B. Venkat Swamy vs Vijaya Nehru & Anr

referred to as the `accused') and his mother faced trial for alleged

commission of offence punishable under Section 498A IPC. In

addition, respondent-accused was found guilty of offence

1 punishable under Section 302 IPC and Section 4 of the Dowry

Prohibition Act (in short `DP Act'). The learned Sessions Judge,

Kurnool, found that the accusations against A2 i.e. mother of the

respondent - accused were not established and she was

acquitted of the charges. However, respondent-accused was

found guilty of the offence punishable under Sections 498A, 302

IPC and Section 4 of the DP Act.

2. Prosecution version in a nutshell is as follows:

Prosecution witnesses are the residents of Kurnool. A-1 is

the resident of Hyderabad. PWs. 1 and 2 are the parents of

Shreelakshmi (hereinafter referred to as the `deceased'). PW3 the

brother of PW.1 and PW.7 is the sister of PWs. 1 and 3. A-1 was

the husband of the deceased and A-2 is the mother of A-1.

On 12.11.1995 the marriage of A-1 and the deceased was

celebrated. At the time of marriage PW.1 gave a sum of rupees

one lakh in cash, 15 tolas of gold and one Yamaha Motor Cycle

to A-1. At the time of marriage 15 tolas of additional gold were

2 put on the body of the deceased. After the marriage, A-1 and the

deceased set up a new home at Hyderabad as A-1 was working

in the Defence on daily wages basis. After the marriage, he was

permanently appointed as Junior Scientific Officer in D.R.D.A.

As they had set up a new establishment, PWs. 2, 3 and 7

purchased some household articles worth Rs.25,000/- and

presented those to them. After one and half month of stay at

Hyderabad, it is alleged, A-1 and A-2 started harassing the

deceased to get more money and additional 15 tolas of gold

jewellery which were put on the deceased at the time of the

marriage. After some time A-1 lost his Yamaha Motor Cycle at

Tank Bund. A-1 asked the deceased to ask PW.1 and other

members of the family to purchase a new Motor Cycle for him.

A-1 and the deceased were visiting Wanaparthy frequently on

weekends as A-1's parents were residing at Wanaparthy. On

such occasions A-2 used to harass the deceased to get additional

gold of 15 tolas and a new motor cycle as she was the only

daughter of her parents. PW.1 and others asked A-1 as to why

he was demanding more gold and another motor Cycle. A-1

used to answer that he never asked his wife to demand such

3 articles.

On 18.4.1996 PWs.1 and 2 went to Hyderabad and PW.1

dropped PW.2 at Hyderabad as the birthday of the deceased was

on 27.4.1996, PW1 advised PW.2 to stay there and get the

deceased and A-1 to Kurnool on 26.4.1996 to celebrate the birth

day of the deceased. PW.2, the deceased and A-1 went to

Kurnool at midnight on that day.

They celebrated the birthday of the deceased at Kurnool on

27.4.96. After taking dinner, some of the family members went

to a late night movie show at about 12.30 a.m. in the night.

After returning from the picture, A-1 and the deceased were

sleeping in a bedroom upstairs separately. On 28.1.1996 at

about 7.00 a.m. PW.3 received a call from Wanaparthy. The call

was made by the father of A-1 named V. Anjaneyulu. The said

Anjaneyulu told PW.3 that A-1 had come to Wanaparthy and he

was weeping and not disclosing anything and asked him as to

what happened at Kurnool. Then PW.1 to 3 went upstairs to the

bedroom of A-1 and the deceased. The door was bolted from

4 inside. With force they opened the door. The door bolt gave a

way for them to enter into the room. They found that the

deceased was hanging by one end of the saree tied to the neck

and the other end of the saree was tied to the ceiling fan. The

deceased was in a kneeling position. A neighbour Dr. Venkata

Ramana examined the deceased and declared her dead.

On 28.4.96 at about 10.00 a.m. PW.11 the Inspector of

Police received the first information report given by PW.1 which

is Ex.P-1. On the strength of Ex.P-1, the offence was registered

by PW.11 in Cr.71/96 under Section 498-A and 306 IPC. He

prepared the copies of first information report and dispatched to

all concerned. Ex.P-13 is the copy of the FIR received by the

Court.

On 28.4.1998 PW.4 the Mandal Revenue Officer, on a

requisition conducted inquest over the dead body of the

deceased in the presence of PW.5.

5 On 29.1.1996 PW.11 prepared the observations report of

the scene of offence in the presence of panch witnesses. Ex.P-10

is the observations report. Ex.P-14 is the rough sketch of the

scene of offence. PW.11 seized M.Os. 5 to 11 from the scene of

offence. On 29.4.1996 PW.9 examined PW.7 and two others and

recorded their statements.

On 28.4.1996 PW.6 the Professor and Head of Department,

Kurnool Medical College, Kurnool on requisition conducted

autopsy over the dead body of the deceased. Ex.P-6 is the

postmortem certificate.

On 15.5.1996, PW.10 the Deputy Superintendent of Police,

Kurnool on receiving intimation altered the section of law in Cr.

