IMPORTANT POINT
Circumstantial evidence is not conclusive regarding guilt of A1 (viz. betrayer wife) under Section 302 r/w 34 IPC for getting her husband murdered through her paramour A2 and his companions A3 and A4 hence she is entitled to benefit of doubt. A4 has not appeared. But A2 and A3 are rightly convicted on circumstantial evidence under Section 302 r/w Section 34 IPC.

Headnote:Indian Penal Code, 1860-Sections 302 r/w 34-A1 (wife), A2 (Paramour of wife) A3 (friend of A2) and A4 (another friend of A2) convicted for murdering husband of A1 in furtherance of common intention-Conviction based on circumstantial evidence of illicit sexual relation of A1 and A2, strained relations of A1 with her deceased husband, on day of incident A2 to A4 were seen near the house of deceased, judicial confession of A4, A1 was last seen with deceased in their house when he was alive, voluntary disclosure statements of A2 to A4-Appeal against by A1 to A3 only-Judicial confession not complying mandatory requirement of being signed by A4-No other incrimating circumstance against A1 but chain of events pointing out guilt of A2 to A4-Result-A1 (wife) is entitled to benefit of doubt for acquittal-But A2 and A3 s conviction upheld on circumstantial evidence-Order accordingly. (Cr.P.C. 1973-Sections 164, 281 and 293).
       Held : A1, the betrayer wife of the deceased has been convicted mainly on the ground of her being last seen with the deceased and her involvement in the commission of the crime on the basis of the confessional statement made by A4. The circumstance of A1 being last seen with the deceased, though proved, yet cannot lead to the irresistible inference of her being guilty of the crime, because being legally wedded wife of the deceased, she was supposed to be with him in his house where the crime was committed. This circumstance can be used against her only if there is any other circumstantial evidence linking her with the ghastly action committed in murdering the deceased. (Para 15)
       In the absence of the confessional statement it could be inferred that she was also subjected to the crime of robbery and her husband was murdered. It cannot be totally excluded that A2, after realising that his concubine has started living with her husband, got enraged and resolved to finish her husband to facilitate his enjoying the extra-marital relations with A1. It appears that the prosecution itself was not sure about the involvement of A1 in the commission of the crime for which they got herself medically examined to ascertain the possibility of any sexual offence having been committed upon her. It is unfortunate that in a case like this, the investigating agency did not even think it proper to allege the existence of a criminal conspiracy which, if proved against the other accused, would have proved the commission of offence of murder by A1 also. In the absence of a charge for criminal conspiracy we are left only with the confessional statement Exhibit P-77 made by A4. If the aforesaid confessional statement is held not made properly or legally admissible in evidence, A1 has to be given the benefit of the legal flaws and investigational lapses. (Para 16)
       Looking to the facts of the case we are at pains to note that Shambulingappa (PW 50) failed in the performance of his statutory obligations which has resulted in excluding the otherwise voluntary confessional statement Exhibit P-77 made by A4. Had the said Magistrate taken due care and applied his mind by referring to the bare provisions of Section 164 of the Code, such a glaring illegality in recording the confessional statement would have been avoided. In view of this finding, no reliance can be placed upon the judicial confession Exhibit P-77, allegedly made by A4, particularly against A1. (Para 24)
       Consequently held : In the absence of the legal proof of Exhibit P-77, inadmissibility of the statement of A4 before Shambulingappa (PW50) to prove the contents of that document as extra-judicial confession and the circumstance of A1 being last seen with the deceased not being incriminatory, there is no evidence to hold that she has been proved to be guilty beyond any reasonable doubt. Doubt and suspicion of her involvement in the ghastly crime cannot be ruled out but suspicion, however, strong it may be, cannot take the place of proof. Lapses in investigation, failure of the judicial officer to record the confessional statement in accordance with law and absence of corroborative evidence leaves us with no option but to give A1 the benefit of doubt. Moral conviction regarding the involvement of an accused in the commission of crime cannot be a substitute for a legal verdict based upon facts and law. Though with regrets but bound by law, we have no option but to set aside the judgments of the trial as well as High Court to the extent by which A1 has been convicted and sentences for the commission of the offence of murder of Amarnath, her husband. (Para 27)
       However, held : Upon critical analysis of the evidence led in the case we find that the prosecution has succeeded in establishing the circumstances Nos. 1, 2, 3, 4, 5, 6 and 9, noted by us in the earlier part of this judgment. Those circumstances form a complete chain to connect the other accused with the commission of the crime and are inconsistent with their innocence. (Para 28)
       Held finally : In a case based upon circumstantial evidence, the prosecution is under a legal obligation to prove, firstly on facts the existence of such circumstances and secondly that the circumstances form a complete chain which lead to the irresistible conclusion that the accused are guilty and such circumstances are inconsistent with their innocence. On proof of the aforesaid conditions, the court can convict the accused of the charges framed against them. It is rightly said that witnesses may lie but the circumstances cannot. The evidence on record in this case has fully established the Circumstances Nos. 1, 2, 3, 4, 5, 6 and 9 against A2 and Circumstance Nos. 3, 4, 5, 6 and 9 against A3. It has also further come in evidence that A2, A3 and A4 were on friendly terms. This friendship is shown to have prompted them to commit the crime for which they have been charged, convicted and sentenced. Under the circumstances, giving her the benefit of doubt, the appeal filed by A1 is allowed and the conviction and sentence, in so far as they relate to her, are set aside. She is directed to set at liberty forthwith, if not required in any other case. There is no merit in the appeals filed by A2 and A3 which are accordingly dismissed by confirming that part of the judgment of the High Court by which they have been convicted under Section 302/34 IPC and sentenced to life imprisonment. (Paras 40, 41 and 42)

