REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 102 OF 2001

A. Yadhav …Appellant

Versus

State of Karnataka …Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a Division Bench of the

Karnataka High Court disposing of three criminal appeals which had their

matrix in a judgment of learned 9th Additional Sessions Judge, Bangalore

City in SC No.353 of 1992. Criminal Appeal No.51 of 1996 was filed by

Krishnamutty A1 challenging  the conviction  and sentence passed  against

him for the offences punishable under Sections 302 and 394 of the Indian

Penal Code, 1860 (in short the ‘IPC’) whereas Criminal Appeal No. 748 of

1996 was filed by the State challenging the inadequacy of sentence so far as

Krishnamutty accused No. 1 was concerned and prayer was to enhance the

sentence of imprisonment for life to death sentence.  The last appeal i.e. 748

of 1996 was filed by the State challenging acquittal of present appellant- A.

Yadav , A2.

2. Background facts in a nutshell are as follows:

Sunanda   Varadhan,  aged  73  years,  (hereinafter  referred  to  as  the

‘deceased’ nos. 1 and 2) and her mother Rukamma, aged 90 years, came

from well to do family and their children were settled outside Bangalore.

They were staying at Flat  No.201,  First  Floor, Richmond Place, Convent

Road, Bangalore. They were often engaging the services of Accused-1 as

part-time  Driver  to  take  them in  and  around  Bangalore.  They  had  also

engaged Selvi (P.W.3) as maid servant. They were often calling personally

or on phone their relatives including Suvarna Prasad (P.W.6) daughter of

deceased  Sunanda,  Lakshmi  (P.W.8)  deceased  Rukamma's  cousin  sister,

Nagamani (P.W.19) - niece of deceased Rukamma and Dr. Xavier (P.W.22)

a retired Medical Practitioner, who was staying in the same apartments and

was said to be looking after the health of both deceased. Similarly, Keshava

Iyengar  (P.W.1)  whose  daughter  was  married  to  the  son  of  deceased

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Sunanda, used to visit both Sunanda and Rukamma at their apartment and

look after their well being.

In the morning of 9-8-1992 (Sunday), as Suvarna Prasad (P.W.6) did

not  get regular phone call from Sunanda and inspite of repeated attempts

made by her from Madras where she was staying could not contact her, she

contacted Dr. Xavier, (P.W.22) and asked him to make enquiries about the

well being of Sunanda and Rukamma and to intimate her. Accordingly Dr.

Xavier (P.W.22) at about 10.00 A.M. tried to call both deceased Sunanda

and Rukamma over phone and, when he could not get any reply, he thought

that they might have gone out to meet their relatives and waited for some

time.  Even  then  when  no  reply  was  received  from  them,  he  contacted

Keshava  Iyengar  (P.W.1)  who,  as  stated  earlier,  is  another  relative  of

deceased Sunanda and Rukamma at about 6.00 P.M. Again Keshava Iyengar

(P.W.1) thinking that both Sunanda and Rukamma might have gone out and

having waited some time, came to the apartment and along with Dr. Xavier

(P.W.22) went to Flat No.201 occupied by both the deceased. When both of

them (P.W.1 and P.W. 22) went there, they found that door was locked from

inside and as it was a latch-door and in spite of repeated pressing of the bell

there was no response, Keshava Iyengar (P.W.1) with the help of a duplicate

key which was with him opened the door and entered the house. There was

darkness  in  the  house and on switching the  lights,  in  the  bed-room they

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noticed, on separate cots, two bodies covered with rugs and on verification

they  were  found  to  be  the  dead  bodies  of  Sunanda  and  Rukamma.

Immediately, Keshava Iyengar (P.W.1) contacted his relatives at Bangalore

as  well  as  Suvarna  Prasad  (P.W.6)  at  Madras.  Suvarna  Prasad  (P.W.6)

informed  Keshava  Iyengar  (P.W.1)  that  she  would  come  to  Bangalore

immediately by the next  available flight and not  to do anything till  then.

