REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.      386              OF 2009 (Arising out of S.L.P. (Crl.) No.4362 of 2008)

Narayan ..Appellant  

versus

 State of Rajasthan ..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

Rajasthan High Court at Jodhpur upholding the conviction of the appellant

for  offences  punishable  under  Sections  302 and 201 of  the  Indian  Penal

Code, 1860 (in short the ‘IPC’) and confirmed the judgment and order of

conviction and sentence passed by learned Additional District and Sessions

Judge, Fast Track, Udaipur.

3. Background facts in a nutshell are as follows:

An unknown dead body was found in an iron barrel drum at a bus-

stand, Unjha. It is alleged that on 16.10.1995 at the bus-stand, Unjha some

unknown person hired a handcart of one Malla and instructed the cart man

to carry the barrel drum to the Railway Station and, in the meantime, he

assured to reach there. But, the said unknown person did not reach at the

railway station and, ultimately, the cart owner Malla brought back the said

barrel drum to bus-stand. In the evening the barrel drum began to emit bad

smell and, therefore, information was given at the police post. The police

opened  the  barrel  drum  and  found  therein  the  corpse  of  Mst.  Hunji.

Whereabouts of the dead body were not known and a photo was published

in the newspaper in pursuance of which Babu Meena (PW6) and Chandulal

(PW20) came and identified the dead body to be of their sister Hunji, who

was living with appellant Narayan as his wife at Kotara. The Unjha police

registered the case and since information was given by way of statements of

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Babu Meena  and  Chandulal  and  other  relatives  of  the  deceased  that  the

incident took place at Kotara, through the Superintendent of police, the file

of the case was sent for investigation to the Police Station, Kotara where

regular FIR was registered at No.136/95 under Sections 302 and 201 IPC.

Thereafter  the  investigation  commenced.   Charge  sheet  was  filed  after

investigation.

As the accused pleaded innocence, trial was held.  As the prosecution

version rested on circumstantial evidence, the trial court referred to various

circumstances to come to the conclusion that the accused was guilty of the

charged offences.  Accordingly, the conviction and sentence were recorded.

The  appeal  as  noted  above  was  preferred  before  the  High  Court.  The

primary stand was that the circumstances highlighted by the prosecution do

not lead unerringly to the guilt of the accused.  The High Court did not find

any substance in the plea and as noted above the same was dismissed.

4. In support of the appeal learned counsel for the appellant submitted

that there is no evidence worth the name to connect the appellant with the

crime and  the circumstances  highlighted  by the  trial  court  and  the  High

Court do not lead unerringly to the guilt of the accused appellant.

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

the judgment of the High Court affirming that of the trial 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

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

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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:

“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;

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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.

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

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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”.

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

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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

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

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(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) , Manivel and Ors. v. State of Tami

Nadu  (2008(9)  JT 31)and  Raju  v. State by Inspector of Police (SLP(Crl)

No.4467 of 2008 decided on 4.2.2009)

15. Circumstances highlighted by the trial court and the High Court are as

follows:

1. Accused was living with Hunji as a couple before the

occurrence.

2. Death of Hunji was committed by  strangulation,  and

dead body was recoverd in a trunk at Unjha.

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3. Accused was absconding after selling his all belongings i.e.

cow,  buffalo  etc.  Accused  disappeared  for  a  long  period  of  4-5

years.

4. Accused had hired a Jeep on rent in which he loaded all his

goods and had gone to Unjha in which a trunk also contained the

dead  body of  deceased  which  was  recovered  from such  trunk  in

Unjha.   Identification  of  such  trunk  has  also  been  proved  by

witnesses.

5.  Motive  of  crime  has  been  also  proved  by  evidence  of

prosecution that he was keen to take other women, and he has killed

his wife Hunji for removing him from the scene.

16. In our considered opinion the circumstances highlighted by the trial

court and the High Court clearly establish the guilt of the accused appellant.

There  is  no  scope  for  interference  in  this  appeal  which  is  accordingly

dismissed.

.……..…….............................J. (Dr. ARIJIT PASAYAT)

.……..…….............................J. 10

(ASOK KUMAR GANGULY) New Delhi,                                  February 25, 2009  

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