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)

...6.

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.