B. Venkat Swamy Vs.
Vijaya Nehru & ANR. [2008] INSC 1411 (25 August 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.209 OF 2001 B.
Venkat Swamy ...Appellant Versus Vijaya Nehru and Anr. ...Respondent
Dr. ARIJIT PASAYAT,
J.
1.
Challenge
in this appeal is to the judgment of the Division Bench of the Andhra Pradesh
High Court directing acquittal of respondent no.1 who was convicted for alleged
commission of offences punishable under Section 498A and 302 of the Indian
Penal Code, 1860 (for short `IPC'). Respondent (hereinafter referred to as the
`accused') and his mother faced trial for alleged commission of offence
punishable under Section 498A IPC. In addition, respondent-accused was found
guilty of offence punishable under Section 302 IPC and Section 4 of the Dowry
Prohibition Act (in short `DP Act'). The learned Sessions Judge, Kurnool, found
that the accusations against A2 i.e. mother of the respondent - accused were
not established and she was acquitted of the charges. However,
respondent-accused was found guilty of the offence punishable under Sections
498A, 302 IPC and Section 4 of the DP Act.
2.
Prosecution
version in a nutshell is as follows:
Prosecution witnesses
are the residents of Kurnool. A-1 is the resident of Hyderabad. PWs. 1 and 2
are the parents of Shreelakshmi (hereinafter referred to as the `deceased').
PW3 the brother of PW.1 and PW.7 is the sister of PWs. 1 and 3. A-1 was the
husband of the deceased and A-2 is the mother of A-1.
On 12.11.1995 the
marriage of A-1 and the deceased was celebrated. At the time of marriage PW.1
gave a sum of rupees one lakh in cash, 15 tolas of gold and one Yamaha Motor
Cycle to A-1. At the time of marriage 15 tolas of additional gold were put on
the body of the deceased. After the marriage, A-1 and the deceased set up a new
home at Hyderabad as A-1 was working in the Defence on daily wages basis. After
the marriage, he was permanently appointed as Junior Scientific Officer in
D.R.D.A.
As they had set up a
new establishment, PWs. 2, 3 and 7 purchased some household articles worth
Rs.25,000/- and presented those to them. After one and half month of stay at
Hyderabad, it is alleged, A-1 and A-2 started harassing the deceased to get
more money and additional 15 tolas of gold jewellery which were put on the
deceased at the time of the marriage. After some time A-1 lost his Yamaha Motor
Cycle at Tank Bund. A-1 asked the deceased to ask PW.1 and other members of the
family to purchase a new Motor Cycle for him.
A-1 and the deceased
were visiting Wanaparthy frequently on weekends as A-1's parents were residing
at Wanaparthy. On such occasions A-2 used to harass the deceased to get
additional gold of 15 tolas and a new motor cycle as she was the only daughter
of her parents. PW.1 and others asked A-1 as to why he was demanding more gold
and another motor Cycle. A-1 used to answer that he never asked his wife to
demand such 3 articles.
On 18.4.1996 PWs.1
and 2 went to Hyderabad and PW.1 dropped PW.2 at Hyderabad as the birthday of
the deceased was on 27.4.1996, PW1 advised PW.2 to stay there and get the
deceased and A-1 to Kurnool on 26.4.1996 to celebrate the birth day of the
deceased. PW.2, the deceased and A-1 went to Kurnool at midnight on that day.
They celebrated the
birthday of the deceased at Kurnool on 27.4.96. After taking dinner, some of
the family members went to a late night movie show at about 12.30 a.m. in the
night.
After returning from
the picture, A-1 and the deceased were sleeping in a bedroom upstairs separately.
On 28.1.1996 at about 7.00 a.m. PW.3 received a call from Wanaparthy. The call
was made by the father of A-1 named V. Anjaneyulu. The said Anjaneyulu told
PW.3 that A-1 had come to Wanaparthy and he was weeping and not disclosing
anything and asked him as to what happened at Kurnool. Then PW.1 to 3 went
upstairs to the bedroom of A-1 and the deceased. The door was bolted from
inside. With force they opened the door. The door bolt gave a way for them to
enter into the room. They found that the deceased was hanging by one end of the
saree tied to the neck and the other end of the saree was tied to the ceiling
fan. The deceased was in a kneeling position. A neighbour Dr. Venkata Ramana
examined the deceased and declared her dead.
On 28.4.96 at about
10.00 a.m. PW.11 the Inspector of Police received the first information report
given by PW.1 which is Ex.P-1. On the strength of Ex.P-1, the offence was
registered by PW.11 in Cr.71/96 under Section 498-A and 306 IPC. He prepared
the copies of first information report and dispatched to all concerned. Ex.P-13
is the copy of the FIR received by the Court.
On 28.4.1998 PW.4 the
Mandal Revenue Officer, on a requisition conducted inquest over the dead body
of the deceased in the presence of PW.5. 5 On 29.1.1996 PW.11 prepared the
observations report of the scene of offence in the presence of panch witnesses.
Ex.P-10 is the observations report. Ex.P-14 is the rough sketch of the scene of
offence. PW.11 seized M.Os. 5 to 11 from the scene of offence. On 29.4.1996
PW.9 examined PW.7 and two others and recorded their statements.
On 28.4.1996 PW.6 the
Professor and Head of Department, Kurnool Medical College, Kurnool on
requisition conducted autopsy over the dead body of the deceased. Ex.P-6 is the
postmortem certificate.
