Devidas Ramsundar
Shukla Vs. State of Maharashtra [2008] INSC 1319 (6 August 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 23 OF 2001 Devidas
Ramsundar Shukla ...Appellant State of Maharashtra ...Respondent
DR. ARIJIT PASAYAT,
J.
1.
Challenge
in this appeal is to the judgment of a Division Bench of the Bombay High Court,
Nagpur Bench, Nagpur upholding the conviction of the appellant for offence
punishable under Sections 302 and 202 read with Section 34 of the Indian Penal
Code, 1860 (in short the `IPC'). There weretwo appellants before the High Court
which dismissed the appeal. Only present appellant has questioned the
correctness of the judgment.
2.
Prosecution
version as unfolded during trial is as follows:
The appellant (A-2)
alongwith co-accused-Santosh Devidas Shukla (A-1) and two others were tried in
Sessions Trial No. 81 of 1992 in the Court of the Additional Sessions Judge,
Achalpur for offences under Sections 302 and 202 read with section 34 IPC and
by the judgment and order dated 17.12.1993 of learned Additional, Sessions
Judge, Achalpur, they were convicted for the offences under Sections 302 and
202 read with Section 34 IPC and were sentenced to suffer RI for life and to
pay a fine of Rs.1,000/- each with default stipulation. Except these two,
others were acquitted by the trial Court. The victim of assault was one Manoja
@ Manorama daughter of Tirathraj Tiwari (PW-5) (hereinafter referred to as the
`deceased'). A-1 was a resident of Banosa.
One Hira was married
to A-1 in the year 1989. After the marriage, she was residing with him. A-2 is
the father of A-1.
It so happened that
the matrimonial dispute cropped up between Hira and A-1 and as a consequence thereof
she left the matrimonial home. She filed a criminal case against the appellant
and co-accused alleging ill treatment and cruelty.
While the proceeding
was pending, A-1 contracted marriage with deceased Manoja on 8.7.1991 and in
consequence brought her to his house and as such she was residing with A-1. It
was on 27th May, 1992 that A-2 went to the police station Daryapur and gave the
report (Exh.83) informing that the deceased was burning in the house and she
was being removed to the hospital.
P.S.I. Katkar on
arriving at the police station rushed to the hospital. Dr. Shailaja Kale (PW-1)
who was the Medical Officer, after seeing deceased Manoja in the hospital at
about 5.35 hours declared that she was brought dead and information was given
immediately to the P.S.I. who was present in the hospital. That, information
was sent to the police station where A/D of Murg Khabari No. 17/92 under
section 174 of the Code of Criminal Procedure, 1973 (in short the `Cr.P.C.')
was registered on 27.5.1992. P.S.I. Katkar after getting the information of
registration of crime prepared the spot panchnama in the hospital where the
dead body was lying, vide Exh. 25. In the course of enquiry, he also made the
inquest panchnama (Ex. 26) and seized some articles therefrom. He then
immediately went to the house of accused No. 1, where deceased Manoja was
burnt. He prepared the spot panchnama of the scene of offence, vide Ex. 46. He
noticed large pieces of skin, flesh and ashes lying, on the floor of the room,
burnt matchsticks, bottle containing kerosene, so also a bowl smelling of
kerosene. These articles were seized by making a panchnama (Exh. 47). He
recorded the statements of various persons in the course of enquiry. The
accused gave different versions in respect of the deceased Manoja. He returned
to the police station and lodged the FIR vide Exh.84 on the basis of which the
offence was registered at Crime No.101/92.
4 On completion of
investigation charge sheet was filed.
Since the accused
persons abjured guilt, the trial was held.
3.
The
case based on circumstantial evidence which according to the prosecution
unerringly pointed out the appellant to the author of the crime. The
circumstances noted by the trial Court are as follows:
(1) Hira, wife of A-1
lodged complaint against appellants alleging ill-treatment making specific
mention of fact that A-1 contracted second marriage.
(2) A-2 settled
marriage of Manoja with A-1 concealing the fact the A-1 was already married
with Hira.
(3) A-2 disowned the
marriage of Manoja with A-1.
(4) Deceased Manoja
was living with A-1 and A-2 till 27.5.1992 in the house under their folds.
(5) Deceased Manoja
was burnt in the room of that very house.
(6) Appellant and
co-accused saw her burning in the room. However, they did not make efforts to
save her.
(7) A-2 though
informed police about Manoja's burning, did not disclose as to how she got
burnt.
