Krishna Ghosh Vs.
State of West Bengal [2009] INSC 661 (31 March 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2009 (Arising
out of SLP (Crl.) No. 7768 of 2007) Krishna Ghosh ..Appellant Versus State of
West Bengal ..Respondent
Dr. ARIJIT PASAYAT,
J.
1. Leave granted.
2. Challenge in this
appeal is to the judgment of a Division Bench of the Calcutta High Court
upholding the conviction of the appellant for offence punishable under Sections
498-A and 302 read with 34 of the Indian Penal Code, 1860 (in short the `IPC').
The present appeal is filed by the appellant, husband of Yogmaya (hereinafter
referred to as the `deceased'). A single appeal was filed by the present
appellant and his mother-Gita Ghosh and unmarried sister Kalyani Ghosh A-3.
3. Prosecution
version in a nutshell is as follows:
One Jiten Ghosh
happens to be the de facto complainant of the instant case who lodged one
written complaint with the local P.S. at Ranaghat on 24.07.1987 at 11.05 hours
with a plea that his niece (sister's daughter) Yogmaya was married about 1 year
4 months ago with accused Krishna Ghosh after giving proper dowry. Krishna
Ghosh, his mother Gita Ghosh and sister Kalyani Ghosh used to rebuke his niece
on very trivial house-hold affairs as they did not like his niece as his niece
used to intimate her agony to her parents and to him. They went to Yogmaya's
in-law's house and used to pacify the matter and ameliorate the same for the
benefit of the Yogmaya and thus the conjugal life of Yogmaya was not so
peaceful.
On 24.07.1987 when he
had been to his field one Tentul Mondhal intimated him that the woman folk were
weeping at his house and he came to learn from his daughter-in-law Asha Ghosh
that his niece Yogmaya had died.
Then he proceeded to
the house of Yogmaya which was about one mile away from his house and found the
dead body of his niece Yogmaya at the verandah of the house of the accused
covered with a cloth and the in-laws of Yogmaya were absconding at the relevant
time. He came to learn from one Badli Ghosh, wife of Rishipada Ghosh that on
23.07.1987 at about 8 p.m. she heard about the assault and crying and shouting
of his niece Yogmaya but the persons of the locality could not enter into the
house of the accused persons. On the relevant day, the dead body of Yogmaya was
taken out by her mother-in-law and sister-in-law and one Brijbala and they fled
away after covering the dead body with a cloth. After uncovering the cloth he
found that Yogmaya sustained bleeding injuries on her ear, nose, left eye, back
and leg. Yogmaya died due to assault and torture of her in-laws by chain.
Upon such complaint,
the instant case germinated against the accused persons and the criminal law
was set in motion after investigation and they came to the conclusion with the
submission of charge-sheet against all the three accused persons under Sections
498A and 302 read with Section 34 IPC. Copies were duly supplied to the accused
persons under section 207 of the Code of Criminal Procedure, 1973 (in short the
`Code') and the case was committed by the learned Magistrate to the Court of
Sessions and the cognizance of the case was taken under Section 193 of Code and
charges were framed in terms of section 228 (1) (b) of Code on 9th February,
1993.
Trial was held as the
accused person’s abjured guilt. Witnesses were examined and accused persons
were examined under Section 313 of Code Learned Sessions Judge, Nadia held that
the prosecution has established the accusations and directed conviction as
noted above.
However, no separate
sentence was imposed in respect of offence relatable to Section 498-A.
In appeal, the High
Court found that the same was without merit and dismissed the same by the
impugned judgment.
4. In support of the
present appeal, learned counsel for the appellant submitted that the case rests
on circumstantial evidence and the circumstances do not establish the guilt of
the accused.
5. Learned counsel
for the respondent on the other hand supported the judgment of the High Court.
6. 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.
7. 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:
5 "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....".
8. 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.
9. 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.
10. 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 of the right to be acquitted".
11. 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.
12. 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."
13. 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.
14. 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), 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).
15. The evidence of
PWs 1, 2, 4, 7, 8 and 14 clearly establish that the body was found in the
matrimonial home of the deceased with injuries noticed by them which fit in
with the evidence of the Autopsy Surgeon (PW-15). The evidence of PWs 2, 4, 7
and 8 throw considerable light on the controversy. The death took place within
one year and four months of the marriage in the house of the accused persons
and the dead body was found with injuries. At the relevant time the accused
persons were absconding which is of considerable importance. The plea of alibi
set up by the present appellant has been discarded because there was no
material to substantiate such plea. The trial Court and the High Court have
analysed this aspect in great detail. From the evidence of PWs 2, 4, 7 and 8 it
is seen that the accused persons were absconding since the date of incident
when the dead body of the deceased lay in her matrimonial home. PW-14 the
Investigating Officer's evidence was to that effect. The High Court has rightly
noted that the conduct of the accused appellants before it had a striking
feature in the absence of any reasonable explanation and is an inculpating
circumstance against them. The injuries on the dead body were noticed by
several witnesses e.g. PWs 1, 2, 4, 7 and 8. The autopsy examination on the
dead body of the deceased revealed the following injuries:
1. Nail marks
(illegible) in shape four in numbers over left side of the neck placed one
below the other and extended laterally and other marks over the right side of
the neck, aclymorsis over the front of the neck. On direction extravagation of
the blood found in the muscles of the neck and fractures of the (illegible)
cartilage found.
2. Multiple abrasion
and aclynorsis of the varying sizes are seen over the back and different parts
of the body both appear and lower (illegible).
16. According to the
doctor the death was due to asphyxia resulting from throttling which was ante
mortem and homicidal in nature.
17. Above being the
position we find no merit in this appeal which is accordingly dismissed.
....................................J.
(Dr. ARIJIT PASAYAT)
....................................J.
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