04 October 2004
Supreme Court
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USMAN MIAN Vs STATE OF BIHAR

Bench: ARIJIT PASAYAT,C.K. THAKKER
Case number: Crl.A. No.-000587-000587 / 1999
Diary number: 18168 / 1998
Advocates: IRSHAD AHMAD Vs


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CASE NO.: Appeal (crl.)  587 of 1999

PETITIONER: Usman Mian & Ors.

RESPONDENT: State of Bihar

DATE OF JUDGMENT: 04/10/2004

BENCH: ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       Three appellants filed the present appeal questioning  correctness of the judgment rendered by a Division Bench of the  Patna High Court upholding their conviction for offence  punishable under Section 302 read with Section 32 of the Indian  Penal Code, 1860 (in short the ’IPC’) and the sentence of  imprisonment for life as imposed by Learned Sessions Judge, Gaya,  Bihar in Sessions Trial No. 145 of 1983.  It was pointed out that  during pendency of the appeal before this Court appellant No.2  has died and therefore appeal stands abated so far as he is  concerned.

       The prosecution version as unfolded during trial is as  follows :

       Kalamuddin and Alauddin Mian of village Nasirpur informed  Ishteaq Ahmed (PW-10) and other members of the prosecution party  at their house in village Chatarghat in the early morning hours  on 6.3.1981 that Saista Khatoon (hereinafter referred to as the  ’deceased’) has expired. He was told that some guests had come to  the deceased’s house; after serving meal to them she went to bed.   In the midnight her cries were heard and subsequently it was  learnt that she had died.

       On getting the above information, Ishteaq Ahmed (PW-10)  (informant of the case) along with his father Anwarrul Haque (PW- 4), mother Nafisa Khatoon (PW-8), brother Rashid Hussain (PW-3),  sister (not examined) and aunt Hasmat Khatoom (PW-7) proceeded to  the house of the appellants in village Nasirpur reaching there at  about 7 a.m.  They saw the dead body of Saista Khatoon lying on a  cot on the southern verandah of the house. The body was covered  by cloth. By that time several persons of the two villages,  namely, Chatarghat and Nasirpur had gathered there. They were  talking in whispered tone that Saista Khatoon had been killed.  With a view to have the last glimpse of the deceased the cloth   from her face was removed.  Marks of scratches and bluish stain  on the neck and blacken stain on the right parental region were  visible. The prosecution party after seeing the said marks became  suspicious that the deceased had been killed by her husband and  her step-sons i.e. present appellants.

       In the fardeyan which Ishteaq Ahmed (PW-10) lodged in the  evening at 6 p.m. in the courtyard of appellants’ house, he

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further mentioned that deceased had been married to appellant  no.1 Usman Mian on 8th March, 1980.  Appellants Abrar Ahmed and  Iftekhar Ahmed, who were her step-sons were not happy with the  marriage. After two months of the marriage deceased started  sending information that the appellants used to vex and torture  her.  Once or twice they had even given threat to kill her.  Ten  days prior to the occurrence Rashid Hussain (PW-3), the younger  brother of the informant had met her when she asked him to take  her lest she might be killed by the appellants. The informant  further mentioned that the appellants were absconding from their  house.  They were pressing hard to bury the dead body but on  seeing the police party they fled away.

       On the basis of the above said fardbeyan Chandauti P.S.  Case No.34/81 was registered on 6.3.1981. The investigation was  undertaken and on completion thereof charge sheet was submitted  against the appellants.  The accused persons pleaded innocence  and faced trial.          

 The accused persons as is evident from the trend of cross  examination and suggestions put to the prosecution witnesses and  evidence of DW 1, Shuail Ahmed took stand to the effect that the   deceased was ill for 3 to 4 days prior to the date of occurrence  and had grown very weak. She has come to fetch water from the  well in the fateful night and received injuries when she fell  down, became unconscious and subsequently died.  In order to  further its accusations prosecution examined 11 witnesses.  Ishteaq Ahmed (PW-10) was the informant and the brother of the  deceased.  Rashid Hussain (PW-3) was her brother and PWs. 4 and  8, Anwarrul Haque and Nafisa Khatoon were her father and mother  respectively. Post Mortem was conducted by Dr. Kapildeo Prasad  (PW-9).

       It is to be noted that during the examination of the  accused persons under Section 313 of the Code of Criminal  Procedure, 1973 (in short the ’Code’)they  denied the presence of  the dead  body  in the verandah of the house.   

