Penal Code, 1860 – s.302 – Conviction under – Prosecution case was that appellant had killed her husband by strangulation and with the help of co-accused persons (her brothers), thereafter, hanged the dead body in one of the rooms in the house, as if it were a case of suicide – The matter rested on circumstantial evidence where, according to the prosecution, the relations of the deceased (husband) and the appellant (wife) were too strained; the deceased had stated threat perceptions that his wife might kill him, for she was involved in illicit relations and was desirous of grabbing his property – PW-7 (brother of deceased) and PW-8 (sister of deceased) testified in support of the prosecution case – Trial Court convicted all the accused persons – However, the High Court found that circumstances brought on record were not sufficient against the brothers of the appellant and acquitted them but, affirmed the findings against the appellant – Appellant filed appeal before the Supreme Court – Held: Both the Trial Court and the High Court convicted appellant with reference to the testimony of PW-7 and PW-8 – A combined look at the testimony of PW-7 and PW-8 brings to the fore one of the significant facts that there was an ancestral house of the family and the same was sold by PW-7 alone and the sale proceeds were utilised by him in multiple ventures, which resulted in closure or failure – Appellant had stated categorically that the property and money were the root of discord in the family and the same was the cause for family of the deceased to implicate her – DW-3 also testified that the deceased had his tense moments because of money demands of his brother i.e. PW-7 – As per sketch prepared by PW-3, there was a bathroom-cum-toilet attached with room where deceased was putting up as per witnesses PW-7 and PW-8 – It belied the suggestion that deceased was forced to use the washroom of the tenant on the ground floor – Trial Court and High Court totally overlooked these factors – Strong elements of doubts surfaced on record as regard to the reliability of the PW-7 and PW-8 – Further, there was no direct and cogent evidence on record that the appellant was involved in illicit relations or was forcing the deceased to transfer property – Other prosecution witnesses did not even remotely indicate any traces of discord in the relations of the deceased and the appellant – Insofar as last seen together theory is concerned, the gap between the point of time when the appellant and deceased were last seen together (29.04.1997) and when the deceased was found died (01.05.1997) was not that small possibility of any other person being the author of the crime can be rendered totally improbable – That apart, the investigating agency and the prosecution were not forthright – The relevant aspects of crimes were not investigated properly and relevant witnesses like mother, daughter and brother-in-law of deceased were not examined – Further, investigating agency avoided independent witness in the investigation – In the circumstances, the benefit of doubt given to the appellant – Hence, conviction of the appellant u/s.302 set aside. Allowing the appeal, the Court
HELD: Alleged last statement of deceased and motive of appellant
1. A combined look at the testimony of PW-7 (brother of deceased) and PW-8 (sister of deceased) brings to the fore one of the significant facts that there had been an ancestral house belonging to the family that was sold by PW-7 alone and the sale proceeds were utilised by him to open a grocery shop, one of the multiple ventures he had tried, mostly resulting in closure or failure. The appellant had been categoric in her assertion that the property and money had been at the root of discord in the family and the same had been the cause for the family of the deceased implicating her. DW-3 has also testified to the effect that the deceased had his tense moments because of money demands of his brother i.e., PW-7. Unfortunately, the Trial Court as also the High Court have totally overlooked these factors and features hovering over the prosecution story. [Para 24][40-C-D]
2. Going further deep into the prosecution story, it is clear that there is no direct and cogent evidence on record that the appellant was involved in illicit relations or was forcing the deceased to transfer the property. It had not been the assertion of PW-7 or PW-8 that the alleged illicit relations of the appellant and/or her pressurising the deceased to transfer the property had been the matters of their personal knowledge. No particulars of any person having illicit involvement with the appellant are to be found on record. Such assertions have been made by these witnesses on the basis of the statements allegedly made by the deceased to each of them individually and at different point of time. The High Court and the Trial Court have readily accepted the suggestions of PW-7 and PW-8 that the deceased made the statements to them as alleged; and have even labelled the statement allegedly made to PW-7 as being the dying declaration of the deceased. Strictly speaking, the alleged statement made to PW-7 could not have been taken as a ‘dying declaration’ for the reason that at time of making of such statement, the deceased was not labouring under his imminent death and he was not recounting the circumstance of the transaction relating to his death. For the sake of arguments, and on the broad phraseology of the first part of Section 32 (1) of the Indian Evidence Act, even if it be assumed that the statement made by the deceased, before the cause of death had arisen, or before he had any reason to anticipate his killing, may also be taken as admissible, such an alleged statement cannot be directly acted upon without concrete corroboration. In the present case, what to say of corroboration, even making of such statement by the deceased appears to be doubtful. [Para 25][41-E-H; 42-A-B]
