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CASE NO.: Appeal (crl.)  223 of 2007

PETITIONER: Manjunath Chennabasapa Madalli

RESPONDENT: State of Karnataka

DATE OF JUDGMENT: 19/02/2007

BENCH: Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No. 4077 of 2006)  

Dr. ARIJIT PASAYAT, J.                   

       Leave granted.  

       Challenge in this appeal is to the judgment rendered by a  Division Bench of the Karnataka High Court dismissing the  appeal filed by the appellant. The appellant was found guilty of  offence punishable under Sections 498-A and 302 of the  Indian Penal Code, 1860 (in short the ’IPC’) by the trial court  and was sentenced to undergo R.I. for two years and life  respectively. Fine was also imposed with default stipulation.  

       The High Court set aside the conviction for the offence  punishable under Section 498-A IPC but maintained the  conviction under Section 302 IPC and consequently the  sentence.

       The background facts as projected by the prosecution are  as follows:  

       Sumithra (hereinafter referred to as the ’deceased’), as  the daughter of Siddamma (PW-1) and sister of Hosakerappa  (PW-6) as well as grand daughter of Hanumawwa (PW-7). She  was married to the accused about one year back to the date of  incident. After the marriage, Sumithra went to the house of  her husband to lead a happy family life. Though initially they  led a happy married life, bickerings started between the  accused and his wife as he started abusing and ill-treating her  on the pretext that she does not know how to do the house- hold work. However, this was only a pretext to extract  additional dowry from the parents of the deceased. As per the  customs during Gowri Festival, the deceased was brought to  her parental place to celebrate the festival and at that time,  the deceased who was pregnant had complained about the ill- treatment meted out to her by her husband. As such, the  parents, grand-mother and other relatives asked the deceased  to stay back in their house. The accused started visiting the  house of PWs 1 and 7 and was insisting upon the deceased to  come back to his village. On such a visit viz., on 9.3.2001, the  accused again came to the house and picked up a quarrel with  the deceased and her mother and other relatives and insisted  that she should be sent on that day itself. The relatives  informed him that as Sumithra was pregnant, after performing

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certain ceremonies including ’Srimantha’, she would be sent  back later. The accused stayed in the house of the in-laws that  night. On the next day i.e. on 10.3.2001, after taking the night  meals, the accused and the deceased slept inside the room  whereas, the mother, brother and other relatives slept outside  the hall. In the night around 3.00 a.m., they heard cries  coming from the room and when they went inside, they saw  the accused running away and Sumithra lying unconscious on  the ground with bleeding injuries on her head. Immediately,  she was shifted to Government Hospital, Gadag and then to  KIMS Hospital. However, in spite of the medical treatment, she  breathed her last on 13.3.2001. In the meantime, on  11.3.2001 itself Head Constable (PW-18) and SHO of Gadag  Rural Police station on getting the medico legal intimation that  one Sumithra was admitted in the hospital and that she was  assaulted by her husband with an iron implement, he went to  the hospital and made enquiry and found that Sumithra, the  injured was not in a position to give any statement. As such,  he recorded the statement of Siddamma (PW-1) who was  present in the hospital and treating the same as first  information, came back to the Police Station and registered a  case in Crime no. 50/2001 for the offences punishable under  Sections 498-A, 504 and 307 IPC, registering the FIR. He  again went back to the hospital and there, as per the advise of  the Doctor, shifted the injured to KIMS Hospital, Hubli. He  again deputed and sent requisition for recording of the dying  declaration by the authorised Taluka Executive Magistrate,  but the same could not be recorded as Sumithra was in coma.  As already noted, at KIMS Hospital, Hubli, in spite of the  treatment the injured Sumithra breathed her last. After her  death, the offence punishable under Section 307 IPC was  altered to Section 302 of IPC and further investigation was  continued.  

       During the investigation, spot mahazar, inquest  proceedings were undertaken.  Statement of witnesses, which  threw light on the incident, were recorded. The dead body was  subjected to autopsy. Search for the accused was carried out  and he was apprehended on 14.3.2001. After securing all the  necessary reports and on completion of the investigation,  charge sheet was filed against the accused.   

       On committal and on the basis of the charge sheet  materials, the accused was charged for the offences  punishable under Sections 498-A and 302 IPC. As the accused  denied the charges and claimed to be tried, he was tried under  S.C.No.37/2001.  

       The trial Court found the evidence to be credible and  notwithstanding the fact that the vital witness i.e. the mother  of the deceased (PW-1) had resiled from the statement given  during investigation, held that the residual evidence was  sufficient to hold the accused guilty. Accused was accordingly  convicted and sentenced as aforenoted.  It was held that the  circumstantial evidence pressed into service was sufficient to  establish the accusations. The High Court in essence affirmed  the conclusions, but altered the conviction.    

       In support of the appeal, learned counsel for the  appellant submitted that there was practically no evidence  whatsoever and even the so-called circumstances highlighted  by the trial Court and the High Court do not lead to a  conclusion that the accused was guilty of the offence as  alleged.

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       Learned counsel for the State on the other hand  supported the judgments of the courts below.  

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 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.

       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....".

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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       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.

       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 as of right to be acquitted".

       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.     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."

       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 words of this Court, before  conviction could be based on circumstantial evidence, must be  fully established. They are:

(1)     the circumstances from which the

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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.     

These aspects were highlighted in State of Rajasthan v.  Rajaram (2003 (8) SCC 180) and State of Haryana v. Jagbir  Singh  (2003 (11) SCC 261).

       In the instant case, the only circumstance which was  highlighted by the trial Court and the High Court was that  there was unnatural death and additionally the so called dying  declaration purported to have been recorded by the then  Tehsildar (PW-16).  The mere fact that the deceased had died  an unnatural death cannot by itself be a circumstance against  the accused particularly when Section 498-A has been held to  be inapplicable. Additionally, the conclusion that there was  dying declaration is also not factually correct. The trial Court  itself has referred to the evidence of PW-16 who categorically  stated that though he was requested to record the dying  declaration the same could not be recorded as the doctor was  of the opinion that the deceased was not in a fit condition to  give her statement.  Thereafter, no statement was recorded. In  fact he was called to attend the inquest.  

       Above being the position the conviction as recorded by  the trial Court and upheld by the High Court is indefensible  and is set aside.  

       The appeal is allowed.