REPORTABLE \

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.     334         OF 2009 (Arising out of SLP (Crl.) No.4467 of 2008)

Raju .....Appellant

Versus

The State by Inspector of Police .....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

Madras High Court  altering the  conviction of  the appellant  from offence

punishable under Section 302 of the Indian Penal Code, 1860 (in  short the

‘IPC’) to Section 341 Part I IPC and sentencing him to undergo rigorous

imprisonment for seven years.  

3. By the common judgment two Criminal  Appeals  were disposed of.

Appeal filed by K. Periyapandian, the co-accused, was allowed and he was

acquitted.  

4. Background facts in a nutshell are as follows:

PW-1  is  the  wife  of  Virupachi  Gounder  @ Palanichami  Gounder

(hereinafter referred to as the ‘deceased’) and PWs 3 and 4 are the sons of

the deceased. PWs 3 and 4 were living in Virupachi. PW-1 and the deceased

were living in Balassamudhram. The deceased was doing money lending

business and accused Nos. 1 and 2 were actually working as brokers  for

commission  under  the  deceased  and  they  were  aggrieved  that  proper

commission was not paid to them. The accused complained to P.Ws.3 and 4

about the conduct of the deceased and in turn P.Ws.3 and 4 have informed

P.W.1 that  their  father should take care since both the accused might do

mischief.

While  the  matter  stood  thus,  P.W.7,  who  had  got  financial

transactions with the deceased, on the date of occurrence, i.e. 05.04.2005,

went to Balasamudhram to get some amount from the deceased, got down

from the bus, went to the nearby tea shop and enquired about the deceased.

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He  was  informed  that  the  deceased,  along  with  both  the  accused,  was

proceeding to his place and when P.W.7 went over there he found accused

Nos.1  and  2  and  the  deceased  were  quarreling  over  the  payment  of

commission and at that time P.W.7 was asked by the deceased what was the

reason for his visit. P.W.7 answered that he had come to get some money

and P.W.7 was informed by the deceased that he had no money and he was

asked  to  come  after  four  days  and  P.W.7  in  turn  returned  leaving  the

deceased and accused 1 and 2 there.

Till 9.00 p.m. on 05.04.2005 the deceased did not return home and

hence at about 9.30 p.m. P.W.1 went in search of her husband and she found

at the place of occurrence the dead body of her husband. Immediately she

informed to P.W.2, who in turn informed to P.Ws.3 and 4 who, also came

there and saw the  dead body. Thereafter,  P.W.1 proceeded to  the Police

Station, gave a complaint, (which is marked as Ex.P-1) to P.W.13, the Head

Constable,  at  about 4.00 a.m. on 06.04.2005.  On the strength  of  Ex.P-1,

P.W.13 registered a case in Crime No.293/2005 under Section 302 IPC and

prepared  Ex.P-12,  the  First  Information  Report  and  the  same  was

despatched to the Court through PW-11, the Head Constable.  

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The  Inspector  of  Police  (PW-15)  received  the  copy  of  the  FIR,

proceeded to the place of occurrence, made an observation in the presence

of witnesses and prepared Ex.P-5, the observation mahazar and also drew

Ex.P-17,  the  rough  sketch.  He  caused  the  place  of  occurrence  to  be

photographed in  different  angles by P.W.8,  the  photographer  and Ex.P-2

series  are  the  photographs  and  their  negatives.  He recovered  M.O.1,  the

torch light, M.O.2, the umbrella, M.O.3, the bloodstained dhoti, M.O.4, the

bloodstained Shawl, M.O.5, the bloodstained earth and M.O.6, the sample

earth from the place of occurrence under a cover of mahazar,  attested by

P.W.10 and another, marked as Ex.P-6. Thereafter, he conducted inquest on

the body of the deceased between 7.30 am. and 9.30 am. in the presence of

panchayatdars  and  witnesses  and  prepared  Ex.P-18,  the  inquest  report.

Thereafter, he sent the body for the purpose of autopsy through P.W.12, the

Head Constable.

The  doctor  (PW-9)   attached  to  Government  Hospital,  Palani,  on

receipt  of  Ex.P-3,  the  requisition,  from  the  Investigator  conducted

postmortem on the body of the deceased and gave Ex.P-4, the postmortem

certificate, opining that the deceased appeared to have died of shock and

haemorrhage  due  to  head  injury,  14  to  18  hours  prior  to  autopsy.  After

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postmortem, PW.12,  the Head  Constable,  recovered M.Os.  10  to  13,  the

personal  wearing apparels  and ornaments  of the deceased,  from the dead

body and handed them over to the Inspector of Police.

