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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 720 OF 2016

DEV KANYA TIWARI … APPELLANT

VERSUS

THE STATE OF U.P. … RESPONDENT

JUDGMENT

N.V. RAMANA, J.

This appeal by special leave arises out of judgment dated

14th March,  2016  passed  by  the  High  Court  of  judicature  at

Allahabad in Criminal Appeal No. 2894 of 2014 whereby the High

Court, while dismissing the criminal appeal filed by the accused—

appellant, upheld the conviction and sentence awarded by the trial

Court on 22nd July, 2014 for the offences under Section 302/34 IPC

in Sessions Trial No. 105 of 1997.

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2. The facts of the case, as culled out from the prosecution

case,  are  that  the  complainant—Shashi  Bhushan  Tiwari  (PW5)

lodged a complaint (Annexure P-2) on 30-09-1995 with Karchhana

Police Station, District Allahabad, which was registered as Crime

Case No. 177 of 1995, stating that his brother Brij Bhushan Tiwari

(deceased) went to his in-laws house on 28-09-1995 to see the well

being of his children, and to his belief his brother was killed by his

wife  and  in-laws.  The  wife  of  the  deceased  has  also  given  a

complaint  to  the  police.  The  Station Officer—Ram Niwas  Pandey

(PW7) held the inquest of the dead body, prepared panchayatnama

(Ext.  P2)  and  sent  the  body  for  postmortem.  Dr.  Ashok  Kumar

Gupta (PW6) conducted postmortem on 1st October, 1995 and the

postmortem report is marked as Ex.P1.  The Doctor opined that the

cause of death was asphyxia due to strangulation of throat.

3. The  Investigating  Officer  (PW  8)—Veer  Bahadur  Singh

after making necessary entries in the general diary, visited the spot

and prepared site plan (Ext. P5), recorded statements of witnesses

and  filed  charge  sheet  (Ext.  P6)  against  the  accused.  The  Chief

Judicial Magistrate, First Class, Allahabad took cognizance of the

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offence  and  committed  the  case  to  the  Sessions  Court  for  trial.

Learned Additional Sessions Judge framed charges under Section

302/34,  IPC  against  the  accused  Santosh  Devi  (wife  of  the

deceased) and Dev Kanya Tiwari (mother-in-law of the accused and

appellant  herein).  They denied to have  committed the crime and

requested for trial.  They took the defence that the deceased had

committed suicide by consuming poisonous tablets and they were

falsely implicated in the case by the complainant as he wanted to

usurp the whole property. However, during the pendency of trial,

accused Santosh Devi—wife of the deceased had passed away.

4. At  the  trial,  the  prosecution  in  support  of  its  case

examined as many as eight witnesses. The trial Court came to the

conclusion that the explanation given by the accused for the death

of  the  deceased was  false.  Having  satisfied  that  the  prosecution

could prove the guilt of the accused beyond reasonable doubt, the

trial Court convicted the accused—appellant under Section 302/34

IPC and sentenced to suffer life imprisonment and to pay a fine of

Rs.10,000/- failing which to further suffer rigorous imprisonment of

six months.

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5. Dissatisfied  with  the  order  of  conviction  and  sentence

passed by the trial Court, the accused—appellant went in appeal

before the High Court. By the judgment impugned herein, the High

Court affirmed the order passed by the trial Court and dismissed

the appeal of the accused—appellant. Aggrieved by the decision of

Courts below, the appellant preferred this appeal before us.

6. We  have  heard  learned  counsel  appearing  for  the

appellant as well as the learned senior counsel for the State.

7. The  specific  contention  of  the  learned  counsel  for  the

appellant is that the order of conviction and sentence awarded by

the Courts below suffers from severe infirmities. Undue importance

has been given to the postmortem certificate which indicated that

the deceased died of strangulation and a ligature mark was found

on the body. The organs of the deceased were got congested and on

the whole body blisters were found and nails turned bluish, which

clearly portray that it was a case of poisoning and as a matter of

fact the deceased committed suicide by consuming poison. With a

view  to  falsely  implicate  the  appellant,  the  factum  of  deceased

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committing suicide by consuming poison has been sidelined and

therefore viscera was not preserved by the Doctors. There was no

independent witness to support the case of prosecution.

