REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1046 OF 2010
SMT. GARGI ... APPELLANT(S)
VS.
STATE OF HARYANA … RESPONDENT(S)
JUDGMENT
Dinesh Maheshwari, J.
Preliminary
1. This appeal by special leave is directed against the common
judgement and order dated 05.03.20081
whereby, the High Court of
Punjab and Haryana at Chandigarh has partly affirmed the judgment
and order dated 09.06.1998 in Sessions Case No. 63 of 1997 by the
Additional Sessions Judge, Ambala; and has upheld the conviction of
the appellant for the offence punishable under Section 302 of the
Indian Penal Code ('IPC') even while acquitting the co-accused
persons of the charge under Section 302 read with Section 120-B IPC.
1.1. In a brief outline of the material aspects, it may be noticed that in
the present case, the appellant was charged with the imputations that
1 in Criminal Appeal Nos. 341-DB of 1998 and 359-DB of 1998.
1
she killed her husband by strangulation and, with the help of coaccused persons (her brothers), 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. Two of the siblings of deceased, one brother
and one sister, testified in support of the prosecution case. Per contra,
the appellant, while denying the imputations, took the plea that she
was leading a happy married life with her husband for 18-19 years with
two children; and that the brother of the deceased, on whose statement
FIR was registered and who was the prime prosecution witness, was
carrying the ill-intentions to grab the property of her husband and had
managed her prosecution. The Trial Court convicted all the accused
persons while accepting the prosecution case and rejecting the
defence version. In appeal, the High Court, though found that the
circumstances brought on record were not sufficient to bring home the
charge of conspiracy against the brothers of the appellant and
acquitted them but, affirmed the findings against the appellant and
maintained her conviction for the offence of murder of her husband.
Hence, this appeal.
The relevant facts and background aspects
2
2. Put in brief, the prosecution case had been that on 01.05.1997,
having received information that a man had committed suicide in
House No. 1297, Sector-15, Panchkula, ASI Amar Singh (PW-9),
accompanied by UGC Bidhi Chand and UGC Baldev Singh, reached
the spot at about 11.30 p.m.2
, only to find that in the room on the
second floor of house, the deceased Tirloki Nath, husband of the
appellant, was hanging by neck with his feet touching the floor. They
also found that a pool of blood had collected near the dead body; and
that the dead body was emitting bad odour. The appellant and her
children were in the same house, but on the first floor.
2.1. At about 4.30 a.m. of 02.05.1997, i.e., nearly five hours after the
police having arrived, the complainant Brij Bhushan Kaul (PW-7),
brother of the deceased, reached the spot with his wife, mother,
sister’s husband and sister Smt. Radha Puri (PW-8). The complainant
made the statement that relationship of the deceased and the appellant
was too strained due to which, they were residing in separate rooms in
the same house; that the appellant had been ill-treating her husband,
which included restricting his use of bathroom facilities in the same
house; that the deceased had once expressed his fear that the
appellant would leave the gas cylinder open with the intention to kill
him; and that the deceased had also stated that ‘the character of his
wife was bad’ and she was living ‘with bad women’. The complainant
2 At what time did the police and the complainant receive this information, by which mode of
communication, and through whom, are some of the questions having bearing in this matter,
as shall be noticed hereafter later.
3
also stated that on 28.04.1997, the deceased came to his house (at
Ambala Cantt.) and told him that he would go to Panchkula and would
come back with his luggage as he was ‘very much fed up and
frightened’. The complainant further stated that in the night of
01.05.1997 at about 11.30 p.m., he received a message that his
brother had passed away and thereupon, he arrived at the house of the
deceased accompanied by his mother, wife, sister and brother-in-law,
only to find the deceased in the condition as described hereinabove.
While concluding, the complainant stated his suspicion that the
appellant had murdered his brother because the deceased had not
transferred his house as per her demands.
2.2. For the incident in question, FIR No. 174 dated 02.05.1997 was
registered on the basis of the statement so made by the complainant.
In the preliminaries, the inquest report (Ex. PH/2) was prepared by ASI
Amar Singh (PW-9); rough site sketch (Ex. PM) was prepared;
photographs were taken by the photographer Shashi (PW 11); and the
dead body was sent for post-mortem. Thereafter, the investigation was
taken over by Inspector Jag Pravesh (PW-10), who recorded the
statements of witnesses, visited the spot, got prepared the scaled site
plan (Ex. PD) and also arrested the appellant. SI Ishwar Chander (PW12) also partly investigated this case. He arrested and released the
brothers of appellant, who were on anticipatory bail. Thereafter, the
appellant was charge-sheeted for the offence punishable under
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Section 302 IPC while her brothers were charge-sheeted for the
offence punishable under Section 302 read with Section 120-B IPC.
Prosecution evidence
3. After committal, the case was tried as Sessions Case No. 63 of
1997 in the Court of Additional Sessions Judge, Ambala. The
prosecution, inter alia, examined 12 witnesses. Having regard to the
subject matter of this appeal and the questions involved, it would be
advantageous to take note of the relevant aspects emerging from the
statements of material witnesses in requisite details, even at the cost of
a little inflation.
3.1. PW-1 Dr. Usha Bansal, who had been one of the members of
the medical board that had conducted post-mortem of the body of
deceased and had prepared the report Ex. PA, stated the observations
and opinion as follows:
"... A well defined depressed ligature mark measuring 3
cm. wide seen encircling the neck around the thyroid
cartilage with a knot present on left side of neck. This
ligature mark was ante-mortem in nature. A ligature mark
above the thyroid cartilage going obliquely upward and
posteriorly on left side present with an irregular
impression of knot on left side of the neck measuring 1.5
cm wide present. This ligature mark was of post-mortem
nature....
xxx xxx xxx
In our opinion, the cause of death was asphyxia due to
strangulation...The probable time that elapsed between
injury and death was few minutes and between death and
post-mortem was 24 hours to 72 hours....."
5
3.2. PW-7 Brij Bhushan Kaul (brother of the deceased) has been the
prime witness of prosecution in this case. The relevant assertions
occurring in his examination-in-chief read as under: -
“…..Upto Dec., 1997 I remained at Ambala Cantt. Tirloki
Nath used to visit Ambala Cantt and was always found by
us to be disturbed, because of the family problem. Tirloki
Nath told us that he was shifted to a separate room at the
top floor of the house and that he was not provided any
article of food and was being mal-treated by his wife Smt.
Gargi Devi. He also told many a time that he was never
allowed to enter the room and toilet by his wife at night
times. Tirloki Nath deceased left our house at Ambala
Cantt lastly on 28.4.1997, around 7.45 AM and while
leaving, told that it was his last time to go to Panchkula to
collect his belongings and then would be coming to
Ambala Cantt for ever. On this, I asked him as to why he
was taking this step. He told me that he was very much
upset due to the illicit relations of his wife Smt. Gargi Devi
and was afraid of that if he stayed in the same house at
Panchkula, he could be murdered, with the help of her
three brothers…On this I told him that it was not possible
because a wife cannot kill her husband. However, while
leaving our house, he was totally shattered. Tirloki Nath
used to take tea only in his room at the top floor of the
house, using his independent cylinder in his room. He
was not provided even tea by Smt. Gargi and the
children. He told me that once his wife had opened the
gas cylinder in order to kill him…..I was on tour on 1.5.97.
I came back to my house at Ambala late in the night at
about 11.30 PM. Immediately thereafter, I got a message
from my neighbour, namely Mr. T.R. Malhotra giving me
the message that his (sic) brother Tirloki Nath at
Panchkula was no more, as he received this information
from some colleague of my brother. (Objected to). My
brother was murdered. At that time, it was not clear by
whom. Thereafter, I gave telephonic messages to my
relatives regarding the murder of my brother. So, I
alongwith my brother-in-law Mr. A.C. Puri, my sister Smt.
Radha Puri, my mother Smt. Raj Kumari, my wife
Meenakshi went to Panchkula. On our reaching at
Panchkula, we found two ASIs sitting outside the house
of Smt. Gargi. On my enquiry, as to what had happened
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to my brother, I was told that I should go up-stairs and
found out myself. We all went up-stairs and found the
dead body of Tirloki Nath hanging with a fan. The feet of
my brother were touching the floor. Blood was noticed on
the floor. The body was giving bad odour. I reported the
matter to the police vide statement Ex. PH. It was signed
by me.…….”
3.2.1. This witness PW-7, in his cross-examination on behalf of the
appellant, stated, inter alia, as under: -
“It is correct that I was 1½ years old when my father died.
Tirloki Nath was the eldest son of the second marriage of
my mother.…..There are two brothers and two sisters
from the second marriage of my mother. My father died
as told, due to cancer at Delhi, in the year 1961. It is
incorrect to suggest that Tirloki Nath deceased had
brought up all the children of my mother from both the
marriages. ….He bore expenses for some time regarding
my education etc. The marriage of my brother Tirloki
Nath was performed about 19-20 years ago.….My
mother is having no source of income except the family
pension due to my father’s death and some rental
income. My mother had given on rent a house situated in
Adarsh Nagar, Ambala Cantt. I joined Navy in the year
1978. I was married in the year 1984. It is incorrect to
suggest that all the expenses of my joining the service
and on my marriage were borne by my brother Tirloki
Nath. Since I was attached to my mother very well, I left
my Navy job. Tirloki Nath after his marriage with Smt.
Gargi probably in the year 1978, left my mother alone
and started living separately and so this was the main
reason that I left my Navy job in the year 1980. It is wrong
to suggest that I was involved in some case in the Navy
and the police was after me and I absconded and left my
job. After leaving Navy, I joined Forbes Forbes, Camp
Bell & Co. Ltd. at Jammu in the year 1981 or 1982 as
Sales Executive…… I never took my mother to Jammu
because I started my business at Karnal and opened a
kiryana shop. It is wrong to suggest that I committed a
fraud at Jammu and my services were terminated and
thereafter I started a kiryana shop at Karnal. It is correct
that the house in Adarsh Nagar, Ambala Cantt was sold
and the proceeds of that house were utilised by me in
opening a kiryana shop at Karnal. My mother started
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living with me at Karnal. It may be that the house was
sold in the year 1980 and the sale proceeds were utilised
by opening a kiryana shop, which was closed by me,
because I did not like that business. After winding up my
kiryana shop, I came to Ambala Cantt and settled with my
mother. It is wrong to suggest that I misutilised the
amount and so was having no option except to close the
business and come back to Ambala Cantt.……I have
been serving as Manager in hotels, namely Hide Out
Tourist Complex, Palwal and Standard Hotel, Ambala
Cantt…. I was working with Camlin Ltd. Bombay but was
posted at Ludhiana as Sales Promotion Organizer (North)
for a period of about 3½ years. It is wrong to suggest that
I committed a fraud at Ludhiana and my services were
terminated accordingly. It is incorrect to suggest that I
have been getting different Jobs with the efforts of Tirloki
Nath deceased alone. I joined Veeto Hobbies Ambala for
some time as Manager Marketing. It is wrong to suggest
that I also committed a fraud and so my services were
terminated.….I started my factory at Ambala Cantt. That
factory was closed after two years.…..It is correct that I
obtained bank loan for running my factory but not due to
the efforts of Tirloki Nath. There was no surety. It is
incorrect to suggest that I pressurized Smt. Gargi to
stand as a guarantee against bank loan, and on the
refusal of Smt. Gargi, my brother Tirloki Nath stood as a
guarantee. I have made payment of loan more than half
the amount taken by me.….
…..It is incorrect to suggest that one Mr. Narang had filed
civil suit against me and the company and which case
was won by me. It is incorrect to suggest that Mr. Tirloki
Nath had made payment to Mr. Narang and got the
matter settled. Tirloki Nath might have come ten days,
fifteen days prior to 28.4.1997, as he was constructing a
house at Ambala Cantt. He used to complain against the
behaviour of his wife. It is incorrect to suggest that the
house was not being got constructed at Ambala Cantt by
Tirloki Nath for himself but was being constructed for the
residence of the mother ….”
3.2.2. In his further cross-examination on behalf of the appellant, this
witness stated as under: -
8
“…….There was only one ancestral house at Model
Town, Ambala City (Adarsh Nagar). There is no other
immoveable (ancestral) property.…….I do not know for
how many days Tirloki Nath used to remain on tour in a
month. It is correct that he was going on tour oftenly..…
On 28.4.97, I went on tour after meeting my brother…I
did not give any telephonic call to him in the night time of
28.4.97 or even in the day time as to why he had not
reached Ambala Cantt with his luggage, as told by
him….I never enquired either on 29.4.97 or thereafter
from Tirloki Nath for his not coming to Ambala Cantt with
luggage……We talked to the Police officials for about 15
minutes in order to know the facts of the case. Thereafter
we went up-stairs, and started weeping and crying. 2/3
ladies two brothers of Smt. Gargi, one uncle of Smt.
Gargi, and aged person were present at the time, when
we reached. The children of Gargi were also present
there at the first floor. No person was sitting with the dead
body of Tirloki Nath at the time we had gone there-
(volunteered). In the morning time about 25 persons from
the neighbourhood had also come there, after my
statement was recorded by the ASI.…..I do not know
whether the tenants on the ground floor came in the year
1990 and litigation with them started in the year 1991….I
do not know whether the house at Panchkula was
constructed with the joint income of Tirloki Nath and Smt.
Gargi….It is incorrect to suggest that I was after Tirloki
Nath to get money even after pledging the house. It is
incorrect that there was any pledging of the house in
question and there was any opposition from Smt. Gargi in
this regard….It is incorrect to suggest that in order to
grab the house, I have falsely named the accused in this
case...”.3
3.3. PW-8 Radha Puri (sister of the deceased) purportedly
corroborated the testimony of PW-7. The relevant parts of her
assertions in the examination-in-chief could also be usefully extracted
as under:-
3 There had been further cross-examination of this witness PW-7 on behalf of the other
accused persons where he was, inter alia, confronted with his police statements which did
not carry some of the assertions made in the Court. However, all the major aspects of his
testimony having occurred in the extraction hereinabove, the other parts of his testimony in
further cross-examination are not being extracted.
9
“…..Tirloki Nath had come to Yamuna Nagar on
25.1.1997 and met us. He was very much disturbed and
upset at the time. He told me that there used to remain
tense situation at every time in the house because Smt.
Gargi wanted that the house at Panchkula should be got
mutated in the name of Smt. Gargi. He further was told
that he was afraid of Smt. Gargi and her brothers and he
apprehended danger to his life….He stated that he was
residing in a room at the top floor of the house and was
getting meals from the Hotel. Tirloki Nath had stated that
2/3 times, he was attacked by Smt. Gargi and the
children and that he had saved himself some-how or
other. Tirloki Nath stated that Smt. Gargi was having
illicit relations and she never told where she used to go.
He stated that on an enquiry from Smt. Gargi, she always
replied that he was having no concern to ask such
questions. According to Tirloki Nath, he was not allowed
even to use bath-room facility. He was using bath-room
of the tenants on the ground- floor. However, we pacified
him. We were never allowed to visit our brother Tirloki
Nath at Panchkula by Smt. Gargi.
On 1.5.97, I came to know through my brother Brij
Bhushan that Tirloki Nath had committed suicide. He told
that as per the information, the neighbourers at
Panchkula told that Tirloki Nath had committed suicide.
So, I alongwith others reached Panchkula, and saw Smt.
Gargi, her brothers and sisters enjoying tea at the second
floor of the house. I thought that my brother had gone to
Hospital and was saved and that was the reason that
they were enjoying the tea. Thereafter, the police came
and we went up-stairs, where the dead body of Tirloki
Nath was found hanging with a ceiling fan.…. I suspect
that Smt. Gargi alongwith her brothers had murdered my
brother Tirloki Nath.”
3.3.1. In her cross-examination on behalf of the appellant, this witness
PW-8 Radha Puri stated, inter alia, as under: -
“On 1.5.97, at night time about 11 PM, I was sleeping and
my husband awoke me and told after hearing the
telephone that Tirloki Nath was no more in the world and
started weeping….. I myself, my husband, my brother Brij
Bhushan, and his wife and my mother then went to
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Panchkula during night time…..Some police officials were
sitting at the entrance of the gate of the house. ….Firstly
we went to first floor, where we saw Gargi, her brothers,
children and relatives to whom I do not know. There was
no person from the mohalla, where the policemen were
sitting. …..I do not know whether house No. 1297, Sector
15, Panchkula was built out of the joint income of Smt.
Gargi and her husband Tirloki Nath. I do not know
whether Gargi had taken any amount by way of advance
from the Govt. or not.
……….I do not know whether Smt. Gargi and her
husband were having cordial relations or not in the year
1994, when I visited her because I stayed there for a
night and did not talk much, as the friend of Smt. Gargi
and her children alongwith her husband had come there.
