SHAIK MAST AN V ALI A v.

STA TE OF ANDHRA PRADESH

AUGUST 3, 2007

[DR. ARIJITPASAYAT AND LOKESHWARSINGHPANTA, JJ.] B

Penal Code, 1860-s.302-Accused had illicit relations with the daughter of PWJ-He beat and dragged her out of the house of PW3 at

night-Next morning PWsl and 2 found her lying dead on a cot-Police C found a towel of accused tied around the waist of deceased and a rope lying near the cot-Autopsy surgeon opined that the cause of death was due to asphyxia caused by strangulation with ligature-Conviction on basis of circumstantial evidence-Challenge to-On facts, held: Prosecution has established its accusations-Courts below rightly relied upon the circumstances to hold accused-Appellant guilty.

Evidence-Circumstantial evidence-Appreciation of-Law elucidated.

Appellant had illicit relations with the daughter of PWl and frequently visited her house. According to the prosecution, at night while PWl 's daughter was watching T. V. in the house of PW 3, Appellant came there and E started beating her and thereafter dragged her out. The next morning PWs.

I& 2 found her lying dead on a cot. PW2 is brother of the deceased. The police found one towel of Appellant, which was tied around the waist of the

decsed and a rope; which was lying near the cot The Autopsy Surgeon opined that the cause of death was due to asphyxia caused by strangulation with ligature. Placing reliance upon the evidence of PWsl & 2 and the several F circumstances of the case, Trial Court convicted Appellant under s.302 IPC.

High Court upheld the conviction. Hence the present appeal.

Dismissing the appeal, the Court

HELD: 1.1. Where a case rests squarely on circumstantial evidence, G the inference of guilt' an 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. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond 779 H

A reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.

(Para 5) (783-A, B, CJ

1.2. The conditions precedent, before conviction could be based on circumstantial evidence, must be fully established. They are: (1) the B 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 C circumstances should be of a conclusive nature and tendency; (4) they shoul.d 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.

(Para 12) (785-D, E, F, GI

1.3. When the evidence on record is analysed in the background of principles highlighted above, the inevitable conclusion is that the prosecution has established its accusations. [Para 14) (786-A)

Hukam Singh v. State of Rajasthan, AIR [ 1977) SC 1063; Eradu v. State E of Hyderabad, AIR (1956) SC 316; Earabhadrappa v. State of Karnataka, AIR (1983) SC 446; State of UP. v. Sukhbasi, AIR (1985) SC 1224; Ba/winder Singh v. State of Punjab AIR (1987) SC 350; Ashok Kumar Chatterjee v. State of MP., AIR (1989) SC 1890; C. Chenga Reddy v. State of A.P., [1996) 10 SCC 193; Padala Veera Reddy v. State of A.P., AIR (1990) SC 79; State of

UP. v. Ashok Kumar Srivastava, (1992) Crl. LJl 104; Hanumant Govind F Nargundkar v. State of MP., AIR (1952) SC 343; Sharad Birdhichand Sarda

v. State of Maharashtra, AIR (1984) SC 1622 and State of UP. v. Satish, (2005) 3 sec 114, relied on.

Circumstantial Evidence (Chapter VJ) by Alfred Wills, referred to.

2. In the instant case the deceased has intimacy with the accused- Appellant and used to live in a hut and the accused frequently visited the house of the deceased and lived there as husband and wife; During night time on the previous day of the occurrence while the deceased was watching T.V. in the house of PW 3, the accused came to the house of PW 3 and started beating the deceased and dragged her to hut. On the next day morning PWs. l& 2 H found her dead. The police found one towel of the accused which was tied

SHAIK MAST AN V ALI v. ST A TE OF ANDHRA PRADESH [PASA Y AT, J. ] 781

around the waist of the deceased and the rope was lying near the cot. The A Trial Court and the High Court have rightly relied upon the circumstances to hold the accused guilty. (Para 15] (786-B, CJ

CRIMINAL APPEALLA TE JURISDICTION : Criminal Appeal No. I 003 of 2007

From the Judgment and Order dated 7.11.2005 of the High Court of Judicature, Andhra Pradesh at Hyderabad in Criminal Appeal No.580 of2003

Chander Shekhar Ashri for theAppellant.

D.Bharthi Reddy for thr Respodent.

The Judgment of the Court was delivered by

DR. ARIJIT PASAYA T, J. l. Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of D the Madras High Court dismissing the appeal filed by the appellant questioning

1-- his conviction or offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the 'IPC') and sentence of imprisonment of life and fine of Rs.30,000/- with default stipulation.

3. Background facts in a nutshell are as follows: E

Adivamma (PW-I) is the mother and Mandapate Rullaiah (PW-2) is brother of Nagandla Pichamma (hereinafter referred to as the 'deceased') brother of the deceased. The deceased, the accused and the other material witnesses lived in Martur. The deceased belonged to Byneedi Madiga by caste, whereas the accused belongs to Muslim community. The deceased was F a deserted lady and she developed illicit intimacy with the accused and gave birth to a female child. She was residing in a thatched house situated adjacent to her parents' house. During the life time of deceased, the accused used to harass and beat the deceased suspecting her fidelity. On 31. I 0.1998 at about 9 p.m., while the deceased was watching the T.V. programme in the house of G Venkata (PW3), the accused came there and on seeing her the accused became wild and brought the deceased by beating with hands and took up to his house. On the next day morning, PWI went to the house of the deceased and found that the deceased dead and she was lying on the cot.

PW I found ligature marks on her throat and around the neck of the deceased.

