REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.             OF 2009 (Arising out of SLP (Crl.) No. 7768 of 2007)

Krishna Ghosh ..Appellant

Versus

State of West Bengal ..Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

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

Calcutta High Court upholding the conviction of the appellant for offence

punishable under Sections 498-A and 302 read with 34 of the Indian Penal

Code, 1860 (in short the ‘IPC’). The present appeal is filed by the appellant,

husband of Yogmaya (hereinafter referred to as the ‘deceased’). A single

appeal was filed by the present appellant and his mother-Gita Ghosh and

unmarried sister Kalyani Ghosh A-3.   

3. Prosecution version in a nutshell is as follows:

One  Jiten  Ghosh  happens  to  be  the  de  facto   complainant  of  the

instant  case  who  lodged  one  written  complaint  with  the  local  P.S.  at

Ranaghat on 24.07.1987 at 11.05 hours with a plea that his niece (sister's

daughter) Yogmaya was married about 1 year 4 months ago with accused

Krishna Ghosh after giving proper dowry. Krishna Ghosh, his mother Gita

Ghosh and sister Kalyani  Ghosh used to rebuke his niece on very trivial

house-hold affairs as they did not like his niece as his niece used to intimate

her  agony to her  parents  and to  him.  They went  to  Yogmaya's  in-law’s

house and used to pacify the matter and ameliorate the same for the benefit

of the Yogmaya and thus the conjugal life of Yogmaya was not so peaceful.

On 24.07.1987 when he had been to his field one Tentul Mondhal intimated

him that the woman folk were weeping at his house and he came to learn

from his  daughter-in-law Asha Ghosh that  his  niece  Yogmaya had died.

Then he proceeded to the house of Yogmaya which was about  one mile

away from his house and found the dead body of his niece Yogmaya at the

verandah of the house of the accused covered with a cloth and the in-laws of

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Yogmaya were absconding at the relevant time. He came to learn from one

Badli Ghosh, wife of Rishipada Ghosh, that on 23.07.1987 at about 8 p.m.

she heard about the assault and crying and shouting of his niece Yogmaya

but the persons of the locality could not enter into the house of the accused

persons. On the relevant day, the dead body of Yogmaya was taken out by

her  mother-in-law and sister-in-law and one Brijbala  and they fled  away

after covering the dead body with  a cloth. After uncovering the cloth he

found that Yogmaya sustained bleeding injuries on her ear, nose, left eye,

back and leg. Yogmaya died due to assault  and torture of her in-laws by

chain.

Upon such complaint, the instant case germinated against the accused

persons and the criminal law was set in motion after investigation and they

came to the conclusion with the submission of charge-sheet against all the

three accused persons under Sections 498A and 302 read with Section 34

IPC. Copies were duly supplied to the accused persons under section 207 of

the Code of Criminal Procedure, 1973 (in short the ‘Code’) and the case was

committed  by  the  learned  Magistrate  to  the  Court  of  Sessions  and  the

cognizance of the case was taken under Section 193 of Code and charges

were framed in terms of section 228 (1) (b) of Code on 9th February, 1993.

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Trial  was  held  as  the  accused  persons  abjured  guilt.  Witnesses  were

examined and accused persons were examined under Section 313 of Code  

Learned  Sessions  Judge,  Nadia  held  that  the  prosecution  has

established  the  accusations  and  directed  conviction  as  noted  above.

However, no separate sentence was imposed in respect of offence relatable

to Section 498-A.  

In appeal, the High Court found that the same was without merit and

dismissed the same by the impugned judgment.  

4. In support  of  the  present  appeal,  learned counsel  for  the appellant

submitted  that  the  case  rests  on  circumstantial  evidence  and  the

circumstances do not establish the guilt of the accused.  

5. Learned counsel for the respondent on the other hand supported the

judgment of the High Court.  

6. It has been consistently laid down by this  Court that where a case

rests  squarely  on  circumstantial  evidence,  the  inference  of  guilt  can  be

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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. (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.

7. 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:

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“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....”.

8. 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;

(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.

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9. 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.

10. 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 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 of

the right to be acquitted”.

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11. 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.   

12. 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.”

13. 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

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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 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.      

14. These aspects  were highlighted  in  State  of  Rajasthan v.  Raja Ram

(2003 (8) SCC 180),  State of Haryana v. Jagbir 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).

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15. The evidence of PWs 1, 2, 4, 7, 8 and 14 clearly establish  that the

body  was  found  in  the  matrimonial  home of  the  deceased  with  injuries

noticed by them  which fit  in with the evidence of the Autopsy Surgeon

(PW-15). The evidence of PWs 2, 4, 7 and 8 throw considerable light on the

controversy.  The death took place within one year and four months of the

marriage in the house of the accused persons and the dead body was found

with  injuries.  At the  relevant  time the  accused  persons  were  absconding

which is of considerable importance. The plea of alibi set up by the present

appellant has been discarded because there was no material to substantiate

such plea. The trial Court and the High Court have analysed this aspect in

great detail.   From the evidence of PWs 2, 4, 7 and 8 it  is seen that the

accused persons were absconding since the date of incident when the dead

body of the deceased lay in her matrimonial home. PW-14 the Investigating

Officer’s evidence was to that effect. The High Court has rightly noted that

the conduct of the accused appellants before it had a striking feature in the

absence of any reasonable explanation and is an inculpating circumstance

against  them.  The  injuries  on  the  dead  body  were  noticed  by  several

witnesses e.g. PWs 1, 2, 4, 7 and 8.  The autopsy examination on the dead

body of the deceased revealed the following injuries:

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1. Nail marks (illegible) in shape four in numbers over left side  of  the  neck  placed  one  below  the  other  and  extended laterally  and  other  marks   over  the  right  side  of  the  neck, aclymorsis  over  the  front  of  the  neck.  On  direction extravagation of the blood found in the muscles of the neck and fractures of the (illegible) cartilage found.

2. Multiple abrasion and aclynorsis of the varying sizes are seen over the back and different parts of the body both appear and lower (illegible).     

16. According to the doctor the death was due to asphyxia resulting from

throttling which was ante mortem and homicidal in nature.  

17. Above being the position we find no merit  in this appeal  which is

accordingly dismissed.  

………………………..…….J. (Dr. ARIJIT PASAYAT)

………………………………J. (ASOK KUMAR GANGULY)

New Delhi, March 31, 2009

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