[2009] 2 S.C.R. 1060

SYED HAKKIM AND ANR. \!.

STATE REP. BY DY. SUPERINTENDENT OF PbLICE, KARUR DISTRICT, TAMIL NADU

Criminal Appeal No. 365 Of 2009

FEBRUARY 23, 2009

.[DR. ARIJIT PASAYAT AND ASOK KUMAR GANGULY, JJ.]

Penal Code, 1860 - ss. 302 and 498A - Death of wife - Allegedly due to strangulationby husband and in-f.aws on C account of non-fulfillment of dowry demand - Conviction by Courts below under ss. 302 and 498A, on basis of circumstantial evidence - Held: No infirmity in conclusion of Courts below that dowry demand was made, particularly in view of evidence of prosecution witnesses - Conviction in terms of D s. 498A confirmed - However, as circumstances highlighted by prosecution to bring in application of s.302 /PC were insufficient and scanty, conviction under s. 302 set aside - Crime against Women. ·

E Evidence - Circumstantial evidence - Appreciation pf.

According to the prosecution, the husband and the in-laws of PW1 's daughter strangulated her to death as their dowry demand was not met Both the Trial Court and the High Court convicted the husband and the brother- . in-law of the deceased Le. the appellants utider ss.302 and F. 498A IPC. Hence the present appeal. ·

Partly allowing the appal, the. C::ourt

HELD:1. Both the trial 'Court and the High Court having regard to the evidence of relatives concluded that G the dowry demand was made. There is no infirmity with the conclusions arrived at more particularly in view of the evidence of PWs 1 and 2 and therefore there is no scope for interference with the conclusions relating to Section 498-A IPC. [Para 6] [1066-C-D] H 1060

''t-'(

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OF POLICE, KARUR DIST., TAMIL NADU

2.1. Where a case rests squarely on circumstantial A 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. The circumstances .from which an inference as to the guilt of the acused. is drawn B 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. '.[Para 8] ..

[1066-E~G]

2.2. In. the present cae, the circumstances high- C lighted by the prosecution to bring in application of Section. 302 IPC are insufficient and scanty. That being so, the conviction as recorded in terms.of Section 302 IPC cannot be maintained and !s set.aside. [Para 17] [1070-B-C] ,

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 Kamataka AIR (1983) SC 446; State

of UP. v. Sukhbasi and Ors. AIR 1985 SC 1224; Ba/winder Singh v. State of Punjab AIR (1987) SC 350 and Ashok Kumar Chatterjee v. State of M.P. AIR (1989) SC 1890; Bhagat Ram E

v. State of Punjab AIR (1954) SC 621; C. Chenga Reddy and Ors .. v. State of AP. (1996) 10 SCC 193; Pada/a Veera Reddy v . . S.tate of A.P. and Ors. AIR (1990). SC 79; State of U.P. v. Ashok Kumar Srivastava (1992) Cr/. LJ 1104; Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh .AIR (1952) F SC 343 and Sharad Birdhichand Sarda v. State of Maharashtra AIR (1984) SC 1622; State of Rajasthan v. Raja Ram (2003) 8 SCC 180; State otHaryana v. Jagbir Singh and Anr. (2003) 11 SCC 261; Kusuma Ankama Rao v State of A.P. (Criminal Appeal No.18512005 disposed of on 7.7.2008 - relied on.

Circumstantial Evidence by Alfred Wills - referred to.

3. In the ultimate result, the conviction in terms of Section 302 is set aside while that under Section 498A stands confirmed. [Para 17] (1070-D] H

~ r;:

A Case Law Reference t_. ...

AIR (1977) SC 1063 relied on Para 8 ·~

AIR (1956) SC 316 relied on Para 8

AIR (1983) SC 446 relied on Para 8

AIR 1985 SC 1224 relied on Para 8

AIR (1987) SC 350 relied on Para 8

AIR (1989) SC 1890 relied on Para 8 't-- c

AIR (1954) SC 621 relied on Para 8

(1996) 10 sec 193 relied on Para 9

AIR (1990) SC 79 relied on Para 10

(1992) Crl. LJ 1104 relied on Para 11 ..

AIR (1952) SC 343 relied on Para 14 4

AIR (1984) SC 1622 relied on Para 15

(2003) a sec 1 ao relied on Para 16 E

•• 1

(2003) 11 sec 251 relied on Para 16 ,_

CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 365 of 2009

>. L: From the Judgement and Order dated 22.03.2007 of the F High Court of Judicature at Madras in Criminal Appeal (MD) No. 283 of 2004.

