REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 23 OF 2001

Devidas Ramsundar Shukla …Appellant

Vs.

State of Maharashtra  …Respondent

J U D G M E N T

DR. ARIJIT PASAYAT, J.

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

Bench  of  the  Bombay  High  Court,  Nagpur  Bench,  Nagpur

upholding  the  conviction  of  the  appellant  for  offence

punishable under Sections 302 and 202 read with Section 34

of the Indian Penal Code, 1860 (in short the ‘IPC’). There were

two  appellants  before  the  High  Court  which  dismissed  the

appeal. Only present appellant has questioned the correctness

of the judgment.  

2. Prosecution version as unfolded during trial is as follows:

The  appellant  (A-2)  alongwith  co-accused-Santosh

Devidas Shukla (A-1) and two others  were tried in Sessions

Trial No. 81 of 1992 in the Court of the Additional Sessions

Judge, Achalpur for offences under Sections 302 and 202 read

with section  34  IPC  and by the  judgment  and order  dated

17.12.1993 of learned Additional, Sessions Judge, Achalpur,

they were convicted for the offences under Sections 302 and

202 read with Section 34 IPC and were sentenced to suffer RI

for  life  and  to  pay  a  fine  of  Rs.1,000/-  each  with  default

stipulation.  Except  these  two,  others  were  acquitted  by the

trial  Court.    The  victim  of  assault  was  one  Manoja  @

Manorama  daughter  of  Tirathraj  Tiwari  (PW-5)  (hereinafter

referred to as the ‘deceased’). A-1   was a resident of Banosa.

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One  Hira  was  married  to  A-1  in  the  year  1989.  After  the

marriage,  she was residing with him. A-2 is the father of A-1.

It  so  happened  that  the  matrimonial  dispute  cropped  up

between Hira and A-1 and as a consequence  thereof she left

the matrimonial home. She filed a criminal case against the

appellant  and co-accused  alleging  ill  treatment  and cruelty.

While the proceeding was pending, A-1  contracted marriage

with  deceased  Manoja  on  8.7.1991  and  in  consequence

brought her to his house and as such  she was residing with

A-1. It  was on 27th May, 1992 that A-2  went to the police

station Daryapur and gave the report (Exh.83) informing that

the deceased  was burning in the house and she was being

removed to the hospital.    

P.S.I. Katkar on arriving at the police station rushed to

the hospital.  Dr. Shailaja Kale (PW-1) who was the Medical

Officer, after seeing deceased Manoja in the hospital at about

5.35  hours  declared  that  she  was  brought  dead   and

information  was  given  immediately  to  the  P.S.I.  who  was

present  in  the  hospital.  That,  information  was  sent  to  the

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police station where A/D of Murg Khabari No. 17/92 under

section 174 of the Code of Criminal Procedure, 1973 (in short

the ‘Cr.P.C.’)  was registered on 27.5.1992. P.S.I. Katkar after

getting the information of  registration of crime prepared the

spot  panchnama in the  hospital  where  the  dead  body was

lying, vide Exh. 25. In the course of enquiry, he also made the

inquest  panchnama  (Ex.  26)  and  seized  some  articles

therefrom. He then immediately went to the house of accused

No. 1, where deceased Manoja was burnt.  He prepared  the

spot  panchnama  of  the  scene  of  offence,  vide  Ex.  46.  He

noticed large pieces of skin, flesh and ashes lying, on the floor

of the room, burnt matchsticks, bottle containing kerosene,

so also a bowl smelling of kerosene. These articles were seized

by  making  a  panchnama  (Exh.  47).  He  recorded  the

statements of various persons in the course of enquiry.  The

accused gave different   versions in respect  of the deceased

Manoja. He returned to the police station and lodged the FIR

vide Exh.84 on the basis of which the offence was registered

at Crime No.101/92.  

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On completion  of investigation charge sheet was filed.

Since the accused persons abjured guilt, the trial was held.  

3. The  case  based  on  circumstantial  evidence  which

according  to  the  prosecution  unerringly  pointed  out  the

appellant to the author of the crime. The circumstances noted

by the trial Court  are as follows:

(1) Hira,  wife  of  A-1  lodged  complaint  against

appellants  alleging  ill-treatment  making  specific

mention  of  fact  that  A-1  contracted  second

marriage.  

(2) A-2 settled marriage of Manoja with A-1 concealing

the fact the A-1 was already married with Hira.

(3) A-2 disowned the marriage of Manoja with A-1.

(4) Deceased Manoja was living  with A-1 and A-2 till

27.5.1992 in the house under their folds.  

(5) Deceased  Manoja  was  burnt  in  the  room of  that

very house.

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(6) Appellant and co-accused  saw her burning in the

room. However,  they did not make efforts to save

her.

(7) A-2  though  informed  police  about  Manoja’s

burning, did not disclose as to how she got burnt.

(8) In the report, A-2 did not mention that Manoja was

wife  of  A-1  thereby  indicating  conduct  in

suppressing true facts.  

(9) A-2  did  not  state  in  the  report  that  A-1  tried  to

extinguish fire, though claimed by him at the trial.

