Mula Devi & Anr vs State Of Uttarakhand

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

Uttarakhand High Court upholding the conviction of the appellants for

offences punishable under Section 302 read with Section 34 of the Indian

Penal Code, 1860 (in short the `IPC') and Section 201 IPC. However, the

appeal of the co-accused Dayal Singh, who was convicted for offence

punishable under Sections 302 and 201 IPC, was allowed.

3. Background facts in a nutshell are as follows:

Puola Devi (hereinafter referred to as `deceased') daughter of PW 3

Amar Singh was married to Kamal Singh, son of accused Dayal Singh in

Village Jaikot, District Tehri Garhwal. Accused / appellant Mula Devi is

mother-in-law and accused / appellant Rajmati is sister-in-law of the

deceased. Puola Devi, always complained about the harassment being made

to her by the accused/appellants whenever she visited her parental house.

She often told that her in-laws used to ask her to give her jewellery to them

else they would kill her. On 30.05.1990, Amar Singh (P.W.3) (father of the

deceased), who used to work in Delhi, received a message there that his

daughter Puola Devi has died. On the next day, at about 5.00 P.M, he

proceeded for his home Village Kulpi, District Tehri Garhwal, and reached

there on 01.06.1990. He went to the Patwari and came to know that dead

2 body of his daughter has already been taken to Narendra Nagar. It needs to

be noted that in the interior hills of Uttarkhand, certain Revenue Officials

are given the police powers. Meanwhile, Lal Singh (P.W.1), uncle of the

deceased, had already lodged the first information report on 30th of May

1990, after he received information that Puola Devi had died in her in-laws

house. In the first information report (Ext. A-1), , Lal Singh (P.W.1) had

mentioned that Puola Devi was married to son of Dayal Singh in Village

Jaikot, where she used to get harassment at the hands of her in-laws. He had

also stated in his report that whenever Puola Devi used to come to her

parental village she complained of the harassment meted out to her by the

accused / appellants. She had apprehended that she would be killed in her

in-laws house. Lal Singh (P.W.1) at the end of the first information report

expressed suspicion that after committing murder of his niece Puola Devi,

kerosene oil was poured over her body and it was set on fire to conceal the

fact of murder. On the basis of the first information report, Crime No.02 of

1990 was registered against all the three accused persons under Sections

302 and 201 of IPC by Patti Patwari, Baman Gaon. The dead body of the

deceased was taken into possession by Kapur Singh Payal (P.W.5), Patwari,

who initially investigated the crime. He prepared the check report (Ext. A-3)

on the basis of the first information report received from Lal Singh and

3 made necessary entry in the general diary, copy of extract of which is Ext.

A-4. He inspected the spot, took the dead body in his possession, prepared

the inquest report (Ext. A -2) and other necessary papers including sketch of

the dead body (Ext. A -6), police form No. 13 (Ext. A-7), sample of seal

(Ext. A-8). He also prepared the site plan (Ext. A-5). The dead body was

sent for postmortem examination. Dr. P.P. Raturi (P.W.7) Medical Officer,

Narendra Nagar conducted the autopsy on the dead body of Puola Devi on

01.06.1990, at 10:00 A.M., and prepared the postmortem examination report

(Ext. A-11). The cause of death in the opinion of the Medical Officer was

asphyxia as a result of ante mortem strangulation. He also found

postmortem burn injuries. Subsequently, the investigation was taken up by,

Bachchan Singh (P.W.6), Patwari, who further interrogated the witnesses

and arrested the accused persons. After completion of the investigation, he

submitted charge sheet (Ext.A -10) against all the three accused for their

trial in respect of the offences punishable under Section 302 and 201 IPC.

Since the accused persons pleaded innocence, trial was held after

commitment to the Court of Sessions. Since the case was based on

circumstantial evidence the trial court referred to various circumstances to

4 hold the three accused persons guilty. In appeal, as noted above, appeal of

Dayal Singh was accepted while that of present appellants was dismissed.

4. Learned counsel for the appellants submitted that the prosecution

version was specific that it was Dayal Singh who was responsible for the

homicidal death of the deceased. The role ascribed to the appellants was that

they held the legs of the deceased. Since the High Court accepted the

appeal of the co-accused Dayal Singh who was supposed to be the main

culprit, on the self same evidence, the appellants could not have been

convicted. It is submitted that the circumstances highlighted by the trial

court and concurred with by the High Court do not make out any case

against the appellants.

5. Learned counsel for the respondent-State on the other hand supported

the judgment of the trial court and the High Court.

6. It is to be noted that the trial court and the High Court have come to

abrupt conclusions about the guilt of the appellants. The circumstances

highlighted by the trial court to fasten the guilt on the appellants were as

follows:

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(i) It established on record that Puola Devi (deceased) was daughter-in-law of Mula Devi and sister in law of Rajmati and she used to live with them.

(ii) It is established on record from the statement of P.W. 1, Lal Singh, uncle of the deceased and P.W.3, Amar Singh, father of the deceased that accused Mula Devi and Rajmati used to harass puola Devi (deceased), and whenever she visited her parental house she always expressed apprehension that she mignt be killed on any day by them.

(iii) It is established on record from the medical evidence that cause of death of Puola Devi was asphyxia as a result of ante mortem strangulation.

(iv) It is established from the oral evidence that there were burn injuries on the body of the deceased and from the medical evidence it is also established that the burn injuries were postmortem.

(v) It is also established on the record that incident had occurred inside the house where accused Mula Devi and Rajmati used to live. It is not the case of the defence that anyone else was there in the house at that juncture.

(vi) No FIR was lodged regarding death of Puola Devi from the side of the accused.

7. None of the circumstances indicated above really present a complete

chain of circumstances to implicate the accused appellants.

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

6 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

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. 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:

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"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;

(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.

8 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 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)

9 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.

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."

10 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 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.

11 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).

17. Circumstances referred to by the trial court and the abrupt

conclusions arrived at by the trial court and the High Court does not justify

the conviction of the appellants. Therefore, conviction cannot be maintained

and is set aside. The appellants be set at liberty forthwith unless required to

be in custody in any other case.

18. Appeal is allowed.

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

.................................................J. (Dr. MUKUNDAKAM SHARMA)

New Delhi November 4, 2008

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