Holding

The prosecution failed to establish a complete and unambiguous chain of circumstantial evidence, and therefore the conviction could not be sustained.

Summary

The father of a deceased woman appealed against the acquittal of her husband and his mother, who had been charged under IPC sections 302, 498A and Section 4 of the Dowry Prohibition Act for alleged dowry harassment and murder. The deceased was found hanging in a bedroom, and the trial court had convicted the husband based largely on circumstantial evidence, but the High Court set aside the conviction, finding the prosecution’s case deficient. The Supreme Court examined whether the circumstantial evidence satisfied the established tests for a conviction, including the need for a complete, unbroken chain that excludes any reasonable hypothesis of innocence. It held that the prosecution failed to prove a cogent, consistent chain of facts, the medical testimony was contradictory, and the Section 313 examination was a mere formality. Consequently, the Court dismissed the appeal, upholding the acquittal of the accused.

Issues considered

The adequacy of circumstantial evidence to sustain a conviction under IPC 302 and 498A.
Whether the prosecution established a complete chain of circumstances excluding any reasonable hypothesis of innocence.
The applicability of Section 498A IPC and Section 4 of the Dowry Prohibition Act in the facts of the case.
The propriety of the Section 313 Cr.P.C. examination conducted by the trial court.

Legislation cited

Code of Criminal Procedure, 1973s. 313
Dowry Prohibition Act, 1961s. 4
Indian Penal Code, 1860s. 302, s. 304, s. 498A

Subjects

circumstantial evidencemurderdowry harassmentSection 498ADowry Prohibition ActconvictionacquittalSection 313 CrPCchain of evidence

Judgment

[2008] 12 S.C.R. 687

~'.../
B. VENKAT SWAMY A
V.
VIJAYA NEHRU AND ANR.
(Criminal Appeal No.209 of 2001)
AUGUST 25, 2008
B
)
[DR. ARIJ.IT PASAYAT, P. SATHASIVAM AND AFTAB
ALAM, JJ.)

Criminal Appeal:
Penal Code, 1860; ss. 302, 304 and 498: c
Dowry demand - Husband allegedly committed murder
of wife - Has conviction based on circumstantial evidence -
Correctness of - Held: Inference of guilt can be justified only
when incriminating facts and circumstances found to be
D
incompatible with innocence of accused - Conviction based
solely on circumstantial evidence provided it shauld be tested
by the touchstone of law relating to circumstantial evidence -
• High Court has rightly held that prosecution could not establish
the accusations - Moreover, examination in terms of s.313
E
Cr.PC. have been done as an empty formality - Though the
High Court has not deal with the question of applicability of
s.498 /PC and s.4 of Dowry Prohibition Act but the evidence
adduced does not establish accusations - Dowry Prohibition
Act, 1961 - 4 - Evidence - Circumstantial evidence - Code
of Criminal Procedure, 1973 - 313. F
...._~

Respondent-Accused A1 a~d his mother A2 allegedly
· harassing the deceased, wife of A1 for demand of more
and more dowry. The birthday of the deceased was
celebrated on April 27, 1996 at the residence of parents of
G
the deceased at Kurnool. 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
687 H
688 SUPREME COURT REPORTS [2008] 12 S.C.R.

A separately. On 28.1.1996 at about 7.00 a.m. PW.3, uncle of
the deceased received a call from the father of A-1 from
his residence at Warnaparthy that A-1 had come to
Wanaparthy and he was weeping and not disclosing
anything. Then PW.1 to 3 went upstairs to the bedroom of
8 A-1 and the deceased. The door was bolted from inside.
When they opened the door, 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.
Their neighbour, a doctor examined the deceased and
declared her dead. PW1 father of the deceased lodged an
C FIR on April 28, 1996 and police registered a case against
accused husband and his mother under Section 498-A
and 306, IPC. After completion of the investigation charge
sheet was filed by the police against accused persons
under ss.302 and 498A IPC and s.4 of the Dowry
D Prohibition Act. Trial court found accused-husband guilty
of committing the offences punishable under ss.498A,
302 IPC and s.4 of the Dowry Prohibition Act but acquitted
the mother of A1 as charges against her were not
established. On appeal, the High Court acquitted the
E accused of all the charges. Hence, the present appeal.
Appellant-father of the deceased contended that the
evidence on record clearly shows a complete chain of
circumstances and, therefore, the High Court should not
have directed acquittal of accused, Al; in any event, the
F High Court has not dealt as to how Section 498A IPC and
Section 4 of the DP Act have no application in the facts
and circumstances of the case.
Dismissing the appeal, the Court
G HELD: 1.1 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
H the guilt of any other person. [Para 9] [696 C-D]
"
B. VENKAT SWAMY v. VIJAYA NEHRU & ANR. 689

