A. Yadhav Vs. State of
Karnataka [2008] INSC 2004 (25 November 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 102 OF 2001 A.
Yadhav ...Appellant Versus State of Karnataka ...Respondent
Dr. ARIJIT PASAYAT,
J.
1.
Challenge
in this appeal is to the judgment of a Division Bench of the Karnataka High
Court disposing of three criminal appeals which had their matrix in a judgment
of learned 9th Additional Sessions Judge, Bangalore City in SC No.353 of 1992.
Criminal Appeal No.51 of 1996 was filed by Krishnamutty A1 challenging the
conviction and sentence passed against him for the offences punishable under
Sections 302 and 394 of the Indian Penal Code, 1860 (in short the `IPC')
whereas Criminal Appeal No. 748 of 1996 was filed by the State challenging the
inadequacy of sentence so far as Krishnamutty accused No. 1 was concerned and
prayer was to enhance the sentence of imprisonment for life to death sentence.
The last appeal i.e. 748 of 1996 was filed by the State challenging acquittal
of present appellant- A. Yadav , A2.
2.
Background
facts in a nutshell are as follows:
Sunanda Varadhan,
aged 73 years, (hereinafter referred to as the `deceased' nos. 1 and 2) and her
mother Rukamma, aged 90 years, came from well to do family and their children
were settled outside Bangalore.
They were staying at
Flat No.201, First Floor, Richmond Place, Convent Road, Bangalore. They were
often engaging the services of Accused-1 as part-time Driver to take them in
and around Bangalore. They had also engaged Selvi (P.W.3) as maid servant. They
were often calling personally or on phone their relatives including Suvarna
Prasad (P.W.6) daughter of deceased Sunanda, Lakshmi (P.W.8) deceased Rukamma's
cousin sister, Nagamani (P.W.19) - niece of deceased Rukamma and Dr. Xavier
(P.W.22) a retired Medical Practitioner, who was staying in the same apartments
and was said to be looking after the health of both deceased. Similarly,
Keshava Iyengar (P.W.1) whose daughter was married to the son of deceased Sunanda,
used to visit both Sunanda and Rukamma at their apartment and look after their
well being.
In the morning of
9-8-1992 (Sunday), as Suvarna Prasad (P.W.6) did not get regular phone call
from Sunanda and inspite of repeated attempts made by her from Madras where she
was staying could not contact her, she contacted Dr. Xavier, (P.W.22) and asked
him to make enquiries about the well being of Sunanda and Rukamma and to
intimate her. Accordingly Dr. Xavier (P.W.22) at about 10.00 A.M. tried to call
both deceased Sunanda and Rukamma over phone and, when he could not get any
reply, he thought that they might have gone out to meet their relatives and
waited for some time. Even then when no reply was received from them, he
contacted Keshava Iyengar (P.W.1) who, as stated earlier, is another relative
of deceased Sunanda and Rukamma at about 6.00 P.M. Again Keshava Iyengar
(P.W.1) thinking that both Sunanda and Rukamma might have gone out and having
waited some time, came to the apartment and along with Dr. Xavier (P.W.22) went
to Flat No.201 occupied by both the deceased. When both of them (P.W.1 and P.W.
22) went there, they found that door was locked from inside and as it was a
latch-door and in spite of repeated pressing of the bell there was no response,
Keshava Iyengar (P.W.1) with the help of a duplicate key which was with him
opened the door and entered the house. There was darkness in the house and on
switching the lights, in the bed-room they noticed, on separate cots, two bodies
covered with rugs and on verification they were found to be the dead bodies of
Sunanda and Rukamma.
Immediately, Keshava
Iyengar (P.W.1) contacted his relatives at Bangalore as well as Suvarna Prasad
(P.W.6) at Madras. Suvarna Prasad (P.W.6) informed Keshava Iyengar (P.W.1) that
she would come to Bangalore immediately by the next available flight and not to
do anything till then.
