[2009] 3 S.C.R. 944

RIYOJODDIN RAFIYODDIN SHAIK

STATE OF MAHARASHTRA REP. BY PUBLIC

PROSECUTOR (Criminal Appeal No. 426 of 2009)

MARCH 3, 2009

[DR. ARIJIT PASAYAT AND ASOK KUMAR

GANGUL Y, JJ.]

C; Penal Code, 1860: s.302 - Death due to burn injury - Deceased was ill treated by husband- Found dead with burn .

injury - Smell of kerosene from body of victim and clothes found burnt - Circumstantial evidence pointing guilt towards husband - Conviction of husband under s.302 - Held: Injuries D on dead body were sufficient in ordinary course of nature to cause death - Circumstances highlighted by prosecution as • analysed by courts below clearly established guilt of accused

- Conviction upheld - Evidence - Circumstantial evidence.

E Prosecution case was that the deceased was ill treated by her husband and other members of his family.

On the fateful day, father of deceased received information about the serious condition of his daughter. When he reached matrilmonial home of daughter, he

F found dead body of his daughter with burn injury. He found kerosene smell on her hair and half burnt clothes. Trial Court convicted husband under sections 302 and 4J8A IPC and directed acquittal of other members of his family. The High Court found that the accusations so far

G .as Section 498-A were concerned were not established, but the evidence was sufficient to hold the appellant guilty of offence punishable under Section 302 IPC. Hence the instant appeal.

Dismissing the appeal, the Court

H 944 ,.

RIYOJODDIN RAFIYODDIN SHAIK v. STATE OF 945

MAHARASHTRA REP. BY PUBLIC PROSECUTOR

HELD: 1. Where a case rests squarely on A 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. [Para 8] [950-B-C] B

Hukam Singh v. State of Rajasthan AIR (1977) SC 1063; Eradu andOrs. v. State of Hyderabad AIR (1956) SC 316; Earabhadrappa v. State of Karnataka AIR 1983 SC 446; State of UP. v. Sukhbasi and Ors. AIR (1985) SC 1224; Ba/winder C

Singh v. State of Punjab AIR (1987) SC 350; Ashok Kumar Chatterjee v. State of M.P. AIR (1989) SC 1890; Bhagat Ram

v. State of Punjab AIR (1954) SC 621; C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193 and Pada/a Veera Reddy v. State of A.P. and Ors. AIR (1990) SC 79, relied on.

Wills' Circumstantial Evidence" Chapter VI, referred to.

2. The doctor (PW-8) clearly stated that the dead body was totally burnt and was smelling of kerosene and the cause of death was due to burns and shock. It was also E opined that the injuries found on the dead body were sufficient in the ordinary course of nature to cause death and by pouring kerosene the injury would be caused. The circumstances highlighted by the prosecution as analysed in detail by the trial and High Court clearly established the guilt of the accused. [Para 17] [953-H; F

954-A-B]

State of UP. v. Ashok Kumar Srivastava (1992) Crl.LJ 1104; Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh; AIR (1952) SC 343; Sharad Birdhichand G Sarda v. State of MahC:Jrashtra, (AIR (1984) SC 1622; State of Rajasthan v. Raja Ram (2003) 8 SCC 180; State of Haryana v. Jaghir Singh and Anr. (2003) 11 SCC 261; Kusuma Ankama Rao v State of A.P. (2008) 10 SCR 89 and H

A Manivel and Ors. v. State of Tami Nadu (2008) 11 SCR 1036,

relied on.

Case Law Reference:

AIR 1983 SC 446 relied on Para 8 B

AIR (1985) SC 1224 relied on Para 8

AIR (1987) SC 350 relied on Para 8

AIR (1989) SC 1890 relied on Para 8 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 1984 SC 1622 relied on Para 15

AIR 1952 SC 343 relied on Para 14

(2003 (8) sec 180 relied on Para 16 E

(2003 (11) sec 261 relied on Para 16

(2008) 10 SCR 89 relied on Para 16

(2008) 11 SCR 1036 relied on Para 10 F CRIMINAL AP PELLA TE JURISDICTION : Criminal Appeal No. 426 of 2009.

