REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.   744           OF 2009 (Arising out of SLP (Crl.) No. 1073 of 2008)

Gamparai Hrudayaraju  ..Appellant

Versus

State of A.P. thr. 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 the

Andhra  Pradesh  High  Court  dismissing  the  appeal  filed  by  the  present

appellant who was found guilty of offence punishable under Sections 302

and 203 of the Indian Penal Code, 1860  (in short the ‘IPC’).  Appellant was

found  guilty  by  VII  Additional  Sessions  Judge,  Fast  Track  Court,

Visakhapatnam.

3. Background facts in a nutshell are as follows:

One Kuda Ammaji (hereinafter referred to as the ‘deceased’) married

one Samareddy Surayanarayana (PW-6). They were blessed with a son and a

daughter. Subsequently, the deceased secured employment as A.N.M. and

shifted her  residence  to  Munchingput.  Thereafter,  the  appellant  who is  a

neighbour developed illicit  intimacy with the deceased and started living

with her.  As the appellant  did not  allow the children of deceased to stay

with her, PW-1 the sister of the deceased brought them to Serivayalu village

and was looking after them.

While  so,  on 21.6.2001,  at  06.00  p.m.,  one Gampari  Baburao  told

P.W.  5  that  the  deceased  was seriously  ill  and  asked  him  to  bring

ambulance of Primary Health Center, immediately. When P.W. 5 brought

the same, the deceased sent him back saying that she was not ill. Thereafter,

within ten minutes, the appellant and Baburao asked P.W. 5 to come with

the ambulance on the ground that the deceased was sick. The deceased was

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shifted  into  the  ambulance  by  the  appellant  in  his  arms  and  taken  to

Primary Health  Center.  At  about  09:00  p.m.,  on  the  same  day,  she  was

declared dead.

On 22.6.2001, at about 7.30 a.m. based on the report presented by the

appellant, the Sub Inspector of Police (P.W. 10) registered a case in crime

No. 26 of 2001 under Section 174 of Code of Criminal Procedure, 1973 (in

short the ‘Code’). Later, during the inquest on the report given by P.W. 1,

the sister of the deceased, P.W.10 altered the sections of law to Sections

498-A  and  306  IPC  and  issued  altered  First  Information  Report.  On

23.6.2001, on his surrender before P.W.10, the appellant was arrested and

remanded to judicial  custody. On 30.6.2001, the Sub Inspector of Police,

P.W. 9,  based on the  questionnaire,  Ex. P6,  given by the Civil  Assistant

Surgeon (PW-8) altered the  section  of  law to  Section 302 IPC and after

completion  of  investigation,  PW-11  filed  the  charge  sheet.  As  accused

pleaded innocence, trial was held.

4. In support  of  its  case  the  prosecution  examined  PWs 1 to  11  and

marked Exs.  P1 to P11.  On behalf  of defence Exs.  D1 and D2 (relevant

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portions  in  the  statements  of  PWs and 2)  recorded  under  section  161 of

Code  were marked.  

5. The Trial Court came to the conclusion that though the prosecution

failed to establish a strong motive for  the appellant to cause the death of the

deceased, in view of the circumstantial evidence held that the death of the

deceased was  homicidal. Since only the appellant and the deceased were

staying in  the  house at  the  relevant  point  of time, it  found the appellant

guilty, convicted him and sentenced him to undergo imprisonment for life

and SI for three months for the offences punishable under Sections 302 and

203 respectively.  

6. Before the  High Court  it  was  stated  that  there  was  no  material  to

show that the death of the deceased was homicidal. It was pointed out that

in case of smothering,  the death would have been instantaneous.  But the

trial Court  recorded a finding that the deceased was alive till 9.00 p.m. and,

therefore,  it cannot be said that the death was homicidal. It was also pointed

out that the doctor who treated the deceased  was not examined. The stand

of  the  State  was  that  there  was  a  fracture  to  thyroid  cartilage  and  this

certainly was not due to the natural death. The High Court held that the case

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was  one  of  circumstantial  evidence.   Strangely,  the  High  Court  did  not

analyse  the  evidence  of  PWs  4  and  5.  The  High  Court  found  that  the

prosecution  case  although  rested  on  circumstantial  evidence,  it  clearly

established  the guilt of the accused.

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

that the circumstances highlighted do not in any way fasten the guilt of the

accused.  

8. Learned counsel for the respondent on the other hand supported the

judgment.  

9. We find  that  the High  Court  has  not  referred to  any circumstance

which  could fasten guilt  on the  accused.  PWs 1 and 2 i.e.  sisters  of  the

deceased stated that the ill feelings prevailed in between the appellant and

the deceased with regard to the children of the deceased born through her

first  husband (PW-6). PWs 4 and 5 stated that  the deceased came to the

house  of  PW-4  and  just  wished  her  and  left  the  house.  Ten  minutes

thereafter  the  appellant  came to  her  and  informed that  he  was  going  to

Primary Health Centre to bring ambulance to attend to the deceased.  Then

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she went to the house of the appellant and found that the deceased was all

right and when the ambulance came the deceased sent the same back saying

that she was doing well. After some time, ambulance came and the appellant

and the deceased went in it. The evidence of PWs 5  and 6 cannot constitute

sufficient evidence against the accused to fasten the alleged offences.  

10. 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

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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.

11. 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....”.

12. 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.

13. 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

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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.

14. 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”.

15. There  is  no  doubt  that  conviction  can  be  based  solely  on

circumstantial  evidence but it  should be tested by the touch-stone of law

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relating to circumstantial evidence laid down by the this Court as far back as

in 1952.   

16. 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.”

17. 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:

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(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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18. 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)

19. That being so, the prosecution has failed to establish the accusations,

and the conviction cannot be maintained and is set aside. The appellant shall

be set  at  liberty forthwith  unless  required to be in custody in connection

with any other case.  

20. The appeal is allowed.       

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

……..…………..………………..J. (ASOK KUMAR GANGULY)

New Delhi, April 16, 2009

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