Syed Hakkim & Anr vs State Rep. By Dy Suptd. Of Police

Syed Hakkim and Anr. ..Appellants

Versus

State rep. by Dy. Superintendent ..Respondent Of Police, Karur District, Tamil Nadu

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

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

Madras High Court dismissing the appeal filed by the appellants. Seven accused persons faced trial. Appellants-accused were numbers as A-1 and

A-2 respectively in the trial Court and before the High court. Out of seven

accused persons who faced trial A-1 to A-5 and A-7 were convicted for

offence punishable under Section 498-A of the Indian Penal Code, 1860 (in

short the `IPC') while A-1 to A-5 were also convicted for offence

punishable under Section 302 IPC. In appeal the High Court set aside the

conviction so far as A3, A4 and A5 are concerned in respect of offence

punishable under Section 302 IPC.

3. Prosecution version in a nutshell is as follows:

The marriage between the first accused and Syed Ali Fathima

(hereinafter referred to as `deceased') took place on 22.4.2001. A2 is the

brother of Al. A3 and A4 are the sisters of Al and AS is the mother and A6

is the father of Al. A7 is the aunt of Al. P.W.l is the mother of the deceased.

At the time of marriage, P.W.l paid Rs.5,000/- and three sovereigns of gold

jewels and after a period of two months, the first accused went to Mumbai

seeking for a job. All the other accused ill-treated the deceased stating that

the dowry demand was not met. Prior to the occurrence, the first accused

came from Mumbai. PW-1 was summoned. At that time, there was a

2 demand from accused Nos. 1, 2 and 7 that 10 sovereigns of gold and a sum

of Rs.5,000/- towards "Seevarisai" for Ramzan must be paid immediately.

A-7 who was present at that time informed PW-1 that she can pay the said

demand within a period of two months.

P.W.2 is closely related to P.W.1. On 6.3.2000, he came to Pallapatti

and went to the house of P.W.1. P.W.2 was informed by P.W.1 that there

was a dowry demand from the side of the accused. A marriage was

scheduled to take place in the house of a resident which is next to the house

of the first accused and hence on 8.3.2002, P.W.2 came to the house

between 11 am and 12 noon. He was talking to the said neighbour. Since

P.W.2 knew that there was a dowry demand, he decided to meet the

deceased in her house for that purpose. When he was just getting down

through the staircase, he was able to see the house of the deceased Fathima.

A window was kept open through which he was able to see within 10 feet.

At that time, Al and A2 strangulated the deceased Fathima with a rope and

A3 and A4 caught hold of both the arms. On seeing this, P.W.2 was

shocked. When he was witnessing the occurrence, A2 saw P.W.2.

Immediately, P.W.2 went to the place of PW-1. But he could not meet

3 anybody and he went to his native place, Salem and returned on the next day

i.e. 9.3.2002.

On the day of occurrence, i.e., 8.3.2002, the son of the 2nd accused

proceeded to the house of P.W.1 and informed her that she was to be taken

to the house of the accused and took her in a two wheeler. When P.W.1

went to the house of the accused, the wife of A2 informed that the deceased

Fathima was upstairs. When P.W.1 went to upstairs, she found only the

dead body of her daughter and P.W.1 was able to see a ligature mark around

the neck of the deceased. When P.W.1 enquired, nobody gave any answer,

but all laughed. P.W.1 immediately came back and informed the relatives

and proceeded to the police Station. P.W.13, the Sub-Inspector of Police

was on duty on the day of occurrence. P.W1 gave a complaint at about

17.30 hours which is marked as Ex.P.1 on the strength of which a case came

to be registered in Crime No.49/2002 under Section 174 of the Code of

Criminal Procedure, 1973 ( in short the `Code') was dispatched to the Court.

On receipt of the copy of the F.l.R., P.W.14 the Deputy Superintendent of

Police took up investigation, proceeded to the scene of occurrence, made

inspection and prepared Ex.P.2- the observation Mahazar and Ex.P.12- the

rough sketch. He also sent a copy of the FIR to PW-10, the Revenue

4 Divisional Officer who on receipt of the copy of the FIR proceeded to the

place and also conducted inquest on the dead body in the presence of

witnesses and prepared Ex.P-9, the Inquest Report wherein he opined that it

was not a case of suicide but it was the death by homicide. He also made

enquiries from witnesses and the accused. Following the same, the dead

body was subjected to postmortem by P.W.9, the doctor attached to Govt.

Headquarters Hospital, Karur, who opined that the deceased would appear

to have died of Asphyxia due to strangulation about 24-36 hours prior to

autopsy.

Originally, the case was registered under section 174 of Code. Later,

it was converted into one under Sections 498-A and 302 IPC and the

Express F.I.R. Ex.P.13 was dispatched to the court.

Pending investigation, accused Nos.1 to 6 were arrested. A2 came

forward to give confessional statement voluntarily and the same was

recorded by P.W.13, the Deputy Superintendent of Police in the presence of

witnesses, pursuant to which A2 has produced M.O.1-Nylon rope which

was recovered under a cover of Mahazar, Ex.P.4. All the accused were sent

for judicial remand.

5 On completion of investigation, the investigating officer filed the

final report. The case was committed to the Court of Sessions. Necessary

charges were framed in order to substantiate the charges leveled against the

accused. The prosecution examined 16 witnesses and relied upon 13

exhibits and 3 material objects. On completion of evidence on the side of

the prosecution, the accused were questioned under section 313 of Code.

PW-2 was projected to be an eye witness. But he resiled from his

statement made during investigation. The trial Court and the High Court

proceeded on the basis as if the prosecution version rested on circumstantial

evidence. Two circumstances were highlighted to fasten the guilt on the

accused. The plea of alibi set up by A-1 having been dis-believed it must be

presumed that he was guilty. Similarly, in respect of A-2 plea of suicide

was ruled out by the evidence of doctor (PW-9). A-2 was held to be guilty.

On the aforesaid ground the trial Court convicted the present appellants and

the High Court concurred with the view of the trial Court.

4. Learned counsel for the appellants submitted that from the stage of

trial, the prosecution case was that there was only one eye witness i.e. PW-2

6 but since he did not support the prosecution case, the prosecution proceeded

to rely on the certain circumstances. It is submitted that the circumstances

highlighted do not present a complete chain of circumstances to warrant the

conclusion of guilt on the accused persons.

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

the judgment.

6. So far as Section 498-A is concerned according to learned counsel for

the appellants the evidence is scanty but it is to be noticed that both the trial

Court and the High Court having regard to the evidence of relatives

concluded that the dowry demand was made. We do not find any infirmity

with the conclusions arrived at more particularly in view of the evidence of

PWs 1 and 2 and therefore there is no scope for interference with the

conclusions relating to Section 498-A IPC.

7. The residual question is about the conviction in terms of Section 302

IPC.

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

7 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

negate 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:

"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,

8 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."

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

9 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)

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

of right to be acquitted".

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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."

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

11 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.

16. These aspects were highlighted in State of Rajasthan v. Raja Ram

(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).

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17. The circumstances highlighted by the prosecution to bring in

application of Section 302 IPC are insufficient and scanty. That being so,

the conviction as recorded in terms of Section 302 IPC cannot be

maintained and is set aside. The sentences imposed in respect of Section

498-A IPC does not warrant interference. In the ultimate result, the

conviction in terms of Section 302 is set aside while that under Section 498-

a stands confirmed.

18. The appeal is disposed of to the aforesaid extent.

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

........................................J. (ASOK KUMAR GANGULY) New Delhi, February 23, 2009

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