I do not remember the names or antecedents of those
persons. On 25.1.1997 when my brother Tirloki Nath had
come to Yamuna Nagar, I found him very much disturbed
and he talked to me regarding the behaviour of Smt.
Gargi. I was alone. I narrated the facts to my husband in
between the period from 25.1.97 to 1.5.97. I did not tell
the aforesaid facts to any one else. It is incorrect to
suggest that Brij Bhushan my brother was helped in his
education, service and in his up-bringing by Tirloki Nath
deceased. It is correct that the ancestral house was sold
by my brother Brij Bhushan. However, it is wrong to
suggest that he misappropriated the sale proceeds of the
house. I do not know when the house was sold. I do not
know whether Tirloki Nath was having any plot in Ambala
Cantt or not. Again said, the plot at Ambala Cantt is in
the name of my mother. Again said, I cannot say exactly
in whose name it is…It is correct that I did not make any
verification from any quarter regarding illicit relations of
Smt. Gargi, as told by my brother Tirloki Nath. I believed
my brother what Tirloki Nath stated to me regarding the
ill-treatment meted to him from Smt. Gargi. This was also
told by my mother. My brother had told all about this to
all the family members (sic).….I enquired from Vaishali
daughter of Tirloki Nath as to how Tirloki Nath had died.
She did not tell even a word, though I was crying
throughout. Vaishali told me as to why we had come
there because we were not called there..…...”4
4 There had been further cross-examination of this witness also on behalf of the other
accused persons where she was, inter alia, confronted with her police statements which did
not carry several of the assertions made in the Court. However, all the major aspects of her
11
3.4. ASI Amar Singh led in evidence as PW-9. He had arrived at the
spot after having received the information about the death of Tirloki
Nath. As regards the mode and time of receiving information, this
witness stated that “a telephonic message was received that one
person in House No. 1297, Sector 15, Panchkula had committed
suicide. This information was received at 11.15 PM.” In his crossexamination, PW-9 stated, inter alia, as follows:-
“…Smt. Gargi and her children were on the first floor of
the house, whereas the dead body was on the top floor
of the house. I did not record the statement of Smt.
Gargi and her children. I have been making formal
investigation before the arrival of complainant etc. I have
not kept any record qua the formal investigation. The
neighbourers did not come to the spot, though they were
found by me standing in the street. I did not call any one.
I have been giving information to the officers on
telephone.…..I did not join any independent witness
from the locality…”
(underlining supplied)
3.5. Inspector Jag Parvesh, who carried out major part of
investigation, was examined as PW-10 and stated in his examinationin-chief that he reached the hospital on 02.05.1997 where he was
handed over the statement EX.PH as made by PW-7; the inquest
report Ex.PH/2 prepared by PW-9; and the post-mortem report EX.PA.
He drew up the necessary proceedings; recorded statements under
Section 161 of the Code of Criminal Procedure Code ('CrPC');
testimony having occurred in the extraction hereinabove, the other parts of her testimony in
further cross-examination are not being extracted.
12
collected blood from the spot; and arrested the appellant. In his crossexamination, this Investigating Officer stated, inter alia, as under: -
“…….I made verification from the locality regarding the
character of Smt. Gargi but did not record any
statement. I do not remember the names of those
persons.
I verified from 5/10 persons of mohalla. I did not mention
this factum in the report u/s 173 Cr.PC. Report was
prepared by the then SHO. …I interrogated Gargi
accused while in custody. She had told that she was
innocent and had not committed any offence…Gargi
accused had told me that she was not having any
dispute with her husband and was having cordial
relations. I joined the children of Gargi accused in my
investigation. I have not recorded their statements and
as such, no record is there. The interrogation of Gargi
was recorded in the zimini. I did not take finger prints
from the rope. I had not at all taken finger prints from
any other place where the dead body of Tirloki Nath was
found. However, Finger Print Expert visited the place.
None has told me that Brij Bhushan complainant used to
harass Gargi and Tirloki Nath to extract money from
them. It is correct that the stairs in the house are outside
the door. If the door is closed, none can notice who is
coming down and who is coming up. I investigated
regarding the visitors in the house during the 3/4 days
prior to the 2.5.97 and I had come across one Pandit
who visited that house during this period. Smt. Gargi
told that one Pandit was brought for performing Havan. I
made verbal enquiries from the neighbourhood. ……
……I had recorded statements of other witnesses i.e.
mother, sister and brother-in-law of deceased in the
hospital. …There is a direct stair case from the ground
floor to the top floor of the house of Gargi and one can
go upstairs and come down stairs without entering any
room on the first floor…..”
(underlining supplied)
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3.6. PW-2 H.S. Narula, the Deputy Manager, Oriental Insurance
Company, Sector 22, Chandigarh was examined by the prosecution to
testify that the deceased was working in his Company as Assistant
Administrative Officer, who lastly attended the Office on 28.04.1997. In
his cross-examination, this witness admitted the fact that deceased
Tirloki Nath used to remain on tour for about two weeks in a month.
3.7. PW-3 Manohar Lal, who was working as a constable in S.P.
Office, Ambala drew up the site plan Ex. PD of the place where the
body of deceased was found. In his evidence, PW-3 pointed that there
was a bathroom-cum-toilet, attached with the room on the second floor.
The site plan of second floor (Ex. PD) shows about 10 feet x 3 feet
space marked as bath/toilet.
3.8. PW-4 Sant Lal Gupta, the then Assistant Audit Officer, AG Audit,
Punjab, Chandigarh testified to fact that the appellant was working as
Senior Auditor in his office; that she was on casual leave on
28.04.1997 and 29.04.1997; and that she attended the office on
30.04.1997 and 01.05.1997. In his cross-examination, this witness
expressed want of knowledge if the appellant often used to come to the
office with her husband and used to leave after office hours with her
husband. This witness also stated that ‘no complaint was received
from the side of husband of Smt. Gargi or any other relation of
husband of Smt. Gargi against Smt. Gargi’.
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3.9. The other witnesses examined by the prosecution had been PW5 Head Constable Ramesh Kumar; PW-6 UGC Baldev Singh; PW-11
Shashi, who took the photographs at the site; and PW-12 SI Ishwar
Chander, who also partly investigated the case.
4. On behalf of the appellant, several features of the prosecution
evidence have been highlighted with the contentions that there had
been stark inconsistencies, contradictions, improvements and twists in
the testimonies of PW-7 and PW-8; and that there had been several
failings in the investigation. We shall refer to these features and
contentions hereafter a little later.
Defence Version and Evidence
5. The appellant in her statement under Section 313 CrPC stated,
inter alia, that her husband had informed about his going on a tour on
29.04.1997; and that she had taken casual leave on 28.04.1997 and
29.04.1997 on account of her ill-health. She also stated that she and
her husband were having cordial relationship and would share the bed
with their son. She also stated that the case against her was a
motivated one and that she was not guilty of committing the murder of
her husband. Some of the answers given by the appellant in her
statement under Section 313 CrPC may be usefully extracted as
under:-
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“Q:5 It is further in evidence against you that Tirloki Nath
used to reside at the top floor as you have not allowed
him to reside with you and your children. He was using
independent cylinder in his room to prepare tea and he
had further told that once you had opened the gas
cylinder in order to kill him. What have you to say?
Ans: It is incorrect. He was residing with the family on
the first floor. I and my husband have one common bed
room and my son Vaibhav was also sleeping with us in
the same bed room.
The top floor was never used for residence purposes.
The same was being used as a store & for some time a
family friend used to stay there.
Q:6 It is further in evidence against you that on the
night of 1.5.1997 at about 11.30 p.m. Brij Bhushan PW
received a message that his brother Tirloki Nath at
Panchkula was no more and that he was murdered. He
gave a telephonic message to his relatives and he
alongwith his brother in law A.C. Puri, Sister Smt. Radha
Puri, mother Raj Kumari and his wife Meenakshi went to
Panchkula and found two ASI were sitting outside the
said house. What have you to say?
Ans: It is incorrect. I advised Mr. Bhutt a colleague of
deceased Tirloki Nath to telephonically inform all the
relations and friends and Mr. Bhutt gave the information
of death to Mr. Brij Bhushan.
*** *** ***
Q:8 It is further in evidence against you that the police
of P.S. Sector-19 Panchkula received an information
regarding that the dead body of Tirloki Nath was hanging
with the ceiling fan in House No. 1297/15, Panchkula. ASI
Amar Singh alongwith other police officials reached the
spot and informed the relatives of the deceased. He also
summoned the photographer, who took snaps of the spot.
Negatives are Ex. P6 to Ex. P8 and positives are Ex. P9
to Ex.P11.
Ans: It is incorrect. In fact, the police did not reach the
spot but was brought by Mr. Bhutt.
*** *** ***
16
Q:12 It is further in evidence against you that Tirloki Nath
deceased attended his office on 28.4.1997. Thereafter he
did not come to the office and you remained on casual
leave on 28.4.1997 and 29.4.1997 and attended the
office on 30.4.1997 and 1.5.1997. Letter to this effect is
Ex.PE. What have you to say?
Ans: It is incorrect. However, on 29.4.97 morning my
husband informed me that he was to go on tour and
would be back on 3.5.97, in the evening & he would go to
Ambala also before coming to Chandigarh/Panchkula. I
was sick on 28th & 29th April, 97.
*** *** ***
Q:15 Why this case has been made against you and why
the witnesses are deposing against you?
Ans:- This is a false case and PWs have deposited (sic)
falsely. The case has been made up at the instance of Brij
Bhushan who wanted to grab the property of my
husband.
Q: Do you want to say anything else?
Ans:- I am innocent. I have been falsely implicated in the
case by Brij Bhushan & his sister who wanted money
from me at the time when I was taken by the police in the
morning of 2.5.97.”
5.1. Four witnesses were examined in defence. One of the relevant
witness had been DW-3 Surinder Kumar Bhat, said to be a family
friend and colleague of the deceased. The relevant assertions of this
witness in the examination-in-chief read as under: -
“I knew Tirloki Nath deceased for the last about 18 years. I
belong to J&K State. Tirloki Nath was also of that place.
So, I knew him well. He was working in our office but at the
time of death, he was in Sector 22 branch of our Insurance
Co. in Sector 22, Internal Audit cell of our Insurance Co. is
located where deceased was working at the time of death.
The house of Tirloki Nath is at a distance of 1½ furlongs
from my house in sector 15, Panchkula. I was having
friendly as well as homely relations with Tirloki Nath
deceased. I know Smt. Gargi accused present in the court.
17
She is the wife of Tirloki Nath deceased. Whenever I
visited the house of Tirloki Nath, I always found cordial
relations between Tirloki Nath and Smt. Gargi Devi. Tirloki
Nath never complained as a friend to me against Smt.
Gargi. So far as I can say, Smt. Gargi is enjoying a good
reputation in the Mohalla. I know Brij Bhushan, the
younger brother of Tirloki Nath deceased. Tirloki Nath
used to remain disturbed because his younger brother
always demanded money from him. I know that Tirloki
Nath deceased had helped Brij Bhushan in getting some
employment for Brij Bhushan in J&K State about 9 years
back with great efforts. We have formed a society known
as General Insurance Employees Cooperative Thrift and
Earner Society. I am the Vice President of the said society.
Tirloki Nath in mid April, 1997 met me alongwith his
brother Brij Bhushan and wanted some loan from our
society. But I could not help due to certain obligations,
which could not be met with. I came to know at 6.30 – 7
PM on 1.5.97 that Tirloki Nath had committed suicide. I
went to the house of Tirloki Nath. There were many
persons collected then. I went to Police Station, Industrial
Area, Panchkula to report the matter at 9.30 PM on 1.5.97.
Smt. Gargi after my meeting with her, gave me telephone
numbers for giving information to the relations of Tirloki
Nath deceased at Ambala. At about 11 PM, the information
was conveyed to Brij Bhushan who reached Panchkula at
4 AM on 2.5.97. Two-three police officials came alongwith
me at the residence of Tirloki Nath deceased….. I
remained throughout the night of 1.5.96 (sic) and left for
my house at 6.30 AM on 2.5.97. No photographer came
there in my presence. I did not notice any gas cylinder in
the room where the dead body of Tirloki Nath was found.
The house of Tirloki Nath is two storeyed building having
ground floor in addition. Some tenant was residing at the
ground floor at the time Tirloki Nath had died. That tenant
has not vacated the house, though not residing now. There
are outer stairs upto second storey and one can go upstairs without entering into the ground floor and first floor.
There is gate of grills in between ground floor and first
floor. It is correct that the lock of the gate can be opened
from both the sides viz. from inside as well as from out
side…..”
5.1.1. This witness was thoroughly cross-examined by the prosecution
where he stated, inter alia, as under:-
18
“I treat Gargi accused as my Bhabi being wife of my
deceased friend- Tirloki Nath. We have kept complete
record of our credit society. Tirloki Nath did not give any
application in writing for raising loan from our society….. It
is incorrect to suggest that deceased alongwith Brij
Bhushan never came to me for any demand of loan a
month prior to the occurrence and I am deposing falsely
just to support accused…..I have not kept any slip where I
noted down the telephone numbers of Ambala for
information the relations of Tirloki Nath deceased…….It is
correct that if the gate in between first floor and ground
floor is locked from both sides, no one can go up-stairs. At
the time I reached the house of Tirloki Nath, the gate was
open and people were coming and going from there. No
one told that the lock or bolt of the grill gate of upstairs
was broken by some one. It is also correct that Tirloki Nath
with my assistance succeeded in getting employment for
his brother Brij Bhushan in J&K State about nine years
back. This he did being a brother. I did not help Brij
Bhushan thereafter. …..It is incorrect to suggest that Tirloki
Nath deceased was residing all alone in the upper room of
the house and was not residing with his family members.
In fact, he was residing with his family members on the
first floor. It is incorrect to suggest that Smt. Gargi was
harassing her husband unnecessarily with the help of her
brothers on one pretext or the other……”
5.2. DW-4 Akhilesh Bhatnagar, Assistant, Oriental Insurance
Company, Chandigarh was examined in relation to the tour programme
of the deceased Tirloki Nath from 06.01.1997 to 31.01.1997 and the
hotel expenses bills paid by the Company, which show that the
deceased was at Karnal from 14.01.1997 to 01.02.1997. The testimony
of other witnesses DW-1 and DW-2 is not relevant for the purpose of
this appeal as they were examined in relation to the plea raised by the
co-accused persons as regards their employment.
The Trial Court found all the accused persons guilty
19
6. The Sessions Court, in its judgment and order dated 09.06.1998,
accepted the prosecution case; and while rejecting the contentions
urged on behalf of the accused, held that the chain of circumstances
was established by the prosecution, bringing home the guilt of the
accused persons. The Trial Court, accordingly, convicted them for the
aforementioned offences of criminal conspiracy and murder and
awarded sentence of rigorous life imprisonment together with fine of
Rs. 2,000/- each with default stipulations.
6.1. The Trial Court concluded that the deceased was done to death
by way of strangulation, essentially on the basis of medical evidence
and with reference to the position of the hanging dead body and other
features at the spot, like the one that door of the room in question was
not bolted from inside. The finding that the appellant had committed the
offence with her brothers in the intervening night of 28/29.04.1997 got
its basis, inter alia, in the statement allegedly made by the deceased to
PW-7 prior to his departure from Ambala Cantt. where he expressed
fear of his life, as also in the facts that the appellant had taken leave
from her office for 28.04.1997 and 29.04.1997 and that the appellant
and her brothers were not grieving when the body of the deceased was
found.
The High Court affirmed the conviction of appellant while
acquitting her brothers
20
7. The appeals preferred by the appellant and her brothers against
the judgement and order aforesaid, being Criminal Appeal No. 341-DB
of 1998 and Criminal Appeal No. 359-DB of 1998, before the High
Court of Punjab and Haryana at Chandigarh were considered together
and decided by the common judgment dated 05.03.2008. The High
Court held that it had been a case of homicide, essentially with
reference to the medical evidence and the features of the scene of
crime. The High Court also held that the culpability of the appellant
stood established in view of the circumstances that: (a) when the
appellant was sharing the same bedroom with deceased Tirloki Nath,
the onus was heavy upon her to explain the circumstances leading to
the death of her husband, which she failed to discharge; (b) the
appellant had the motive to murder her husband when there were
strained relations between them and the deceased had expressed
apprehension to be done to death by the appellant; (c) the subsequent
conduct of the appellant was also questionable, where she was found
taking tea with her brothers on the first floor although the dead body of
Tirloki Nath was hanging by rope in the Chaubara at the top floor; (d)
and the appellant did not send any information to the brothers and
other relations of Tirloki Nath immediately after noticing his demise.
