REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.   426            OF 2009        (Arising out of SLP (Crl.) No. 3239 of 2007)

Riyojoddin Rafiyoddin Shaik ….Appellant  

Versus

State of Maharashtra Rep. by Public Prosecutor ….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

Bombay High Court, Aurangabad Bench, dismissing the appeal filed by the

appellant  who was convicted for offences punishable  under Sections 302

and 498-A of the Indian Penal Code, 1860 (in short the ‘IPC’), so far as the

conviction under Section 302 IPC is concerned, while directing acquittal in

respect  of  offence  punishable  under  Section  498-A  IPC.  Seven  persons

faced trial before the learned Additional Sessions Judge, Amalner.

3. Brief facts giving rise to the prosecution are as under:

Akbarbeg (PW-4) is the father of Sayarabi (hereinafter referred to as

the ‘deceased’). The marriage of the deceased Sayarabi with accused No.5

Riyazoddin, present appellant was preferred one year back. Accused Nos.1

and 2 are the parents and accused Nos.3 and 6 are the brothers of accused

No.5. Accused No.4 is the wife of accused No.3.

It was alleged that the accused were giving ill treatment to deceased

Sayarabi during the period of her stay in the matrimonial house at Parola,

Dist.  Jalgaon.  The  accused  No.5-appellant  was  abusing  and  beating  the

deceased Sayarabi. Accused Nos.1 and 2 had brought the deceased to her

parent’s house at village Dherangeon Tal Onerrangaon Dist. Jalgaon three

months  back.  Deceased disclosed  about  her  ill  treatment  at  the hands  of

accused to her relatives.

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On  12.5.1996  the  marriage  of  niece  of  P.W.4  Akbarbeg  was

performed  at  Dharangaon.  Accused  No.  3  and  5  had  attended  the  said

marriage. They demanded Rs.2000/- for the construction of a house from

P.W. 4 Akberbeg. He expressed his inability to pay the amount.

On 20.5.1996 the deceased was sent to  stay at her matrimonial house

along with accused 1 and 2. On 25.5.1996 at about 2.00 midnight  P.W.4

Akbarbeg received the message through police about the serious condition

of  the  deceased.  Thereafter  he  along  with  his  relatives  paid  visit  to  the

matrimonial house of his deceased daughter. He saw the dead body of his

daughter  with  burn  injury  in  her  matrimonial  house.  He found  kerosene

smell on the hair and half burnt cloth.

Ramesh  (PW-1)  the  Police  Patil  of  Parola  lodged  an  occurrence

report to the police. On the basis of his report A.D. bearing No. 35/96 was

registered.  Inquest  panchanama  on  the  dead  body  was  prepared  on

25.5.1996 in A.D. case. Spot panchanama was also prepared in A.D.Case.

Dead body was sent for conducting the post mortem to the cottage Hospital,

Parola.

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Akberbeg came to know through his relative Rahanabi (PW-5) that

the  accused  No.5  committed  the  murder  of  the  deceased  by  pouring

kerosene oil on her person and setting her on fire. Accused Nos.1 to 4 and 6

abetted  the  accused  No.5  in  the  commission  of  murder  of  the  deceased.

P.W.4  Akberbeg  lodged  the  complaint  dated  25.5.1996  alleging  ill-

treatment to the deceased prior to 25.5.1996 and committing her murder on

24.5.1996 at about 11-00 P.M.

On  the  basis  of  his  complaint  crime  bearing  No.121/1996  was

registered with Parola Police station at about 1.00 p.m. M.D. Patil (PW-11)

carried out the investigation of the crime. On 27.5.1996, he sent the seized

articles for examination to the C.A. Aurangabad.  After the completion of

investigation  on  14.8.1996  he  submitted  the  charge  sheet  against  the

accused for the offences as stated above to the learned Judicial Magistrate,

First Class. Parola.

The learned Judicial Magistrate, First Class, Parola by an order dated

21.8.1996 committed the case to the Additional Sessions Judge, Amalner, as

the offence punishable under Section 302 IPC is exclusively triable by the

Court of Sessions.

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In Sessions case charge was framed against accused Nos.1 to 6 for

the offence punishable under Section 498-A read with section 34 IPC and

against accused Nos.1 to 4 and 6 under Section 302 read with Section 114

IPC.  

The charge was read over and explained to the accused in vernacular.

They pleaded not guilty and claimed to be tried. The defence of the accused

is that the house caught fire due to short circuit. Deceased sustained burn

injury on account of house catching fire in a short circuit.

The trial Court directed acquittal of A-1 to A-4 and A-6 but held the

present appellant guilty of offence punishable under Sections 302 and 498-

A IPC. In appeal, as noted above the High Court found that the accusations

so far as Section 498-A are concerned are not established, but the evidence

was  sufficient  to  hold  the  appellant  guilty  of  offence  punishable  under

Section 302 IPC.  

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

that  there was no direct  evidence and the prosecution case was based on

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circumstantial  evidence.  The  circumstances  highlighted  do  not  lead  to

conclude about the guilt of the accused.

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

judgment.  

6. The circumstances highlighted by the trial Court and the High Court

are essentially as follows:

(i) The appellant was residing with his wife.

(ii) Death of wife at odd hours (midnight) and in unnatural manner.

(iii) Kerosene smell in the body and articles around the body.

(iv) False defence (i.e. fire by short circuit).

7. Learned counsel for the appellant submitted that there is no evidence

to show that the deceased was sprinkled with kerosene. The evidence clearly

established that there was no homicidal death and it was due to short circuit

of electricity.  

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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 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.

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:

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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....”.

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;

(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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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  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)

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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.   

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.”

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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  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.      

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16. 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).

17. The doctor (PW-8) clearly stated that the dead body was totally burnt

and was smelling of kerosene and the cause of death was due to burns and

shock.  It  was also  opined that  the injuries  found on the dead body were

sufficient  in the ordinary course of nature to cause death and by pouring

kerosene the injury as mentioned in Column No.17 of P.M. Notes Exh.78

would  be  caused.  The  circumstances  highlighted  by  the  prosecution  as

analysed in detail by the trial and High Court clearly established the guilt of

the  accused.  That  being  so,  there  is  no  merit  in  this  appeal  which  is

accordingly dismissed.

……………………………..J. (Dr. ARIJIT PASAYAT)

……………………………...J. (ASOK KUMAR GANGULY)

New  Delhi,

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March 03, 2009   

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