REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.209 OF 2001

B. Venkat Swamy …Appellant

Versus

Vijaya Nehru and Anr. …Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of the Division

Bench of the Andhra Pradesh High Court directing acquittal of

respondent  no.1 who was convicted  for  alleged  commission of

offences punishable under Section 498A and 302 of the Indian

Penal  Code,  1860  (for  short  ‘IPC’).  Respondent  (hereinafter

referred to as the ‘accused’) and his mother faced trial for alleged

commission of  offence punishable  under  Section 498A IPC.  In

addition,  respondent-accused  was  found  guilty  of  offence

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punishable under Section 302 IPC and Section 4 of the Dowry

Prohibition Act (in short ‘DP Act’).  The learned Sessions Judge,

Kurnool, found that the accusations against A2 i.e. mother of the

respondent  -  accused  were  not  established  and  she  was

acquitted  of  the  charges.   However,  respondent-accused  was

found guilty of the offence punishable under Sections 498A, 302

IPC and Section 4 of the DP Act.      

2. Prosecution version in a nutshell is as follows:

Prosecution witnesses are the residents of Kurnool.  A-1 is

the  resident  of  Hyderabad.   PWs.  1  and 2  are  the  parents  of

Shreelakshmi (hereinafter referred to as the ‘deceased’).  PW3 the

brother of PW.1 and PW.7 is the sister of PWs. 1 and 3.  A-1 was

the husband of the deceased and A-2 is the mother of A-1.

On 12.11.1995 the marriage of A-1 and the deceased was

celebrated.  At the time of marriage PW.1 gave a sum of rupees

one lakh in cash, 15 tolas of gold and one Yamaha Motor Cycle

to A-1.  At the time of marriage 15 tolas of additional gold were

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put on the body of the deceased.  After the marriage, A-1 and the

deceased set up a new home at Hyderabad as A-1 was working

in the Defence on daily wages basis.  After the marriage, he was

permanently appointed as Junior Scientific  Officer in D.R.D.A.

As  they  had  set  up  a  new  establishment,  PWs.  2,  3  and  7

purchased  some  household  articles  worth  Rs.25,000/-  and

presented those to them.  After one and half month of stay at

Hyderabad,  it  is  alleged,  A-1  and  A-2  started  harassing  the

deceased  to  get  more  money  and  additional  15  tolas  of  gold

jewellery  which  were  put  on  the  deceased  at  the  time  of  the

marriage. After some time A-1 lost his Yamaha Motor Cycle at

Tank  Bund.  A-1  asked  the  deceased  to  ask  PW.1  and  other

members of the family to purchase a new Motor Cycle for him.

A-1 and the  deceased  were  visiting Wanaparthy frequently  on

weekends  as  A-1’s  parents  were  residing  at  Wanaparthy.   On

such occasions A-2 used to harass the deceased to get additional

gold  of  15  tolas  and a  new motor  cycle  as  she  was  the  only

daughter of her parents.  PW.1 and others asked A-1 as to why

he  was  demanding  more  gold  and  another  motor  Cycle.   A-1

used to answer that he never asked his wife  to demand such

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articles.                   

On 18.4.1996 PWs.1 and 2 went to Hyderabad and PW.1

dropped PW.2 at Hyderabad as the birthday of the deceased was

on  27.4.1996,  PW1  advised  PW.2  to  stay  there  and  get  the

deceased and A-1 to Kurnool on 26.4.1996 to celebrate the birth

day  of  the  deceased.   PW.2,  the  deceased  and  A-1  went  to

Kurnool at midnight on that day.    

They celebrated the birthday of the deceased at Kurnool on

27.4.96.  After taking dinner, some of the family members went

to  a  late  night  movie  show at  about  12.30  a.m.  in the  night.

