BIRENDER PODDAR Vs STATE OF BIHAR
Bench: ASOK KUMAR GANGULY,DEEPAK VERMA, , ,
Case number: Crl.A. No.-000373-000373 / 2006
Diary number: 60319 / 2004
Advocates: C. D. SINGH Vs
GOPAL SINGH
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 373 OF 2006
BIRENDER PODDAR ... Appellant
VERSUS
STATE OF BIHAR ... Respondent
J U D G M E N T
GANGULY, J.
Initially four persons filed the special leave
petition but as three of them, namely, Petitioner Nos. 1, 2
and 3 refused to surrender, their special leave petition
stood dismissed by an order dated 05.01.2004.
Leave was granted in respect of the present
appellant on 27.03.2006.
This appeal which is now surviving only at the
instance of Birender Poddar, the husband of the deceased
woman, is directed against the concurrent judgment and
order of his conviction. In the Sessions Trial No. 380 of
1994, the appellant stood convicted under Section 302/34 of
the Indian Penal Code and was sentenced to suffer
imprisonment for life. The appellant was also convicted
under Section 498-A of the Indian Penal Code and was
sentenced to suffer two years rigorous imprisonment,
sentence to run concurrently. The High Court on appeal,
affirmed the conviction and the sentences.
...2.
CRIMINAL APPEAL NO. 373 OF 2006
.2.
We have gone through the records of the case
carefully and also the judgment of the High Court and also
of the learned Sessions Judge.
The learned counsel for the appellant in support of
the appeal raised several contentions. His main contention
is that there is no direct evidence in the case. He
further submitted that there is substantial contradiction
in the matter of identification of the dead body. He also
submitted that out of the several witnesses cited by the
prosecution, PWs 1, 2 and 3 have turned hostile and the
other witnesses, namely, PWs 5, 6, 7 and 8 are relations
and interested witnesses. The learned counsel further
submitted that there is substantial contradiction in this
matter between the medical evidence and the oral evidence.
He, therefore, submitted that in the facts of this case,
the conviction against the appellant should be quashed and
considering the fact that he has been in custody for all
these years, he should be set free immediately.
Learned counsel for the appellant has further raised
a defence that the deceased died a natural death as she was
suffering from jaundice. Learned counsel further urged
that the entire evidence on which the prosecution relied
consists of evidences of interested persons who are related
with the deceased woman.
...3.
CRIMINAL APPEAL NO. 373 OF 2006
.3.
The learned counsel for the State supporting the
concurrent findings of the Sessions Court and that of the
High Court urged that there is no contradiction in the
material part of the prosecution case and the defence taken
by the appellant has not at all been proved. Learned
counsel further submitted that the evidences of the so-
called hostile witnesses do not support the defence version
of the case and there is no discrepancy in the material
part of the prosecution case and both the courts,
especially the High Court, have correctly appreciated the
facts of the case.
It is obviously true that this case rests solely on
circumstantial evidence. It is true that in cases where
death takes place within the matrimonial home, it is very
difficult to find direct evidence. But for appreciating
circumstantial evidences, the court has to be cautious and
find out whether the chain of circumstances led by the
prosecution is complete and the chain must be so complete
and conclusive as to unmistakably point to the guilt of the
accused. It is well settled that if any hypothesis or
possibility arises from the evidences which is incompatible
with the guilt of the accused, in such case, the conviction
of the accused which is based solely on circumstantial
evidences is difficult to be sustained.
...4.
CRIMINAL APPEAL NO. 373 OF 2006
.4.
(See AIR 1952 SC 343 'Hanumant Govind Nargundkar and another v. State of Madhya Pradesh', AIR 1954 SC 621 'Bhagat Ram v. State of Punjab' and AIR 1956 SC 316 'Eradu and others v. State of Hyderabad')
Following the aforesaid time honoured principles, if
we look into the facts of the case, we find from the
evidence of PWs 5, 6, 7 and 8 on which the prosecution
relied that there is consistent evidence of ill-treatment
of the deceased. There is also evidence of beating and
injury mark on the deceased. There is consistent evidence
that the appellant had an illicit relation with one Janki
Devi, who is the wife of the brother of the appellant, and
as the deceased was complaining of such illicit relations
of the appellant with that lady, she was subjected to
torture. Some letters were written by the deceased to the
PW-8 complaining of such ill-treatment, one of which has
been made an exhibit (Exhibit 1).
Now coming to the question of the defence version
which has been taken by the appellant, we find that the
defence of the appellant that the deceased was suffering
from jaundice has not been proved at all. There is no
evidence on record that the deceased was treated for
jaundice. There is no pathological report nor is there any
medical subscription of any drug being administered on the
deceased for treatment of jaundice. The only evidence on
...5.