The High Court, however, rejected the prosecution case that brothers
of the appellant had conspired with the appellant to carry out the
murder and hanging of the deceased Tirloki Nath. Even after rejecting
21
the prosecution case against brothers of the appellant, and even after
finding that the crime in question was not the handiwork of one person,
the High Court proceeded to observe that the appellant was rightly
convicted in the matter as the principal offender, though the
investigating agency failed to find out the other persons who were
accomplice in this crime. The High Court also observed that the Trial
Court had discussed threadbare the defence evidence and had rightly
disbelieved the testimony of DW-3 Surinder Kumar, who was
introduced by the appellant as an afterthought.
7.1. With the aforesaid findings and observations, the High Court
upheld the conviction of the appellant but acquitted her brothers on the
ground that there was no evidence on record to prove the existence of
any conspiracy to murder the deceased. The High Court, inter alia,
observed and held as follows:
“21. …..Tirloki Nath was sharing the same bed room, in
which Gargi Devi used to sleep, as stated by her in her
statement under section 313 Cr. P.C. The dead body of
Tirloki Nath was found hanging in the same house, in the
chaubara. Thus, heavy onus lay on Smt. Gargi to explain
the circumstance, leading to his death. She only stated, in
her statement under section 313 Cr. P.C. that she was
falsely implicated, in the instant case, and that the entire
investigation, was at the instance of Brij Bhushan, PW.7.
She, therefore, did not furnish any explanation, with regard
to the circumstances, leading to the death of Tirloki Nath.
This clearly proved her culpability.
*** *** ***
23. There were strained relations, between Tirloki Nath
and his wife. From the statement of Brij Bhushan, PW-7
and Radha Puri, PW-8 it was proved that Tirloki Nath was
22
tense and upset, as he was being ill treated by his wife. It
is has also come in the statement of Radha Puri, PW-8,
that Tirloki Nath was fearful that he would be killed one
day. When Tirloki Nath met Radha Puri, his sister, and his
brother-in-law, in Ambala he told them that he was
apprehending danger to his life at the hands of Smt. Gargi
his wife. Even, it is evident, from the statement of Brij
Bhushan, PW7, that Tirloki Nath was being ill-treated by
his wife Smt. Gargi. Even on 28.4.1997 in the morning
when Tirloki Nath left the house of Brij Bhushan, at
Ambala, for Chandigarh, he told him that it was his last
visit to Panchkula, as he would be coming with his
luggage, to permanently settle at Ambala, as he was
fearing that he would be done to death by his wife Smt.
Gargi. These last words spoken by him to his brother, Brij
Bhushan on 28.4.1997 in the morning, as stated above,
fall within the purview of his dying declaration. It was on
account of the strained relations, between Triloki Nath has
his wife Smt. Gargi that she committed her murder by
strangulating him and thereafter hanged his body with
ceiling fan (sic). Smt. Gargi was definitely having a motive
to commit the murder of Triloki Nath, for the reasons
referred to hereinbefore. The motive plays a very
significant role, in case, which is based on the
circumstantial evidence. The culpability of Smt. Gargi,
accused is thus proved.
*** *** ***
29. No doubt, it may be said that the commission of
crime, in this case could not be the handwork of one
person only. Smt Gargi might have taken the help of some
other persons, in hanging the body of Tirloki Nath,
deceased after strangulating him, but it was not proved as
to who those persons were. As stated above, it was also
not proved that accused Shuhabs Tiwari, Ramesh Tiwari
and Rajneesh Tiwari hatched conspiracy with Smt. Gargi
and in pursuance thereof committed the murder of Tirloki
Nath. Who were those persons, was for the Investigating
Agency to find out. Even if, the Investigating Agency, failed
to find out those persons, Smt. Gargi could not absolve
herself of the liability. Smt. Gargi being the principal
offender was rightly convicted and sentenced for the
commission of offence punishable under section 302 IPC"
(underlining supplied)
23
Rival Contentions
8. Assailing the judgment and order aforesaid, learned counsel for
the appellant has strenuously argued that the appellant has been
falsely implicated in this case by her in-laws, whose main aim was to
grab the property of the deceased, while the actual culprits have
escaped the prosecution. The learned counsel has elaborated on the
submissions that the relations between the deceased Tirloki Nath and
his brother, PW-7 Brij Bhushan (the complainant) were strained
because of property dispute for, at one point in time, their mother had
bequeathed all the properties in favour of the deceased, which was not
appreciated by the complainant and the deceased got the property at
Ambala Cantt. registered in his name just a month prior to his untimely
demise. The learned counsel has referred to the statement made by
the appellant under Section 313 CrPC to submit that the appellant and
deceased were married for about 18-19 years; their relations were
cordial; and they were leading a happy married life. The learned
counsel has particularly referred to the statement made by the
appellant that she and her deceased husband were sharing the
bedroom with their son and that the room on the top floor of the house
was not used for any other purpose except as a store.
8.1. The learned counsel has also argued that if the complainant
(PW-7) was aware on 28.04.1997 that the deceased apprehended
some form of danger to his life and the deceased had stated that he
24
would be returning with his baggage, it remains inexplicable that this
witness did not make any effort to find the whereabouts of the
deceased for a period of three days and until he got the news of
demise. The learned counsel has also attempted to submit that the
complainant had several vices; that several criminal cases were
pending against him; and his family members had published a
newspaper advertisement that anyone dealing with him shall be doing
so at his own risk.
8.2. The learned counsel would submit that the case at hand hinges
around circumstantial evidence but there is no connecting link to
associate the appellant to the murder of her husband; and the
prosecution has failed to prove the motive of the appellant. The learned
counsel for the appellant has also argued that there were lapses on
part of the police while collecting evidence where the FIR was
registered only after the arrival of complainant and his family members
and the statements of the persons who had gathered at the scene
were not recorded at all.
8.3. The learned counsel has also assailed the findings that it had
been a matter of strangulation and hence of a homicidal death with the
submissions that as per medical jurisprudence, in case of
strangulation, some scratches, abrasions, bruises etc. would be found
on the dead body and hyoid bone would be found broken but, in the
present case, there were no such marks nor hyoid bone was broken.
25
8.4. The learned counsel has further contended that strangulation of
the deceased and then, hanging of his dead body from the ceiling fan
could not have been carried out by one person alone and it remains
entirely improbable that such tasks were carried out by a frail lady like
the appellant. Thus, according to the learned counsel, with the acquittal
of brothers of the appellants, the alleged chain of circumstances is
broken on the material point and the appellant deserves to be acquitted
on this count alone.
8.5. The learned counsel for the appellant has referred to several
decisions of this Court, including those in Rajkumar v. State of M.P.:
(2004) 12 SCC 77; Sonvir alias Somvir v. The State (NCT of Delhi):
(2018) 8 SCC 24; Ramesh and Ors v. State of Rajasthan: (2011) 3
SCC 685; SK. Yusuf v. State of West Bengal: (2011) 11 SCC 754;
and Sawal Das v. State of Bihar: (1974) 4 SCC 193.
9. Per contra, learned counsel for the respondent has duly opposed
the submissions made on behalf of the appellant with reference to the
evidence on record and the finding recorded by the Trial Court and the
High Court.
9.1. So far as the question as to whether it had been a case of
homicide or the deceased had committed suicide, learned counsel has
argued that in case of suicide, the dead body would be in a suspended
position, feet would not reach the floor and knees would also not bend,
26
as found in the present case. The learned counsel has supported the
finding of the Trial Court that in almost all cases of suicide, the door
would be closed from inside rather than being left open, as had been
the scenario of the present case. Learned counsel has also highlighted
that it was not a mere coincidence that the appellant remained on
casual leave during the very period when the deceased was done to
death; and when the deceased was admittedly seen last in the
company of the appellant on 29.04.1997 and when his corpse was
found hanging in their own house on 01.05.1997, burden was heavy
upon her to explain if the deceased had gone anywhere else, but she
has altogether failed to discharge such a crucial burden. In the totality
of circumstances, according to the learned counsel, the conclusion
remains inevitable that the appellant, with her accomplice, had
strangulated the deceased and hanged him by a rope to cover-up the
scene as that of suicide.
9.2. In relation to the argument that the complainant had not
attempted to contact the deceased for the three days after he had left
Ambala Cantt., despite being aware that the deceased apprehended
danger to his life, learned counsel for the respondent has argued that
the incident took place in the year 1997 when mobile phones and
connectivity was not available to all and there was no telephone
connection on the top floor of the house. Thus, according to the learned
27
counsel, in the given circumstances, mere want of efforts on the part of
PW-7 to contact his brother would not falsify the prosecution case.
9.3. The learned counsel for the respondent has vehemently
contended that the factors like some minor and irrelevant variations in
the statement of prosecution witnesses or want of some additional
evidence are of no effect because the material aspects stand
established on record; and all the proved circumstances form a
complete chain, ruling out any other hypothesis except guilt of the
appellant and hence, she has rightly been convicted.
Preliminary Observations
10. Having given anxious consideration to the rival submissions and
having scanned through the entire record with reference to law
applicable, we are impelled to say at the outset of discussion that in
this matter, several fundamental shortcomings in the investigation and
several loopholes in the prosecution propositions got overlooked by the
Trial Court as also by the High Court. In an overall comprehension of
the matter, we are clearly of the view that it would not be safe to accept
the projected propositions of the prosecution and to convict the
appellant for the offence of murder of her husband.
The circumstances relied upon and the point for determination
11. It is at once clear that in this case, no direct evidence is available
in answer to the material questions as to how the deceased, husband
28
of the appellant, met with his untimely death; and if it were not a case
of suicide, who had carried out the gruesome and ghastly act of killing
him and hanging the dead body in his room? The Trial Court and the
High Court have held that the major circumstances projected by the
prosecution against the appellant have been established beyond
doubt, though the High Court has not accepted the prosecution case
that the brothers of appellant were conspirators and collaborators in
the crime. It is contended on behalf of the appellant that it had been a
case of suicide; that there was no motive on the part of the appellant to
eliminate her husband with whom she was having cordial relations and
was leading a happy married life; that the deceased and the appellant
were lastly in each other’s company on 29.04.1997 when the deceased
informed her that he shall be going on tour and would be returning by
03.05.1997; and that the appellant’s prosecution was fenagled by the
brother of her husband, who was having an eye on the property. On
the other hand, according to the prosecution, the crucial circumstances
stand established that the homicidal death was covertly sought to be
shown as a case of suicide; that the appellant had the motive and
intent to kill her husband; that the deceased was lastly in the company
of the appellant; and that the appellant failed to offer any explanation
as to how her husband got killed and was hanged though the dead
body was found in the same house where deceased was residing with
her.
29
11.1. In other words, what is argued in this case for the prosecution is
that the entire chain of causation has been established beyond all
reasonable doubts. It is submitted that the evidence on record has
clearly brought forth the following major factors against the appellant:-
a) that the death of the deceased was homicidal in nature and it
had not been suicidal as was sought to be projected by the culprits by
hanging the dead body from a rope;
b) that the deceased had strained relations with his wife, the
appellant, for she was indulgent in illicit relations and was insistent on
transfer of property in her name;
c) that the deceased was having, and had expressed, imminent
danger to his life at the hands of his wife, the appellant;
d) that the deceased was last seen with the appellant and she had
failed to explain as to how the deceased met with his end; and
e) that as per the post-mortem report, death had occurred 24 to 72
hours before post-mortem examination on 02.05.1997 and the
appellant was at home during this period, as she was admittedly on
leave on 28.04.1997 and 29.04.1997.
11.2. The question is as to whether the Trial Court and the High Court
are right in holding that the aforementioned circumstances stand
established beyond reasonable doubt and do form a complete chain,
ruling out any other hypothesis except guilt of the appellant?
30
The principles governing circumstantial evidence
12. When the present case pivots around circumstantial evidence,
having regard to the questions involved, apposite it would be to take
note of a few fundamental principles governing the circumstantial
evidence and its appreciation.
13. It remains trite that in judicial proceedings, proof is made by
means of production of evidence, which may be either oral or
documentary. As regards its nature, the evidence is either direct or
circumstantial. The direct evidence proves the existence of a particular
fact that emanates from a document or an object and/or what has been
observed by the witness. The circumstantial evidence is the one
whereby other facts are proved from which the existence of fact in
issue may either be logically inferred, or at least rendered more
probable5
.
13.1. In umpteen number of decisions, this Court has explained the
essentials before a particular fact could be held proved by way of the
proof of other fact or facts; and has expounded on the principles as to
how circumstantial evidence need to be approached in a criminal case.
We need not multiply on the case law on the subject; only a brief
reference to the relevant decisions would suffice.
5 A Text Book of Jurisprudence by G.W.Paton, Fourth Edition, Page 598.
31
13.2. In the case of Chandmal and Anr. v. State of Rajasthan:
(1976) 1 SCC 621, this Court said:-
“14. It is well settled that when a case rests entirely on
circumstantial evidence, such evidence must satisfy three
tests. Firstly, the circumstances from which an inference of
guilt is sought to be drawn, must be cogently and firmly
established. Secondly, these circumstances should be of a
definite tendency unerringly pointing towards the guilt of
the accused. Thirdly, the circumstances, taken
cumulatively, should form a chain so complete that there is
no escape from the conclusion that within all human
probability the crime was committed by the accused and
none else. That is to say, the circumstances should be
incapable of explanation on any reasonable hypothesis
save that of the accused’s guilt.”
13.3. In the case of Sharad Birdhichand Sarda v. State of
Maharashtra: (1984) 4 SCC 116, this Court laid down the golden
principles of standard of proof required in a case sought to be
established on circumstantial evidence with reference to several past
decisions, including that in the case of Hanumanth v. State of
Madhya Pradesh: AIR 1952 SC 343, in the following:-
“153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against
an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is
to be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned “must or should” and not “may
be” established. There is not only a grammatical but a
legal distinction between “may be proved” and “must be or
should be proved” as was held by this Court in Shivaji
Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC
793] where the observations were made: [SCC para 19, p.
807: SCC (Cri) p. 1047]
“Certainly, it is a primary principle that the accused
must be and not merely may be guilty before a court
32
can convict and the mental distance between ‘may
be’ and ‘must be’ is long and divides vague
conjectures from sure conclusions.”
(2) the facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say,
they should not be explainable on any other hypothesis
except that the accused is guilty,
(3) the circumstances should be of a conclusive nature
and tendency,
(4) they should exclude every possible hypothesis except
the one to be proved, and
(5) there must be a chain of evidence so complete as not
to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have been
done by the accused.
154. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based on
circumstantial evidence.”
13.4. In the decision cited by the learned counsel for the appellant in
Sonvir (supra), this Court, after taking note of the other cited decisions,
pointed out the principles as under:-
“82.….Law of conviction based on circumstantial evidence
is well settled. It is sufficient to refer to the judgment of this
Court in Ramesh v. State of Rajasthan (2011) 3 SCC 685
where in para 17 the following has been held: (SCC p.
693)
“17. Before we proceed with the matter, it has
to be borne in mind that this case depends upon
circumstantial evidence and, as such, as per the
settled law, every circumstance would have to be
proved beyond reasonable doubt and further the
chain of circumstances should be so complete and
perfect that the only inference of the guilt of the
accused should emanate therefrom. At the same
time, there should be no possibility whatsoever of the
defence version being true.”
33
13.5. Thus, circumstantial evidence, in the context of a crime,
essentially means such facts and surrounding factors which do point
towards the complicity of the charged accused; and then, chain of
circumstances means such unquestionable linking of the facts and the
surrounding factors that they establish only the guilt of the charged
accused beyond reasonable doubt, while ruling out any other theory or
possibility or hypothesis.
13.6. Incidental to the principles aforesaid, which are neither of any
doubt nor of any dispute, profitable it would be to keep in view the
caveat entered by G.W. Paton6
as regards circumstantial evidence
thus:
“On the other hand, circumstances may mislead or false
clues may have been laid by the wrong doer to cast
suspicion on another”.7
Several loopholes in investigation; withholding of relevant
evidence by prosecution
14. Having taken note of the point arising for determination and the
basic principles to be kept in view while dealing with this case based
on circumstantial evidence, when we examine the record, several
shortcomings and loopholes in the investigation and in prosecution
6 ibid., page 598
7 This has been stated with reference to ¶514 in Criminal Law by C.S.Kenny wherein, it is
cautioned that: though ‘circumstances cannot lie’, they can mislead. They may even have
been brought about for the very purpose of misleading, as when Joseph’s silver cup was
placed in Benjamin’s sack, or when Lady Macbeth ‘smeared the sleeping grooms with
blood’.
34
evidence manifest themselves at once. Before analysing the evidence
adduced on record, it appears rather necessary to take note of such
features of shortcomings, which are apparent on the face of record and
have a material bearing on the questions involved.