After  returning  from  the  picture,  A-1  and  the  deceased  were

sleeping  in  a  bedroom  upstairs  separately.   On  28.1.1996  at

about 7.00 a.m. PW.3 received a call from Wanaparthy.  The call

was made by the father of A-1 named V. Anjaneyulu.  The said

Anjaneyulu told PW.3 that A-1 had come to Wanaparthy and he

was weeping and not disclosing anything and asked him as to

what happened at Kurnool.  Then PW.1 to 3 went  upstairs to the

bedroom of A-1 and the deceased.   The door was bolted from

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inside.  With force they opened the door.  The door bolt gave a

way  for  them  to  enter  into  the  room.   They  found  that  the

deceased was hanging by one end of the saree tied to the neck

and the other end of the saree was tied to the ceiling fan.  The

deceased was in a kneeling position. A neighbour Dr. Venkata

Ramana examined the deceased and declared her dead.

On  28.4.96  at  about  10.00  a.m.  PW.11  the  Inspector  of

Police received the first information report given by PW.1 which

is Ex.P-1. On the strength of Ex.P-1, the offence was registered

by PW.11 in Cr.71/96 under Section 498-A and 306 IPC.  He

prepared the copies of first information report and dispatched to

all  concerned.   Ex.P-13 is the copy of the FIR received by the

Court.

On  28.4.1998  PW.4  the  Mandal  Revenue  Officer,  on  a

requisition  conducted  inquest  over  the  dead  body  of  the

deceased in the presence of PW.5.

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On 29.1.1996 PW.11 prepared  the  observations  report  of

the scene of offence in the presence of panch witnesses. Ex.P-10

is the observations report.  Ex.P-14 is  the rough sketch of  the

scene of offence.  PW.11 seized M.Os. 5 to 11 from the scene of

offence.  On 29.4.1996 PW.9 examined PW.7 and two others and

recorded their statements.     

On 28.4.1996 PW.6 the Professor and Head of Department,

Kurnool  Medical  College,  Kurnool  on  requisition  conducted

autopsy  over  the  dead  body  of  the  deceased.   Ex.P-6  is  the

postmortem certificate.

On 15.5.1996, PW.10 the Deputy Superintendent of Police,

Kurnool on receiving intimation altered the section of law in Cr.

No.71/1996 of Kurnool II town Police Station from Sections 498-

A and 306 IPC to Section 304-B IPC PW.10 visited the scene of

offence and prepared the observation panchnama. Ex.P-11 is the

Panchnama.   On 14.5.1996  PW.11  arrested  A-1and  A-2.   On

completion  of  investigation,  charge  sheet  was  filed  by  PW.11

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against  A-1  and  A2  under  Sections  302  and  498-A  IPC  and

Section 4 of the DP Act.

3. Accused persons denied the allegations. It  was suggested

that  the  accused  persons  were  falsely  implicated  because  the

deceased was found dead in the house of the PWs 1 & 2.   

4. The  trial  court  recorded  conviction  as  noted  above  in

respect of A1 while directing acquittal  of A2.  A1 preferred an

appeal before the High Court.

5. The High Court on analysis of the evidence found that the

respondent  was  not  responsible  for  causing  the  death  of  the

deceased.   He  was acquitted  of  the  charge  relating  to  offence

punishable under Section 302 IPC.  The High Court also noticed

that  the  prosecution  did  not  prove  that  the  deceased  was

subjected to cruelty immediately before her death. Therefore, the

accused  could  not  be  convicted  for  offence  punishable  under

Section  304  B  IPC.   Accordingly,  the  High  Court  directed

acquittal of the respondent.          

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6. The present appeal is filed by the informant.    In support of

the appeal learned counsel for the appellant submitted that the

High Court ought to have noticed that the evidence on record

was sufficient to fasten the guilt  on the accused persons. The

evidence  on  record  clearly  shows  a  complete  chain  of

circumstances and, therefore,  the High Court  should not have

directed acquittal. In any event, the High Court has not dealt as

to how Section 498A IPC and Section 4 of the DP Act have no

application.     

