DEV KANYA TIWARIversusTHE STATE OF U.P.

                         [2018] 4 S.C.R. 281                            281


                      DEV KANYA TIWARI                                  A
                                 v.
                       THE STATE OF U.P.
                 (Criminal Appeal No. 720 of 2016)
                                                                        B
                         MARCH 12, 2018
        [N. V. RAMANA AND S. ABDUL NAZEER, JJ.]
       Penal Code, 1860 – s. 302 r/w. s.34 – Prosecution case that
brother of complainant-PW-5 was killed by his wife and in-laws –        C
Defence plea that the deceased had committed suicide by consuming
poisonous tablets – During the pendency of trial, accused-wife of
deceased passed away – Trial court convicted accused-appellant
(mother-in-law of deceased) u/s.302/34 – High Court affirmed the
conviction of the accused-appellant – On appeal, held: In instant
case, a complaint was already lodged by the other accused-wife of       D
the deceased, prior to the complaint lodged by PW-5 – As per that
complaint, deceased informed the Dr. ‘H’ that he had consumed
poisonous tablets and requested him not to save his life – In their
depositions, PW1, PW2 and PW3 also affirmed these facts – If two
views are possible basing on the evidence adduced in the case, one      E
pointing to the guilt of the accused and other to the innocence of
accused, the view which is favorable to the accused should normally
be adopted – In instant case is entirely based upon circumstantial
evidence – The prosecution miserably failed to establish the chain
of events, which point out at the guilt of the accused – The presence
of blisters all over the body of the deceased and his nails turning     F
into bluish colour, no mark of fingers on the body of the deceased
as noted in the postmortem report and presence of PW-5
(complainant) at the time of panchanama without any objection,
non-examination of a Dr. ‘H’, the corroborative statements by most
of the prosecution witnesses and that of I.O. to whom Dr. ‘H’ also      G
disclosed that deceased had consumed poison, all these
circumstances form ample evidence to strengthen the case of the
accused that the deceased committed suicide – In the peculiar
circumstances of the case, not safe to convict the accused u/s.302.

                                                                        H
                                281
282           SUPREME COURT REPORTS                      [2018] 4 S.C.R.


A           Allowing the appeal, the Court
             HELD : 1. In the case on hand, a complaint was already
      lodged by the other accused (died during the pendency of trial) –
      wife of deceased, prior to the complaint lodged by PW5. As per
      that complaint, on the previous day, after having food the deceased
B     went out for stroll and came back at about 6 pm with unsteady
      walking, wobbling and falling. When he was taken to the Dr. ‘H’
      (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
C     had expired on the way. In their depositions, PW1, PW2 and PW3
      also affirmed these facts. PW 8, the Investigating Officer also in
      his cross examination admitted the fact that Dr. ‘H’ 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
D     (PW8) has specifically revealed that at the time of panchanama
      there was no apparent injury on the dead body. [Para 11][287-B-
      E]
            2. On an analysis, it is clear that PW1, PW2, PW3 have not
      supported the prosecution case but specifically supported the
E     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. ‘H’ 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 there was no
F     apparent injury on the dead body at the time of panchanama. PW7
      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
G     poisonous substance and he also concurred with them. [Para
      15][289-C-E]
            3. 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,
H
          DEV KANYA TIWARI v. THE STATE OF U.P.                         283


generally it is expected that the Doctor will preserve viscera for      A
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, who performed postmortem on the
body of deceased, that viscera was not preserved as there is no
presence of poison would not be suffice in the peculiar
                                                                        B
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. [Para 16][289-F-G]
      4. Medical evidence in the form of postmortem report
though supports the case of prosecution, non-preservation of            C
viscera by the Doctor-PW6, 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          D
disbelieved the version of PW5. 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. [Para 17][292-A-C]
                                                                        E
      5. 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
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          F
normally be adopted. 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          G
report and the presence of PW5 at the time of panchanama without
any objection, non-examination of Dr. ‘H’, the corroborative
statements by most of the prosecution witnesses and that of the
I.O. to whom Dr. ‘H’ also disclosed that the deceased consumed
poison, all these circumstances form ample evidence to
                                                                        H
284            SUPREME COURT REPORTS                          [2018] 4 S.C.R.


A     strengthen the case of the accused that the deceased committed
      suicide. [Para 18][290-D-E]
             Hanumant Govind Nargundkar v. State of Madhya
             Pradesh 1953 CriLJ 129 – referred to.
                                 Case Law Reference
B            1953 CriLJ 129               referred to             Para 10
             CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
      No. 720 of 2016.
             From the Judgment and Order dated 14.03.2016 of the High Court
      of Judicature at Allahabad in Criminal Appeal No. 2894 of 2014.
C            S. Wasim A. Qadri, Jubair Ahmad Khan, Zaid Ali, Tamim Qadri,
      Mudasir Nabi, Saeed Qadri, Syed Faizan Ali, Lakshmi Raman Singh,
      Advs. for the Appellant.
             Ratnakar Dash Sr. Adv., Ardhendumauli Kumar Prasad, Adv. for
      the Respondent.
D            The Judgment of the Court was delivered by
             N. V. RAMANA, J. 1. 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—
E     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.
             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,
F
      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—
G     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.
H
           DEV KANYA TIWARI v. THE STATE OF U.P.                               285
                   [N. V. RAMANA, J.]

       3. The Investigating Officer (PW 8)—Veer Bahadur Singh after            A
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 offence and committed the case
to the Sessions Court for trial. Learned Additional Sessions Judge framed
                                                                               B
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            C
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             D
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.
                                                                               E
      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.                                     F

      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       G
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
                                                                               H
286             SUPREME COURT REPORTS                               [2018] 4 S.C.R.


A     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 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.
B            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
C     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
D     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 of the accused
      and the chain of events have been completely proved, hence sought
      dismissal of the appeal.
E             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
F
      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
G            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 nature and tendency and they should be
H            such as to exclude every hypothesis but the one proposed to be
           DEV KANYA TIWARI v. THE STATE OF U.P.                               287
                   [N. V. RAMANA, J.]

      proved. In other words, there must be a chain of evidence so             A
      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         B
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           C
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—              D
PW 8, the Investigating Officer also in his cross examination admitted
the fact 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:                            E

       “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       F
      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           G
      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.”                                                                 H
288            SUPREME COURT REPORTS                           [2018] 4 S.C.R.


A            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
B           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
C           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
D           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 Court mainly
E     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
F     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
G     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.
H
           DEV KANYA TIWARI v. THE STATE OF U.P.                                289
                   [N. V. RAMANA, J.]

       14. Dr. Ashok Kumar Gupta—(PW6) who performed postmortem                 A
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.
                                                                                B
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                C
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         D
in the presence of PW5, and 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              E
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,              F
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       G
by PWs 1, 2 and 3.
       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
                                                                                H
290                SUPREME COURT REPORTS                        [2018] 4 S.C.R.


A     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
B
      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
C     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 are possible basing
      on the evidence adduced in the case, one pointing to the guilt of the
D     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
E     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
F     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.
              19. In view of the foregoing discussion, the appeal succeeds.
G     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.

H     Ankit Gyan                                                    Appeal allowed.