15. In the present case, the very approach of the investigating
agency had been shrouded in so much of unexplained obscurities that
a question perforce arises if there had been a fair and unbiased
investigation of the crime in question?
15.1. The manner of dealing with this case by the investigating
agency, right at the inception, has left a few serious questions
unanswered i.e., as to when did the police receive information about
dead body of the husband of the appellant, by what mode, and through
whom? PW-9 in his testimony before the Court conveniently stated that
such an information was received through “telephonic message” but
did not state the particulars of such informant. No entry in the
roznamcha or general diary has been produced to show that such an
information was duly entered in the record before proceeding for
investigation. Significantly, in the first note drawn up in the matter at
5.30 a.m. on 02.05.1997 (EX. PH/1), PW-9 only stated that ‘the
information was received at the police station’. The fact that it had been
a telephonic information is conspicuously missing in Ex.PH/1. This
aspect has got a material bearing in the matter because the defence
witness DW-3 specifically testified to the fact that he was the first
35
person informed by the appellant about the demise of Tirloki Nath; and
that he went to the police station at about 9.30 p.m. on 01.05.1997 and
divulged the information. He further asserted having accompanied the
police to the site and having conveyed the information to PW-7.
15.2. It is also noteworthy that as per PW-7, he got the information
from one T.R. Malhotra at about 11.30 p.m. who, in turn, had received
the information on telephone from a colleague of the deceased. Neither
any enquiry was made from the said T.R. Malhotra nor any other effort
was made to find out the colleague of the deceased who had
telephoned him.
15.3. In the face of such a gap in the prosecution evidence, there
appears no reason to disbelieve the testimony of DW-3 Surinder
Kumar Bhat as regards the time of information to police and himself
being the informant. In such a scenario, it remains absolutely
inexplicable as to why the information given by DW-3 was not reduced
in writing and the proceedings were not conducted on that basis. This
question magnifies itself to tougher questions for the prosecution as to
the time when PW-9 ASI Amar Singh reached the site and with whom.
From the evidence on record and surrounding facts, it appears that the
said ASI had reached the site at around 10.30 p.m. accompanied by
DW-3 Surinder Kumar Bhat. The toughness of these questions further
amplifies into the harder, and unanswered, question for the
investigating agency as to why for a long period of about 4 to 5 hours
36
at the site, the ASI (PW-9) did not carry out any investigation and did
not record any statement.
15.4. It is not the case of prosecution that the ASI (PW-9) was
prevented by any reason to immediately attend on his duties after
reaching the site. It is also not the case that he attempted to make any
enquiry from any person until arrival of the complainant and other
family members of the deceased. Even if it be assumed that the other
family members of the deceased were on the way and the ASI knew
about this fact, nothing had prevented him from attending on his duties
of investigation. Strangely enough, even the first panchnama was
prepared only after reaching of the complainant. It is also not clear as
to why the statements of the children of the deceased were not taken
when his daughter, 16 years of age, was very much present at the site.
It is also not explained as to why in this kind of matter, carrying
suspicious overtones, PW-9 did not make any enquiry from any of the
neighbours, who were available at the site; and from the tenant, who
was residing at the ground floor of the same building and whose
washroom was allegedly being used by the deceased (as per the
assertion of PW-8)? It is difficult to say that the conduct of this
Investigating Officer (PW-9) had been totally free from doubt.
15.5. Apart from the above-noted omissions at the very initial stage,
we find absolutely no reason that the Investigating Officer PW-10, even
after allegedly making enquiries in the locality regarding the character
37
of the appellant from 5-10 persons, neither mentioned this fact in the
investigation report nor recorded the statement of anyone of them. This
Investigating Officer further stated to have joined the children of the
appellant in the investigation but did not record their statements either.
This Officer also did not bother to take the statement of the tenant,
whose testimony would have been of immense significance, looking to
the nature of accusations as also the factors related with the building in
question.
15.6. Moreover, in this matter, where it was prima facie appearing that
the clues available at the site might play a significant role in reaching to
the real culprits, it is also intriguing to notice that the Investigating
Officer did not take even elementary care to obtain fingerprints from
the material objects and to get them analysed properly. The
Investigating Officer (PW-10) has stated, rather with impunity, that he
did not take any fingerprints at all, even while admitting that the
fingerprint expert did visit the site. It is not stated that the so-called
expert expressed inability to collect such prints for any reason. It is left
only for one to wonder as to for what purpose did the so-called
fingerprint expert visit the site, if no prints were to be taken at all!
15.7. The above-mentioned unexplained shortcomings, perforce,
indicate that in this case, the investigation was carried out either with
pre-conceived notions or with a particular result in view. It is difficult to
accept that the investigation in this case had been fair and impartial.
38
From another viewpoint, on the facts and in the circumstances of this
case, the omissions on the part of investigating agency cannot be
ignored as mere oversight. These omissions, perforce, give rise to
adverse inferences against the prosecution.
16. In this case, it is also interesting to notice that though the
prosecution had cited the other relations of the deceased as witnesses,
including his mother and brother-in-law (husband of PW-8 - who had
otherwise signed the inquest report) but did not examine them before
the Court. Withholding of relevant witnesses could only lead to further
adverse inference that if examined, they would not have supported the
prosecution case. This is apart from the fact that the investigating
agency avoided to include any independent witness in the investigation
and did not carry out necessary enquires from the persons other than
in-laws of the appellant.
17. Hereinabove, we have only indicated a few broad aspects of
shortcomings and lacunae in the prosecution case which is otherwise
resting on circumstantial evidence and on the theory propounded by
the brother of deceased (PW-7), as supported by his sister (PW-8).
The upshot of the discussion foregoing is that the propositions
projected by the prosecution require deeper scrutiny to find if the case
against the appellant is established beyond reasonable doubt; and if
the elements of adverse inferences do not materially affect the
prosecution case.
39
Homicide or suicide
18. As noticed, the first question that concerns us in this matter is as
to whether death of Tirloki Nath was suicidal or it had been a matter of
homicide. The Trial Court as also the High Court have returned
concurrent findings that it had been a matter of homicidal death. Both
the Courts came to this conclusion essentially with reference to the
medical opinion that the cause of death was asphyxia due to
strangulation; and also with reference to some of the surrounding
factors that the feet of the hanging dead body were touching the floor;
the knees were bent; the slippers were not removed; and the room in
question was wide open. Assailing such findings, it is contended on
behalf of the appellant that as per medical jurisprudence, scratches,
abrasions, bruises etc. are usually present and hyoid bone would be
usually found broken in case of strangulation but, in the present case,
there were no such marks nor hyoid bone was broken.
18.1. We have closely examined the testimony of PW-1 Dr. Usha
Bansal, who was one of members of the board that had conducted
post-mortem. We have also taken into account the features noticeable
from the site plan, the inquest report and the photographs placed on
record. Having examined the relevant material, we find nothing of
infirmity in the findings of the Trial Court and the High Court that it had
been a case of strangulation, as could be seen from the post-mortem
report that the dead body carried “well defined depressed ligature mark
40
measuring 3 cm. wide seen encircling the neck around thyroid
cartilage with a knot present on left side of neck and this ligature mark
was anti-mortem in nature”. The other ligature mark was on the left
side of the neck measuring 1.5 cm wide and that was post-mortem in
nature. The board had undoubtedly been of the opinion that the cause
of death was “asphyxia due to strangulation”. With such categorical
medical opinion coupled with all the relevant features surrounding the
suspended dead body in the room in question, it is difficult to say that it
had been a case of suicide merely because hyoid bone was not broken
or because the marks of resistance like abrasions/scratches were not
reported. The presence of marks of resistance would depend on a
variety of factors, including the method and manner of execution of the
act of strangulation by the culprits; and mere want of such marks
cannot be decisive of the matter. Equally, it is not laid down as an
absolute rule in medical jurisprudence that in all cases of strangulation,
hyoid bone would invariably be fractured. On the contrary, medical
jurisprudence suggests that only in a fraction of such cases, a fracture
of hyoid bone is found.8
In other words, absence of fracture of hyoid
8 Modi: A textbook of Medical Jurisprudence and Toxicology, 26th Edition page 529 where it
is also noted:
“In the Journal of Forensic Sciences Volume 41 under the Title – Fracture of
the Hyoid Bone in Strangulation: Comparison of Fractured and Unfractured Hyoids
from Victims of Strangulation, it is stated:
The hyoid is the U-shaped bone of the neck that is fractured in onethird of all homicides by strangulation. On this basis, post-mortem detection
of hyoid facture is relevant to the diagnosis of strangulation. However, since
many cases lack a hyoid fracture, the absence of this finding does not
exclude strangulation as a cause of death. The reasons why some hyoids
fracture and others do not may relate to the nature and magnitude of force
applied to the neck, age of the victim, nature of the instrument (ligature or
hands) used to strangle, and intrinsic anatomic features of the hyoid
bone…………”
41
bone would not lead to the conclusion that the deceased did not die of
strangulation.
18.2. For what has been discussed in preceding paragraphs, we have
no hesitation in affirming the findings in the impugned judgments that
the deceased Tirloki Nath was done to death by strangulation and
thereafter, his dead body was hanged from the ceiling fan in the room.
19. However, the question still remains as to whether the
circumstances brought on record establish beyond reasonable doubt
that such ghastly act of killing Tirloki Nath and hanging his dead body
was carried out by the appellant so as to maintain her conviction under
Section 302 IPC?
20. Before examining the circumstances brought on record by the
prosecution, we may observe in the passing that the Trial Court as also
the High Court have proceeded on the lines that once it was
established that the deceased Tirloki Nath was killed by way of
strangulation and the killer/s suspended his dead body from the fan so
as to mislead; and since the dead body was found in the very house he
was residing with the appellant who could not explain the reason of his
death, she was to be held responsible for the crime. In other words,
the Trial Court and the High Court have assumed that as soon as the
conclusion about the homicidal death of Tirloki Nath in his own room is
reached, all other aspects of the prosecution story about so-called
42
strained relations of the deceased and the appellant, and the alleged
threat perception of the appellant ipso facto come into operation; and
the finding on homicidal death itself has been taken as the answer to
other question as to whether homicide was to be imputed on the
appellant or not. In our view, while examining the question as to
whether the death in question was homicidal or suicidal, there was no
justification to mix up the other circumstances projected by the
prosecution, which indeed required separate assessment and analysis.
Be that as it may, appropriate now it would be to examine the
circumstances put forth in this case to find if the prosecution has been
able to bring home the guilt of the appellant beyond reasonable doubt.
Alleged last statement of deceased and motive of appellant
21. The main plank of prosecution case against appellant has been
that the relations between the deceased and the appellant were too
strained; the appellant was having illicit relations and was ill-treating
the deceased; the deceased had expressed even threat to his life at
the hands of the appellant; and the deceased was all set to move out
of the company of the appellant. These factors, imputing motive on
the appellant to kill her husband (and even deceased perceiving threat
to his life at the hands of the appellant), have been held proved by the
Trial Court and the High Court with reference to the testimony of PW-7
Brij Bhushan (brother of the deceased) and PW-8 Radha Puri (sister of
the deceased). As noticed, the Trial Court as also the High Court have
43
relied upon these two witnesses and have accepted their assertions in
toto. However, a close look at the testimony of these witnesses and the
assessment of their evidence with reference of other factors on record
bring forth several doubts, which have not been dispelled and which do
operate against the prosecution.
22. Though learned counsel of the appellant has attempted to
suggest, with reference to additional documents placed on record, that
PW-7 carried questionable antecedents and had been a proclaimed
offender but we are ignoring such submissions for the reason that
these aspects were not specifically put to the witness in his crossexamination. However, the question is as to whether his testimony
inspires such confidence that all the facts and the circumstances
suggested by him, and all his assertions, be accepted on their face
value? In our view, the answer to this question could only be in the
negative.
22.1. The Trial Court and the High Court have proceeded on the
assumption that PW-7 being the brother of deceased, would not be
interested in shielding the real culprit and to unnecessarily throw the
accusation on the appellant but, in our view, such an approach had
been fundamentally incorrect. In overall comprehension of the
statement made by this witness, a few relevant factors are immediately
noticeable that, after having served in Navy for about two years from
1978 to 1980, he had never been in a settled job or occupation. He
44
served in different establishments; also opened a grocer’s shop that
was closed; again served in some more establishments; and then,
established a factory that too was closed with about half of the amount
of loan repaid and remaining being due. Significantly, the ancestral
house of the family was sold by this witness and the proceeds were
utilised by him in opening the grocer’s shop, which was closed by him
because he ‘did not like that business’. He had taken loan for
establishing the factory and it had been the case of the appellant that
he was pressurising her to stand as a guarantor and upon her refusal,
the deceased Tirloki Nath stood as a guarantor. DW-3 Surinder Kumar
Bhat, a colleague of the deceased, testified to the fact that the
deceased remained disturbed for his younger brother (PW-7) regularly
demanding money from him; and has narrated in detail the efforts that
were made by the deceased in helping PW-7 Brij Bhushan getting
some employment and he even asked for a loan from the society
managed by DW-3. In the given state of affairs, this much is clear that
the testimony of PW-7 is required to be approached with extra care
and caution.
22.2. On a closer look at the record, it is noticed that some material
improvements were made by PW-7 while deposing in the Court over
the initial version, on the basis whereof FIR was registered by PW-9.
For example, in the Court statement, this witness alleged that the
deceased was apprehending murder by the appellant with the help of
45
her brothers while improving over the expression that the deceased
was ‘fed up and frightened’, as occurring in the initial version. Further,
the initial allegation that the appellant was not providing food to the
deceased ‘at proper time’ was improved in the Court statement to the
effect that she was not providing food to the deceased.
22.2.1. Even if the aforementioned aspects are left aside for a moment
and it be assumed that the deceased met PW-7 on 28.04.1997 and
stated all his apprehensions as also the plan to leave Panchkula with
luggage, it remains entirely inexplicable that such a concerned brother
of the deceased did not accompany him to Panchkula for safety and
support; and did not share the apprehensions stated by the deceased
with other members of the family; and even did not enquire about the
welfare of his brother for next three days. Obviously, the conduct of this
witness had not been altogether free from doubt and his statement
cannot be accepted without proper corroboration. Now, the attempted
corroboration is suggested only with reference to the statement of the
sister of this witness viz., PW-8 Radha Puri. However, her testimony
carries excessive features of doubts, as would occur infra.
23. It is evident on the face of the record that in her testimony, PW-8
Radha Puri made several improvements over the statement made
during investigation. The allegations that upon reaching the spot, she
saw the appellant and her brothers ‘enjoying tea’ were not made in her
police statement. The witness had gone to the extent of stating that the
46
deceased was attacked by his wife and children on two-three
occasions though no such allegation appeared in her initial version
during investigation. It is more than apparent that the efforts on the
part of this witness PW-8 had been to level accusations not only
against the appellant but even against the children of the appellant,
particularly her daughter, by suggesting that the said daughter
questioned her presence on the spot though such had not been the
case of the prosecution. As regards the plot at Ambala Cantt., this
witness gave out vacillating answers where she first of all stated want
of knowledge; then stated that the plot was in the name of mother; and
again stated her inability to say exactly in whose name it was. Leaving
aside these aspects, the noteworthy feature emerging from her
statement is the admission of the fact that the ancestral house was
sold by Brij Bhushan (PW-7).
24. A combined look at the testimony of PW-7 and PW-8 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
47
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.
25. 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
48
arguments, and on the broad phraseology of the first part of Section 32
(1) of the Indian Evidence Act9
, 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 admissible10, 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.
25.1. The other prosecution witnesses have not even remotely
indicated any traces of discord in the relations of the deceased and the
appellant for any reason whatsoever. The appellant has specifically
refuted such allegations in her statement under Section 313 CrPC. The
defence witness DW-3 Surinder Kumar Bhat, who had been the
colleague of the deceased and was living nearby, has been categorical
that the deceased and the appellant were maintaining good relations
and that the appellant was enjoying a good reputation. Nothing has
occurred in his cross-examination to discredit this witness as
untrustworthy. Another noteworthy factor emerges from the testimony
of DW-4 Akhilesh Bhatnagar, Assistant, Oriental Insurance Company,
9 32. Cases in which statement of relevant fact by a person who is dead or cannot be
found, etc., is relevant.-Statements, written or verbal, of relevant facts made by a person
who is dead, or who cannot be found, or who has become incapable of giving evidence, or
whose attendance cannot be procured without an amount of delay or expense, which, under
the circumstances of the case, appears to the Court unreasonable, are themselves relevant
facts in the following cases:-
(1) when it relates to cause of death.- When the statement is made by a person
as to the cause of his death, or as to any of the circumstances of the transaction which
resulted in his death, in cases in which the cause of that person's death comes into question.