No.71/1996 of Kurnool II town Police Station from Sections 498-

A and 306 IPC to Section 304-B IPC PW.10 visited the scene of

offence and prepared the observation panchnama. Ex.P-11 is the

Panchnama. On 14.5.1996 PW.11 arrested A-1and A-2. On

completion of investigation, charge sheet was filed by PW.11

6 against A-1 and A2 under Sections 302 and 498-A IPC and

Section 4 of the DP Act.

3. Accused persons denied the allegations. It was suggested

that the accused persons were falsely implicated because the

deceased was found dead in the house of the PWs 1 & 2.

4. The trial court recorded conviction as noted above in

respect of A1 while directing acquittal of A2. A1 preferred an

appeal before the High Court.

5. The High Court on analysis of the evidence found that the

respondent was not responsible for causing the death of the

deceased. He was acquitted of the charge relating to offence

punishable under Section 302 IPC. The High Court also noticed

that the prosecution did not prove that the deceased was

subjected to cruelty immediately before her death. Therefore, the

accused could not be convicted for offence punishable under

Section 304 B IPC. Accordingly, the High Court directed

acquittal of the respondent.

7

6. The present appeal is filed by the informant. In support of

the appeal learned counsel for the appellant submitted that the

High Court ought to have noticed that the evidence on record

was sufficient to fasten the guilt on the accused persons. The

evidence on record clearly shows a complete chain of

circumstances and, therefore, the High Court should not have

directed acquittal. In any event, the High Court has not dealt as

to how Section 498A IPC and Section 4 of the DP Act have no

application.

7. Learned counsel for the respondent-accused supported the

judgment of the High Court.

8. The law relating to circumstantial evidence has been

highlighted by this Court in a large number of 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

8 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

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;

10 (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.

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

11 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".

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.

12

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."

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

13 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.

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. (Criminal Appeal No.185/2005 disposed of on 7.7.2008) 14

18. In the instant case, the High Court has noted several

factors to hold that prosecution has not established the

accusations. Firstly, the evidence of PW 1 goes to show that

door of the room where dead body was found was bolted from

inside. Undisputedly, A1 was not inside. Another relevant

aspect is the evidence of PW6. It is on record that there was

variance in the evidence of the doctor who had earlier given the

opinion that the deceased died due to asphyxia renilting from

hanging and later on stated that deceased died because of

smothering and the dead body was hanged. PW1 in his evidence

has stated that when they asked respondent as to why he was

demanding gold and motorcycle, he said that he had never asked

anything. In the cross-examination PW1 categorically admitted

that the deceased never personally informed him about the

alleged harassment by the respondent. He has also admitted in

the cross-examination that the respondent-accused never

demanded any money or gold from him directly or personally. It

is also accepted in the cross-examination that he presumed that

respondent-accused had killed the deceased. It is of significance

15 that Trial Court accepted that there are lacunae in the case of

the prosecution and also that they failed to lead evidence as to

where the respondent and deceased slept on 26/27 i.e. the

intervening night. It is also accepted by the Trial Court that the

evidence of the doctor PW.6 is confusing. Trial Court also

accepted that it was absurd that the respondent-accused went

out to a long distance wearing only banian and underwear but

curiously enough wanted the accused to show as to why he did

it. The evidence of PW.6 also has more loose ends. According to

him, there was a possibility of struggle. If that is so, it is strange

that nobody heard the sound of the struggle and as to how the

deceased could have struggled without even making a sound.

The evidence of PW.10 is more interesting. He says that the

accused would have gone out and bolted the door from inside.

He said that he had demonstrated the same without indicating to

whom it was demonstrated and when. The evidence of PW.3 also

corrodes the prosecution version. According to him he had

locked all the doors including the main door and thereafter slept

in his room. According to him he received a telephonic call from

the father of the respondent-accused from Wanaparthy that A1

16 was in a disturbed mind. He asked the father of the respondent-

accused as to why and how he could be at Wanaparthy as he

was at home and he had come home after visiting the second

show of the film. It is accepted that Wanaparthy is at a distance

of 140 Kms. from Kurnool. If they had returned at about 1.00

a.m. and the telephone came around 6.40 a.m, it has not been

explained by the prosecution as to how the respondent-accused

could travel the distance. As noted above the trial court

observed the accused was wearing banian and underwear. If that

be so it is strange that no body noticed it. PW 3 has fairly

accepted that he presumed that respondent-accused was making

demands through his wife-deceased.

19. To add to the vulnerability of the prosecution case, the

examination in terms of Section 313 Cr.P.C. appears to have

been done as an empty formality. The incriminating materials

were not put to him. Though the High Court has not dealt with

question of applicability of Section 498 IPC and Section 4 of the

DP Act, but the evidence adduced does not establish the

accusations.

17

20. In view of the aforesaid, there is no merit in this appeal

which is dismissed.

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

.................................J. (P. SATHASIVAM)

.................................J. (AFTAB ALAM) New Delhi:

August 25, 2008

18