Birender Poddar vs State Of Bihar

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.