taken to the house of the accused
and took her in a two wheeler. When P.W.1 went to the house of the accused, the
wife of A2 informed that the deceased Fathima was upstairs. When P.W.1 went to
upstairs, she found only the dead body of her daughter and P.W.1 was able to
see a ligature mark around the neck of the deceased. When P.W.1 enquired,
nobody gave any answer, but all laughed. P.W.1 immediately came back and
informed the relatives and proceeded to the police Station. P.W.13, the
Sub-Inspector of Police was on duty on the day of occurrence. P.W1 gave a
complaint at about 17.30 hours which is marked as Ex.P.1 on the strength of
which a case came to be registered in Crime No.49/2002 under Section 174 of the
Code of Criminal Procedure, 1973 ( in short the `Code') was dispatched to the
Court.
On receipt of the
copy of the F.l.R., P.W.14 the Deputy Superintendent of Police took up
investigation, proceeded to the scene of occurrence, made inspection and
prepared Ex.P.2- the observation Mahazar and Ex.P.12- the rough sketch. He also
sent a copy of the FIR to PW-10, the Revenue Divisional Officer who on receipt
of the copy of the FIR proceeded to the place and also conducted inquest on the
dead body in the presence of witnesses and prepared Ex.P-9, the Inquest Report
wherein he opined that it was not a case of suicide but it was the death by
homicide. He also made enquiries from witnesses and the accused. Following the
same, the dead body was subjected to postmortem by P.W.9, the doctor attached
to Govt.
Headquarters
Hospital, Karur, who opined that the deceased would appear to have died of
Asphyxia due to strangulation about 24-36 hours prior to autopsy.
Originally, the case
was registered under section 174 of Code. Later, it was converted into one
under Sections 498-A and 302 IPC and the Express F.I.R. Ex.P.13 was dispatched
to the court.
Pending
investigation, accused Nos.1 to 6 were arrested. A2 came forward to give
confessional statement voluntarily and the same was recorded by P.W.13, the
Deputy Superintendent of Police in the presence of witnesses, pursuant to which
A2 has produced M.O.1-Nylon rope which was recovered under a cover of Mahazar,
Ex.P.4. All the accused were sent for judicial remand.
5 On completion of
investigation, the investigating officer filed the final report. The case was
committed to the Court of Sessions. Necessary charges were framed in order to
substantiate the charges leveled against the accused. The prosecution examined
16 witnesses and relied upon 13 exhibits and 3 material objects. On completion
of evidence on the side of the prosecution, the accused were questioned under
section 313 of Code.
PW-2 was projected to
be an eye witness. But he resiled from his statement made during investigation.
The trial Court and the High Court proceeded on the basis as if the prosecution
version rested on circumstantial evidence. Two circumstances were highlighted
to fasten the guilt on the accused. The plea of alibi set up by A-1 having been
dis-believed it must be presumed that he was guilty. Similarly, in respect of
A-2 plea of suicide was ruled out by the evidence of doctor (PW-9). A-2 was
held to be guilty.
On the aforesaid
ground the trial Court convicted the present appellants and the High Court
concurred with the view of the trial Court.
4.
Learned
counsel for the appellants submitted that from the stage of trial, the
prosecution case was that there was only one eye witness i.e. PW-2 but since he
did not support the prosecution case, the prosecution proceeded to rely on the
certain circumstances. It is submitted that the circumstances highlighted do
not present a complete chain of circumstances to warrant the conclusion of
guilt on the accused persons.
5.
Learned
counsel for the respondent-State on the other hand supported the judgment.
6.
So
far as Section 498-A is concerned according to learned counsel for the
appellants the evidence is scanty but it is to be noticed that both the trial
Court and the High Court having regard to the evidence of relatives concluded
that the dowry demand was made. We do not find any infirmity with the
conclusions arrived at more particularly in view of the evidence of PWs 1 and 2
and therefore there is no scope for interference with the conclusions relating
to Section 498-A IPC.
7.
The
residual question is about the conviction in terms of Section 302 IPC.
8.
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 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 negate the innocence of the accused and bring the offences home beyond any
reasonable doubt.
9.
We
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, 8 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....".
10.
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 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."
11.
In
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.
12.
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 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".
13.
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.
14.
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 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."
15.
A
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.
16.
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
Rao v State of A.P. (Criminal Appeal No.185/2005 disposed of on 7.7.2008).
17.
The
circumstances highlighted by the prosecution to bring in application of Section
302 IPC are insufficient and scanty. That being so, the conviction as recorded
in terms of Section 302 IPC cannot be maintained and is set aside. The
sentences imposed in respect of Section 498-A IPC does not warrant
interference. In the ultimate result, the conviction in terms of Section 302 is
set aside while that under Section 498- a stands confirmed.
18.
The
appeal is disposed of to the aforesaid extent.
........................................J.
(Dr. ARIJIT PASAYAT)
........................................J.
Back