8. Learned counsel further submitted that the panchanama

report  was  prepared  in  the  presence  of  PW5  and  there  was  no

mention in the panchanama of any ligature mark or injuries on the

body.  There  was no objection by PW5 during the  preparation of

panchanama.  Ignoring  the  crucial  facts  of  the  case,  the  Courts

below went on convicting the accused—appellant which is serious

error  of  law  and  the  same  should  be  interfered  by  this  Court

exercising its power under Article 136 of the Constitution.  

9. On the  other  hand,  learned counsel  appearing  for  the

State vehemently opposed the arguments advanced on behalf of the

appellant and submitted that there is enough evidence on record to

convict the accused and the Courts below have not committed any

mistake in considering the medical evidence. The deceased had died

in the house of the accused where he was last seen in the company

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of  the  accused  and  the  chain  of  events  have  been  completely

proved, hence sought dismissal of the appeal.

10. Having  heard  learned  counsel  on either  side,  we  have

carefully gone through the material on record. Apparently, there is

no eyewitness to the incident and the case is entirely based upon

circumstantial evidence. In such a case, the Court is expected to be

more  careful  while  analyzing  the  evidence  and  convicting  the

accused.  In  other  words,  in  all  probabilities,  the  chain  of

circumstances should lead to the  irresistible  conclusion that  the

accused participated in the commission of crime and committed the

offence.  This  Court  has  long  back  set  the  mode  of  evaluating

circumstantial  evidence  in  Hanumant  Govind  Nargundkar Vs.

State of Madhya Pradesh, 1953 CriLJ 129 in the following terms:

"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 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

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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."

11. In the  case  on hand,  a  complaint  (Annexure  P-1)  was

already lodged by the other accused Santosh Devi (died during the

pendency  of  trial)—wife  of  deceased  Brij  Bhushan  Tiwari,  on

30-09-1995,  prior  to  the  complaint  lodged  by  PW5.  As  per  that

complaint, on the previous day, after having food the deceased went

out for stroll and came back at about 6 pm with unsteady walking,

wobbling and falling. When he was taken to the Doctor—Hiralal (not

examined)  the  deceased  informed  the  Doctor  about  consuming

tablets of sulfas as he does not want to live anymore and requested

the Doctor not to make any attempt to save his life. While they were

shifting him to the Allahabad hospital, he had expired on the way.

In their depositions, PW1 (Santosh Kumar), PW2 (Lallan) and PW3

(Shiv Lal) also affirmed these facts. Veer Bahadur Singh—PW 8, the

Investigating Officer also in his cross examination admitted the fact

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that Dr. Hiralal in his statement disclosed as the deceased saying to

him that he was fed up with his life and therefore he had taken

sulfas tablets. He (PW8) has specifically revealed that at the time of

panchanama there was no apparent injury on the dead body.  It

would be relevant to extract the wife’s complaint, which reads as

under:

“It is respectfully submitted that the applicant Santosh Devi,  wife  of  Brij  Bhushan Tiwari is the resident of Hindupur, P.S. Karchhana. My husband came to my father’s house about 3/4 days  back  and  was  living  here  comfortably. Yesterday,  at  about  10  am,   he  after  taking food went out for stroll.  When he came back about 6 o’clock  to my father’s house he was walking  unsteadily  and  was  wobbling  and falling.  So  in  these  circumstances,  the applicant,  her mother and other  residents of the village somehow managed to bring him to the clinic of Hiralal. There Shri Brij Bhushan Tiwari  himself  told  the  Doctor  that  I  have taken many tablets of sulfas and I don’t want to live anymore and don’t make any attempt to save my life. Thereafter, while we were taking him to the Allahabad Hospital, then he expired on the way.

It is therefore the applicant is informing you to take appropriate action.”