Pending  investigation,  P.W.15,  the  Investigator,  arrested  both  the

accused on 07.04.2005 and at that time both the accused came forward to

give voluntary confessional statements and the same were recorded in the

presence of witnesses. Ex.P-7 is the admissible portion of the confessional

statement given by accused No.1, pursuant to which accused No.1 produced

M.O.7, the spade handle, which was recovered under Ex.P-9, the mahazar.

Accused No.1 also produced M.O.9 the bloodstained full shirt and the same

was recovered under Ex.P-11, the mahazar. Ex.P-8 is the admissible portion

of the statement given by A-2 pursuant to which A-2 produced M.O.8 the

bloodstained shirt and the same was recovered under Ex.P-10, the Mahazar

attested  by witnesses.  Thereafter,  both the accused were sent  for judicial

remand. P.W.15 continued the investigation, examined some witnesses and

recorded their statements. He gave Ex.P-13, the requisition, to the Court to

subject the material objects for chemical analysis.

P.W.14 is the Magisterial Clerk and on receipt of Ex.P-13 requisition,

the material objects were sent to Forensic Department for chemical analysis

under Ex.P-14, the letter of the Court, which resulted in two reports, namely

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Ex.P-15,  the  Chemical  Examiner’s  report  and  Ex.P-16,  the  Serologist’s

Report.

On completion of the investigation, P.W. 15, the Investigator, filed

the  charge  sheet  against  both  the  accused  under  Section  302  read  with

Section 34 IPC before the concerned Magistrate’s  Court.  As the accused

persons pleaded innocence, trial was held.  

Fifteen witnesses were examined to further the prosecution version.

The trial  Court  found that  the evidence  adduced by the prosecution  was

substantial in nature. Placing reliance on the evidence of PW-1, the widow

and PW-7 the trial  Court  held  the  appellant  guilty of  offence punishable

under  Section  302  IPC.  The  co-accused  was  found  guilty  of  offence

punishable under Section 302 read with Section 34 IPC and Section 341

IPC. In appeal, it was submitted that the circumstances highlighted do not

form a complete chain of circumstances and in any event PW-7’s evidence

is not acceptable. The High Court did not find any substance in the appeal

filed  by the  appellant  and found  him guilty  but  the  conviction  as  noted

above was altered.  

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5. In support of the appeal, learned counsel for the appellant submitted

that the occurrence allegedly took place at 10’o clock in the night and the

complaint was filed on 6.4.2005 around 4.00 a.m. The presence of PW-7

according to him is highly doubtful. It is submitted that it is unusual that if

he had found the accused persons in angry mood and appellant No.1 was

holding  a  weapon  he  should  have  waited  to  see  whether  there  was  any

further trouble.  

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

the judgment of the High Court.

7. 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

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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.

8. 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....”.

9. 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:  

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“(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.

10. 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.

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11. 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”.

12. 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.   

13. In  Hanumant  Govind  Nargundkar  and  Anr. V.  State  of  Madhya

Pradesh, (AIR 1952 SC 343), wherein it was observed thus:

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“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.”

14. 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

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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.      

15. 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).

16. PW-7’s  evidence is  clear  and cogent.  His  presence at  the  spot  has

been established. He used to have business transactions with the deceased.

He stated about the present appellant holding a handle of soil cutter. Though

the deceased and the present  appellant  were engaged in exchange of hot

words, that could not have given an impression to PW-7 that accused would

take the life of the deceased. Therefore, the fact that he left  the place on

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being told by the deceased to do so cannot be a ground to dis-believe his

evidence.  According  to  him  he  had  seen  the  deceased  and  the  accused

engaged in wordy tussle around 9.00 p.m. The wife of the deceased PW-1

found his dead body at about 9.30 p.m. The time gap when the deceased was

last seen alive in the company of the accused and when his dead body was

seen  is  not  very  large.  Admittedly,  the  bone  of  contention  between  the

deceased and the accused was non payment of the commission on account

of which they were quarreling.  The trial Court and the High Court  have

rightly held the appellant to be the author of the crime. We find no infirmity

in the conclusion of the High Court to warrant interference.  

17. The appeal is accordingly dismissed.   

……………………………………J. (Dr. ARIJIT PASAYAT)

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

……………………………………J. (H.L. DATTU)

New Delhi, February 19, 2009   

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