JUDGMENT

Sethi, J.-This case speaks of the story of a despicable betrayal of connubial trust by a wife against her husband. Sexual lust and extramarital relations between the unfaithful wife and her paramour, put an end to the blooming life of an unfortunate and innocent young husband, who at the relevant time was serving the nation being in the employment of the Armed Forces. In this process of committing the crime, the wife became a marionette of her paramour. She and three killers, in order to liquidate her husband, displayed a drama in her bedroom on the fateful night. After her husband was heinously murdered she played the role of a victim of armed robbery and murder in her house and allowed herself to be gagged and tethered down. What the outsiders saw on the next morning was her being in the above condition and next to her was lying the beheaded body of her husband.

2. The prosecution case, as unfolded during the trial, is that the deceased Amar Nath who was in the Army service was married to Ms. Vanaja (hereinafter referred to as "A1") on 11.3.1992 at Naganakotai in Chittoor District of Andhra Pradesh. To the misfortune of the deceased, A1 prior to her marriage with the deceased was having illicit marital relations with Dhanajaya Reddy (hereinafter referred to as "A2"). Both were serving together as teachers at Gnanodaya English School at Madanappalli. Nagaraj (hereinafter referred to as "A3") and Subramani (hereinafter referred to as "A4") were the associates of A2 in the commission of crime of murder of Amar Nath. After her marriage A1 stayed with the deceased for about four days. She declined to go with him to Delhi where the deceased was serving. In the absence of the deceased A1 and A2 not only continued to be serving as teachers in the school but also freely indulged in quenching the sexual lust of each other. A1 had written letters to the deceased on his Delhi address acknowledging therein the factum of her having illicit relations with A2 and abusing the deceased in a filthy language. To resolve the controversy of marital relations between the deceased and A1, a Panchayat was held in the parents house of the wife in which besides others, Rajanna (PW3), the father of the deceased, Krishna Reddy (PW7), another relative of the deceased and Vama Reddy, (PW33), paternal uncle of A1 were present. It was resolved in the Panchayat that A1 should abandon her job and join the deceased. Thereafter, on his transfer, the deceased came down from Delhi to Bangalore in the month of March, 1993 to work as Technician in the Madras Engineering Group Centre, a Military establishment at Marutisevanagar, Bangalore. His place of work was at a distance of about 2 kilometers from the house which he took on rent in Bangalore bearing No. 655, at Subbaiahanapalya Extension, Banaswadi. PWs. 3 and 7 brought A1 to Bangalore whereafter she started living with the deceased. It is alleged that before coming to Bangalore A1 wrote three incriminating inland letters dated 5.4.1993, 9.4.1993 and 19.4.1993 marked as M.O.s. 21, 22 and 23 to her husband. In those letters she not only used filthy language but even went to the extent of disowning the deceased as her husband calling him as impotent. In one of the letters she even threatened the deceased stating that she would be joining his company only to take revenge.

3. Though the accused No. 1 apparently started living with the deceased at Banswadi at Bangalore, yet she was in constant contact with A2 at Madanapalli. A1 and A2 are stated to have planned together to murder the deceased and for that purpose, as already noticed, A2 procured the assistance and services of A3 and A4. In furtherance of his plan, A2 had sent A3 in advance to Bangalore on 28.8.1993 and thereafter A2 and A4 engaged a car bearing Registration No. AP:03 B/2349, which was driven by Narayan (PW20) alone with his cleaner Shabir Basha (PW38). Both A2 and A4 along with PWs 20 and 38 left Madanapalli at about 5.30 or 6.00 p

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2001 Supreme(SC) 476

Cases Referred (3)