Dev Kanya Tiwari vs The State of Uttar Pradesh Home Department Secretary

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 Signature Not Verified Digitally signed by SUKHBIR PAUL KAUR Date: 2018.03.12 17:25:47 PKT

in Sessions Trial No. 105 of 1997.

Reason:

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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 3

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 5

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 6

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 7

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 8

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.” 9

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 10

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 12

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 14

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)