From the Judgment and Order dated 27/28.10.05 of the High Court of Judicature of Bombay at Aurangabad in Criminal G Appeal No. 89 of 2005.

R.V. Kameshwaran, SCLSC for the Appellant. •,

Ravindra Keshavrao Adsure for the Respondent.

RIYOJODDIN RAFIYODDIN SHAIK v. STATE OF 947

MAHARASHTRA REP. BY PUBLIC PROSECUTOR

The Judgment of the Court was delivered by A

DR. ARIJIT PASAYAT, J. 1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of Bombay High Court, Aurangabad Bench, dismissing B the appeal filed by the appellant who was convicted for offences punishable under Sections 302 and 498-A of the Indian Penal Code, 1860 (in short the 'IPC'), so far as the conviction under Section 302 IPC is concerned, while directing acquittal in respect of offence punishable under Section 498-A IPC. Seven persons faced trial before the learned Additional Sessions c Judge, Amalner.

3. Brief facts giving rise to the prosecution are as under:

Akbarbeg (PW-4) is the father of Sayarabi (hereinafter D referred to as the 'deceased'). The marriage of the deceased Sayarabi with accused No.5 Riyazoddin, present appellant was preferred one year back. Accused Nos.1 and 2 are the parents and accused Nos.3 and 6 are the brothers of accused No.5. , Accused No.4 is the wife of accused No.3.

E It was alleged that the accused were giving ill treatment to deceased Sayarabi during the period of her stay in the matrimonial house at Parola, Dist. Jalgaon. The accused No.5appellant was abusing and beating the deceased Sayarabi.

Accused Nos.1 and 2 had brought the deceased to her parent's F house at village Dherangeon Tai Onerrangaon Dist. Jalgaon three months back. Deceased disclosed about her ill treatment at the hands of accused to her relatives. " I

On 12.5.1996 the marriage of niece of P.W.4 Akbarbeg G was performed at Dharangaon. Accused No. 3 and 5 had ; attended the said marriage. They demanded Rs.2000/- for the construction of a house from P.W. 4 Akberbeg. He expressed his inability to pay the amount.

On 20.5.1996 the deceased was sent to stay at her H

A matrimonial house along with accused 1 and 2. On 25.5.1996 at about 2.00 midnight P.W.4 Akbarbeg received the message through police about the serious condition of the deceased.

Thereafter he along with his relatives paid visit to the matrimonial house of his deceased daughter. He saw the dead B body of his daughter with burn injury in her matrimonial house.

He found kerosene smell on the hair and half burnt cloth.

Ramesh (PW-1) the Police Patil of Parola lodged an occurrence report to the police. On the basis of his report AD. bearing No. 35/96 was registered. Inquest panchanama on the C dead body was prepared on 25.5.1996 in AD. case. Spot panchanama was also prepared in AD.Case. Dead body was sent for conducting the post mortem to the cottage Hospital, Paro la.

D Akberbeg came to know through his relative Rahanabi (PW-5) that the accused No.5 committed the murder of the deceased by pouring kerosene oil on her person and setting her on fire. Accused Nos.1 to 4 and 6 abetted the accused No.5 in the commission of murder of the deceased. P.W.4 E Akberbeg lodged the complaint dated 25.5.1996 alleging illtreatment to the deceased prior to 25.5.1996 and committing her murder on 24.5.1996 at about 11-00 P.M.

On the basis of his complaint crime bearing No.121/1996 was registered with Parola Police station at about 1.00 p.m.

F M.D. Patil (PW-11) carried out the investigation of the crime.

On 27.5.1096, he sent the seized articles for examination to the C.A Aurangabad. After the completion of investigation on 14.8.1996 he submitted the charge sheet against the accused for the offences as stated above to the learned Judicial G Magistrate, First Class. Parola.