10 Vide Pakala Narayana Swami v. The King-Emperor: AIR 1939 PC 47
49
Chandigarh. He has proved the hotel expenses bills paid by the
employer of the deceased for his stay at Karnal from 14.01.1997 to
01.02.1997. If that were so, the assertion of PW-8 Radha Puri that the
deceased made some statement to her at Yamuna Nagar on
25.01.1997 becomes doubtful. As noticed, though the husband of PW8 (with whom she allegedly conferred about the alleged statement of
the deceased) was cited as prosecution witness but was not examined
in the Court.
26. We may, in the passing also point out another glaring factor in
relation to the testimonies of PW-7 and PW-8. It is but apparent that
PW-7, even before reaching the spot of crime, had already concluded
that his brother had been murdered. In his words: ‘I gave telephonic
messages to my relatives regarding the murder of my brother’. PW-8
has directly contradicted him while saying: ‘On 1.5.97, I came to know
through my brother Brij Bhushan that Tirloki Nath had committed
suicide. He told that as per the information, the neighbourers at
Panchkula told that Tirloki Nath had committed suicide.’ Another
feature of the case is that as per the site sketch prepared by PW-3
Manohar Lal, (Ex. PD), there was a bathroom-cum-toilet of 10 feet x 3
feet size, attached with the room in question where the deceased was
putting up, as per the witnesses PW-7 and PW-8. It clearly belies the
suggestion that the deceased was forced to use the washroom of the
tenant at the ground floor.
50
27. For what has been discussed hereinabove, strong elements of
doubts surface on record as regards reliability of these two witnesses
PW-7 and PW-8. In the given circumstances, it is difficult to accept that
the prosecution has been able to establish by cogent and reliable
evidence that the appellant was involved in illicit relations or was
pressurising the deceased to transfer the property in her name and that
there had been strong acrimony between the deceased and the
appellant. It is also difficult to accept, for want of cogent corroborative
evidence, if the deceased had made any alleged statements about
discord with his wife and threat perceptions to PW-7 and PW-8. In the
given circumstances, the possibility of levelling of imputations on the
appellant for intentions other than bringing the real culprit/s to the book
is not ruled out altogether.
Last seen theory: Proof and effect
28. The prosecution has relied upon another circumstance that the
deceased was lastly in the company of the appellant and she had
failed to explain his whereabouts as also the circumstances leading to
his death.
28.1. Insofar as the ‘last seen theory’ is concerned, there is no doubt
that the appellant being none other than the wife of the deceased and
staying under the same roof, was the last person the deceased was
seen with. However, such companionship of the deceased and the
51
appellant, by itself, does not mean that a presumption of guilt of the
appellant is to be drawn. The Trial Court and the High Court have
proceeded on the assumption that Section 106 of the Indian Evidence
Act11 directly operates against the appellant. In our view, such an
approach has also not been free from error where it was omitted to be
considered that Section 106 of the Indian Evidence Act does not
absolve the prosecution of its primary burden. This Court has
explained the principle in Sawal Das (supra) in the following:-
“10. Neither an application of Section 103 nor of 106 of
the Evidence Act could, however, absolve the prosecution
from the duty of discharging its general or primary burden
of proving the prosecution case beyond reasonable doubt.
It is only when the prosecution has led evidence which, if
believed, will sustain a conviction, or which makes out a
prima facie case, that the question arises of considering
facts of which the burden of proof may lie upon the
accused……”
28.2. 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
11 106. Burden of proving fact especially within knowledge.- When any fact is especially
within the knowledge of any person, the burden of proving that fact is upon him.
52
report, the probable time that had elapsed between death and postmortem (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.
28.3. 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. In SK. Yusuf (supra), this Court has said:-
“21. The last seen theory comes into play where the
time gap between the point of time when the accused and
the deceased were last seen alive and when the deceased
is found dead is so small that possibility of any person
other than the accused being the author of the crime
becomes impossible.”
Subsequent conduct of the appellant and other circumstances
29. The Trial Court and the High Court have readily, and rather
heavily, relied upon an assertion made by PW-8 in her statement that
upon her reaching the site, the appellant was ‘enjoying tea’ with her
brothers and other relations on the first floor; and was not found
stressed or perplexed or saddened. This part of the assertion on the
part of PW-8 has its own shortcomings. Such an assertion was not
53
made by her in the police statement; and is not even remotely
corroborated by any other prosecution witness including PW-7.
Moreover, it had been too unrealistic on the part of the Trial Court and
the High Court to observe that the appellant ought to have been found
sitting with the dead body. Admittedly, the corpse was emitting foul
smell and DW-8 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.
30. Another circumstance taken against the appellant had been that
she allegedly did not send any information to the brothers and other
relations of the deceased immediately after noticing his death. Such
54
observations and findings have been recorded against the appellant
while totally overlooking the statement of DW-3. In this regard, it gets
perforce reiterated that the prosecution has not produced any evidence
which could displace the statement of DW-3 that he indeed informed
the police at the asking of the appellant at about 9.30 p.m. on
01.05.1997 and did also inform the brother of the deceased. As
noticed, PW-9 ASI Amar Singh did not specify as to how the
information was received by him. Moreover, the person said to have
divulged the information to the witness PW-7 was never examined.
Given such omissions in the prosecution case, we find no reason to
discard the testimony of DW-3. Once his testimony is accepted,
several blocks of the prosecution story are knocked to the ground.
Effect of the acquittal of co-accused persons
31. There is yet another lacuna in the prosecution case that has
magnified itself with acquittal of the co-accused, brothers of the
appellant. It cannot be denied that if the appellant had been the killer,
she, by herself, could not have hanged the dead body by the ceiling
fan; and the act had definitely been performed by more than one
person. That being the position, the Trial Court readily accepted the
case against the brothers of the appellant as conspirators without
cogent and convincing evidence. The High Court rightly acquitted them
for want of evidence and even observed that the prosecution had failed
to book the real culprit in place of the brothers of the appellant.
55
However, the High Court yet considered it proper to maintain the
conviction of the appellant as the principal culprit while failing to
consider that an important link in the prosecution story was snapped as
soon as brothers of the appellant were acquitted.
31.1. We 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 oversimplification of the matter by leaving the missing link as merely a fault
of the investigating agency. In our view, 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.
The prosecution case not established beyond reasonable doubt
56
32. 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 Tirloki
Nath 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.
33. Apart from the factors above, there are several other loopholes
whereby the alleged circumstances sought to be relied upon by the
prosecution lose their worth and force. As noticed, the investigating
agency and the prosecution had not been forthright. The relevant
aspects pertaining to the crime in question were not properly
investigated and even the relevant witnesses were not examined.
Moreover, as noticed, the prosecution case was framed in the manner
57
that the appellant committed the crime with the help of her brothers
who have been acquitted.
33.1. In the given circumstances, the fact that the staircase from the
ground floor was directly leading to the room in question where the
dead body was found, acquires immense significance. Even if it be
assumed that the deceased was putting up in the said room, some
person or persons reaching there directly from the ground floor and
carrying out the crime is not ruled out. In the alternative, some person
or persons having executed the crime at some other place and then
having brought the dead body and hanged it in the room in question is
also the possibility which cannot be brushed aside as entirely
improbable.
34. In the given circumstances, when the prosecution has not been
able to remove the aforesaid doubts and the motive as imputed on the
appellant does not appear existing, the benefit of doubt, obviously,
goes to the appellant.
CONCLUSION
35. For what has been discussed hereinabove, we are clearly of the
view that the Trial Court and the High Court have approached the case
from an altogether wrong angle and have overlooked the major flaws
and shortcomings in the prosecution case. In the given set of facts and
circumstances, even if the prosecution has been able to create some
58
suspicion against the appellant, it would be unsafe to accept that the
implicating circumstances have been established by cogent evidence
and such circumstances form a complete chain that rules out any other
hypothesis except guilt of appellant. Hence, the conviction of the
appellant cannot be sustained; she is entitled to the benefit of doubt.
36. Consequently, this appeal is allowed in the manner that the
impugned judgment and orders convicting the appellant for the offence
punishable under Section 302 IPC are set aside; the appellant is
extended the benefit of doubt and is, accordingly, acquitted. Her bail
bonds are cancelled and sureties are discharged.
...............................................J.
(A.M. KHANWILKAR)
..............................................J.
(DINESH MAHESHWARI)
New Delhi,
Date: 19th September, 2019.
59
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1046 OF 2010
SMT. GARGI ... APPELLANT(S)
VS.
STATE OF HARYANA … RESPONDENT(S)
JUDGMENT
Dinesh Maheshwari, J.
Preliminary
1. This appeal by special leave is directed against the common
judgement and order dated 05.03.20081
whereby, the High Court of
Punjab and Haryana at Chandigarh has partly affirmed the judgment
and order dated 09.06.1998 in Sessions Case No. 63 of 1997 by the
Additional Sessions Judge, Ambala; and has upheld the conviction of
the appellant for the offence punishable under Section 302 of the
Indian Penal Code ('IPC') even while acquitting the co-accused
persons of the charge under Section 302 read with Section 120-B IPC.
1.1. In a brief outline of the material aspects, it may be noticed that in
the present case, the appellant was charged with the imputations that
1 in Criminal Appeal Nos. 341-DB of 1998 and 359-DB of 1998.
1
she killed her husband by strangulation and, with the help of coaccused persons (her brothers), 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. Two of the siblings of deceased, one brother
and one sister, testified in support of the prosecution case. Per contra,
the appellant, while denying the imputations, took the plea that she
was leading a happy married life with her husband for 18-19 years with
two children; and that the brother of the deceased, on whose statement
FIR was registered and who was the prime prosecution witness, was
carrying the ill-intentions to grab the property of her husband and had
managed her prosecution. The Trial Court convicted all the accused
persons while accepting the prosecution case and rejecting the
defence version. In appeal, the High Court, though found that the
circumstances brought on record were not sufficient to bring home the
charge of conspiracy against the brothers of the appellant and
acquitted them but, affirmed the findings against the appellant and
maintained her conviction for the offence of murder of her husband.
Hence, this appeal.
The relevant facts and background aspects
2
2. Put in brief, the prosecution case had been that on 01.05.1997,
having received information that a man had committed suicide in
House No. 1297, Sector-15, Panchkula, ASI Amar Singh (PW-9),
accompanied by UGC Bidhi Chand and UGC Baldev Singh, reached
the spot at about 11.30 p.m.2
, only to find that in the room on the
second floor of house, the deceased Tirloki Nath, husband of the
appellant, was hanging by neck with his feet touching the floor. They
also found that a pool of blood had collected near the dead body; and
that the dead body was emitting bad odour. The appellant and her
children were in the same house, but on the first floor.
2.1. At about 4.30 a.m. of 02.05.1997, i.e., nearly five hours after the
police having arrived, the complainant Brij Bhushan Kaul (PW-7),
brother of the deceased, reached the spot with his wife, mother,
sister’s husband and sister Smt. Radha Puri (PW-8). The complainant
made the statement that relationship of the deceased and the appellant
was too strained due to which, they were residing in separate rooms in
the same house; that the appellant had been ill-treating her husband,
which included restricting his use of bathroom facilities in the same
house; that the deceased had once expressed his fear that the
appellant would leave the gas cylinder open with the intention to kill
him; and that the deceased had also stated that ‘the character of his
wife was bad’ and she was living ‘with bad women’. The complainant
2 At what time did the police and the complainant receive this information, by which mode of
communication, and through whom, are some of the questions having bearing in this matter,
as shall be noticed hereafter later.
3
also stated that on 28.04.1997, the deceased came to his house (at
Ambala Cantt.) and told him that he would go to Panchkula and would
come back with his luggage as he was ‘very much fed up and
frightened’. The complainant further stated that in the night of
01.05.1997 at about 11.30 p.m., he received a message that his
brother had passed away and thereupon, he arrived at the house of the
deceased accompanied by his mother, wife, sister and brother-in-law,
only to find the deceased in the condition as described hereinabove.
While concluding, the complainant stated his suspicion that the
appellant had murdered his brother because the deceased had not
transferred his house as per her demands.
2.2. For the incident in question, FIR No. 174 dated 02.05.1997 was
registered on the basis of the statement so made by the complainant.
In the preliminaries, the inquest report (Ex. PH/2) was prepared by ASI
Amar Singh (PW-9); rough site sketch (Ex. PM) was prepared;
photographs were taken by the photographer Shashi (PW 11); and the
dead body was sent for post-mortem. Thereafter, the investigation was
taken over by Inspector Jag Pravesh (PW-10), who recorded the
statements of witnesses, visited the spot, got prepared the scaled site
plan (Ex. PD) and also arrested the appellant. SI Ishwar Chander (PW12) also partly investigated this case. He arrested and released the
brothers of appellant, who were on anticipatory bail. Thereafter, the
appellant was charge-sheeted for the offence punishable under
4
Section 302 IPC while her brothers were charge-sheeted for the
offence punishable under Section 302 read with Section 120-B IPC.
Prosecution evidence
3. After committal, the case was tried as Sessions Case No. 63 of
1997 in the Court of Additional Sessions Judge, Ambala. The
prosecution, inter alia, examined 12 witnesses. Having regard to the
subject matter of this appeal and the questions involved, it would be
advantageous to take note of the relevant aspects emerging from the
statements of material witnesses in requisite details, even at the cost of
a little inflation.
3.1. PW-1 Dr. Usha Bansal, who had been one of the members of
the medical board that had conducted post-mortem of the body of
deceased and had prepared the report Ex. PA, stated the observations
and opinion as follows:
"... A well defined depressed ligature mark measuring 3
cm. wide seen encircling the neck around the thyroid
cartilage with a knot present on left side of neck. This
ligature mark was ante-mortem in nature. A ligature mark
above the thyroid cartilage going obliquely upward and
posteriorly on left side present with an irregular
impression of knot on left side of the neck measuring 1.5
cm wide present. This ligature mark was of post-mortem
nature....
xxx xxx xxx
In our opinion, the cause of death was asphyxia due to
strangulation...The probable time that elapsed between
injury and death was few minutes and between death and
post-mortem was 24 hours to 72 hours....."
5
3.2. PW-7 Brij Bhushan Kaul (brother of the deceased) has been the
prime witness of prosecution in this case. The relevant assertions
occurring in his examination-in-chief read as under: -
“…..Upto Dec., 1997 I remained at Ambala Cantt. Tirloki
Nath used to visit Ambala Cantt and was always found by
us to be disturbed, because of the family problem. Tirloki
Nath told us that he was shifted to a separate room at the
top floor of the house and that he was not provided any
article of food and was being mal-treated by his wife Smt.
Gargi Devi. He also told many a time that he was never
allowed to enter the room and toilet by his wife at night
times. Tirloki Nath deceased left our house at Ambala
Cantt lastly on 28.4.1997, around 7.45 AM and while
leaving, told that it was his last time to go to Panchkula to
collect his belongings and then would be coming to
Ambala Cantt for ever. On this, I asked him as to why he
was taking this step. He told me that he was very much
upset due to the illicit relations of his wife Smt. Gargi Devi
and was afraid of that if he stayed in the same house at
Panchkula, he could be murdered, with the help of her
three brothers…On this I told him that it was not possible
because a wife cannot kill her husband. However, while
leaving our house, he was totally shattered. Tirloki Nath
used to take tea only in his room at the top floor of the
house, using his independent cylinder in his room. He
was not provided even tea by Smt. Gargi and the
children. He told me that once his wife had opened the
gas cylinder in order to kill him…..I was on tour on 1.5.97.
I came back to my house at Ambala late in the night at
about 11.30 PM. Immediately thereafter, I got a message
from my neighbour, namely Mr. T.R. Malhotra giving me
the message that his (sic) brother Tirloki Nath at
Panchkula was no more, as he received this information
from some colleague of my brother. (Objected to). My
brother was murdered. At that time, it was not clear by
whom. Thereafter, I gave telephonic messages to my
relatives regarding the murder of my brother. So, I
alongwith my brother-in-law Mr. A.C. Puri, my sister Smt.
Radha Puri, my mother Smt. Raj Kumari, my wife
Meenakshi went to Panchkula. On our reaching at
Panchkula, we found two ASIs sitting outside the house
of Smt. Gargi. On my enquiry, as to what had happened
6
to my brother, I was told that I should go up-stairs and
found out myself. We all went up-stairs and found the
dead body of Tirloki Nath hanging with a fan. The feet of
my brother were touching the floor. Blood was noticed on
the floor. The body was giving bad odour. I reported the
matter to the police vide statement Ex. PH. It was signed
by me.…….”
3.2.1. This witness PW-7, in his cross-examination on behalf of the
appellant, stated, inter alia, as under: -
“It is correct that I was 1½ years old when my father died.