On hearing the hue and cry of PW I, the neighbours gathered at the scene H

A of offence. Thereafter, late M. Polaiah, father of the deceased, went to the

police station and gave an oral report to the S.l. of Police at about 3.30 p.m., which was reduced in writing under Ex. PS. On the basis of Ex. P-5, PW6 registered a case in Cr. No. 102 of 1998 under Section 302 IPC and issued FIR Ex.P6. Thereafter, PW6 visited the scene of offence, prepared scenef B observation report Ex. P2 and seized MO. I to M0.3 in the presence,: of PW~

and another. Then PW6 examined PWs 1 to 3, 5 and others and recorded their "' statement. On 02.11.1998 at about 8 AM, PW8 C.I of Police conducted the \ inquest over the dead body of the deceased in the presence of PW4 and another. Ex, P-3 is the inquest report. On 02.11.1998 itself, Civil Assistant Surgeon at Government Hospital, Addanki (PW 7) conducted the autopsy C over the dead body of the deceased and opined that the cause of death was due to asphyxia caused by strangulation with ligature. Ex. _P-8 is the post mortem report. On 11.11.1998, the accused surrendered before the court. After completion of investigation, PW 8 filed the charge sheet.

On receipt of the committal order by the learned Additional Judicial D Magistrate of First Class, Addanki, the learned Special Sessions Judge for Cases under SCs and STs (P.A.) Act, 1989, Ongole took the case on file in SC No.71/99 on its file and ultimately the accused was put up for trial before the learned Sessions Judge, charged of the offence under section 302 I.P.C. or alternatively under Sec. 3(2)(v) of the Scheduled Castes and Scheduled E Tribes (Prevention of Atrocities) Act, 1989 ( in short the SCST Act).

The prosecution, in order to substantiate its case, examined PW l to PW 8 and marked Exs. Pl to PS and MOs. l to 8. No oral or documentary evidence was adduced on behalf of defence. Accused pleaded innocence.

F Placing reliance on the evidence of PWs. l& 2 i.e. mother and the brother of the deceased respectively, the trial court recorded his conviction.

Since it was a case which was based on circumstantial evidence, the trial court took note of several circumstances to fasten the guilt on the accused. Though he was fourid not guilty of offence under Section 3, he was acquitted of charges for commission of offence punishable under Section 3(2)(5) of the G SCST Act. In appeal the High Court affied the conclusions. The High Court took note of the fact that the witnesses have seen accused dragging the deceased to the hut in the night. Next day morning the deceased was found dead. This, according to the prosecution version, is sufficient to fasten the guilt in the absence of any explanation by the accused at about his absence H thereafter. This stand was accepted by the trial court.

\ f

SHAIK MAST AN V ALI v. ST A TE OF ANDHRA PRADESH [PASAYA T, J.] 783

4. In support of the appeal learned counsel for the appellant submitted A that this being a case of circumstantial evidence, the prosecution has not established. its accusations. Learned coun.sel for the respondent-State supported the order of the trial court and the High Court.

5. 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 B : 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

v. State of Hyderabad, AIR (1956) SC 316, Earabhadrappa v. State of Karnataka, AIR(1983)SC446, Stateofl!.P. v.Sukhbasi, AIR(l985)SC 1224, C Ba/winder Singh v. State of Punjab, AIR (1987) SC 350 and Ashok Kumar Chatterjee v. State of MP., 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 D 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 home the offences beyond any reasonable doubt.

6. We may also make a reference to a decision of this Court in C.

Chenga Reddy v. State of A.P., [1996] 10 SCC 193, wherein it has been E observed thus:

"21 . 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. F 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."

7. In Padala Veera Reddy v. State of A.P., AIR (1990) SC 79 it was laid G down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

( l) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; H

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; .

(3) the circumstances, taken cumulatively, should fonn 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 B else; and

(4) the circumstantial evMence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent C with his innocence."

8. In State of U.P. v. Ashok Kumar Srivastava, (1992) Cr!. LJ 1104 it was pointed out that great care must be taken in evaluating circumstantial evidence and ifthe 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 D 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.

9. Sir Alfred Wills in his admirable book 'Wilis; Circumstantial Evidence' E (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (I) 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 he existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence. the best evidence F 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; and (5) ifthere be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.

IO. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touchstone of law relating to circumstantial evidence laid down by this Court as far back as in 1952.

11. In Hanumant Gov ind Nargundkar v. State of MP., AIR ( 1952) SC

~ -

SHAIKMASTANVALlv. STATEOFANDHRAPRADESH[PASAYAT, J.] 785

343 it was observed thus:

"It is well to remember that in cases where the evidence is of a circumstantial na<; ure, 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 B 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 C to show that within all human probability the act must have been done by the accused."

12. 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 the onus was on the D prosecution to prove that the chain is complete and the infirmity of lacuna in te prosecution cannot be cured by a 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:

(I) the circumstances from which the conclusion of guilt is to be E 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 i 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 F 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.

13. The above position was highlighted in State of U.P. v. Salish, [2005]

3SCC114.

14. When the evidence on record is analysed in the .background of principles highlighted above, the., inevitable conclusion is that the prosecution has established its accusations. ·

15. In the instant case the deceased has intimacy with the accused and used to live in a h.ut and the accused frequently visited the house of the deceased and lived there as husband and wife. During night time on the -+ 'previous day of the occurrence while the deceased was watching T.V. in the house of PW 3, the accused came to the house of PW 3 and started beating C the deceased and dragged her to hut. On the next day morning PWs. I& 2 found her dead. The police found one towel of the accused which was tied around the waist of the deceased and the rope was lying near the cot. The trial Court and the High Court ave rightly relied upon the cii"cumstances to hold the accused guilty. We find no substance in the appeal.

16. Appeal fails and is dismissed.

B.B.B.

Appeal dismissed.