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Criminal · Reportable judgment

Dev Kanya Tiwari vs The State of U.P.

Court
Supreme Court of India
Date
12 March 2018
Case No.
Criminal Appeal No. 720 of 2016
Result
Allowed
Bench
N.V. Ramana, S. Abdul Nazeer
Citation
[2018] 4 S.C.R. 281 : 2018 INSC 228
Supreme Court Reports [2018] 4 S.C.R. 281 : 2018 INSC 228
Headnote

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 – 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 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 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 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 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. Allowing the appeal, the Court

Read the full headnote (7 more paragraphs)

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 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 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 (PW8) has specifically revealed that at the time of panchanama there was no apparent injury on the dead body. [Para 11][287-BE]

2. On an analysis, it is clear that PW1, PW2, PW3 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. ‘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 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 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, 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, 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 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 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 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]

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 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 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 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.

As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.

Full Judgment Text

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— 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)
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