Devidas Ramsundar Shukla vs State Of Maharashtra

Devidas Ramsundar Shukla ...Appellant

Vs.

State of Maharashtra ...Respondent

JUDGMENT

DR. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a Division

Bench of the Bombay High Court, Nagpur Bench, Nagpur

upholding the conviction of the appellant for offence

punishable under Sections 302 and 202 read with Section 34

of the Indian Penal Code, 1860 (in short the `IPC'). There were two appellants before the High Court which dismissed the

appeal. Only present appellant has questioned the correctness

of the judgment.

2. Prosecution version as unfolded during trial is as follows:

The appellant (A-2) alongwith co-accused-Santosh

Devidas Shukla (A-1) and two others were tried in Sessions

Trial No. 81 of 1992 in the Court of the Additional Sessions

Judge, Achalpur for offences under Sections 302 and 202 read

with section 34 IPC and by the judgment and order dated

17.12.1993 of learned Additional, Sessions Judge, Achalpur,

they were convicted for the offences under Sections 302 and

202 read with Section 34 IPC and were sentenced to suffer RI

for life and to pay a fine of Rs.1,000/- each with default

stipulation. Except these two, others were acquitted by the

trial Court. The victim of assault was one Manoja @

Manorama daughter of Tirathraj Tiwari (PW-5) (hereinafter

referred to as the `deceased'). A-1 was a resident of Banosa.

2 One Hira was married to A-1 in the year 1989. After the

marriage, she was residing with him. A-2 is the father of A-1.

It so happened that the matrimonial dispute cropped up

between Hira and A-1 and as a consequence thereof she left

the matrimonial home. She filed a criminal case against the

appellant and co-accused alleging ill treatment and cruelty.

While the proceeding was pending, A-1 contracted marriage

with deceased Manoja on 8.7.1991 and in consequence

brought her to his house and as such she was residing with

A-1. It was on 27th May, 1992 that A-2 went to the police

station Daryapur and gave the report (Exh.83) informing that

the deceased was burning in the house and she was being

removed to the hospital.

P.S.I. Katkar on arriving at the police station rushed to

the hospital. Dr. Shailaja Kale (PW-1) who was the Medical

Officer, after seeing deceased Manoja in the hospital at about

5.35 hours declared that she was brought dead and

information was given immediately to the P.S.I. who was

present in the hospital. That, information was sent to the

3 police station where A/D of Murg Khabari No. 17/92 under

section 174 of the Code of Criminal Procedure, 1973 (in short

the `Cr.P.C.') was registered on 27.5.1992. P.S.I. Katkar after

getting the information of registration of crime prepared the

spot panchnama in the hospital where the dead body was

lying, vide Exh. 25. In the course of enquiry, he also made the

inquest panchnama (Ex. 26) and seized some articles

therefrom. He then immediately went to the house of accused

No. 1, where deceased Manoja was burnt. He prepared the

spot panchnama of the scene of offence, vide Ex. 46. He

noticed large pieces of skin, flesh and ashes lying, on the floor

of the room, burnt matchsticks, bottle containing kerosene,

so also a bowl smelling of kerosene. These articles were seized

by making a panchnama (Exh. 47). He recorded the

statements of various persons in the course of enquiry. The

accused gave different versions in respect of the deceased

Manoja. He returned to the police station and lodged the FIR

vide Exh.84 on the basis of which the offence was registered

at Crime No.101/92.

4 On completion of investigation charge sheet was filed.

Since the accused persons abjured guilt, the trial was held.

3. The case based on circumstantial evidence which

according to the prosecution unerringly pointed out the

appellant to the author of the crime. The circumstances noted

by the trial Court are as follows:

(1) Hira, wife of A-1 lodged complaint against

appellants alleging ill-treatment making specific

mention of fact that A-1 contracted second

marriage.

(2) A-2 settled marriage of Manoja with A-1 concealing

the fact the A-1 was already married with Hira.

(3) A-2 disowned the marriage of Manoja with A-1.

(4) Deceased Manoja was living with A-1 and A-2 till

27.5.1992 in the house under their folds.

(5) Deceased Manoja was burnt in the room of that

very house.

5 (6) Appellant and co-accused saw her burning in the

room. However, they did not make efforts to save

her.

(7) A-2 though informed police about Manoja's

burning, did not disclose as to how she got burnt.

(8) In the report, A-2 did not mention that Manoja was

wife of A-1 thereby indicating conduct in

suppressing true facts.