(10) Neither A-2 nor A-1 informed Manoja’s father about

her getting burnt.  

(11) On the other hand, A-1 and A-2 gave deliberately

wrong name of father of Manoja as ‘Akhilesh Tiwari’

to mislead the   police.  

(12) Manoja sustained 99% burns and it was shown that

she struggled for survival.  

(13) In the room, bottle contained kerosene was found.

The  room was  having  smell  of  kerosene  all  over,

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even felt by P.S.I. Katkar and panch Sk. Raheman

on  their  arrival  in  the  morning  is  an  eloquent

circumstance when viewed in the context of room

remaining accessible  and match box not found in

the room.   

(14) In the room, burnt match sticks were found which

tallied with match sticks in the match box seized

from the kitchen.  No finding of  match box in the

room, where she was burnt, positively shows that

the act of setting her on fire was not of her own act.

(15) One door of the room was open. This shows that A-1

and A-2  had access to the room and as A-1 and A-

2  admitted to have been to the room and seen her

burning, and  A-1  having burn injuries, indicates

that A-1 and A-2  set her on fire.

(l6) A-2 at  the trial  denied that fact  Manoja  died of

burning in the house. This conduct on his part is

very  relevant  to  indicate  that  he  must  not  be

innocent as he claimed.

(17)Deceased  Manoja  was  7-8  weeks'  pregnant.   There

was no exceptional reason for her to put an end to her

life.  Therefore,  this  fact  that  Manoja  was  carrying,

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totally  rules  out  the  possibility  of  she  committing

suicide and there existing to kill her.  

(18)Hira complained A-1’s marrying Manoja for which A-1

and A-2 faced prosecution in criminal court. A-2 was

instrumental for A-1 marrying Manoja, giving rise to a

hasty motive to eliminate unprotected girl Manoja.

(19) Mute  sufferance  of  agonies  without  attracting  the

neighbourhood to rush the spot indicates role played

by agency other than the victim herself who could not

have kept her mouth shut with extensive injuries.

(20)Evidence  and the circumstances  do  not  give  rise  to

doubt regarding old father of (A-2) or the women folk

capable of committing the act of burning.  

4. The  trial  Court  placing  reliance  on  the  aforesaid

circumstances observed that the aforesaid circumstances were

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a complete chain to establish the guilt of the appellant and A-

1 and accordingly found them guilty.  

5. In appeal, before the High Court it was submitted that

the circumstances were not sufficient to conclude about the

guilt of the appellant and co-accused.  The High Court did not

find any substance in this plea and dismissed the appeal.

6. So far as A-1 is concerned, he has not filed any appeal.

7.  In  support  of  the  appeal,  learned  counsel  for  the

appellant submitted that most of the circumstances do not in

any way establish the guilt of the accused. Learned counsel

for the State supported the judgment of the trial Court and the

High Court.  

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

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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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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 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....”.

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:  

“(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.

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

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.

12. Sir  Alfred  Wills  in  his  admirable  book  “Wills’

Circumstantial Evidence” (Chapter VI) lays down the following

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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 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-

stone of law relating to circumstantial evidence laid down by

the this Court as far back as in 1952.   

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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 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.”

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

the  chain  is  complete  and  the  infirmity  of  lacuna  in

prosecution cannot be  cured by false  defence  or plea.   The

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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.     

16. 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

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State  of  A.P. (Criminal  Appeal  No.185/2005  disposed  of  on

7.7.2008).

17. The  circumstances  highlighted  by  the  trial  Court

cumulatively pointed out unerringly the appellant to be guilty

of the offence. Additionally, certain factors need to be noted.

Presence of blood on the door shows that deceased tried to go

out and this is a  very vital  circumstance.  Additionally, the

finding of broken bangles on the spot show  that there was a

struggle.  A-1 has taken the stand that he tried to extinguish

fire when he went to the room and saw his wife burning there

when  he  entered  the  room.  Statement  of  witnesses  Sk.

Raheman and  Sk.  Munir  and  P.S.I.  Katkar  shows  that  the

doors of the room were open. Witness Sk. Raheman and  Sk.

Munir noticed burnt pieces of clothes  and one calendar was

found burnt. Additionally, burnt pieces of skin and flesh were

lying there. There were two burnt match sticks and there was

one bottle containing kerosene  and a pot smelling kerosene.

Significantly, no match box was found in the kitchen. Smell of

kerosene was found on the lungi which was worn by A-1 and

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which was seized.   Some parts of skin and flesh were also

found on the lungi giving smell of kerosene.  Small pieces of

flesh  were  also  found  on  the  doors  panel  as  also  on  the

wooden panel of cot.  As rightly noted by the trial Court and

the High Court no match box was found at the spot where

body was found though some burnt match sticks were found

and as noted above the match box was found in the kitchen.

If the materials on record are considered in the background of

evidence  on  record,  the  inevitable  conclusion  is  that  the

appeal  is  without  merit  and  deserves  dismissal  which  we

direct.  

……………………………………J. (Dr. ARIJIT PASAYAT)

…………………………….……..J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, August 6, 2008

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