Tirloki Nath was the eldest son of the second marriage of
my mother.…..There are two brothers and two sisters
from the second marriage of my mother. My father died
as told, due to cancer at Delhi, in the year 1961. It is
incorrect to suggest that Tirloki Nath deceased had
brought up all the children of my mother from both the
marriages. ….He bore expenses for some time regarding
my education etc. The marriage of my brother Tirloki
Nath was performed about 19-20 years ago.….My
mother is having no source of income except the family
pension due to my father’s death and some rental
income. My mother had given on rent a house situated in
Adarsh Nagar, Ambala Cantt. I joined Navy in the year
1978. I was married in the year 1984. It is incorrect to
suggest that all the expenses of my joining the service
and on my marriage were borne by my brother Tirloki
Nath. Since I was attached to my mother very well, I left
my Navy job. Tirloki Nath after his marriage with Smt.
Gargi probably in the year 1978, left my mother alone
and started living separately and so this was the main
reason that I left my Navy job in the year 1980. It is wrong
to suggest that I was involved in some case in the Navy
and the police was after me and I absconded and left my
job. After leaving Navy, I joined Forbes Forbes, Camp
Bell & Co. Ltd. at Jammu in the year 1981 or 1982 as
Sales Executive…… I never took my mother to Jammu
because I started my business at Karnal and opened a
kiryana shop. It is wrong to suggest that I committed a
fraud at Jammu and my services were terminated and
thereafter I started a kiryana shop at Karnal. It is correct
that the house in Adarsh Nagar, Ambala Cantt was sold
and the proceeds of that house were utilised by me in
opening a kiryana shop at Karnal. My mother started
7
living with me at Karnal. It may be that the house was
sold in the year 1980 and the sale proceeds were utilised
by opening a kiryana shop, which was closed by me,
because I did not like that business. After winding up my
kiryana shop, I came to Ambala Cantt and settled with my
mother. It is wrong to suggest that I misutilised the
amount and so was having no option except to close the
business and come back to Ambala Cantt.……I have
been serving as Manager in hotels, namely Hide Out
Tourist Complex, Palwal and Standard Hotel, Ambala
Cantt…. I was working with Camlin Ltd. Bombay but was
posted at Ludhiana as Sales Promotion Organizer (North)
for a period of about 3½ years. It is wrong to suggest that
I committed a fraud at Ludhiana and my services were
terminated accordingly. It is incorrect to suggest that I
have been getting different Jobs with the efforts of Tirloki
Nath deceased alone. I joined Veeto Hobbies Ambala for
some time as Manager Marketing. It is wrong to suggest
that I also committed a fraud and so my services were
terminated.….I started my factory at Ambala Cantt. That
factory was closed after two years.…..It is correct that I
obtained bank loan for running my factory but not due to
the efforts of Tirloki Nath. There was no surety. It is
incorrect to suggest that I pressurized Smt. Gargi to
stand as a guarantee against bank loan, and on the
refusal of Smt. Gargi, my brother Tirloki Nath stood as a
guarantee. I have made payment of loan more than half
the amount taken by me.….
…..It is incorrect to suggest that one Mr. Narang had filed
civil suit against me and the company and which case
was won by me. It is incorrect to suggest that Mr. Tirloki
Nath had made payment to Mr. Narang and got the
matter settled. Tirloki Nath might have come ten days,
fifteen days prior to 28.4.1997, as he was constructing a
house at Ambala Cantt. He used to complain against the
behaviour of his wife. It is incorrect to suggest that the
house was not being got constructed at Ambala Cantt by
Tirloki Nath for himself but was being constructed for the
residence of the mother ….”
3.2.2. In his further cross-examination on behalf of the appellant, this
witness stated as under: -
8
“…….There was only one ancestral house at Model
Town, Ambala City (Adarsh Nagar). There is no other
immoveable (ancestral) property.…….I do not know for
how many days Tirloki Nath used to remain on tour in a
month. It is correct that he was going on tour oftenly..…
On 28.4.97, I went on tour after meeting my brother…I
did not give any telephonic call to him in the night time of
28.4.97 or even in the day time as to why he had not
reached Ambala Cantt with his luggage, as told by
him….I never enquired either on 29.4.97 or thereafter
from Tirloki Nath for his not coming to Ambala Cantt with
luggage……We talked to the Police officials for about 15
minutes in order to know the facts of the case. Thereafter
we went up-stairs, and started weeping and crying. 2/3
ladies two brothers of Smt. Gargi, one uncle of Smt.
Gargi, and aged person were present at the time, when
we reached. The children of Gargi were also present
there at the first floor. No person was sitting with the dead
body of Tirloki Nath at the time we had gone there-
(volunteered). In the morning time about 25 persons from
the neighbourhood had also come there, after my
statement was recorded by the ASI.…..I do not know
whether the tenants on the ground floor came in the year
1990 and litigation with them started in the year 1991….I
do not know whether the house at Panchkula was
constructed with the joint income of Tirloki Nath and Smt.
Gargi….It is incorrect to suggest that I was after Tirloki
Nath to get money even after pledging the house. It is
incorrect that there was any pledging of the house in
question and there was any opposition from Smt. Gargi in
this regard….It is incorrect to suggest that in order to
grab the house, I have falsely named the accused in this
case...”.3
3.3. PW-8 Radha Puri (sister of the deceased) purportedly
corroborated the testimony of PW-7. The relevant parts of her
assertions in the examination-in-chief could also be usefully extracted
as under:-
3 There had been further cross-examination of this witness PW-7 on behalf of the other
accused persons where he was, inter alia, confronted with his police statements which did
not carry some of the assertions made in the Court. However, all the major aspects of his
testimony having occurred in the extraction hereinabove, the other parts of his testimony in
further cross-examination are not being extracted.
9
“…..Tirloki Nath had come to Yamuna Nagar on
25.1.1997 and met us. He was very much disturbed and
upset at the time. He told me that there used to remain
tense situation at every time in the house because Smt.
Gargi wanted that the house at Panchkula should be got
mutated in the name of Smt. Gargi. He further was told
that he was afraid of Smt. Gargi and her brothers and he
apprehended danger to his life….He stated that he was
residing in a room at the top floor of the house and was
getting meals from the Hotel. Tirloki Nath had stated that
2/3 times, he was attacked by Smt. Gargi and the
children and that he had saved himself some-how or
other. Tirloki Nath stated that Smt. Gargi was having
illicit relations and she never told where she used to go.
He stated that on an enquiry from Smt. Gargi, she always
replied that he was having no concern to ask such
questions. According to Tirloki Nath, he was not allowed
even to use bath-room facility. He was using bath-room
of the tenants on the ground- floor. However, we pacified
him. We were never allowed to visit our brother Tirloki
Nath at Panchkula by Smt. Gargi.
On 1.5.97, I came to know through my brother Brij
Bhushan that Tirloki Nath had committed suicide. He told
that as per the information, the neighbourers at
Panchkula told that Tirloki Nath had committed suicide.
So, I alongwith others reached Panchkula, and saw Smt.
Gargi, her brothers and sisters enjoying tea at the second
floor of the house. I thought that my brother had gone to
Hospital and was saved and that was the reason that
they were enjoying the tea. Thereafter, the police came
and we went up-stairs, where the dead body of Tirloki
Nath was found hanging with a ceiling fan.…. I suspect
that Smt. Gargi alongwith her brothers had murdered my
brother Tirloki Nath.”
3.3.1. In her cross-examination on behalf of the appellant, this witness
PW-8 Radha Puri stated, inter alia, as under: -
“On 1.5.97, at night time about 11 PM, I was sleeping and
my husband awoke me and told after hearing the
telephone that Tirloki Nath was no more in the world and
started weeping….. I myself, my husband, my brother Brij
Bhushan, and his wife and my mother then went to
10
Panchkula during night time…..Some police officials were
sitting at the entrance of the gate of the house. ….Firstly
we went to first floor, where we saw Gargi, her brothers,
children and relatives to whom I do not know. There was
no person from the mohalla, where the policemen were
sitting. …..I do not know whether house No. 1297, Sector
15, Panchkula was built out of the joint income of Smt.
Gargi and her husband Tirloki Nath. I do not know
whether Gargi had taken any amount by way of advance
from the Govt. or not.
……….I do not know whether Smt. Gargi and her
husband were having cordial relations or not in the year
1994, when I visited her because I stayed there for a
night and did not talk much, as the friend of Smt. Gargi
and her children alongwith her husband had come there.
I do not remember the names or antecedents of those
persons. On 25.1.1997 when my brother Tirloki Nath had
come to Yamuna Nagar, I found him very much disturbed
and he talked to me regarding the behaviour of Smt.
Gargi. I was alone. I narrated the facts to my husband in
between the period from 25.1.97 to 1.5.97. I did not tell
the aforesaid facts to any one else. It is incorrect to
suggest that Brij Bhushan my brother was helped in his
education, service and in his up-bringing by Tirloki Nath
deceased. It is correct that the ancestral house was sold
by my brother Brij Bhushan. However, it is wrong to
suggest that he misappropriated the sale proceeds of the
house. I do not know when the house was sold. I do not
know whether Tirloki Nath was having any plot in Ambala
Cantt or not. Again said, the plot at Ambala Cantt is in
the name of my mother. Again said, I cannot say exactly
in whose name it is…It is correct that I did not make any
verification from any quarter regarding illicit relations of
Smt. Gargi, as told by my brother Tirloki Nath. I believed
my brother what Tirloki Nath stated to me regarding the
ill-treatment meted to him from Smt. Gargi. This was also
told by my mother. My brother had told all about this to
all the family members (sic).….I enquired from Vaishali
daughter of Tirloki Nath as to how Tirloki Nath had died.
She did not tell even a word, though I was crying
throughout. Vaishali told me as to why we had come
there because we were not called there..…...”4
4 There had been further cross-examination of this witness also on behalf of the other
accused persons where she was, inter alia, confronted with her police statements which did
not carry several of the assertions made in the Court. However, all the major aspects of her
11
3.4. ASI Amar Singh led in evidence as PW-9. He had arrived at the
spot after having received the information about the death of Tirloki
Nath. As regards the mode and time of receiving information, this
witness stated that “a telephonic message was received that one
person in House No. 1297, Sector 15, Panchkula had committed
suicide. This information was received at 11.15 PM.” In his crossexamination, PW-9 stated, inter alia, as follows:-
“…Smt. Gargi and her children were on the first floor of
the house, whereas the dead body was on the top floor
of the house. I did not record the statement of Smt.
Gargi and her children. I have been making formal
investigation before the arrival of complainant etc. I have
not kept any record qua the formal investigation. The
neighbourers did not come to the spot, though they were
found by me standing in the street. I did not call any one.
I have been giving information to the officers on
telephone.…..I did not join any independent witness
from the locality…”
(underlining supplied)
3.5. Inspector Jag Parvesh, who carried out major part of
investigation, was examined as PW-10 and stated in his examinationin-chief that he reached the hospital on 02.05.1997 where he was
handed over the statement EX.PH as made by PW-7; the inquest
report Ex.PH/2 prepared by PW-9; and the post-mortem report EX.PA.
He drew up the necessary proceedings; recorded statements under
Section 161 of the Code of Criminal Procedure Code ('CrPC');
testimony having occurred in the extraction hereinabove, the other parts of her testimony in
further cross-examination are not being extracted.
12
collected blood from the spot; and arrested the appellant. In his crossexamination, this Investigating Officer stated, inter alia, as under: -
“…….I made verification from the locality regarding the
character of Smt. Gargi but did not record any
statement. I do not remember the names of those
persons.
I verified from 5/10 persons of mohalla. I did not mention
this factum in the report u/s 173 Cr.PC. Report was
prepared by the then SHO. …I interrogated Gargi
accused while in custody. She had told that she was
innocent and had not committed any offence…Gargi
accused had told me that she was not having any
dispute with her husband and was having cordial
relations. I joined the children of Gargi accused in my
investigation. I have not recorded their statements and
as such, no record is there. The interrogation of Gargi
was recorded in the zimini. I did not take finger prints
from the rope. I had not at all taken finger prints from
any other place where the dead body of Tirloki Nath was
found. However, Finger Print Expert visited the place.
None has told me that Brij Bhushan complainant used to
harass Gargi and Tirloki Nath to extract money from
them. It is correct that the stairs in the house are outside
the door. If the door is closed, none can notice who is
coming down and who is coming up. I investigated
regarding the visitors in the house during the 3/4 days
prior to the 2.5.97 and I had come across one Pandit
who visited that house during this period. Smt. Gargi
told that one Pandit was brought for performing Havan. I
made verbal enquiries from the neighbourhood. ……
……I had recorded statements of other witnesses i.e.
mother, sister and brother-in-law of deceased in the
hospital. …There is a direct stair case from the ground
floor to the top floor of the house of Gargi and one can
go upstairs and come down stairs without entering any
room on the first floor…..”
(underlining supplied)
13
3.6. PW-2 H.S. Narula, the Deputy Manager, Oriental Insurance
Company, Sector 22, Chandigarh was examined by the prosecution to
testify that the deceased was working in his Company as Assistant
Administrative Officer, who lastly attended the Office on 28.04.1997. In
his cross-examination, this witness admitted the fact that deceased
Tirloki Nath used to remain on tour for about two weeks in a month.
3.7. PW-3 Manohar Lal, who was working as a constable in S.P.
Office, Ambala drew up the site plan Ex. PD of the place where the
body of deceased was found. In his evidence, PW-3 pointed that there
was a bathroom-cum-toilet, attached with the room on the second floor.
The site plan of second floor (Ex. PD) shows about 10 feet x 3 feet
space marked as bath/toilet.
3.8. PW-4 Sant Lal Gupta, the then Assistant Audit Officer, AG Audit,
Punjab, Chandigarh testified to fact that the appellant was working as
Senior Auditor in his office; that she was on casual leave on
28.04.1997 and 29.04.1997; and that she attended the office on
30.04.1997 and 01.05.1997. In his cross-examination, this witness
expressed want of knowledge if the appellant often used to come to the
office with her husband and used to leave after office hours with her
husband. This witness also stated that ‘no complaint was received
from the side of husband of Smt. Gargi or any other relation of
husband of Smt. Gargi against Smt. Gargi’.
14
3.9. The other witnesses examined by the prosecution had been PW5 Head Constable Ramesh Kumar; PW-6 UGC Baldev Singh; PW-11
Shashi, who took the photographs at the site; and PW-12 SI Ishwar
Chander, who also partly investigated the case.
4. On behalf of the appellant, several features of the prosecution
evidence have been highlighted with the contentions that there had
been stark inconsistencies, contradictions, improvements and twists in
the testimonies of PW-7 and PW-8; and that there had been several
failings in the investigation. We shall refer to these features and
contentions hereafter a little later.
Defence Version and Evidence
5. The appellant in her statement under Section 313 CrPC stated,
inter alia, that her husband had informed about his going on a tour on
29.04.1997; and that she had taken casual leave on 28.04.1997 and
29.04.1997 on account of her ill-health. She also stated that she and
her husband were having cordial relationship and would share the bed
with their son. She also stated that the case against her was a
motivated one and that she was not guilty of committing the murder of
her husband. Some of the answers given by the appellant in her
statement under Section 313 CrPC may be usefully extracted as
under:-
15
“Q:5 It is further in evidence against you that Tirloki Nath
used to reside at the top floor as you have not allowed
him to reside with you and your children. He was using
independent cylinder in his room to prepare tea and he
had further told that once you had opened the gas
cylinder in order to kill him. What have you to say?
Ans: It is incorrect. He was residing with the family on
the first floor. I and my husband have one common bed
room and my son Vaibhav was also sleeping with us in
the same bed room.
The top floor was never used for residence purposes.
The same was being used as a store & for some time a
family friend used to stay there.
Q:6 It is further in evidence against you that on the
night of 1.5.1997 at about 11.30 p.m. Brij Bhushan PW
received a message that his brother Tirloki Nath at
Panchkula was no more and that he was murdered. He
gave a telephonic message to his relatives and he
alongwith his brother in law A.C. Puri, Sister Smt. Radha
Puri, mother Raj Kumari and his wife Meenakshi went to
Panchkula and found two ASI were sitting outside the
said house. What have you to say?
Ans: It is incorrect. I advised Mr. Bhutt a colleague of
deceased Tirloki Nath to telephonically inform all the
relations and friends and Mr. Bhutt gave the information
of death to Mr. Brij Bhushan.
*** *** ***
Q:8 It is further in evidence against you that the police
of P.S. Sector-19 Panchkula received an information
regarding that the dead body of Tirloki Nath was hanging
with the ceiling fan in House No. 1297/15, Panchkula. ASI
Amar Singh alongwith other police officials reached the
spot and informed the relatives of the deceased. He also
summoned the photographer, who took snaps of the spot.