Keshava Iyengar
(P.W.1) thereafter locked the door of the flat and came back to his house. Next
day, i.e., on 10-8-1992 in the morning at about 7'0 clock, after the arrival of
Suvarna Prasad (P.W.6) and her husband, Keshava Iyengar (P.W.1) accompanied
them and observed the conditions inside the house. As Suvarna Prasad (P.W.6)
suspected that some of the articles including some jewelleries on the persons
of deceased were missing, suspecting foul play, Keshava Iyengar (P.W.1)
requested to lodge a complaint with the jurisdictional police. Accordingly,
Keshava Iyengar (P.W.1) contacted the D.I.G. of Police, who, in turn,
instructed Narayan (P.W.29) the Police Inspector and Station House Officer of
Ashokanagar Police Station, to look into the same. Narayan (P.W.29) proceeded
to the spot wherein Keshava Iyengar (P.W.1) gave him the written complaint as
per Exhibit P.1 which was sent to the police station for registration of the
case and investigation. Srinivas (P.W.26) who was the Police Sub Inspector on
receipt of the complaint registered a case in Cr.No.594 of 1992 for the offence
punishable under Section 302 IPC against unknown persons and thus investigation
was set in motion. Dog Squad and Finger Print Experts were called for. The
Police Dogs could not lead to any suspicious place or person and as such it was
given up. However, Narayanappa (P.W.28) (Finger Print Expert) found three chance
finger prints on the T.V.Stand and two chance finger prints on the stainless
steel cup kept near the dead bodies and took photograph of the same as well as
the finger prints of the deceased and the nearby occupants, viz, Thavamani
(P.W.2) - a watchman and Selvi (P.W.3) - maid servant, who had immediately come
there. Ameer (P.W.10) - the police photographer took photos of the dead bodies
and, after holding inquest mahazar as per Exhibits P.26 and P.27 the bodies
were sent for autopsy. As surfaced during the inquest and subsequent recording
of statements of witnesses especially from the statement of Thavamani (P.W.2)
that the Accused-1 along with another person had visited previous night and
went to the flat of the deceased, search for Accused-1 was made.
Chandrashekar Nair
(P.W.7) - Inspector COD), who was entrusted with search/apprehending the
accused, found Accused-1 moving in his Ambassador car near the Manipal Hospital
and he was apprehended and brought to the police station along with car. He was
formally arrested by Narayan (P.W.29) at about 5.00 p.m. After the arrest,
Accused-1 was interrogated and, as per his voluntary statement (Exhibit P.39),
certain ornaments said to be belonging to both the deceased were recovered from
the dickey of the Ambassador car bearing Registration No.KLD 6288, admittedly
belonging to Accused-1. As during the interrogation Accused -1 pointed out
involvement of Accused-2 in the crime, he was also arrested and interrogated.
As per his voluntary statement, the Pillow and Pillow Cover (M.Os. 7 and 7a)
said to have been used for smothering the deceased were also recovered from the
apartment itself.
On 11-8-1992, Dr.
Thirunavukkarasu (P.W. 12) and Dr. Manjunath (P.W. 13), the Doctors, who
conducted autopsy on the dead bodies, gave their P.M. Reports as per Exhibits
P.15 and P.19. Since both the Doctors did not find any physical external
injuries, possibly due to decomposition and swelling of the bodies, they
reserved their opinion subject to the reports sought from the Chemical Analysts
and Forensic Science Laboratory to which certain articles including viscera of
both the deceased were sent.
Meanwhile, the
Investigating officer, Narayan (P.W.29) recorded statements of many witnesses,
obtained finger prints of the accused and sent the same along with the finger
prints of the deceased obtained earlier by the Finger Print Experts. It is to
be mentioned here itself that, after the recovery of the pillow and pillow
cover on the information given by Accused-2, the police suspected that the
death was due to smothering. The Investigating Officer asked for clarification
from the Medical Officers who conducted post mortem as to the possibility of
the cause of death by smothering. Both Dr Thirunavukkarasu (P.W.12) and Dr.
Manjunath (P.W.13) as per Exhibits P.15 and P.19 gave positive opinion
regarding the possibility of cause of death of both Sunanda and Rukamma being
due to smothering by smooth object like pillow. The Chemical Examination and
Forensic Science Laboratory Report dated 19--10-1992 indicated no presence of
any poison.