The trial court found the accused persons guilty by relying  on the circumstances which were highlighted.  It is to be noted  that the case rested on substantial evidence and there was no eye  witness. Trial court came to hold that the circumstances were  sufficient to bring home the accusations, disbelieving the  evidence of DW-1.

In appeal the High Court examined the evidence on record in  detail and came to hold by the impugned order that there was no  infirmity in the judgment of the trial Court.                  In support of the appeal, Mr. U.U. Lalit learned senior  counsel, submitted that the case rests on circumstantial  evidence.  Even if the circumstances are accepted in toto, they  do not form a complete chain of circumstances and, therefore,  could not have been relied upon for holding the accused- appellants guilty.  In any event, according to him, the materials  relied upon by the prosecution, do not bring home the accusation  so far as appellant No.1-Usman Mian is concerned.

Learned counsel appearing for the State on the other hand  supported the judgment of the courts below and submitted that  well reasoned and well discussed judgments of the courts below  have clearly established guilt of the accused persons and no  interference is called for.         The circumstances which were pressed into service by the

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prosecution are as follows:

(1)     Saista Khatoon was the second wife of Appellant No. 1 Usman  Mian @ Ghaso Mian and step-mother of appellant No. 2 Iftekhar  Mian Ahmed and appellant No. 3 Abrar Ahmed.  This is, in fact,  admitted. (2)     Saista Khatoon died at her husband’s house.  This also is  admitted. (3)     The dead body was found kept on a cot at a verandah of  appellant’s house. (4)     The dead body was covered with cloth when the prosecution  witnesses reached the place. (5)     The body bore marks of injuries. (6)     The appellants wanted to hurriedly bury the dead body. (7)     Saista Khatoon was ill-treated by the appellants,  particularly appellant nos. 2 & 3. (8)     She was carrying pregnancy of two months at the time of her  death. (9)     The possible birth of a male child was likely to affect the  extent of inheritance of appellant nos. 2 and 3. (10)    The appellants particularly, appellant nos. 2 and 3 had a  very strong motive to kill the deceased. (11)    When the police reached the place, the appellants were  found to be absconding.

Out of these circumstances some were of general nature.   Circumstances (5) (6) and (11) are important. Circumstances 7,9  and 10 are additional factors in relation to appellant nos. 2 and  3.                  Before analysing factual aspects it may be stated that for  a crime to be proved it is not necessary that the crime must be  seen to have been committed and must, in all circumstances be  proved by direct ocular evidence by examining before the Court  those persons who had seen its commission. The offence can be  proved by circumstantial evidence also. The principal fact or  factum probandum may be proved indirectly by means of certain  inferences drawn from factum probans, that is, the evidentiary  facts. To put it differently, circumstantial evidence is not  direct to the point in issue but consists of evidence of various  other facts which are so closely associated with the fact in  issue which taken together they form a chain of circumstances  from which the existence of the principal fact can be legally  inferred or presumed.  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 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.  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

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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."  

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."  

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

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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."  

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.  

       It is to be noted that the trial court has elaborately  dealt with the medical evidence and has found that the doctor’s  opinion was not honest being inconsistent with the objective  finding as contained in the post mortem report.  One important  feature, which has been rightly taken note of by the courts  below, is that though initially the accused persons were present,  when grievance was made before the police that the case was one  of murder and not accidental death, the accused person has  absconded.  Another feature, which has been rightly taken note of  by the courts below, is that there was an attempt to bury the  dead body hurriedly. The appellants were the inmates of the house  of the deceased. Evidence of the defence witness DW-1, who was  examined to substantiate the plea that the deceased has fallen  down near the well has been discarded, and in our view rightly.  Though falsity of the defence plea is not enough to bring the  home accusations, it provides additional link to substantiate  prosecution’s accusations. In State of Karnataka v. Lakshmanaiah   (1992 Supp (2) SCC 420), conduct of accused’s abscondence from  the date of occurrence till his arrest was considered to be a  vital circumstance.   

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Circumstances highlighted by the trial court, as noted  above, are sufficient to bring home the accusation as has been  rightly held by the trial court and the High Court against the  appellants.

       Above being the position, we do not find any infirmity in  the conclusions arrived at, by the trial court and confirmed by  the High Court, to warrant any interference.   

The appeal fails and is dismissed accordingly.