REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1722 OF 2008 (Arising out of SLP(Crl.) No. 3444/2008)

Mula Devi & Anr.  ..Appellants

Versus

State of Uttarakhand           ..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

Uttarakhand  High  Court  upholding  the  conviction  of  the  appellants  for

offences punishable under Section 302 read with Section 34 of the Indian

Penal Code, 1860 (in short the ‘IPC’) and Section 201 IPC.  However, the

appeal  of  the  co-accused  Dayal  Singh,  who  was  convicted  for  offence

punishable under Sections 302 and 201 IPC, was allowed.

3. Background facts in a nutshell are as follows:

Puola Devi (hereinafter referred to as ‘deceased’) daughter of PW 3

Amar Singh was married to Kamal Singh, son of accused Dayal Singh in

Village Jaikot,  District  Tehri  Garhwal.  Accused /  appellant  Mula Devi is

mother-in-law  and  accused  /  appellant  Rajmati  is  sister-in-law  of  the

deceased. Puola Devi, always complained about the harassment being made

to her by the accused/appellants whenever she visited her parental house.

She often told that her in-laws used to ask her to give her jewellery to them

else they would kill her. On 30.05.1990, Amar Singh (P.W.3) (father of the

deceased),  who used to  work in Delhi,  received a message there that  his

daughter  Puola  Devi  has  died.  On  the  next  day,  at  about  5.00  P.M,  he

proceeded for his home Village Kulpi, District Tehri Garhwal, and reached

there on 01.06.1990. He went to the Patwari and came to know that dead

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body of his daughter has already been taken to Narendra Nagar. It needs to

be noted that in the interior hills of Uttarkhand, certain Revenue Officials

are given the police powers. Meanwhile, Lal Singh (P.W.1), uncle of the

deceased,  had already lodged the first  information report  on 30th of  May

1990, after he received information that Puola Devi had died in her in-laws

house. In the first information report  (Ext. A-1), , Lal Singh (P.W.1) had

mentioned that Puola Devi was married to son of Dayal Singh in Village

Jaikot, where she used to get harassment at the hands of her in-laws. He had

also  stated  in  his  report  that  whenever  Puola  Devi  used  to  come to  her

parental village she complained of the harassment meted out to her by the

accused / appellants. She had apprehended that she would be killed in her

in-laws house. Lal Singh (P.W.1) at the end of the first information report

expressed suspicion that after committing murder of his niece Puola Devi,

kerosene oil was poured over her body and it was set on fire to conceal the

fact of murder. On the basis of the first information report, Crime No.02 of

1990 was registered against  all  the three accused persons under Sections

302 and 201 of IPC by Patti Patwari, Baman Gaon. The dead body of the

deceased was taken into possession by Kapur Singh Payal (P.W.5), Patwari,

who initially investigated the crime. He prepared the check report (Ext. A-3)

on the basis  of  the  first  information  report  received from Lal  Singh and

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made necessary entry in the general diary, copy of extract of which is Ext.

A-4. He inspected the spot, took the dead body in his possession, prepared

the inquest report (Ext. A -2) and other necessary papers including sketch of

the dead body (Ext. A -6), police form No. 13 (Ext. A-7), sample of seal

(Ext. A-8). He also prepared the site plan (Ext. A-5). The dead body was

sent for postmortem examination. Dr. P.P. Raturi (P.W.7) Medical Officer,

Narendra Nagar conducted the autopsy on the dead body of Puola Devi on

01.06.1990, at 10:00 A.M., and prepared the postmortem examination report

(Ext. A-11). The cause of death in the opinion of the Medical Officer was

asphyxia  as  a  result  of  ante  mortem  strangulation.  He  also  found

postmortem burn injuries. Subsequently, the investigation was taken up by,

Bachchan Singh (P.W.6), Patwari,  who further  interrogated the witnesses

and arrested the accused persons. After completion of the investigation, he

submitted charge sheet (Ext.A -10) against all  the three accused for their

trial in respect of the offences punishable under Section 302 and 201 IPC.

Since  the  accused  persons  pleaded  innocence,  trial  was  held  after

commitment  to  the  Court  of  Sessions.   Since  the  case  was  based  on

circumstantial evidence the trial court referred to various circumstances to

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hold the three accused persons guilty.  In appeal, as noted above, appeal of

Dayal Singh was accepted while that of present appellants was dismissed.

4. Learned  counsel  for  the  appellants  submitted  that  the  prosecution

version was specific that it was Dayal Singh who was responsible for the

homicidal death of the deceased. The role ascribed to the appellants was that

they  held  the  legs  of  the  deceased.   Since  the  High  Court  accepted  the

appeal  of the co-accused Dayal Singh who was supposed to be the main

culprit,  on  the  self  same  evidence,  the  appellants  could  not  have  been

convicted.   It  is  submitted that  the circumstances highlighted by the trial

court  and  concurred  with  by the  High  Court  do  not  make  out  any case

against the appellants.

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

the judgment of the trial court and the High Court.   

6. It is to be noted that the trial court and the High Court have come to

abrupt  conclusions  about  the  guilt  of  the  appellants.   The circumstances

highlighted by the trial court to fasten the guilt on the appellants were as

follows:

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(i)  It established on record that Puola Devi (deceased) was daughter-in-law of Mula Devi and sister in law of Rajmati and she used to live with them.

(ii)  It is established on record from the statement of P.W. 1, Lal  Singh,  uncle  of  the  deceased  and  P.W.3,  Amar  Singh, father  of  the  deceased  that  accused  Mula  Devi  and  Rajmati used to harass puola Devi (deceased), and whenever she visited her parental house she always expressed apprehension that she mignt be killed on any day by them.

(iii) It is established on record from the medical evidence that cause of death of Puola Devi was asphyxia as a result of ante mortem strangulation.

(iv) It is established from the oral  evidence that there were burn injuries on the body of the deceased and from the medical evidence  it  is  also  established  that  the  burn  injuries  were postmortem.

(v)  It  is  also  established  on  the  record  that  incident  had occurred  inside  the  house  where  accused  Mula  Devi  and Rajmati  used  to  live.  It  is  not  the  case  of  the  defence  that anyone else was there in the house at that juncture.

(vi) No FIR was lodged regarding death of Puola Devi from the side of the accused.

7. None of the circumstances indicated above really present a complete

chain of circumstances to implicate the accused appellants.

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

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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.  Rajaram

(2003 (8) SCC 180),  State of Haryana v. Jagbir Singh and Anr. (2003 (11)

SCC 261).

17. Circumstances  referred  to  by  the  trial  court  and  the  abrupt

conclusions arrived at by the trial court and the High Court does not justify

the conviction of the appellants. Therefore, conviction cannot be maintained

and is set aside.  The appellants be set at liberty forthwith unless required to

be in custody in any other case.

18. Appeal  is allowed.

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

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

New Delhi  November 4, 2008

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