After completing the
investigation and receiving all the necessary documentary material, on
2-11-1992 charge sheet was filed against both the accused for the offences
under Sections 302 and 394 read with Section 34 IPC.
As the accused denied
the charges and claimed to be tried, they were tried in S.C.No.353 of 1992. In
order to establish the guilt of the accused, the prosecution examined 29
witnesses got marked Exhibits P.1 to P.42 as well as M.Os.1 to 17. The accused
denied the prosecution case in toto and after marking certain statements from
the evidence of P.Ws. 2 and 4 as Exhibits D.1 to D.5, the accused closed their
case without further evidence.
7 Considering the
material placed before the trial Court in the form of oral and documentary
evidence, the trial Court held Accused-1 alone guilty of the offences under
Sections 302 and 394 IPC. However, finding certain discrepancies and lacunae in
so far as the evidence against Accused-2 is concerned, he was given benefit of
doubt and was acquitted of all the charges. Hence, the present appeal has been
filed.
As noted above
different appeals were filed, one by the accused No.1 while two other filed by
the State for enhancement of sentence in case of A1 and questioning correctness
of the order of acquittal so far as the A2 is concerned.
The High Court by the
impugned judgment allowed the appeal so far as the State is concerned in
respect of the present appellant and the other two appeals were dismissed.
Questioning correctness of the judgment of the High Court setting aside the
order of acquittal the present appeal has been filed.
3.
Learned
counsel for the appellant submitted that the trial court had analysed the
evidence in great detail and had directed acquittal so far as the present
appellant is concerned. Without analyzing the evidence in detail and without
recording reasons as to how the judgment of the trial court suffered from any
infirmity, interference was made.
4.
It
is submitted that the view taken by the trial court was a reasonable view and
the High Court should not have interfered.
5.
Learned
counsel for the respondent-State on the other hand supported the judgment of
the High Court.
6.
The
present case is based on circumstantial evidence. The circumstances highlighted
by the prosecution are as follows:
1. Both the deceased
were residing at flat No.201, Richmond Place Apartments, Convent Road,
Bangalore;
2. Accused-1 was
often engaged by the deceased as part- time Driver and as such knew them very
well;
3. Both the deceased
were alive till 8.00 or 8.30 PM on 8-8- 1992;
4. At about the same
time both the accused were seen going towards the apartment;
5. After the night of
8-8-1992 both Sunanda and Rukamma were not seen alive;
6. Accused-1 was in
need of money for having purchased a car by taking loan;
7. Recovery of M .Os
.1 to 4 (gold ornaments) belonging to both the deceased on the information
furnished by Accused-1 during interrogation and recovery of the same from his
car as pointed out by Accused No.1.
Similarly in so far
as Accused 2 is concerned, the circumstances are:-
1. Accused 2 was
acquainted with accused 1'
2. He was found near
the place of incident along with Accused No. 1 going to the flat of the
deceased on 8.8.1992 at about 8.30 pm.
3. Accused No. 1
pointed out accused 2 as his accomplice and after apprehension as per the
voluntary statement made by Accused 2 M.Os. 7 and 7a(pillow and pillow cover
alleged to have been used for smothering both the deceased ) were recovered;
4. Finding of the
chance finger print of Accused 2 from the scene of offence.
7.
So
far as the present appellant is concerned the circumstances 2 to 4 are of
relevance.
8.
The
parameters while dealing with the circumstances have been considered by this
Court in several 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;
(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 12 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 ofexplanation, 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. [2008 (7) JT 360].
18.
The
High Court has referred to several factors including the motive aspect. It has
referred to the evidence of PWs. 2 & 4, who saw A1 & A2 after they came
out of the deceased's house. PW4 remembered that A2 was sitting in the car with
A1. The circumstances highlighted by the High Court to hold the present appellant
guilty cannot be said to be without relevance.
The High Court has
rightly observed that the trial court did not consider the relevant aspects
while directing acquittal of the present appellant. We find nothing infirm in
the conclusions of the High Court to warrant interference.
19.
The
appeal is dismissed.
..........................................J.
(Dr. ARIJIT PASAYAT)
..........................................J
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