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CASE NO.: Appeal (crl.)  1003 of 2007

PETITIONER: Shaik Mastan Vali

RESPONDENT: State of Andhra Pradesh

DATE OF JUDGMENT: 03/08/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.  1003     OF 2007 (Arising out of SLP (Crl.) No. 2692 of 2006)

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 appellant questioning his conviction or offence  punishable under Section 302 of the Indian Penal Code, 1860   (in short the ’IPC’) and sentence of imprisonment of life and  fine of Rs.30,000/- with default stipulation. 3.      Background facts in a nutshell are as follows:

Adivamma (PW-1) is the mother and Mandapate Rullaiah  (PW-2) is brother of Nagandla Pichamma (hereinafter referred  to as the ’deceased’) brother of the deceased. The deceased,  the accused and the other material witnesses lived in Martur.  The deceased belonged to Byneedi Madiga by caste, whereas  the accused belongs to Muslim community. The deceased was  a deserted lady and she developed illicit intimacy with the  accused and gave birth to a female child.  She was residing in  a thatched house situated adjacent to her parents’ house.  During the life time of deceased, the accused used to harass  and beat the deceased suspecting her fidelity.  On 31.10.1998  at about 9 p.m., while the deceased was watching the T.V.  programme in the house of Venkata (PW3), the accused came  there and on seeing her the accused became wild and brought  the deceased by beating with hands and took up to his house.  On the next day morning, PW1 went to the house of the  deceased and found that the deceased dead and she was lying  on the cot. PW1 found ligature marks on her throat and  around the neck of the deceased. On hearing the hue and cry  of PW 1, the neighbours gathered at the scene of offence.  Thereafter, late M. Polaiah, father of the deceased, went to the  police station and gave an oral report to the S.1. of Police at  about 3.30 p.m., which was reduced in writing under Ex. P5.  On the basis of Ex. P-5, PW6 registered a case in Cr. No. 102  of 1998 under Section 302 IPC and issued FIR Ex.P6.  Thereafter, PW6 visited the scene of’ offence, prepared scene of  observation report Ex. P2 and seized MO.1 to MO.3 in the  presence of PW4 and another. Then PW6 examined PWs 1 to  3, 5 and others and recorded their statement. On 02.11.1998

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at about 8 AM, PW8 C.I of Police conducted the inquest over  the dead body of the deceased in the presence of PW4 and  another. Ex, P-3 is the inquest report. On 02.11.1998 itself,  Civil Assistant Surgeon at Government Hospital, Addanki (PW  7) conducted the autopsy over the dead body of the deceased  and opined that the cause of death was due to asphyxia  caused by strangulation with ligature. Ex. P-8 is the post  mortem report. On 11.11.1998, the accused surrendered  before the court. After completion of investigation, PW 8 filed  the charge sheet.

On receipt of the committal order by the learned  Additional Judicial Magistrate of First Class, Addanki, the  learned Special Sessions Judge for Cases under SCs and STs  (P.A.) Act, 1989, Ongole took the case on file in SC No.71/99  on its file and ultimately the accused was put up for trial  before the learned Sessions Judge, charged of the offence  under section 302 I.P.C. or alternatively under Sec. 3(2)(v) of  the Scheduled Castes and Scheduled Tribes (Prevention of  Atrocities) Act, 1989 ( in short the SCST Act).

       The prosecution, in order to substantiate its case,  examined PW 1 to PW 8 and marked Exs. P1 to P8 and MOs. 1  to 8.  No oral or documentary evidence was adduced on behalf  of defence.  Accused pleaded innocence.

Placing reliance on the evidence of PWs. 1& 2 i.e. mother  and the brother of the deceased respectively, the trial court  recorded his conviction.  Since it was a case which was based  on circumstantial evidence, the trial court took note of several  circumstances to fasten the guilt on the accused.  Though he  was found not guilty of offence under Section 3, he was  acquitted of charges for commission of offence punishable  under Section 3(2)(5) of the SCST Act.  In appeal the High  Court affirmed the conclusions.  The High Court took note of  the fact that the witnesses have seen accused dragging the  deceased to the hut in the night. Next day morning the  deceased was found dead.  This, according to the prosecution  version, is sufficient to fasten the guilt in the absence of any  explanation by the accused at about his absence thereafter.   This stand was accepted by the trial court.   

4.      In support of the appeal learned counsel for the appellant  submitted that this being a case of circumstantial evidence,  the prosecution has not established its accusations. Learned  counsel for the respondent-State supported the order of the  trial court and the High Court.

5.      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 v. State of Hyderabad (AIR 1956  SC 316), Earabhadrappa v. State of Karnataka (AIR 1983 SC  446), State of U.P. v. Sukhbasi (AIR 1985 SC 1224), Balwinder  Singh v. State of Punjab (AIR 1987 SC 350) and 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

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drawn from circumstances the cumulative effect of the  circumstances must be such as to negative the innocence of  the accused and bring home the offences beyond any  reasonable doubt.  

6.      We may also make a reference to a decision of this Court  in C. Chenga Reddy v. State of A.P. (1996 (10) SCC 193),  wherein it has been observed thus:  "21. 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."  

7.      In Padala Veera Reddy v. State of A.P. (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 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."  

8.      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.  9.      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; and (5) if there be any reasonable doubt of the

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guilt of the accused, he is entitled as of right to be acquitted.  

10.     There is no doubt that conviction can be based solely on  circumstantial evidence but it should be tested by the  touchstone of law relating to circumstantial evidence laid  down by this Court as far back as in 1952.  11.     In Hanumant Govind Nargundkar v. State of M.P. (AIR  1952 SC 343) 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."  

12.     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 the onus was on the prosecution to prove  that the chain is complete and the infirmity of lacuna in the  prosecution cannot be cured by a 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.  

13.     The above position was highlighted in State of U.P. v.   Satish (2005 (3) SCC 114).

14.     When the evidence on record is analysed in the  background of principles highlighted above, the inevitable  conclusion is that the prosecution has established its  accusations.

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15.     In the instant case the deceased has intimacy with the  accused and used to live in a hut and the accused frequently  visited the house of the deceased and lived there as husband  and wife.  During night time on the previous day of the  occurrence while the deceased was watching T.V. in the house  of PW 3, the accused came to the house of PW 3 and started  beating the deceased and dragged her to hut.  On the next day  morning PWs. 1& 2 found her dead.  The police found one  towel of the accused which was tied around the waist of the  deceased and the rope was lying near the cot.  The trial Court  and the High Court have rightly relied upon the circumstances  to hold the accused guilty.  We find no substance in the  appeal.

16.     Appeal fails and is dismissed.