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12. On the same day i.e. 30-09-1995, PW5—brother of the

deceased  had  also  filed  a  complaint  before  the  Station  Officer,

Karchhana P.S. as under:

“It is humbly submitted that the applicant is resident  of  village  Naree,  Police  Station Soraunw, District Allahabad. There is the Ram Surat Tiwari’s house in Bela Chauraha, Police Station  Karchhana,  which  is  the  house  of in-laws  of  applicant’s  brother  late  Shri  Brij Bhushan Tiwari.  The applicant’s brother had gone  to  the  house  of  his  in-laws  on 28/09/1995 for the sake of knowing about his children and for  seeing  them to  know about their well-being. Yesterday on 29/09/1995 at 3  o’clock  in  the  night  the  information  was received  in  the  house  of  the  applicant  that some  unknown  persons  of  Bela  Chauraha killed  the  applicant’s  brother  late  Shri  Brij Bhushan Tiwari.

On  getting  the  information,  I  have  come directly to the police station to lodge the first information report. The applicant believes that the  applicant’s  brother  was  killed  by  his in-laws.

The  report  is  hereby  submitted.  Necessary action may be taken”.

13. On the basis of the aforementioned two complaints, the

criminal law was set into motion. The trial Court as well as the High

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Court  mainly  relied  upon  the  evidence  of  the  brother  of  the

deceased (PW5) and the opinion of the Doctor (PW 6—Dr. Ashok

Kumar Gupta) who conducted postmortem. According to PW5 when

he reached the house of accused at 10 am, they started crying and

confessed  to  him  that  they  had  committed  the  mistake  of

strangulating his brother as he was adamant to take his wife back.

He further deposed that the accused pleaded him not to lodge police

complaint  and  even  after  lodging  FIR  they  requested  him  to

withdraw. As there was no mention of this circumstance in the FIR,

the trial Court disbelieved the version of PW5 as regards to extra

judicial confession of accused, yet observed that panchanama was

prepared prior to any member of the deceased’s family made a visit

to the place of occurrence and none of his family members were

present at the time of panchanama. It is important to note that PW5

in his cross examination admitted that he was present at the time

of  preparation of  panchanama and  when the  body  was  sent  for

postmortem. As regards to the occurrence, he stated that he had no

personal knowledge but only on hearsay basis, he came to know

about the occurrence.

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14. Dr.  Ashok  Kumar  Gupta—(PW6)  who  performed

postmortem on the body of the deceased, deposed that he found

bloodstained fluid coming out of mouth and nose of the deceased,

while his nails turned into bluish colour and tongue protruded out

of mouth caught between teeth. An ante mortem injury of ligature

mark 13½ x ½ was found on mid of neck while contusion present

all over the neck situating horizontally. Internally, thyroid bone was

found  fractured.  In  his  opinion,  the  cause  of  the  death  was

asphyxia  resulting  from  strangulation  of  throat.  In  the

cross-examination,  it  was  revealed  that  due  to  not  getting  the

symptoms of poison, viscera has not been preserved.

15. On an analysis, it is clear that PW1— Santosh Kumar,

PW2—Lallan,  PW3—Shiv Lal  have  not  supported the prosecution

case  but  specifically  supported  the  version  of  the  accused.  It

assumes importance that these witnesses were not declared hostile.

The evidence of I.O.—PW 8 made it clear that Dr. Hiralal disclosed

to him that the deceased pleaded not to save his life as he was fed

up with his life and had taken the sulfas tablets. The panchanama

was accordingly prepared, admittedly in the presence of PW5, and

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there  was  no  apparent  injury  on  the  dead  body  at  the  time  of

panchanama.  PW7—Ram  Niwas  Pandey,  who  filled  the

panchanama (Ext. P2) and got the signatures of panch witnesses,

also stated that no noticeable injury was found on the body of the

deceased and it was the collective opinion of the panch witnesses

that the deceased expired due to eating some poisonous substance

and he also concurred with them.