S. Ravi Shankar, Yamuna Nachiar, for the Appellant.. c S. Thananjayan, for the Respondent.

I G The Judgement of the Court was delivered by . ..____ I

DR. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division ~

Bench of the Madras High Court dismissing the appeal filed by A - 1 the appellants. Seven accused persons faced trial. Appellantsaccused were numbers as A-1 and A-2 respectively in the trial Court and before the High court. Out of seven accused persons who faced trial A-1 to A-5 and A-7 were convicted for offence punishable under Section 498-A of the Indian Penal Code, 1860 B (in short the 'IPC') while A-1 to A-5 were also convicted for offence punishable under Section 302 IPC. In appeal the High

), _.., Court set aside the conviction so far as A3, A4 and AS are concerned in respect of offence punishable under Section 302

IPC. c

3. Prosecution version in a nutshell is as follows:

The marriage between the first accused and the Syed Ali Fathima (hereinafter referred to as 'deceased') took place on 22.4.2001. A2 is the brother of Al. A3 and A4 are the sisters of D ,..

~ Al and AS is the mother and A6 is the father of Al. A 7 is the aunt of Al. P.W.I is the mother of the deceased.Atthe time of marriage, P.W.I paid Rs.5,000/- and three sovereigns of gold jewels and after a period of two months, the first accused went to Mumbai seeking for a job. All the other accused ill-treated the deceased E stating that the dowry demand was not met. Prior to the occurrence, the first accused came from Mumbai. PW-1 was summoned. At that time, there was a demand from accused

~ ,..l Nos. 1, 2 and 7 that 10 sovereigns of gold and a sum of Rs.5,000/- towards "Seevarisai" for Ramzan must be paid F immediately. A-7 who was present at that time informed PW-1 that she can pay the said demand within a period of two months.

P.W.2 is closely related to P.W.1. On 6.3.2000, he came to Pallapatti and went to the house of P.W.1. P.W.2 was informed by P. W.1 that there was a dowry demand from the side of the G _... accused. A marriage was scheduled to take place in the house .,, of a resident which is next to the house of the first accused and hence on 8.3.2002, P.W.2 came to the house between 11 am and 12 noon. He was talking to the said neighbour. Since P.W.2 knew that there was a dowry demand, he decided to meet the H

A deceased in her house for that purpose. When he was just getting doym through the staircase, he was able to see the house

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of the deceased Fathima. A window was kept open through which he was able to see within 10 feet. At that time, Al and A2 strangulated the deceased Fathima with a rope and A3 and A4 B caught hold of both the arms. On seeing this, P.W.2 was shocked.

When he was witnessing the occurrence, A2 saw P.W.2.

Immediately, P.W.2 went to the place of PW-1. But he could not meet anybody and he went to his native place, Salem and Ireturned on the next day i.e. 9.3.2002.

If- { c On the day of occurrence, i.e., 8.3.2002, the son of the 2nd accused proceeded to the house of P:W.1 and informed her that she was to be taken to the hpuse of the accused and took her in a two wheeler. When P.W.1 went to the house of the ' accused, the wife of A2 informed that the deceased Fathiina

~ D was upstairs. When P.W.1 went to upstairs, she found only the

'- .. t dead body of her daughter and P.W.1 was able to see a ligature -* mark around the neck of the deceased. When P.W.1 enquired, nobody gave any answer, but all laughed. P.W.1 immediately came back and informed to the relatives and proceeded to the

E police.Station. P.W.13, t_he Sub-lnspctor of Police was on duty on the day of occurrence. P. W1 gave a complaint at about 17 .30 hours which is marked as Ex.P.1 on the strength of which a case came to be registered in Crime No.49/2002 under Section 17 4

_j., of the Code of Criminal Procedure, 1973 ( in short the 'Code') <.

F was dispatched to the Court. On receipt of the copy of the F.l.R.,

P.W.14 the Deputy Superint_endent of Police took up investigation, proceeded to the scene of occurrence, made inspection and prepared Ex.P.2the observation Mahazar and Ex.P.12the rough sketch. He also sent a copy of the FIR to

G PW-10, the Revenue -Divisional Officer who on receipt of the copy of the FIR proceeded to the place and also conducted

-~ inquest on the dead body in the presence of witnesses and prepared Ex.P-9, the Inquest Report wherein he opined that it was not a case of suicide but it was the death by homicide. He

H also made enquiries from witnesses and the accused. Following

,_- ..,

the same, the dead body was subjected to postmortem by P.W.9, A '~ the doctor attached to Govt. Headquarters Hospital, Karur, who opined that the deceased would appear to have died of Asphyxia due to strangulation about 24-36 hours prior to autopsy.