(9) A-2 did not state in the report that A-1 tried to

extinguish fire, though claimed by him at the trial.

(10) Neither A-2 nor A-1 informed Manoja's father about

her getting burnt.

(11) On the other hand, A-1 and A-2 gave deliberately

wrong name of father of Manoja as `Akhilesh Tiwari'

to mislead the police.

(12) Manoja sustained 99% burns and it was shown that

she struggled for survival.

(13) In the room, bottle contained kerosene was found.

The room was having smell of kerosene all over,

6 even felt by P.S.I. Katkar and panch Sk. Raheman

on their arrival in the morning is an eloquent

circumstance when viewed in the context of room

remaining accessible and match box not found in

the room.

(14) In the room, burnt match sticks were found which tallied with match sticks in the match box seized from the kitchen. No finding of match box in the room, where she was burnt, positively shows that the act of setting her on fire was not of her own act.

(15) One door of the room was open. This shows that A-1 and A-2 had access to the room and as A-1 and A- 2 admitted to have been to the room and seen her burning, and A-1 having burn injuries, indicates that A-1 and A-2 set her on fire.

(l6) A-2 at the trial denied that fact Manoja died of

burning in the house. This conduct on his part is

very relevant to indicate that he must not be

innocent as he claimed.

(17)Deceased Manoja was 7-8 weeks' pregnant. There

was no exceptional reason for her to put an end to her

life. Therefore, this fact that Manoja was carrying,

7 totally rules out the possibility of she committing

suicide and there existing to kill her.

(18)Hira complained A-1's marrying Manoja for which A-1

and A-2 faced prosecution in criminal court. A-2 was

instrumental for A-1 marrying Manoja, giving rise to a

hasty motive to eliminate unprotected girl Manoja.

(19) Mute sufferance of agonies without attracting the

neighbourhood to rush the spot indicates role played

by agency other than the victim herself who could not

have kept her mouth shut with extensive injuries.

(20)Evidence and the circumstances do not give rise to

doubt regarding old father of (A-2) or the women folk

capable of committing the act of burning.

4. The trial Court placing reliance on the aforesaid

circumstances observed that the aforesaid circumstances were

8 a complete chain to establish the guilt of the appellant and A-

1 and accordingly found them guilty.

5. In appeal, before the High Court it was submitted that

the circumstances were not sufficient to conclude about the

guilt of the appellant and co-accused. The High Court did not

find any substance in this plea and dismissed the appeal.

6. So far as A-1 is concerned, he has not filed any appeal.

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

appellant submitted that most of the circumstances do not in

any way establish the guilt of the accused. Learned counsel

for the State supported the judgment of the trial Court and the

High Court.

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 justified only when all the

incriminating facts and circumstances are found to be

9 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.

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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:

"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;

11 (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.

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

12 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".

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.

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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."

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

14 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.

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) and Kusuma Ankama Rao v

15 State of A.P. (Criminal Appeal No.185/2005 disposed of on

7.7.2008).

17. The circumstances highlighted by the trial Court

cumulatively pointed out unerringly the appellant to be guilty

of the offence. Additionally, certain factors need to be noted.

Presence of blood on the door shows that deceased tried to go

out and this is a very vital circumstance. Additionally, the

finding of broken bangles on the spot show that there was a

struggle. A-1 has taken the stand that he tried to extinguish

fire when he went to the room and saw his wife burning there

when he entered the room. Statement of witnesses Sk.

Raheman and Sk. Munir and P.S.I. Katkar shows that the

doors of the room were open. Witness Sk. Raheman and Sk.

Munir noticed burnt pieces of clothes and one calendar was

found burnt. Additionally, burnt pieces of skin and flesh were

lying there. There were two burnt match sticks and there was

one bottle containing kerosene and a pot smelling kerosene.

Significantly, no match box was found in the kitchen. Smell of

kerosene was found on the lungi which was worn by A-1 and

16 which was seized. Some parts of skin and flesh were also

found on the lungi giving smell of kerosene. Small pieces of

flesh were also found on the doors panel as also on the

wooden panel of cot. As rightly noted by the trial Court and

the High Court no match box was found at the spot where

body was found though some burnt match sticks were found

and as noted above the match box was found in the kitchen.

If the materials on record are considered in the background of

evidence on record, the inevitable conclusion is that the

appeal is without merit and deserves dismissal which we

direct.

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

..........................................J. (Dr. MUKUNDAKAM SHARMA) New Delhi, August 6, 2008

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