""I
Hukam Singh v. State of Rajasthan AIR (1977) SC 1063; A
Eradu and Ors. v. State of Hyderabad AIR 1956 SC 316;
Earabhadrappa v. State of Karnataka AIR 1983 SC 446; State
of UP v. Sukhbasi and Ors. AIR 1985 SC 1224; Ba/winder
Singh v. State of Punjab AIR 1987 SC 350; Ashok Kumar
Chatterjee v. State of M.P AIR 1989 SC 1890 - relied on. 13
1.2 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. [Para 9] [696 E,F] c
Bhagat Ram v. State of Punjab AIR 1954 SC 621 - relied
on.
1.3 There is no doubt that conviction can be based
solely on circumstantial evidence but it should be tested 0
by the touch-stone of law relating to circumstantial
evidence laid down by this Court. [Para 14] [698 E]
C. Chenga Reddy and Ors. v. State of A.P (1996) 10
SCC 193; Pada/a Veera Reddy v. State of A.P and Ors. AIR
1990 SC 79; State of UP v. Ashok Kumar Srivastava, 1992 E
Crl.LJ 1104; Hanumant Govind Nargundkar and Anr. V State
of Madhya Pradesh, AIR _1952.SC 343; Sharad Birdhichand
Sarda v. State of Maharashtra, AIR .·1984 SC 1622; State of
Rajasthan v. Rajaram 2003. (B) SCC 180; State of Haryana v.
.... ~ Jagbir Singh and Anr. 2003 (11) SCC 261 and Kusuma F
Ankama Rao v State of A.P (Criminal Appeal No.185/2005
decided by Supreme Court on 7.7.2008) - relied on.
"Circumstantial Evidence" by Alfred Wills (Chapter VI)
- referred to.
G
.:,._4 2.1 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
H
690 SUPREME COURT REPORTS [2008] 12 S.C.R

A 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
s 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. [Para 18] [700 A,8,C]
C 2.2 In the cross-examination PW1 categorically
admitted that the deceased never personally informed
him about the alleged harassment by the respondent;
that the respondent-accused never demanded any money
or gold from him directly or personally; that he presumed
D that respondent-accused had killed the deceased. It is of
significance 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; that
E the evidence of the doctor PW.6 is confusing; 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.
F 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. [Para 18] [700
D,E,F,G]
G 2.3 In his evidence PW.10 stated that the accused
would have gone out and bolted the door from inside;
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. Al~cording
H to him he had locked all the doors including the main
B. \jENKAT SWAMY v. VIJAYA NEHRU & ANR. 691

~ 'I
door and thereafter slept in his room. According to him A
he received a telephonic call from the father of the
respondent-accused that A1 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 B
the film. It is accepted that Wanaparthy is at a distance of
'i
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. The trial c
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. [Para 18] [700 G,H 701 A,8,C]
D
2.4 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 enipty formality. The
incriminating materials were not put to him. Though the
High Court has not dealt with question .of applicability of E
Section 498 IPC and Section 4 of the DP Act, but the
evidence adduced does not establish the accusations.
[Para 19] [701 D,E]
Case Law Reference
F
"'----4, AIR (1977) SC 1063 relied on Para 9
AIR 1956 SC 316 relied on Para 9
AIR 1983 SC 446 relied on Para 9
AIR 1985 SC 1224 relied on Para 9
.... ~
AIR 1987 SC 350 relied on Para 9
AIR 1989 SC 1890 relied on Para 9
AIR 1954 SC 621 relied on Para 9
(1996) 10 sec 193 relied on Para 10 lM
692 SUPREME COURT REPORTS - [2008] 12 S.C.R.

A AIR 1990 SC 79 relied on Para 11
1992 Crl.LJ 1104 relied on Para 12
AIR 1952 SC 343 relied on Para 15 I'

AIR 1984 SC 1622 relied on Para 16
B 2003 (8) sec 1ao relied on Para 17
2003 (11) sec 261 relied on Para 17
CRIMINALAPPELLATE JURISDICTION : Criminal Appeal
No. 209 of 2001
c From the final Judgment and Order dated 16.02.2000 of
the High Court of Andhra Pradesh in Criminal Appeal No. 1239
of 1998
M.N. Rao, Rita Kumari Gupta, A. Ramesh and Annam
D D.N. Rao for the Appellant.
D. Rama Krishna Reddy and T. Anamika for the
Respondents.
D. Bharathi Reddy for the State..
E The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to
the judgment of the Division Bench of the Andhra Pradesh High
Court directing acquittal of respondent no.1 who was convicted
F for alleged commission of offences punishable under Section
498A and 302 of the Indian Penal Code, 1860 (for short 'IPC').
Respondent (hereinafter referred to as the 'accused') and his
mother faced trial for alleged commission of offence punishable
under Section 498AIPC. In addition, respondent-accused was
found guilty of offence punishable under Section 302 IPC and
G Secti.on 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
H
-8. VENKAT SWAMY v. VIJAYA NEHRU & ANR. 693
[DR ARIJIT PASAYAT, J.]
,.. 'i
under Sections 498A, 302 IPC and Section 4 of the DP Act. A
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 13
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 c
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 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 D
'i 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 E
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 Sund. A-1 asked the deceased to ask
PW.1 and other members of the family to purchase a new Motor i=
~-----+ 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 \3
_...,.
another motor Cycle. A-1 used to answer that he never asked
his wife to demand such 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 H
694 SUPREME COURT REPORTS [2008] 12 S.C.R..