Originally, the case was registered under section 174 of B Code. Later, it was converted into one under Sections 498-A and 302 IPC and the Express F.l.R. Ex.P.13 was dispatched to the court.

> _., Pending investigation, accused Nos.1 to 6 were arrested.

A2 came forward to give confessional statement voluntarily and c the same was recorded by P. W.13, the Deputy Superintendent of Police in the presence of witnesses, pursuant to which A2 has produced M.0.1-Nylon rope which was recovered under a cover of Mahazar, Ex.P.4. All the accused were sent for judicial remand.

D • On completion of investigation, the investigating officer filed the final report. The case was committed to the Court of Sessions. Necessary charges were framed in order to substantiate the charges leveled against the accused. The E prosecution examined 16 witnesses and relied upon 13 exhibits and 3 material objects. On completion of evidence on the side of the prosecution, the accused were questioned under section

J. 313 of Code.

PW-2 was projected to be an eye witness. But he resiled F from his statement made during investigation. The trial Court and the High Court proceeded on the basis as if the prosecution version rested on circumstantial evidence. Two circumstances were highlighted to fasten the guilt on the accused. The plea of alibi set up by A-1 having been dis-believed it must be presun .ed G

i. that he was guilty. Similarly, in respect of A-2 plea of suicide ,, was ruled out by the evidence of doctor (PW-9). A-2 was held to be guilty. On the aforesaid ground the trial Court convicted the present appellants and the High Court concurred with the view of the trial Court.

4. Learned counsel for the appellants submitted that from the stage of trial, the prosecution case was that there was only )-4 '":

one eye witness i.e. PW-2 but since he did not support the

prosecution case, the prosecution proceeded to rely on the certain circumstances. It is submitted that the circumstances B highlighted do not present a complete chain of circumstances to warrant the conclusion of guilt on the accused persons.

5. Learned counsel for the respondent-State on the other hand supported the judgment. ,,._ ....

6. So far as Section 498-A is concerned according to learned counsel for the appellants the evidence is scanty but it is to be noticed that both the trial Court and the High Court having regard to the evidence of relatives concluded that the dowry demand was made. We do not find any infirmity with the

D conclusions arrived at more particularly in view of the evidence

"4 of PWs 1 and 2 and therefore there is no scope for interference \ _,

with the conclusions relating to Section 498-A IPC.

7. The residual question is about the conviction in terms of Section 302 IPC.

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

,.._

~ '

F innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan (AIR 1977SC1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of f<arnataka (AIR 1983 SC 446); State of UP v. Sukhbasiand Ors. (AIR 1985 SC 1224); Ba/winder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar G Chatterjee v. State of M. P. (Al R 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 H Ram v. State of Punjab (AIR 1954 SC 621 ), it was laid down

SYED HAKKIM ANO ANR. V. STATE REP. BY DY. SUP. 1067 ..

OF POLICE, KARUR DIST., TAMIL NADU[OR. ARIJIT PASAYAT, J.]

--l • -1 that where the case depends upon the conclusion drawn from A circumstances the cumulative effect of the circumstances must be such as to negate 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 B Court in C. Chenga Reddy and Ors. v. State of A.P (1996) 10 sec 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 c 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 D

~ 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: E

"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly ,

,4, established; "'

(2) those circumstances should be of a definite tendency F 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 G .,, 1-

(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 H

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 8 ·. on is reasonably capable of two infererces, 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. c

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

0 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 E 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 F 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 touchstone 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 A 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 B 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 C 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 D 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 F 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; G

(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 H

consistent with the innoGence 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 B

v. Raja Ram (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 prosecution to c bring in application of Section 302 IPC are insufficient and scanty.

That being so, the conviction as recorded in terms of Section 302 IPC cannot be maintained and is set aside. The sentences imposed in respect of Section 498-A IPC does not warrant interference. In the ultimate result, the conviction in terms of

0 Section 302 is set aside while that under Section 498-A stands confirmed.

18. The appeal is allowed to the aforesaid extent.

B.B.B.

Appeal party allowed.

r.