Keshava Iyengar (P.W.1) thereafter  locked the door of  the flat  and came

back to his house. Next day, i.e., on 10-8-1992 in the morning at about 7'0

clock, after the arrival of Suvarna Prasad (P.W.6) and her husband, Keshava

Iyengar (P.W.1) accompanied them and observed the conditions inside the

house.  As  Suvarna  Prasad  (P.W.6)  suspected  that  some  of  the  articles

including  some  jewelleries  on  the  persons  of  deceased  were  missing,

suspecting  foul  play,  Keshava  Iyengar  (P.W.1)  requested  to  lodge  a

complaint  with  the  jurisdictional  police.  Accordingly,  Keshava  Iyengar

(P.W.1)  contacted  the  D.I.G.  of  Police,  who,  in  turn,  instructed  Narayan

(P.W.29) the Police Inspector and Station House Officer of  Ashokanagar

Police Station, to look into the same. Narayan (P.W.29) proceeded to the

spot wherein Keshava Iyengar (P.W.1) gave him the written complaint as

per Exhibit P.1 which was sent to the police station for registration of the

case and investigation. Srinivas (P.W.26) who was the Police Sub Inspector

on receipt of the complaint registered a case in Cr.No.594 of 1992 for the

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offence punishable  under Section  302 IPC against  unknown persons  and

thus investigation was set in motion. Dog Squad and Finger Print Experts

were called for. The Police Dogs could not lead to any suspicious place or

person  and  as  such  it  was  given  up.  However,  Narayanappa  (P.W.28)

(Finger Print Expert) found three chance finger prints on the T.V.Stand and

two chance finger prints on the stainless steel cup kept near the dead bodies

and took photograph of the same as well as the finger prints of the deceased

and the nearby occupants, viz, Thavamani (P.W.2) - a watchman and Selvi

(P.W.3) - maid servant, who had immediately come there. Ameer (P.W.10) -

the police photographer took photos of the dead bodies and, after holding

inquest  mahazar  as  per  Exhibits  P.26  and P.27  the  bodies  were sent  for

autopsy.  As  surfaced  during  the  inquest  and  subsequent  recording  of

statements of witnesses especially from the statement of Thavamani (P.W.2)

that the Accused-1 along with another person had visited previous night and

went  to  the  flat  of  the  deceased,  search  for  Accused-1  was  made.

Chandrashekar  Nair  (P.W.7)  -  Inspector  COD),  who  was  entrusted  with

search/apprehending  the  accused,  found  Accused-1  moving  in  his

Ambassador  car  near  the  Manipal  Hospital  and he was apprehended and

brought to the police station along with car.  He was formally arrested by

Narayan  (P.W.29)  at  about  5.00  p.m.  After  the  arrest,  Accused-1  was

interrogated  and,  as  per  his  voluntary  statement  (Exhibit  P.39),  certain

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ornaments said to be belonging to both the deceased were recovered from

the  dickey  of  the  Ambassador  car  bearing  Registration  No.KLD  6288,

admittedly belonging to Accused-1. As during the interrogation Accused -1

pointed out involvement of Accused-2 in the crime, he was also arrested and

interrogated. As per his voluntary statement, the Pillow and Pillow Cover

(M.Os. 7 and 7a) said to have been used for smothering the deceased were

also recovered from the apartment itself.

On 11-8-1992, Dr. Thirunavukkarasu (P.W. 12) and Dr. Manjunath

(P.W. 13), the Doctors, who conducted autopsy on the dead bodies, gave

their P.M. Reports as per Exhibits P.15 and P.19. Since both the Doctors did

not find any physical external injuries, possibly due to decomposition and

swelling of  the bodies,  they reserved their  opinion  subject  to  the reports

sought  from the  Chemical  Analysts  and  Forensic  Science  Laboratory  to

which  certain  articles  including  viscera  of  both  the  deceased  were  sent.

Meanwhile, the Investigating officer, Narayan (P.W.29) recorded statements

of many witnesses, obtained finger prints of the accused and sent the same

along with the finger prints of the deceased obtained earlier by the Finger

Print Experts. It is to be mentioned here itself that, after the recovery of the

pillow and pillow cover on the information given by Accused-2, the police

suspected that the death was due to smothering. The Investigating Officer

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asked  for  clarification  from  the  Medical  Officers  who  conducted  post

mortem as to the possibility of the cause of death by smothering. Both Dr

Thirunavukkarasu  (P.W.12)  and  Dr.  Manjunath  (P.W.13)  as  per  Exhibits

P.15 and P.19 gave positive opinion regarding the possibility of cause of

death of both Sunanda and Rukamma being due to smothering by smooth

object  like  pillow.  The  Chemical  Examination  and  Forensic  Science

Laboratory Report dated 19--10-1992 indicated no presence of any poison.