(8) In the report,
A-2 did not mention that Manoja was wife of A-1 thereby indicating conduct in
suppressing true facts.
(9) A-2 did not state
in the report that A-1 tried to extinguish fire, though claimed by him at the
trial.
(10) Neither A-2 nor
A-1 informed Manoja's father about her getting burnt.
(11) On the other
hand, A-1 and A-2 gave deliberately wrong name of father of Manoja as `Akhilesh
Tiwari' to mislead the police.
(12) Manoja sustained
99% burns and it was shown that she struggled for survival.
(13) In the room,
bottle contained kerosene was found.
The room was having
smell of kerosene all over, 6 even felt by P.S.I. Katkar and panch Sk. Raheman
on their arrival in the morning is an eloquent circumstance when viewed in the
context of room remaining accessible and match box not found in the room.
(14) In the room,
burnt match sticks were found which tallied with match sticks in the match box
seized from the kitchen. No finding of match box in the room, where she was
burnt, positively shows that the act of setting her on fire was not of her own
act.
(15) One door of the
room was open. This shows that A-1 and A-2 had access to the room and as A-1
and A- 2 admitted to have been to the room and seen her burning, and A-1 having
burn injuries, indicates that A-1 and A-2 set her on fire.
(l6) A-2 at the trial
denied that fact Manoja died of burning in the house. This conduct on his part
is very relevant to indicate that he must not be innocent as he claimed.
(17)Deceased Manoja
was 7-8 weeks' pregnant. There was no exceptional reason for her to put an end
to her life. Therefore, this fact that Manoja was carrying, 7 totally rules
out the possibility of she committing suicide and there existing to kill her.
(18)Hira complained
A-1's marrying Manoja for which A-1 and A-2 faced prosecution in criminal
court. A-2 was instrumental for A-1 marrying Manoja, giving rise to a hasty motive
to eliminate unprotected girl Manoja.
(19) Mute sufferance
of agonies without attracting the neighbourhood to rush the spot indicates role
played by agency other than the victim herself who could not have kept her
mouth shut with extensive injuries.
(20)Evidence and the
circumstances do not give rise to doubt regarding old father of (A-2) or the
women folk capable of committing the act of burning.
4.
The
trial Court placing reliance on the aforesaid circumstances observed that the
aforesaid circumstances were a complete chain to establish the guilt of the
appellant and A- 1 and accordingly found them guilty.
5.
In
appeal, before the High Court it was submitted that the circumstances were not
sufficient to conclude about the guilt of the appellant and co-accused. The
High Court did not find any substance in this plea and dismissed the appeal.
6.
So
far as A-1 is concerned, he has not filed any appeal.
7.
In
support of the appeal, learned counsel for the appellant submitted that most of
the circumstances do not in any way establish the guilt of the accused. Learned
counsel for the State supported the judgment of the trial Court and the High
Court.
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 negative 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, 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;
11 (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. 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).
17.
The
circumstances highlighted by the trial Court cumulatively pointed out
unerringly the appellant to be guilty of the offence. Additionally, certain
factors need to be noted.
Presence of blood on
the door shows that deceased tried to go out and this is a very vital
circumstance. Additionally, the finding of broken bangles on the spot show that
there was a struggle. A-1 has taken the stand that he tried to extinguish fire
when he went to the room and saw his wife burning there when he entered the
room. Statement of witnesses Sk. Raheman and Sk. Munir and P.S.I. Katkar shows
that the doors of the room were open. Witness Sk. Raheman and Sk. Munir noticed
burnt pieces of clothes and one calendar was found burnt. Additionally, burnt
pieces of skin and flesh were lying there. There were two burnt match sticks
and there was one bottle containing kerosene and a pot smelling kerosene.
Significantly, no
match box was found in the kitchen. Smell of kerosene was found on the lungi
which was worn by A-1 and which was seized. Some parts of skin and flesh were
also found on the lungi giving smell of kerosene. Small pieces of flesh were
also found on the doors panel as also on the wooden panel of cot. As rightly
noted by the trial Court and the High Court no match box was found at the spot
where body was found though some burnt match sticks were found and as noted
above the match box was found in the kitchen.
If the materials on
record are considered in the background of evidence on record, the inevitable
conclusion is that the appeal is without merit and deserves dismissal which we
direct.
..........................................J.
(Dr. ARIJIT PASAYAT)
..........................................J
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