7. Learned counsel for the respondent-accused supported the

judgment of the High Court.

8. The  law  relating  to  circumstantial  evidence  has  been

highlighted by this Court in a large number of 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

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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.

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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;

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(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.

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

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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 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.   

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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

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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. (Criminal Appeal No.185/2005 disposed of on 7.7.2008)

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18. In  the  instant  case,  the  High  Court  has  noted  several

factors  to  hold  that  prosecution  has  not  established  the

accusations.   Firstly,  the evidence  of  PW 1 goes  to show that

door of the room where dead body was found was bolted from

inside.   Undisputedly,  A1  was  not  inside.   Another  relevant

aspect is the evidence of PW6.  It  is on record that there was

variance in the evidence of the doctor who had earlier given the

opinion that the deceased died due to asphyxia renilting from

hanging  and  later  on  stated  that  deceased  died  because  of

smothering and the dead body was hanged.  PW1 in his evidence

has stated that when they asked respondent as to why he was

demanding gold and motorcycle, he said that he had never asked

anything. In  the cross-examination PW1 categorically admitted

that  the  deceased  never  personally  informed  him  about  the

alleged harassment by the respondent.  He has also admitted in

the  cross-examination  that  the  respondent-accused  never

demanded any money or gold from him directly or personally.  It

is also accepted in the cross-examination that he presumed that

respondent-accused had killed the deceased. It is of significance

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that Trial Court accepted that there are lacunae in the case of

the prosecution and also that they failed to lead evidence as to

where  the  respondent  and  deceased  slept  on  26/27  i.e.  the

intervening night.  It is also accepted by the Trial Court that the

evidence  of  the  doctor  PW.6  is  confusing.   Trial  Court  also

accepted that it was absurd that the respondent-accused went

out to a long distance wearing only banian and underwear but

curiously enough wanted the accused to show as to why he did

it.  The evidence of PW.6 also has more loose ends.  According to

him, there was a possibility of struggle. If that is so, it is strange

that nobody heard the sound of the struggle and as to how the

deceased  could  have  struggled  without  even  making  a  sound.

The  evidence  of  PW.10 is  more  interesting.   He  says  that  the

accused would have gone out and bolted the door from inside.

He said that he had demonstrated the same without indicating to

whom it was demonstrated and when. The evidence of PW.3 also

corrodes  the  prosecution  version.   According  to  him  he  had

locked all the doors including the main door and thereafter slept

in his room.  According to him he received a telephonic call from

the father of the respondent-accused from Wanaparthy that A1

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was in a disturbed mind. He asked the father of the respondent-

accused as to why and how he could be at Wanaparthy as he

was at home and he had come home after visiting the second

show of the film.  It is accepted that Wanaparthy is at a distance

of 140 Kms. from Kurnool.  If they had returned at about 1.00

a.m. and the telephone came around 6.40 a.m, it has not been

explained by the prosecution as to how the respondent-accused

could  travel  the  distance.   As  noted  above  the  trial  court

observed the accused was wearing banian and underwear. If that

be so it  is strange that no body noticed it.    PW 3 has fairly

accepted that he presumed that respondent-accused was making

demands through his wife-deceased.          

19. To  add  to  the  vulnerability  of  the  prosecution  case,  the

examination  in  terms  of  Section  313  Cr.P.C.  appears  to  have

been done  as an empty formality.  The  incriminating materials

were not put to him.  Though the High Court has not dealt with

question of applicability of Section 498 IPC and Section 4 of the

DP  Act,  but  the  evidence  adduced  does  not  establish  the

accusations.        

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20. In view of the aforesaid,  there  is  no merit  in this appeal

which is dismissed.      

……………………………J. (Dr. ARIJIT PASAYAT)

……………………………J. (P. SATHASIVAM)

……………………………J. (AFTAB ALAM)

New Delhi:  August 25, 2008

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