Negatives are Ex. P6 to Ex. P8 and positives are Ex. P9
to Ex.P11.
Ans: It is incorrect. In fact, the police did not reach the
spot but was brought by Mr. Bhutt.
*** *** ***
16
Q:12 It is further in evidence against you that Tirloki Nath
deceased attended his office on 28.4.1997. Thereafter he
did not come to the office and you remained on casual
leave on 28.4.1997 and 29.4.1997 and attended the
office on 30.4.1997 and 1.5.1997. Letter to this effect is
Ex.PE. What have you to say?
Ans: It is incorrect. However, on 29.4.97 morning my
husband informed me that he was to go on tour and
would be back on 3.5.97, in the evening & he would go to
Ambala also before coming to Chandigarh/Panchkula. I
was sick on 28th & 29th April, 97.
*** *** ***
Q:15 Why this case has been made against you and why
the witnesses are deposing against you?
Ans:- This is a false case and PWs have deposited (sic)
falsely. The case has been made up at the instance of Brij
Bhushan who wanted to grab the property of my
husband.
Q: Do you want to say anything else?
Ans:- I am innocent. I have been falsely implicated in the
case by Brij Bhushan & his sister who wanted money
from me at the time when I was taken by the police in the
morning of 2.5.97.”
5.1. Four witnesses were examined in defence. One of the relevant
witness had been DW-3 Surinder Kumar Bhat, said to be a family
friend and colleague of the deceased. The relevant assertions of this
witness in the examination-in-chief read as under: -
“I knew Tirloki Nath deceased for the last about 18 years. I
belong to J&K State. Tirloki Nath was also of that place.
So, I knew him well. He was working in our office but at the
time of death, he was in Sector 22 branch of our Insurance
Co. in Sector 22, Internal Audit cell of our Insurance Co. is
located where deceased was working at the time of death.
The house of Tirloki Nath is at a distance of 1½ furlongs
from my house in sector 15, Panchkula. I was having
friendly as well as homely relations with Tirloki Nath
deceased. I know Smt. Gargi accused present in the court.
17
She is the wife of Tirloki Nath deceased. Whenever I
visited the house of Tirloki Nath, I always found cordial
relations between Tirloki Nath and Smt. Gargi Devi. Tirloki
Nath never complained as a friend to me against Smt.
Gargi. So far as I can say, Smt. Gargi is enjoying a good
reputation in the Mohalla. I know Brij Bhushan, the
younger brother of Tirloki Nath deceased. Tirloki Nath
used to remain disturbed because his younger brother
always demanded money from him. I know that Tirloki
Nath deceased had helped Brij Bhushan in getting some
employment for Brij Bhushan in J&K State about 9 years
back with great efforts. We have formed a society known
as General Insurance Employees Cooperative Thrift and
Earner Society. I am the Vice President of the said society.
Tirloki Nath in mid April, 1997 met me alongwith his
brother Brij Bhushan and wanted some loan from our
society. But I could not help due to certain obligations,
which could not be met with. I came to know at 6.30 – 7
PM on 1.5.97 that Tirloki Nath had committed suicide. I
went to the house of Tirloki Nath. There were many
persons collected then. I went to Police Station, Industrial
Area, Panchkula to report the matter at 9.30 PM on 1.5.97.
Smt. Gargi after my meeting with her, gave me telephone
numbers for giving information to the relations of Tirloki
Nath deceased at Ambala. At about 11 PM, the information
was conveyed to Brij Bhushan who reached Panchkula at
4 AM on 2.5.97. Two-three police officials came alongwith
me at the residence of Tirloki Nath deceased….. I
remained throughout the night of 1.5.96 (sic) and left for
my house at 6.30 AM on 2.5.97. No photographer came
there in my presence. I did not notice any gas cylinder in
the room where the dead body of Tirloki Nath was found.
The house of Tirloki Nath is two storeyed building having
ground floor in addition. Some tenant was residing at the
ground floor at the time Tirloki Nath had died. That tenant
has not vacated the house, though not residing now. There
are outer stairs upto second storey and one can go upstairs without entering into the ground floor and first floor.
There is gate of grills in between ground floor and first
floor. It is correct that the lock of the gate can be opened
from both the sides viz. from inside as well as from out
side…..”
5.1.1. This witness was thoroughly cross-examined by the prosecution
where he stated, inter alia, as under:-
18
“I treat Gargi accused as my Bhabi being wife of my
deceased friend- Tirloki Nath. We have kept complete
record of our credit society. Tirloki Nath did not give any
application in writing for raising loan from our society….. It
is incorrect to suggest that deceased alongwith Brij
Bhushan never came to me for any demand of loan a
month prior to the occurrence and I am deposing falsely
just to support accused…..I have not kept any slip where I
noted down the telephone numbers of Ambala for
information the relations of Tirloki Nath deceased…….It is
correct that if the gate in between first floor and ground
floor is locked from both sides, no one can go up-stairs. At
the time I reached the house of Tirloki Nath, the gate was
open and people were coming and going from there. No
one told that the lock or bolt of the grill gate of upstairs
was broken by some one. It is also correct that Tirloki Nath
with my assistance succeeded in getting employment for
his brother Brij Bhushan in J&K State about nine years
back. This he did being a brother. I did not help Brij
Bhushan thereafter. …..It is incorrect to suggest that Tirloki
Nath deceased was residing all alone in the upper room of
the house and was not residing with his family members.
In fact, he was residing with his family members on the
first floor. It is incorrect to suggest that Smt. Gargi was
harassing her husband unnecessarily with the help of her
brothers on one pretext or the other……”
5.2. DW-4 Akhilesh Bhatnagar, Assistant, Oriental Insurance
Company, Chandigarh was examined in relation to the tour programme
of the deceased Tirloki Nath from 06.01.1997 to 31.01.1997 and the
hotel expenses bills paid by the Company, which show that the
deceased was at Karnal from 14.01.1997 to 01.02.1997. The testimony
of other witnesses DW-1 and DW-2 is not relevant for the purpose of
this appeal as they were examined in relation to the plea raised by the
co-accused persons as regards their employment.
The Trial Court found all the accused persons guilty
19
6. The Sessions Court, in its judgment and order dated 09.06.1998,
accepted the prosecution case; and while rejecting the contentions
urged on behalf of the accused, held that the chain of circumstances
was established by the prosecution, bringing home the guilt of the
accused persons. The Trial Court, accordingly, convicted them for the
aforementioned offences of criminal conspiracy and murder and
awarded sentence of rigorous life imprisonment together with fine of
Rs. 2,000/- each with default stipulations.
6.1. The Trial Court concluded that the deceased was done to death
by way of strangulation, essentially on the basis of medical evidence
and with reference to the position of the hanging dead body and other
features at the spot, like the one that door of the room in question was
not bolted from inside. The finding that the appellant had committed the
offence with her brothers in the intervening night of 28/29.04.1997 got
its basis, inter alia, in the statement allegedly made by the deceased to
PW-7 prior to his departure from Ambala Cantt. where he expressed
fear of his life, as also in the facts that the appellant had taken leave
from her office for 28.04.1997 and 29.04.1997 and that the appellant
and her brothers were not grieving when the body of the deceased was
found.
The High Court affirmed the conviction of appellant while
acquitting her brothers
20
7. The appeals preferred by the appellant and her brothers against
the judgement and order aforesaid, being Criminal Appeal No. 341-DB
of 1998 and Criminal Appeal No. 359-DB of 1998, before the High
Court of Punjab and Haryana at Chandigarh were considered together
and decided by the common judgment dated 05.03.2008. The High
Court held that it had been a case of homicide, essentially with
reference to the medical evidence and the features of the scene of
crime. The High Court also held that the culpability of the appellant
stood established in view of the circumstances that: (a) when the
appellant was sharing the same bedroom with deceased Tirloki Nath,
the onus was heavy upon her to explain the circumstances leading to
the death of her husband, which she failed to discharge; (b) the
appellant had the motive to murder her husband when there were
strained relations between them and the deceased had expressed
apprehension to be done to death by the appellant; (c) the subsequent
conduct of the appellant was also questionable, where she was found
taking tea with her brothers on the first floor although the dead body of
Tirloki Nath was hanging by rope in the Chaubara at the top floor; (d)
and the appellant did not send any information to the brothers and
other relations of Tirloki Nath immediately after noticing his demise.
The High Court, however, rejected the prosecution case that brothers
of the appellant had conspired with the appellant to carry out the
murder and hanging of the deceased Tirloki Nath. Even after rejecting
21
the prosecution case against brothers of the appellant, and even after
finding that the crime in question was not the handiwork of one person,
the High Court proceeded to observe that the appellant was rightly
convicted in the matter as the principal offender, though the
investigating agency failed to find out the other persons who were
accomplice in this crime. The High Court also observed that the Trial
Court had discussed threadbare the defence evidence and had rightly
disbelieved the testimony of DW-3 Surinder Kumar, who was
introduced by the appellant as an afterthought.
7.1. With the aforesaid findings and observations, the High Court
upheld the conviction of the appellant but acquitted her brothers on the
ground that there was no evidence on record to prove the existence of
any conspiracy to murder the deceased. The High Court, inter alia,
observed and held as follows:
“21. …..Tirloki Nath was sharing the same bed room, in
which Gargi Devi used to sleep, as stated by her in her
statement under section 313 Cr. P.C. The dead body of
Tirloki Nath was found hanging in the same house, in the
chaubara. Thus, heavy onus lay on Smt. Gargi to explain
the circumstance, leading to his death. She only stated, in
her statement under section 313 Cr. P.C. that she was
falsely implicated, in the instant case, and that the entire
investigation, was at the instance of Brij Bhushan, PW.7.
She, therefore, did not furnish any explanation, with regard
to the circumstances, leading to the death of Tirloki Nath.
This clearly proved her culpability.
*** *** ***
23. There were strained relations, between Tirloki Nath
and his wife. From the statement of Brij Bhushan, PW-7
and Radha Puri, PW-8 it was proved that Tirloki Nath was
22
tense and upset, as he was being ill treated by his wife. It
is has also come in the statement of Radha Puri, PW-8,
that Tirloki Nath was fearful that he would be killed one
day. When Tirloki Nath met Radha Puri, his sister, and his
brother-in-law, in Ambala he told them that he was
apprehending danger to his life at the hands of Smt. Gargi
his wife. Even, it is evident, from the statement of Brij
Bhushan, PW7, that Tirloki Nath was being ill-treated by
his wife Smt. Gargi. Even on 28.4.1997 in the morning
when Tirloki Nath left the house of Brij Bhushan, at
Ambala, for Chandigarh, he told him that it was his last
visit to Panchkula, as he would be coming with his
luggage, to permanently settle at Ambala, as he was
fearing that he would be done to death by his wife Smt.
Gargi. These last words spoken by him to his brother, Brij
Bhushan on 28.4.1997 in the morning, as stated above,
fall within the purview of his dying declaration. It was on
account of the strained relations, between Triloki Nath has
his wife Smt. Gargi that she committed her murder by
strangulating him and thereafter hanged his body with
ceiling fan (sic). Smt. Gargi was definitely having a motive
to commit the murder of Triloki Nath, for the reasons
referred to hereinbefore. The motive plays a very
significant role, in case, which is based on the
circumstantial evidence. The culpability of Smt. Gargi,
accused is thus proved.
*** *** ***
29. No doubt, it may be said that the commission of
crime, in this case could not be the handwork of one
person only. Smt Gargi might have taken the help of some
other persons, in hanging the body of Tirloki Nath,
deceased after strangulating him, but it was not proved as
to who those persons were. As stated above, it was also
not proved that accused Shuhabs Tiwari, Ramesh Tiwari
and Rajneesh Tiwari hatched conspiracy with Smt. Gargi
and in pursuance thereof committed the murder of Tirloki
Nath. Who were those persons, was for the Investigating
Agency to find out. Even if, the Investigating Agency, failed
to find out those persons, Smt. Gargi could not absolve
herself of the liability. Smt. Gargi being the principal
offender was rightly convicted and sentenced for the
commission of offence punishable under section 302 IPC"
(underlining supplied)
23
Rival Contentions
8. Assailing the judgment and order aforesaid, learned counsel for
the appellant has strenuously argued that the appellant has been
falsely implicated in this case by her in-laws, whose main aim was to
grab the property of the deceased, while the actual culprits have
escaped the prosecution. The learned counsel has elaborated on the
submissions that the relations between the deceased Tirloki Nath and
his brother, PW-7 Brij Bhushan (the complainant) were strained
because of property dispute for, at one point in time, their mother had
bequeathed all the properties in favour of the deceased, which was not
appreciated by the complainant and the deceased got the property at
Ambala Cantt. registered in his name just a month prior to his untimely
demise. The learned counsel has referred to the statement made by
the appellant under Section 313 CrPC to submit that the appellant and
deceased were married for about 18-19 years; their relations were
cordial; and they were leading a happy married life. The learned
counsel has particularly referred to the statement made by the
appellant that she and her deceased husband were sharing the
bedroom with their son and that the room on the top floor of the house
was not used for any other purpose except as a store.
8.1. The learned counsel has also argued that if the complainant
(PW-7) was aware on 28.04.1997 that the deceased apprehended
some form of danger to his life and the deceased had stated that he
24
would be returning with his baggage, it remains inexplicable that this
witness did not make any effort to find the whereabouts of the
deceased for a period of three days and until he got the news of
demise. The learned counsel has also attempted to submit that the
complainant had several vices; that several criminal cases were
pending against him; and his family members had published a
newspaper advertisement that anyone dealing with him shall be doing
so at his own risk.
8.2. The learned counsel would submit that the case at hand hinges
around circumstantial evidence but there is no connecting link to
associate the appellant to the murder of her husband; and the
prosecution has failed to prove the motive of the appellant. The learned
counsel for the appellant has also argued that there were lapses on
part of the police while collecting evidence where the FIR was
registered only after the arrival of complainant and his family members
and the statements of the persons who had gathered at the scene
were not recorded at all.
8.3. The learned counsel has also assailed the findings that it had
been a matter of strangulation and hence of a homicidal death with the
submissions that as per medical jurisprudence, in case of
strangulation, some scratches, abrasions, bruises etc. would be found
on the dead body and hyoid bone would be found broken but, in the
present case, there were no such marks nor hyoid bone was broken.
25
8.4. The learned counsel has further contended that strangulation of
the deceased and then, hanging of his dead body from the ceiling fan
could not have been carried out by one person alone and it remains
entirely improbable that such tasks were carried out by a frail lady like
the appellant. Thus, according to the learned counsel, with the acquittal
of brothers of the appellants, the alleged chain of circumstances is
broken on the material point and the appellant deserves to be acquitted
on this count alone.
8.5. The learned counsel for the appellant has referred to several
decisions of this Court, including those in Rajkumar v. State of M.P.:
(2004) 12 SCC 77; Sonvir alias Somvir v. The State (NCT of Delhi):
(2018) 8 SCC 24; Ramesh and Ors v. State of Rajasthan: (2011) 3
SCC 685; SK. Yusuf v. State of West Bengal: (2011) 11 SCC 754;
and Sawal Das v. State of Bihar: (1974) 4 SCC 193.
9. Per contra, learned counsel for the respondent has duly opposed
the submissions made on behalf of the appellant with reference to the
evidence on record and the finding recorded by the Trial Court and the
High Court.
9.1. So far as the question as to whether it had been a case of
homicide or the deceased had committed suicide, learned counsel has
argued that in case of suicide, the dead body would be in a suspended
position, feet would not reach the floor and knees would also not bend,
26
as found in the present case. The learned counsel has supported the
finding of the Trial Court that in almost all cases of suicide, the door
would be closed from inside rather than being left open, as had been
the scenario of the present case. Learned counsel has also highlighted
that it was not a mere coincidence that the appellant remained on
casual leave during the very period when the deceased was done to
death; and when the deceased was admittedly seen last in the
company of the appellant on 29.04.1997 and when his corpse was
found hanging in their own house on 01.05.1997, burden was heavy
upon her to explain if the deceased had gone anywhere else, but she
has altogether failed to discharge such a crucial burden. In the totality
of circumstances, according to the learned counsel, the conclusion
remains inevitable that the appellant, with her accomplice, had
strangulated the deceased and hanged him by a rope to cover-up the
scene as that of suicide.
9.2. In relation to the argument that the complainant had not
attempted to contact the deceased for the three days after he had left
Ambala Cantt., despite being aware that the deceased apprehended
danger to his life, learned counsel for the respondent has argued that
the incident took place in the year 1997 when mobile phones and
connectivity was not available to all and there was no telephone
connection on the top floor of the house. Thus, according to the learned
27
counsel, in the given circumstances, mere want of efforts on the part of
PW-7 to contact his brother would not falsify the prosecution case.