16. In the above backdrop of the case, primarily when there

existed a complaint lodged by the wife of deceased pointing out that

the deceased committed suicide by consuming poison, generally it

is  expected  that  the  Doctor  will  preserve  viscera  for  chemical

analysis.  On this  point,  prosecution has failed in its  duty as no

steps have been taken to preserve viscera. Merely a statement by

Doctor—PW  6  that  viscera  was  not  preserved  as  there  is  no

presence  of  poison  would  not  be  suffice  in  the  peculiar

circumstances  of  this  case,  particularly  when  the  independent

panch  witnesses  together  as  well  as  the  Investigating  Officer

recorded their view that it was a case of poisoning, which has been

duly supported by PWs 1, 2 and 3.

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17. However, the allegation against the accused levelled by

prosecution found support only from PW5—brother of the deceased.

Even the evidence of father of the deceased (PW4) cannot be taken

into consideration as it clearly appears that he has come to know

about the incident through PW5 only. Medical evidence in the form

of  postmortem  report  (Ext.  P1)  though  supports  the  case  of

prosecution, non-preservation of viscera by the Doctor remains fatal

to the prosecution case. It is worthwhile to note that nowhere in his

evidence, PW5 mentioned about noticing ligature mark on the neck

of  the  deceased,  nor  he  agitated  the  cause  of  death  during

panchanama.  The fact remains that  on certain aspects,  the trial

Court  also  disbelieved  the  version  of  PW5.  In  our  opinion,  the

prosecution miserably failed to establish the chain of events, which

points out at the guilt of the accused, and the Courts below gravely

erred in not  considering the case in accordance with the settled

principles of law.

18. The paramount  consideration of  the  Court  must be  to

ensure that miscarriage of justice is prevented.  Much acclaimed

notion in the administration of criminal justice is that if two views

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are  possible  basing  on  the  evidence  adduced  in  the  case,  one

pointing to the guilt of the accused and the other to the innocence

of  accused,  the  view which  is  favourable  to  the  accused  should

normally be adopted. As we have already observed in the case on

hand  there  is  no  direct  evidence  as  to  the  deceased  consuming

poison or having been done to death by throttling. The presence of

blisters all over the body of the deceased and his nails turning into

bluish colour, no mark of fingers on the body of the deceased as

noted in the postmortem report and the presence of PW5 at the time

of  panchanama  without  any  objection,  non-examination  of  Dr.

Hiralal,  the  corroborative  statements  by  most  of  the  prosecution

witnesses and that of the I.O. to whom Dr. Hiralal also disclosed

that the deceased consumed poison, all these circumstances form

ample  evidence  to  strengthen  the  case  of  the  accused  that  the

deceased  committed  suicide.   We  are  therefore  constrained  to

observe that the Courts below must have persuaded themselves to

give  the  benefit  of  doubt  to  the  appellant,  as  in  the  peculiar

circumstances of  this  case,  it  is  not  safe  to convict  the  accused

under Section 302 IPC.

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19. In view of the foregoing discussion, the appeal succeeds.

The appellant be released from custody forthwith, if not required in

any other case.

20. The  appeal  stands  allowed  accordingly.  Pending

applications, if any, shall also stand disposed of.

……….......................J.      (N.V. RAMANA)

                     ...............................J.                                                           (S. ABDUL NAZEER)

New Delhi, March 12, 2018.

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ITEM NO.1501               COURT NO.9               SECTION II                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS Criminal Appeal  No(s).  720/2016 DEV KANYA TIWARI                                     Appellant(s)                                 VERSUS THE STATE OF U.P.     Respondent(s) ([HEARD BY : HON. N.V. RAMANA AND HON. S. ABDUL NAZEER, JJ.]) Date : 12-03-2018 This appeal was called on for pronouncement of  judgment today. For Appellant(s)                     Mr. Lakshmi Raman Singh, AOR                     For Respondent(s)                     Mr. Ardhendumauli Kumar Prasad, AOR                                

Hon'ble Mr. Justice N.V. Ramana pronounced the judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice S. Abdul Nazeer.

In view of the foregoing discussion, the appeal succeeds.  The appellant be released from custody forthwith, if not required in any other case.

The appeal stands allowed accordingly.

(SUKHBIR PAUL KAUR)                             (RENUKA SADANA)      AR CUM PS                                   ASST.REGISTRAR

   (Signed reportable judgment is placed on the file)