After  completing  the  investigation  and  receiving  all  the  necessary

documentary material, on 2-11-1992 charge sheet was filed against both the

accused for the offences under Sections 302 and 394 read with Section 34

IPC.

As the accused denied the charges and claimed to be tried, they were

tried in S.C.No.353 of 1992. In order to establish the guilt of the accused,

the prosecution examined 29 witnesses got marked Exhibits P.1 to P.42 as

well as M.Os.1 to 17. The accused denied the prosecution case in toto and

after  marking  certain  statements  from the  evidence  of  P.Ws.  2  and 4 as

Exhibits D.1 to D.5, the accused closed their case without further evidence.

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Considering the material placed before the trial Court in the form of

oral and documentary evidence, the trial Court held Accused-1 alone guilty

of the offences under Sections 302 and 394 IPC. However, finding certain

discrepancies  and lacunae in so far as the evidence against  Accused-2 is

concerned,  he  was  given  benefit  of  doubt  and  was  acquitted  of  all  the

charges. Hence, the present appeal has been filed.

As noted above different appeals were filed, one by the accused No.1

while two other filed by the State for enhancement of sentence in case of A1

and questioning correctness  of  the order  of  acquittal  so far  as  the A2 is

concerned.  

The High Court by the impugned judgment allowed the appeal so far

as the State is concerned in respect of the present appellant and the other

two appeals were dismissed. Questioning correctness of the judgment of the

High Court setting aside the order of acquittal the present appeal has been

filed.

3. Learned counsel for the appellant submitted that the trial court  had

analysed the evidence in great detail and had directed acquittal so far as the

present appellant is concerned. Without analyzing the evidence in detail and

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without recording reasons as to how the judgment of the trial court suffered

from any infirmity, interference was made.

4. It is submitted that the view taken by the trial court was a reasonable

view and the High Court should not have interfered.  

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

the judgment of the High Court.   

6. The  present  case  is  based  on  circumstantial  evidence.  The

circumstances highlighted by the prosecution are as follows:

1. Both  the  deceased  were  residing  at  flat  No.201, Richmond Place Apartments, Convent Road, Bangalore;

2. Accused-1 was often engaged by the deceased as part- time Driver and as such knew them very well;

3. Both the deceased were alive till 8.00 or 8.30 PM on 8-8- 1992;

4. At about the same time both the accused were seen going towards the apartment;

5. After the night of 8-8-1992 both Sunanda and Rukamma were not seen alive;

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6. Accused-1 was in need of money for having purchased  a car by taking loan;  

7. Recovery of M .Os .1 to 4 (gold ornaments) belonging to both the deceased on the information furnished by Accused-1 during interrogation and recovery of the same from his car as pointed out by Accused No.1.

Similarly  in  so  far  as  Accused  2  is  concerned,  the circumstances are:–

1. Accused 2 was acquainted with accused 1’

2. He  was  found  near  the  place  of  incident  along  with Accused No. 1 going to the flat of the deceased on 8.8.1992 at about 8.30 pm.

3. Accused No. 1 pointed out accused 2 as his accomplice and after apprehension as per the voluntary statement made by Accused 2 M.Os. 7 and 7a(pillow and pillow cover alleged to have  been  used  for  smothering  both  the  deceased  )  were recovered;

4. Finding of the chance finger print of Accused 2 from the scene of offence.

7. So far as the present appellant is concerned the circumstances 2 to 4

are of relevance.   

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8. The  parameters  while  dealing  with  the  circumstances  have  been

considered by this Court in several cases.

9. 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.

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10. 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....”.

11. 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

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of  the  accused  and  such  evidence  should  not  only  be consistent  with  the  guilt  of  the  accused  but  should  be inconsistent with his innocence.

12. 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.

13. 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

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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”.

14. 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.   

15. 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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16. 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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17. These  aspects  were  highlighted  in  State  of  Rajasthan v.  Rajaram

(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. [2008 (7) JT 360].

18. The High Court has referred to several factors including the motive

aspect.  It has referred to the evidence of PWs. 2 & 4, who saw A1 & A2

after they came out of the deceased’s house.  PW4 remembered that A2 was

sitting in the car with A1.  The circumstances highlighted by the High Court

to hold the present appellant guilty cannot be said to be without relevance.

The High Court has rightly observed that the trial court did not consider the

relevant aspects while directing acquittal of the present appellant.  We find

nothing infirm in the conclusions of the High Court to warrant interference.

19. The appeal is dismissed.

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

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

New Delhi, November 25, 2008

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