A 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
8 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. 1'
After returning from the picture, A-1 and the deceased were
sleeping in a bedroom upstairs separately. On 28.4.1996 at
_about 7.00 a.m: PW.3 received a call from Wanaparthy. The
C 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
D was bolted from inside. With force they opened the door. The
door bolt gave a way for them to enter into the room. They found "t'
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.
E 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
F 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.
G On 28.4.1998 PW.4 the Manda! Revenue Officer, on a
requisition conducted inquest over the dead body of the
deceased in the presence of PW.5. ~

On 29.1.1996 PW.11 prepared the observations report of
the scene of offence in the presence of panch witnesses. Ex.P-
H 10 is the observations report. Ex.P-14 !s the rough sketch of
B. VENKAT SWAMY v. VIJAYA NEHRU & ANR. 695
' ,,......, [DR. ARIJIT PASAYAT, J.]

the scene of offence. PW.11 seized M.Os. 5 to 11 from the A
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- B
i
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 c
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 against A-1 and A2 under Sections 302 and
D
'f 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. E
4. The trial court recorded conviction as noted above in
respect of A 1 while directing acquittal of A2. A 1 preferred an
appeal before the High Court.

5. The High Court on analysis of the evidence found that F
>-----i
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,
G
-o-.1
the accused could not be convicted for offence punishable under
Section 304 B IPC. Accordingly, the High Court directed acquittal
of the respondent.

6. The present appeal is filed by the informant. In support
of the appeal learned counsel for the appellant submitted that H
696 SUPREME COURT REPORTS [2008] 12 S.C.R
y~.

A the High Court ought to have noticed that the evidence on record
was sufficient to fasten the guilt on the accused persons. The
I 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
B 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.

c 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
D 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 Al R ( 1977 SC 1063); Era du
and Ors. v. State of Hyderabad (Al R 1956 SC 316);
Earabhadrappa v. State of Karnataka (AIR 1983 SC 446);
E State of UP v. Sukhbasi and Ors. (AIR 1985 SC 1224);
Ba/winder 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
F and have to be shown to be closely connected with the principal t---4
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
G
the offences home beyond any reasonable doubt. ,._..
10. We may also make a reference to a decision of this
Court in C. Chenga Reddy and Ors. v. State f:1f A. P (1996) 10
sec 193, wherein it has been observed 1hus:
H
B. VENKAT SWAMY v. VIJAYA NEHRU & ANR. 697

• --.., [DR. ARIJIT PASAYAT, J.]

"In a case based on circumstantial evidence, the settled A
law is that the circumstances from which the conclusion of
( guilt is drawn should be fully proved and such
-t 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 8
'! 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 c
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
D
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
E
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 F
.......... 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 UP v. Ashok Kumar Srivastava, (1992 G
-~ 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 H
4
698 SUPREME COURT REPORTS [2008] 12 S.C.R.

A 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
B 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
c 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)
D 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
E
the this Court as far back as in 1952.
15. In Hanumant Govind Nargundkar and Anr. V State of
Madhya Pradesh, (AIR 1952 $C 343), wherein it wa~ observed
thus:
F "It is well to remember that in cases where the evidence ;r----4
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
G 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
H reasonable ground for a cq_nclusion consistent with the
li-c
B. VENKAT SWAMY v. VIJAYA NEHRU & ANR. 699
[DR. ARIJIT PASAYAT, J.]
~-:;
innocence of the accused and it must be such as to show A
that within all human probability the act must have been
done by the accused."
16. A refererrce 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 B
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: c
(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;
D
(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 E
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 F
... -<t 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.
G
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 Ankam~
Rao v State of AP. (Criminal Appeal No.185/2005 disposed of
on 7.7.2008)
H
700 SUPREME COURT REPORTS [2008] 12 S.C.R.

A 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, A 1 was not inside. Another relevant aspect
s · 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 reni!ting from hanging ~
and later on stated that deceased died because of smothering
and the dead body was hanged. PW1 in his evidence has
C 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
0
demanded any money or gold from him directly or personally.
h is also accepted in the cross-examination that he presumed "'·
that respon_dent-accused had killed the deceased. It is of
significance that Trial Court accepted that there are lacunae in
the case of the prosecution and also that they failed to lead
E evidence as to where the respondent and deceased slept on
26127 i.e. the intervening night. It is also accepted by the TriaJ
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
F 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
& G 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
H version. According to him he had locked all the doors including
8. VENKAT SWAMY v. VIJAYA NEHRU & ANR 701
[DR. ARIJIT PASAYAT, J.]
"'j
the main door and thereafter slept in his room. According to A
him he received a telephonic call from the father of the
respondent-accused from Wanaparthy thatA 1 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 tfle film. II is B
~
accepted that Wanaparthy is at a distance of 140 Kms. from
Kumool. lfthey 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 c
was wearing ba11ian 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 D
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 an_d Section 4 of
the DP Act, but.the evidence adduced does not establish the E
accusations.
20. In view of the aforesaid, there is no merit in this appeal
which is dismissed.
S.K.S. Appeal dismissed. F
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