On 15.5.1996, PW.10
the Deputy Superintendent of Police, Kurnool on receiving intimation altered
the section of law in Cr. No.71/1996 of Kurnool II town Police Station from
Sections 498- A and 306 IPC to Section 304-B IPC PW.10 visited the scene of
offence and prepared the observation panchnama. Ex.P-11 is the Panchnama. On
14.5.1996 PW.11 arrested A-1and A-2. On completion of investigation, charge
sheet was filed by PW.11 against A-1 and A2 under Sections 302 and 498-A IPC
and Section 4 of the DP Act.
3.
Accused
persons denied the allegations. It was suggested that the accused persons were
falsely implicated because the deceased was found dead in the house of the PWs
1 & 2.
4.
The
trial court recorded conviction as noted above in respect of A1 while directing
acquittal of A2. A1 preferred an appeal before the High Court.
5.
The
High Court on analysis of the evidence found that the respondent was not
responsible for causing the death of the deceased. He was acquitted of the
charge relating to offence punishable under Section 302 IPC. The High Court
also noticed that the prosecution did not prove that the deceased was subjected
to cruelty immediately before her death. Therefore, the accused could not be
convicted for offence punishable under Section 304 B IPC. Accordingly, the High
Court directed acquittal of the respondent.
6.
The
present appeal is filed by the informant. In support of the appeal learned
counsel for the appellant submitted that the High Court ought to have noticed
that the evidence on record was sufficient to fasten the guilt on the accused
persons. The evidence on record clearly shows a complete chain of circumstances
and, therefore, the High Court should not have directed acquittal. In any
event, the High Court has not dealt as to how Section 498A IPC and Section 4 of
the DP Act have no application.
7.
Learned
counsel for the respondent-accused supported the judgment of the High Court.
8.
The
law relating to circumstantial evidence has been highlighted by this Court in a
large number of cases.
9.
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 negative the
innocence of the accused and bring the offences home beyond any reasonable
doubt.
10.
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, 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....".
11.
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;
10 (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.
12.
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.
13.
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".
14.
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.
15.
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."
16.
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.
17.
These
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) and Kusuma Ankama
Rao v State of A.P. (Criminal Appeal No.185/2005 disposed of on 7.7.2008)
18.
In
the instant case, the High Court has noted several factors to hold that
prosecution has not established the accusations. Firstly, the evidence of PW 1
goes to show that door of the room where dead body was found was bolted from
inside. Undisputedly, A1 was not inside. Another relevant aspect is the
evidence of PW6. It is on record that there was variance in the evidence of the
doctor who had earlier given the opinion that the deceased died due to asphyxia
renilting from hanging and later on stated that deceased died because of
smothering and the dead body was hanged. PW1 in his evidence has stated that
when they asked respondent as to why he was demanding gold and motorcycle, he
said that he had never asked anything. In the cross-examination PW1
categorically admitted that the deceased never personally informed him about
the alleged harassment by the respondent. He has also admitted in the
cross-examination that the respondent-accused never demanded any money or gold
from him directly or personally. It is also accepted in the cross-examination
that he presumed that respondent-accused had killed the deceased. It is of
significance that Trial Court accepted that there are lacunae in the case of
the prosecution and also that they failed to lead evidence as to where the
respondent and deceased slept on 26/27 i.e. the intervening night. It is also
accepted by the Trial Court that the evidence of the doctor PW.6 is confusing.
Trial Court also accepted that it was absurd that the respondent-accused went
out to a long distance wearing only banian and underwear but curiously enough
wanted the accused to show as to why he did it. The evidence of PW.6 also has
more loose ends. According to him, there was a possibility of struggle. If that
is so, it is strange that nobody heard the sound of the struggle and as to how
the deceased could have struggled without even making a sound.
The evidence of PW.10
is more interesting. He says that the accused would have gone out and bolted
the door from inside.
He said that he had
demonstrated the same without indicating to whom it was demonstrated and when.
The evidence of PW.3 also corrodes the prosecution version. According to him he
had locked all the doors including the main door and thereafter slept in his
room. According to him he received a telephonic call from the father of the
respondent-accused from Wanaparthy that A1 was in a disturbed mind. He asked
the father of the respondent- accused as to why and how he could be at
Wanaparthy as he was at home and he had come home after visiting the second
show of the film. It is accepted that Wanaparthy is at a distance of 140 Kms.
from Kurnool. If they had returned at about 1.00 a.m. and the telephone came
around 6.40 a.m, it has not been explained by the prosecution as to how the
respondent-accused could travel the distance. As noted above the trial court
observed the accused was wearing banian and underwear. If that be so it is
strange that no body noticed it. PW 3 has fairly accepted that he presumed that
respondent-accused was making demands through his wife-deceased.
19.
To
add to the vulnerability of the prosecution case, the examination in terms of
Section 313 Cr.P.C. appears to have been done as an empty formality. The
incriminating materials were not put to him. Though the High Court has not
dealt with question of applicability of Section 498 IPC and Section 4 of the DP
Act, but the evidence adduced does not establish the accusations.
20.
In
view of the aforesaid, there is no merit in this appeal which is dismissed.
.................................J.
(Dr. ARIJIT PASAYAT)
.................................J.
(P. SATHASIVAM)
.................................J.
(AFTAB ALAM)
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