Gamparai Hrudayaraju vs State Of A.P.Tr.Pub.Pros

Gamparai Hrudayaraju ..Appellant

Versus

State of A.P. thr. Public Prosecutor ..Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

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

Andhra Pradesh High Court dismissing the appeal filed by the present

appellant who was found guilty of offence punishable under Sections 302 and 203 of the Indian Penal Code, 1860 (in short the `IPC'). Appellant was

found guilty by VII Additional Sessions Judge, Fast Track Court,

Visakhapatnam.

3. Background facts in a nutshell are as follows:

One Kuda Ammaji (hereinafter referred to as the `deceased') married

one Samareddy Surayanarayana (PW-6). They were blessed with a son and a

daughter. Subsequently, the deceased secured employment as A.N.M. and

shifted her residence to Munchingput. Thereafter, the appellant who is a

neighbour developed illicit intimacy with the deceased and started living

with her. As the appellant did not allow the children of deceased to stay

with her, PW-1 the sister of the deceased brought them to Serivayalu village

and was looking after them.

While so, on 21.6.2001, at 06.00 p.m., one Gampari Baburao told

P.W. 5 that the deceased was seriously ill and asked him to bring

ambulance of Primary Health Center, immediately. When P.W. 5 brought

the same, the deceased sent him back saying that she was not ill. Thereafter,

within ten minutes, the appellant and Baburao asked P.W. 5 to come with

the ambulance on the ground that the deceased was sick. The deceased was

2 shifted into the ambulance by the appellant in his arms and taken to

Primary Health Center. At about 09:00 p.m., on the same day, she was

declared dead.

On 22.6.2001, at about 7.30 a.m. based on the report presented by the

appellant, the Sub Inspector of Police (P.W. 10) registered a case in crime

No. 26 of 2001 under Section 174 of Code of Criminal Procedure, 1973 (in

short the `Code'). Later, during the inquest on the report given by P.W. 1,

the sister of the deceased, P.W.10 altered the sections of law to Sections

498-A and 306 IPC and issued altered First Information Report. On

23.6.2001, on his surrender before P.W.10, the appellant was arrested and

remanded to judicial custody. On 30.6.2001, the Sub Inspector of Police,

P.W. 9, based on the questionnaire, Ex. P6, given by the Civil Assistant

Surgeon (PW-8) altered the section of law to Section 302 IPC and after

completion of investigation, PW-11 filed the charge sheet. As accused

pleaded innocence, trial was held.

4. In support of its case the prosecution examined PWs 1 to 11 and

marked Exs. P1 to P11. On behalf of defence Exs. D1 and D2 (relevant

3 portions in the statements of PWs and 2) recorded under section 161 of

Code were marked.

5. The Trial Court came to the conclusion that though the prosecution

failed to establish a strong motive for the appellant to cause the death of the

deceased, in view of the circumstantial evidence held that the death of the

deceased was homicidal. Since only the appellant and the deceased were

staying in the house at the relevant point of time, it found the appellant

guilty, convicted him and sentenced him to undergo imprisonment for life

and SI for three months for the offences punishable under Sections 302 and

203 respectively.

6. Before the High Court it was stated that there was no material to

show that the death of the deceased was homicidal. It was pointed out that

in case of smothering, the death would have been instantaneous. But the

trial Court recorded a finding that the deceased was alive till 9.00 p.m. and,

therefore, it cannot be said that the death was homicidal. It was also pointed

out that the doctor who treated the deceased was not examined. The stand

of the State was that there was a fracture to thyroid cartilage and this

certainly was not due to the natural death. The High Court held that the case

4 was one of circumstantial evidence. Strangely, the High Court did not

analyse the evidence of PWs 4 and 5. The High Court found that the

prosecution case although rested on circumstantial evidence, it clearly

established the guilt of the accused.

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

that the circumstances highlighted do not in any way fasten the guilt of the

accused.

8. Learned counsel for the respondent on the other hand supported the

judgment.

9. We find that the High Court has not referred to any circumstance

which could fasten guilt on the accused. PWs 1 and 2 i.e. sisters of the

deceased stated that the ill feelings prevailed in between the appellant and

the deceased with regard to the children of the deceased born through her

first husband (PW-6). PWs 4 and 5 stated that the deceased came to the

house of PW-4 and just wished her and left the house. Ten minutes

thereafter the appellant came to her and informed that he was going to

Primary Health Centre to bring ambulance to attend to the deceased. Then

5 she went to the house of the appellant and found that the deceased was all

right and when the ambulance came the deceased sent the same back saying

that she was doing well. After some time, ambulance came and the appellant

and the deceased went in it. The evidence of PWs 5 and 6 cannot constitute

sufficient evidence against the accused to fasten the alleged offences.

10. 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 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

6 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.

11. 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....".

12. 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:

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"(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.

13. 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

8 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.

14. 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)

if there be any reasonable doubt of the guilt of the accused, he is entitled as

of right to be acquitted".

15. There is no doubt that conviction can be based solely on

circumstantial evidence but it should be tested by the touch-stone of law

9 relating to circumstantial evidence laid down by the this Court as far back as

in 1952.

16. 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."

17. 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: 10

(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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18. 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)

19. That being so, the prosecution has failed to establish the accusations,

and the conviction cannot be maintained and is set aside. The appellant shall

be set at liberty forthwith unless required to be in custody in connection

with any other case.

20. The appeal is allowed.

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

..........................................J. (ASOK KUMAR GANGULY)

New Delhi, April 16, 2009

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