The learned Judicial Magistrate, First Class, Parola by an order dated 21.8.1996 committed the case to the Additional Sessions Judge, Amalner, as the offence punishable under H Section 302 IPC is exclusively triable by the Court of Sessions.

- RIYOJODDIN RAFIYODDIN SHAIK v. STA TE OF MAHARASHTRA 949

REP. BY PUBLIC PROSECUTOR [DR. ARIJIT PASA YAT, J.]

In Sessions case charge was framed against accused A Nos.1 to 6 for the offence punishable under Section 498-A read with section 34 IPC and against accused Nos.1 to 4 and 6 under Section 302 read with Section 114 IPC.

The charge was read over and explained to the accused B in vernacular. They pleaded not guilty and claimed to be tried.

The defence of the accused is that the house caught fire due to short circuit. Deceased sustained burn injury on account of house catching fire in a short circuit.

The trial Court directed acquittal of A-1 to A-4 and A-6 but c held the present appellant guilty of offence punishable under Sections 302 and 498-A IPC. In appeal, as noted above the High Court found that the accusations so far as Section 498-A

"' are concerned are not established, but the evidence was sufficient to hold the appellant guilty of offence punishable under D Section 302 IPC.

4. In support of the appeal, learned counsel for the appellant submitted that there was no direct evidence and the prosecution case was based on circumstantial evidence. The E circumstances highlighted do not lead to conclude about the guilt of the accused.

5. Learned counsel for the State on the other hand supported the judgment.

F 6. The circumstances highlighted by the trial Court and the High Court are essentially as follows:

(i) The appellant was residing with his wife.

(ii) Death of wife at odd hours (midnight) and in G " unnatural manner.

(iii) Kerosene smell in the body and articles around the body.

A (iv) False defence (i.e. fire by short circuit).

7. Learned counsel for the appellant submitted that there is no evidence to show that the deceased was sprinkled with kerosene. The evidence clearly established that there was no homicidal death and it was due to short circuit of electricity.

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 C 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 (AlR 1983 SC 446); State of UP. v. Sukhbasi and Ors. (AIR 1985 SC 1224); o Ba/winder 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 E 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 . F 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 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 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

RIYOJODDIN RAFIYODDIN SHAIK v. STA lE OF MAHARASHTRA 951

REP. BY PUBLIC PROSECUTOR [DR ARIJIT PASA YAT, J.]

circumstances must be consistent only with the hypothesis A 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 8 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 anq firmly established; C

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

(3) the circumstances, taken cumulatively should form a 0 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 E 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 F

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 G 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 H

A 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, B . 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 c . 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- D 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 E 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."

~ RIYOJODDIN RAFIYODDIN SHAIK v. STATE OF MAHARASHTRA 953 ~

REP. BY PUBLIC PROSECUTOR [DR. ARIJIT PASAYAT, J.]

15. A reference may be made to a later decision in A Sha rad Birdhichand Sarda v. State of Maharashtra, (Al R 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 B precedent in the words of this Court, before conviction could ,, be based on circumstantial evidence, must be fully established.

They are: I

(1) the circumstances from which the conclusion of guilt is c 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 D 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 E

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 F 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. Raja Ram (2003 (8) SCC 180), State of Haryana v. Jagbir G 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).

17. The doctor (PW-8) clearly stated that the dead body H

A was totally burnt and was smelling of kerosene and the cause of death was due to burns and shock. It was also opined that the injuries found on the dead body were sufficient in the ordinary course of nature to cause death and by pouring kerosene the injury as mentioned in Column No.17 of P.M.

B Notes Exh.78 would be caused. The circumstances highlighted

by the prosecution as analysed in detail by the trial and High Court clearly established the guilt of the accused. That being so, there is no merit in this appeal which is accordingly dismissed. c D.G.

Appeal dismissed.