REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.                 OF 2009 (Arising out of SLP (Crl.) No. 522 of 2008)

Syed Hakkim and Anr.   ..Appellants

Versus

State rep. by Dy. Superintendent ..Respondent Of Police, Karur District, Tamil Nadu

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  dismissing  the  appeal  filed  by the  appellants.  Seven

accused persons faced trial. Appellants-accused were numbers as A-1 and

A-2 respectively in the trial Court and before the High court. Out of seven

accused persons who faced trial  A-1 to A-5 and A-7 were convicted  for

offence punishable under Section 498-A of the Indian Penal Code, 1860 (in

short  the  ‘IPC’)  while  A-1  to  A-5  were  also  convicted  for  offence

punishable  under Section  302 IPC. In appeal the High Court set aside the

conviction so far as A3, A4 and A5 are concerned in respect  of offence

punishable under Section 302 IPC.  

3. Prosecution version in a nutshell is as follows:

The  marriage  between  the  first  accused  and  Syed  Ali  Fathima

(hereinafter referred to as ‘deceased’) took place on 22.4.2001. A2 is the

brother of Al. A3 and A4 are the sisters of Al and AS is the mother and A6

is the father of Al. A7 is the aunt of Al. P.W.l is the mother of the deceased.

At the time of marriage, P.W.l paid Rs.5,000/- and three sovereigns of gold

jewels and after a period of two months, the first accused went to Mumbai

seeking for a job. All the other accused ill-treated the deceased stating that

the dowry demand was not met. Prior to the occurrence, the first accused

came  from  Mumbai.  PW-1  was  summoned.  At  that  time,  there  was  a

2

demand from accused Nos. 1, 2 and 7 that 10 sovereigns of gold and a sum

of Rs.5,000/- towards “Seevarisai” for Ramzan must be paid immediately.

A-7 who was present at that time informed PW-1 that she can pay the said

demand within a period of two months.  

P.W.2 is closely related to P.W.1. On 6.3.2000, he came to Pallapatti

and went to the house of P.W.1. P.W.2 was informed by P.W.1 that there

was  a  dowry  demand  from  the  side  of  the  accused.  A  marriage  was

scheduled to take place in the house of a resident which is next to the house

of  the  first  accused  and  hence  on  8.3.2002,  P.W.2  came  to  the  house

between 11 am and 12 noon. He was talking to the said neighbour. Since

P.W.2  knew  that  there  was  a  dowry  demand,  he  decided  to  meet  the

deceased in  her  house  for  that  purpose.  When he was just  getting  down

through the staircase, he was able to see the house of the deceased Fathima.

A window was kept open through which he was able to see within 10 feet.

At that time, Al and A2 strangulated the deceased Fathima with a rope and

A3  and  A4  caught  hold  of  both  the  arms.  On  seeing  this,  P.W.2  was

shocked.  When  he  was  witnessing  the  occurrence,  A2  saw  P.W.2.

Immediately,  P.W.2  went  to  the  place  of  PW-1.  But  he  could  not  meet

3

anybody and he went to his native place, Salem and returned on the next day

i.e. 9.3.2002.  

On the day of occurrence, i.e., 8.3.2002, the son of the 2nd accused

proceeded to the house of P.W.1 and informed her that she was to be taken

to the house of the accused and took her in a two wheeler. When P.W.1

went to the house of the accused, the wife of A2 informed that the deceased

Fathima was upstairs.  When P.W.1 went  to  upstairs,  she  found  only the

dead body of her daughter and P.W.1 was able to see a ligature mark around

the neck of the deceased. When P.W.1 enquired, nobody gave any answer,

but all laughed. P.W.1 immediately came back and informed the relatives

and proceeded to the police Station. P.W.13,  the Sub-Inspector  of Police

was on  duty on the  day of  occurrence.  P.W1 gave a complaint  at  about

17.30 hours which is marked as Ex.P.1 on the strength of which a case came

to be  registered in  Crime No.49/2002 under  Section 174 of  the Code of

Criminal Procedure, 1973 ( in short the ‘Code’) was dispatched to the Court.