Last seen theory: Proof and effect
3. On the facts of the present case, it emerges that as per the version of PW-7, the deceased was lastly in his company on 28.04.1997 when he allegedly expressed his dejection and fear as also his plan to return with luggage. The appellant has pointed out that the deceased was with her in the morning of 29.04.1997 when he pointed out his tour programme commencing that day with scheduled return on 03.05.1997. It is not in dispute that the deceased was regularly on tour for longer durations of about two weeks in connection with his duties. The dead body was recovered on 01.05.1997 and as per post-mortem report, the probable time that had elapsed between death and post-mortem (on 02.05.1997 at 12.30 p.m.) was 24 to 72 hours. On the basis of this opinion, it cannot be assumed by way of arithmetical calculation that the deceased might have met with his end on 29.04.1997. The possibility of it being a day later is not ruled out. [Para 28.2] [44-D-F]
4. In the given set of circumstances, the last seen theory cannot be operated against the appellant only because she was the wife of the deceased and was living with him. The gap between the point of time when the appellant and deceased were last seen together and when the deceased was found dead had not been that small that possibility of any other person being the author of the crime is rendered totally improbable. [Para 28.3][44-G]
Subsequent conduct of the appellant and other
circumstances
5. Admittedly, the corpse was emitting foul smell and DW8 reached the spot at about 4.30 in the morning though the appellant had noticed the dead body the previous evening and had taken steps for informing the concerned through DW-3, Surinder Kumar Bhat. In the given circumstances, no fault could be foisted on the appellant if she did not remain with the dead body all through and until arrival of PW-8. The expression ‘enjoying tea’ was coined by this witness PW-8 alone and for want of corroboration and for omission of such a fact in the police statement, there appears no reason to accept the same. If at all anything of subsequent conduct of appellant is to be taken into consideration, it is evident that she attended her office on 30.04.1997 and 01.05.1997. It is not the case of the prosecution that during these two days, any abnormality in her behaviour was noticed by anyone. The appellant neither concealed herself nor altered the scene of crime in any manner and there had not been any evidence about any oddity in her manners and demeanour. [Para 29][45-D-F]
6. This Court would hasten to observe that merely for the reason of acquittal of co-accused, another accused in a criminal case may not be acquitted if cogent evidence against him is available and his case could be segregated from the case against the acquitted co-accused. However, on the basic facts of the present case, it is evident that the gruesome act in question had not been the handiwork of one person and it would be rather preposterous to assume that the appellant hanged the dead body by ceiling fan all by herself. In the given circumstances, when the alleged collaborators of the appellant are acquitted, the already existing clouds of doubts on the prosecution story get congealed. The High Court has proceeded with over-simplification of the matter by leaving the missing link as merely a fault of the investigating agency. In view of this Court, as soon as the brothers of the appellant were acquitted, the High Court ought to have examined the consequence of such acquittal that an important link in the prosecution theory was snapped and it was difficult to conclude that the prosecution has established its case against the appellant beyond all reasonable doubts. [Para 31.1] [46-F-H; 47-A]
The prosecution case not established beyond reasonable doubt
7. Thus, as regards the circumstances relied upon by the prosecution, the position obtainable from the material placed on record and the surrounding factors is that (a) the death of deceased was homicidal in nature and had not been suicidal though it was sought to be projected as suicide by the culprits by hanging the dead body from a ceiling fan in his room; (b) there is no cogent and convincing evidence on record to come to a definite conclusion that the relations of the deceased and the appellant were strained or that the appellant was indulgent in illicit relations or she was insisting for transfer of property in her name; (c) it is also difficult to come to a definite conclusion that the deceased had expressed imminent danger to his life at the hands of the appellant; and (d) even if the deceased was last seen alive in the company of the appellant, the time gap between such last seen and finding of his dead body had been of about 2 to 3 days. [Para 32][47-B-D]
Chandmal and Anr. v. State of Rajasthan: (1976) 1 SCC 621; Sharad Birdhichand Sarda v. State of
Maharashtra: (1984) 4 SCC 116 : [1985] 1 SCR 88; Hanumanth v. State of Madhya Pradesh: AIR 1952 SC 343: [1952] SCR 1091; Pakala Narayana Swami v. The King-Emperor: AIR 1939 PC 47 – relied on.
Rajkumar v. State of M.P. (2004) 12 SCC 77; Sonvir alias Somvir v. The State (NCT of Delhi): (2018) 8 SCC
24 : [2018] 7 SCR 830; Ramesh and Ors v. State of Rajasthan: (2011) 3 SCC 685 : [2011] 4 SCR 585; SK. Yusuf v. State of West Bengal : (2011) 11 SCC 754: [2011] 8 SCR 83; Sawal Das v. State of Bihar: (1974) 4 SCC 193 : [1974] 3 SCR 74 – referred to.
A Text Book of Jurisprudence by B.W. Paton, Fourth Edition, Page 598 – referred to.
Criminal Law by C.S. Kenny – referred to.
Modi: A textbook of Medical Jurisprudence and
Toxicology – 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.
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