CRIMINAL APPEAL NO. 373 OF 2006
.5.
which the defence relies in support of the defence case
that the deceased was suffering from jaundice and was given
some treatment is the evidence of PW-12 Mohd. Naseem. PW-
12, in his evidence, did not claim that he is a medical
practitioner. He did not give any evidence of his
qualification. He merely claims that he is an in-charge
Medical Officer of primary health centre, Khagania. In his
evidence also, PW-12 did not depose that the deceased was
suffering from jaundice. He merely stated that, for
treatment, the deceased was referred to Patna on
02.09.1993. These being the sum total of the evidence
adduced by the appellant in support of the defence, we
reach the same conclusion which was reached by the High
Court that such defence is not at all worthy of any
credence.
As against that, there is clear evidence on record
of Doctor Raja Rajeshwar Prasad Singh(PW-9), the post-
mortem doctor and from the postmortem report which is
Exhibit-4, the following injuries appear on the dead body
of the deceased: -
“(i) Incised injury in the front of neck at the level of Thyroid Cartilage-4”X2”X2”. Trachea has been completely cut. Right and left internal (illigible) and external (illigible), internal (illigible) vein were cut. (ii)Incised injury on the upper part of right
side of abdomen through which small intestine was out. Size injury 3”X2” communicating with the abdomen.” (Quoted from the paper book)
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CRIMINAL APPEAL NO. 373 OF 2006
.6.
These injuries are sufficient to cause death.
Judging the said material on record as against the
so-called defence case of the accused, the High Court
opined, in our view rightly, that the defence case is
wholly inconsistent with the material on record and it is a
case of homicidal death in the matrimonial home.
Dealing with the question of identification of the
dead body, we find that the High Court concluded that there
was positive evidence of identification, not only by the
father of the deceased woman (PW-8) but also by her cousin
and her own brother, that is PWs 5 and 7. The High Court
has noted that it may be true that there was patrification
in the dead body having regard to the time gap between the
death and the postmortem report but there is nothing in the
postmortem report to suggest that the body was beyond
identification. The High Court has noted that there is no
such suggestion given to the doctor in his cross
examination on behalf of the appellant. The High Court has
noted the fact that the hospital authority gave the custody
of the dead body to the father of the girl and thereafter
the body was cremated. In view of such clear finding based
on the materials on record, we do not find that there is
any inconsistency in the evidence about the identification
of the dead body.
...7.
CRIMINAL APPEAL NO. 373 OF 2006
.7.
Now coming to the question of reliance by the
prosecution on witnesses who are related to the deceased,
we find that the law is well-settled that merely because
the witnesses are related is not a ground to discard their
evidence. On the other hand, the court has held that in
many cases, the relations are only available for giving
evidence, having regard to the trend in our present
society, where other than relations, witnesses are not
available. It is of course true that the evidence of the
interested witnesses have to be carefully scrutinised. We
find that the High Court has scrutinised the evidence of
the relations with due care and caution.
In this connection, the learned counsel for the
appellant has relied on a few decisions of this court.
Reliance was placed on the decision of this Court in the
case of Rajendra and Another v. State of Uttar Pradesh
[(2009) 13 SCC 480]. In that case, though in the F.I.R.,
throttling was alleged and no injury mark was found on the
neck of the deceased and the Doctor in cross examination
suggested the possibility of suicide, this Court held that
in such a case holistic approach should be taken (Para 10)
and ultimately dismissed the appeal. We are of the view
that the said decision does not, in any way, render any
assistance to the appellant in this case.
...8.
CRIMINAL APPEAL NO. 373 OF 2006
.8.
Two other decisions which have been cited by learned
counsel for the appellant were rendered in the case of
Namdeo v. State of Maharashtra [(2007) 14 SCC 150] and in
the case of State of Maharashtra v. Ahmed Shaikh Babajan
and Others [(2009) 14 SCC 267] which dealt with the
question of appreciation of evidence of interested
witnesses. Both those decisions follow the well-settled
principle that just because evidence is given by the
interested persons that is no ground for discarding the
same. We have already held that in the instant case, the
evidence given by PWs 5, 6, 7 and 8 is quite cogent and
clearly established the prosecution case.
We, therefore, do not discern any error in the
appreciation of their evidence either by the trial court or
by the High Court. That being the position, we find no
reason to interfere with the concurrent finding referred to
above.
The appeal is, therefore, dismissed.
.................., J. [ASOK KUMAR GANGULY]
.................., J. [DEEPAK VERMA]
NEW DELHI; MAY 16, 2011.