On receipt of the copy of the F.l.R., P.W.14 the Deputy Superintendent of

Police took up investigation, proceeded to the scene of occurrence, made

inspection and prepared Ex.P.2- the observation Mahazar and Ex.P.12- the

rough  sketch.  He  also  sent  a  copy  of  the  FIR  to  PW-10,  the  Revenue

4

Divisional Officer who on receipt of the copy of the FIR proceeded to the

place  and  also  conducted  inquest  on  the  dead  body  in  the  presence  of

witnesses and prepared Ex.P-9, the Inquest Report wherein he opined that it

was not a case of suicide but it was the death by homicide. He also made

enquiries  from witnesses  and the accused.  Following the same, the dead

body was subjected to postmortem by P.W.9, the doctor attached to Govt.

Headquarters Hospital, Karur, who opined that the deceased would appear

to have died of Asphyxia due to strangulation about 24-36 hours prior to

autopsy.

Originally, the case was registered under section 174 of Code. Later,

it  was  converted  into  one  under  Sections  498-A  and  302  IPC  and  the

Express F.I.R. Ex.P.13 was dispatched to the court.

Pending investigation,  accused Nos.1 to 6 were arrested. A2 came

forward  to  give  confessional  statement  voluntarily  and  the  same  was

recorded by P.W.13, the Deputy Superintendent of Police in the presence of

witnesses,  pursuant  to  which  A2 has  produced  M.O.1-Nylon rope  which

was recovered under a cover of Mahazar, Ex.P.4. All the accused were sent

for judicial remand.

5

On completion  of  investigation,  the  investigating  officer  filed  the

final report. The case was committed to the Court of Sessions. Necessary

charges were framed in order to substantiate the charges leveled against the

accused.  The  prosecution  examined  16  witnesses  and  relied  upon  13

exhibits and 3 material objects. On completion of evidence on the side of

the prosecution, the accused were questioned under section 313 of Code.  

PW-2 was projected to  be an eye witness.  But  he resiled from his

statement made during investigation.  The trial Court and the High Court

proceeded on the basis as if the prosecution version rested on circumstantial

evidence.  Two circumstances  were  highlighted  to  fasten  the guilt  on  the

accused. The plea of alibi set up by A-1 having been dis-believed it must be

presumed that he was guilty.  Similarly, in respect of A-2 plea of suicide

was ruled out by the evidence of doctor (PW-9). A-2 was held to be guilty.

On the aforesaid ground the trial Court convicted the present appellants and

the High Court concurred with the view of the trial Court.  

4. Learned counsel for the appellants submitted that from the stage of

trial, the prosecution case was that there was only one eye witness i.e. PW-2

6

but since he did not support the prosecution case, the prosecution proceeded

to rely on the certain circumstances. It is submitted that the circumstances

highlighted do not present a complete chain of circumstances to warrant the

conclusion of guilt on the accused persons.  

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

the judgment.  

6. So far as Section 498-A is concerned according to learned counsel for

the appellants the evidence is scanty but it is to be noticed that both the trial

Court  and  the  High  Court  having  regard  to  the  evidence  of  relatives

concluded that the dowry demand was made. We do not find any infirmity

with the conclusions arrived at more particularly in view of the evidence of

PWs 1  and  2  and  therefore  there  is  no  scope  for  interference  with  the

conclusions relating to Section 498-A IPC.  

7. The residual question is about the conviction in terms of Section 302

IPC.  

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

7

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

negate 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:

“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,

8

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.”

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

9

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)

if there be any reasonable doubt of the guilt of the accused, he is entitled as

of right to be acquitted”.

10

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.”

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

11

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.      

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)  and  Kusuma  Ankama Rao v  State  of  A.P. (Criminal  Appeal

No.185/2005 disposed of on 7.7.2008).

12

17. The  circumstances  highlighted  by  the  prosecution  to  bring  in

application of Section 302 IPC are insufficient and scanty. That being so,

the  conviction  as  recorded  in  terms  of  Section  302  IPC  cannot  be

maintained and is set aside.  The sentences imposed in respect of Section

498-A  IPC  does  not  warrant  interference.  In  the  ultimate  result,  the

conviction in terms of Section 302 is set aside while that under Section 498-

a stands confirmed.  

18. The appeal is disposed of to the aforesaid extent.      

………………………………….J. (Dr. ARIJIT PASAYAT)

………………………………….J. (ASOK KUMAR GANGULY)

New Delhi, February 23, 2009

13