9.3. The learned counsel for the respondent has vehemently
contended that the factors like some minor and irrelevant variations in
the statement of prosecution witnesses or want of some additional
evidence are of no effect because the material aspects stand
established on record; and all the proved circumstances form a
complete chain, ruling out any other hypothesis except guilt of the
appellant and hence, she has rightly been convicted.
Preliminary Observations
10. Having given anxious consideration to the rival submissions and
having scanned through the entire record with reference to law
applicable, we are impelled to say at the outset of discussion that in
this matter, several fundamental shortcomings in the investigation and
several loopholes in the prosecution propositions got overlooked by the
Trial Court as also by the High Court. In an overall comprehension of
the matter, we are clearly of the view that it would not be safe to accept
the projected propositions of the prosecution and to convict the
appellant for the offence of murder of her husband.
The circumstances relied upon and the point for determination
11. It is at once clear that in this case, no direct evidence is available
in answer to the material questions as to how the deceased, husband
28
of the appellant, met with his untimely death; and if it were not a case
of suicide, who had carried out the gruesome and ghastly act of killing
him and hanging the dead body in his room? The Trial Court and the
High Court have held that the major circumstances projected by the
prosecution against the appellant have been established beyond
doubt, though the High Court has not accepted the prosecution case
that the brothers of appellant were conspirators and collaborators in
the crime. It is contended on behalf of the appellant that it had been a
case of suicide; that there was no motive on the part of the appellant to
eliminate her husband with whom she was having cordial relations and
was leading a happy married life; that the deceased and the appellant
were lastly in each other’s company on 29.04.1997 when the deceased
informed her that he shall be going on tour and would be returning by
03.05.1997; and that the appellant’s prosecution was fenagled by the
brother of her husband, who was having an eye on the property. On
the other hand, according to the prosecution, the crucial circumstances
stand established that the homicidal death was covertly sought to be
shown as a case of suicide; that the appellant had the motive and
intent to kill her husband; that the deceased was lastly in the company
of the appellant; and that the appellant failed to offer any explanation
as to how her husband got killed and was hanged though the dead
body was found in the same house where deceased was residing with
her.
29
11.1. In other words, what is argued in this case for the prosecution is
that the entire chain of causation has been established beyond all
reasonable doubts. It is submitted that the evidence on record has
clearly brought forth the following major factors against the appellant:-
a) that the death of the deceased was homicidal in nature and it
had not been suicidal as was sought to be projected by the culprits by
hanging the dead body from a rope;
b) that the deceased had strained relations with his wife, the
appellant, for she was indulgent in illicit relations and was insistent on
transfer of property in her name;
c) that the deceased was having, and had expressed, imminent
danger to his life at the hands of his wife, the appellant;
d) that the deceased was last seen with the appellant and she had
failed to explain as to how the deceased met with his end; and
e) that as per the post-mortem report, death had occurred 24 to 72
hours before post-mortem examination on 02.05.1997 and the
appellant was at home during this period, as she was admittedly on
leave on 28.04.1997 and 29.04.1997.
11.2. The question is as to whether the Trial Court and the High Court
are right in holding that the aforementioned circumstances stand
established beyond reasonable doubt and do form a complete chain,
ruling out any other hypothesis except guilt of the appellant?
30
The principles governing circumstantial evidence
12. When the present case pivots around circumstantial evidence,
having regard to the questions involved, apposite it would be to take
note of a few fundamental principles governing the circumstantial
evidence and its appreciation.
13. It remains trite that in judicial proceedings, proof is made by
means of production of evidence, which may be either oral or
documentary. As regards its nature, the evidence is either direct or
circumstantial. The direct evidence proves the existence of a particular
fact that emanates from a document or an object and/or what has been
observed by the witness. The circumstantial evidence is the one
whereby other facts are proved from which the existence of fact in
issue may either be logically inferred, or at least rendered more
probable5
.
13.1. In umpteen number of decisions, this Court has explained the
essentials before a particular fact could be held proved by way of the
proof of other fact or facts; and has expounded on the principles as to
how circumstantial evidence need to be approached in a criminal case.
We need not multiply on the case law on the subject; only a brief
reference to the relevant decisions would suffice.
5 A Text Book of Jurisprudence by G.W.Paton, Fourth Edition, Page 598.
31
13.2. In the case of Chandmal and Anr. v. State of Rajasthan:
(1976) 1 SCC 621, this Court said:-
“14. It is well settled that when a case rests entirely on
circumstantial evidence, such evidence must satisfy three
tests. Firstly, the circumstances from which an inference of
guilt is sought to be drawn, must be cogently and firmly
established. Secondly, these circumstances should be of a
definite tendency unerringly pointing towards the guilt of
the accused. Thirdly, the circumstances, taken
cumulatively, should form a chain so complete that there is
no escape from the conclusion that within all human
probability the crime was committed by the accused and
none else. That is to say, the circumstances should be
incapable of explanation on any reasonable hypothesis
save that of the accused’s guilt.”
13.3. In the case of Sharad Birdhichand Sarda v. State of
Maharashtra: (1984) 4 SCC 116, this Court laid down the golden
principles of standard of proof required in a case sought to be
established on circumstantial evidence with reference to several past
decisions, including that in the case of Hanumanth v. State of
Madhya Pradesh: AIR 1952 SC 343, in the following:-
“153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against
an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is
to be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned “must or should” and not “may
be” established. There is not only a grammatical but a
legal distinction between “may be proved” and “must be or
should be proved” as was held by this Court in Shivaji
Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC
793] where the observations were made: [SCC para 19, p.
807: SCC (Cri) p. 1047]
“Certainly, it is a primary principle that the accused
must be and not merely may be guilty before a court
32
can convict and the mental distance between ‘may
be’ and ‘must be’ is long and divides vague
conjectures from sure conclusions.”
(2) the facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say,
they should not be explainable on any other hypothesis
except that the accused is guilty,
(3) the circumstances should be of a conclusive nature
and tendency,
(4) they should exclude every possible hypothesis except
the one to be proved, and
(5) there must be a chain of evidence so complete as not
to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have been
done by the accused.
154. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based on
circumstantial evidence.”
13.4. In the decision cited by the learned counsel for the appellant in
Sonvir (supra), this Court, after taking note of the other cited decisions,
pointed out the principles as under:-
“82.….Law of conviction based on circumstantial evidence
is well settled. It is sufficient to refer to the judgment of this
Court in Ramesh v. State of Rajasthan (2011) 3 SCC 685
where in para 17 the following has been held: (SCC p.
693)
“17. Before we proceed with the matter, it has
to be borne in mind that this case depends upon
circumstantial evidence and, as such, as per the
settled law, every circumstance would have to be
proved beyond reasonable doubt and further the
chain of circumstances should be so complete and
perfect that the only inference of the guilt of the
accused should emanate therefrom. At the same
time, there should be no possibility whatsoever of the
defence version being true.”
33
13.5. Thus, circumstantial evidence, in the context of a crime,
essentially means such facts and surrounding factors which do point
towards the complicity of the charged accused; and then, chain of
circumstances means such unquestionable linking of the facts and the
surrounding factors that they establish only the guilt of the charged
accused beyond reasonable doubt, while ruling out any other theory or
possibility or hypothesis.
13.6. Incidental to the principles aforesaid, which are neither of any
doubt nor of any dispute, profitable it would be to keep in view the
caveat entered by G.W. Paton6
as regards circumstantial evidence
thus:
“On the other hand, circumstances may mislead or false
clues may have been laid by the wrong doer to cast
suspicion on another”.7
Several loopholes in investigation; withholding of relevant
evidence by prosecution
14. Having taken note of the point arising for determination and the
basic principles to be kept in view while dealing with this case based
on circumstantial evidence, when we examine the record, several
shortcomings and loopholes in the investigation and in prosecution
6 ibid., page 598
7 This has been stated with reference to ¶514 in Criminal Law by C.S.Kenny wherein, it is
cautioned that: though ‘circumstances cannot lie’, they can mislead. They may even have
been brought about for the very purpose of misleading, as when Joseph’s silver cup was
placed in Benjamin’s sack, or when Lady Macbeth ‘smeared the sleeping grooms with
blood’.
34
evidence manifest themselves at once. Before analysing the evidence
adduced on record, it appears rather necessary to take note of such
features of shortcomings, which are apparent on the face of record and
have a material bearing on the questions involved.
15. In the present case, the very approach of the investigating
agency had been shrouded in so much of unexplained obscurities that
a question perforce arises if there had been a fair and unbiased
investigation of the crime in question?
15.1. The manner of dealing with this case by the investigating
agency, right at the inception, has left a few serious questions
unanswered i.e., as to when did the police receive information about
dead body of the husband of the appellant, by what mode, and through
whom? PW-9 in his testimony before the Court conveniently stated that
such an information was received through “telephonic message” but
did not state the particulars of such informant. No entry in the
roznamcha or general diary has been produced to show that such an
information was duly entered in the record before proceeding for
investigation. Significantly, in the first note drawn up in the matter at
5.30 a.m. on 02.05.1997 (EX. PH/1), PW-9 only stated that ‘the
information was received at the police station’. The fact that it had been
a telephonic information is conspicuously missing in Ex.PH/1. This
aspect has got a material bearing in the matter because the defence
witness DW-3 specifically testified to the fact that he was the first
35
person informed by the appellant about the demise of Tirloki Nath; and
that he went to the police station at about 9.30 p.m. on 01.05.1997 and
divulged the information. He further asserted having accompanied the
police to the site and having conveyed the information to PW-7.
15.2. It is also noteworthy that as per PW-7, he got the information
from one T.R. Malhotra at about 11.30 p.m. who, in turn, had received
the information on telephone from a colleague of the deceased. Neither
any enquiry was made from the said T.R. Malhotra nor any other effort
was made to find out the colleague of the deceased who had
telephoned him.
15.3. In the face of such a gap in the prosecution evidence, there
appears no reason to disbelieve the testimony of DW-3 Surinder
Kumar Bhat as regards the time of information to police and himself
being the informant. In such a scenario, it remains absolutely
inexplicable as to why the information given by DW-3 was not reduced
in writing and the proceedings were not conducted on that basis. This
question magnifies itself to tougher questions for the prosecution as to
the time when PW-9 ASI Amar Singh reached the site and with whom.
From the evidence on record and surrounding facts, it appears that the
said ASI had reached the site at around 10.30 p.m. accompanied by
DW-3 Surinder Kumar Bhat. The toughness of these questions further
amplifies into the harder, and unanswered, question for the
investigating agency as to why for a long period of about 4 to 5 hours
36
at the site, the ASI (PW-9) did not carry out any investigation and did
not record any statement.
15.4. It is not the case of prosecution that the ASI (PW-9) was
prevented by any reason to immediately attend on his duties after
reaching the site. It is also not the case that he attempted to make any
enquiry from any person until arrival of the complainant and other
family members of the deceased. Even if it be assumed that the other
family members of the deceased were on the way and the ASI knew
about this fact, nothing had prevented him from attending on his duties
of investigation. Strangely enough, even the first panchnama was
prepared only after reaching of the complainant. It is also not clear as
to why the statements of the children of the deceased were not taken
when his daughter, 16 years of age, was very much present at the site.
It is also not explained as to why in this kind of matter, carrying
suspicious overtones, PW-9 did not make any enquiry from any of the
neighbours, who were available at the site; and from the tenant, who
was residing at the ground floor of the same building and whose
washroom was allegedly being used by the deceased (as per the
assertion of PW-8)? It is difficult to say that the conduct of this
Investigating Officer (PW-9) had been totally free from doubt.
15.5. Apart from the above-noted omissions at the very initial stage,
we find absolutely no reason that the Investigating Officer PW-10, even
after allegedly making enquiries in the locality regarding the character
37
of the appellant from 5-10 persons, neither mentioned this fact in the
investigation report nor recorded the statement of anyone of them. This
Investigating Officer further stated to have joined the children of the
appellant in the investigation but did not record their statements either.
This Officer also did not bother to take the statement of the tenant,
whose testimony would have been of immense significance, looking to
the nature of accusations as also the factors related with the building in
question.
15.6. Moreover, in this matter, where it was prima facie appearing that
the clues available at the site might play a significant role in reaching to
the real culprits, it is also intriguing to notice that the Investigating
Officer did not take even elementary care to obtain fingerprints from
the material objects and to get them analysed properly. The
Investigating Officer (PW-10) has stated, rather with impunity, that he
did not take any fingerprints at all, even while admitting that the
fingerprint expert did visit the site. It is not stated that the so-called
expert expressed inability to collect such prints for any reason. It is left
only for one to wonder as to for what purpose did the so-called
fingerprint expert visit the site, if no prints were to be taken at all!
15.7. The above-mentioned unexplained shortcomings, perforce,
indicate that in this case, the investigation was carried out either with
pre-conceived notions or with a particular result in view. It is difficult to
accept that the investigation in this case had been fair and impartial.
38
From another viewpoint, on the facts and in the circumstances of this
case, the omissions on the part of investigating agency cannot be
ignored as mere oversight. These omissions, perforce, give rise to
adverse inferences against the prosecution.
16. In this case, it is also interesting to notice that though the
prosecution had cited the other relations of the deceased as witnesses,
including his mother and brother-in-law (husband of PW-8 - who had
otherwise signed the inquest report) but did not examine them before
the Court. Withholding of relevant witnesses could only lead to further
adverse inference that if examined, they would not have supported the
prosecution case. This is apart from the fact that the investigating
agency avoided to include any independent witness in the investigation
and did not carry out necessary enquires from the persons other than
in-laws of the appellant.
17. Hereinabove, we have only indicated a few broad aspects of
shortcomings and lacunae in the prosecution case which is otherwise
resting on circumstantial evidence and on the theory propounded by
the brother of deceased (PW-7), as supported by his sister (PW-8).
The upshot of the discussion foregoing is that the propositions
projected by the prosecution require deeper scrutiny to find if the case
against the appellant is established beyond reasonable doubt; and if
the elements of adverse inferences do not materially affect the
prosecution case.
39
Homicide or suicide
18. As noticed, the first question that concerns us in this matter is as
to whether death of Tirloki Nath was suicidal or it had been a matter of
homicide. The Trial Court as also the High Court have returned
concurrent findings that it had been a matter of homicidal death. Both
the Courts came to this conclusion essentially with reference to the
medical opinion that the cause of death was asphyxia due to
strangulation; and also with reference to some of the surrounding
factors that the feet of the hanging dead body were touching the floor;
the knees were bent; the slippers were not removed; and the room in
question was wide open. Assailing such findings, it is contended on
behalf of the appellant that as per medical jurisprudence, scratches,
abrasions, bruises etc. are usually present and hyoid bone would be
usually found broken in case of strangulation but, in the present case,
there were no such marks nor hyoid bone was broken.
18.1. We have closely examined the testimony of PW-1 Dr. Usha
Bansal, who was one of members of the board that had conducted
post-mortem. We have also taken into account the features noticeable
from the site plan, the inquest report and the photographs placed on
record. Having examined the relevant material, we find nothing of
infirmity in the findings of the Trial Court and the High Court that it had
been a case of strangulation, as could be seen from the post-mortem
report that the dead body carried “well defined depressed ligature mark
40
measuring 3 cm. wide seen encircling the neck around thyroid
cartilage with a knot present on left side of neck and this ligature mark
was anti-mortem in nature”. The other ligature mark was on the left
side of the neck measuring 1.5 cm wide and that was post-mortem in
nature. The board had undoubtedly been of the opinion that the cause
of death was “asphyxia due to strangulation”. With such categorical
medical opinion coupled with all the relevant features surrounding the
suspended dead body in the room in question, it is difficult to say that it
had been a case of suicide merely because hyoid bone was not broken
or because the marks of resistance like abrasions/scratches were not
reported. The presence of marks of resistance would depend on a
variety of factors, including the method and manner of execution of the
act of strangulation by the culprits; and mere want of such marks
cannot be decisive of the matter. Equally, it is not laid down as an
absolute rule in medical jurisprudence that in all cases of strangulation,
hyoid bone would invariably be fractured. On the contrary, medical
jurisprudence suggests that only in a fraction of such cases, a fracture
of hyoid bone is found.8
In other words, absence of fracture of hyoid
8 Modi: A textbook of Medical Jurisprudence and Toxicology, 26th Edition page 529 where it
is also noted:
“In the Journal of Forensic Sciences Volume 41 under the Title – Fracture of
the Hyoid Bone in Strangulation: Comparison of Fractured and Unfractured Hyoids
from Victims of Strangulation, it is stated:
The hyoid is the U-shaped bone of the neck that is fractured in onethird of all homicides by strangulation. On this basis, post-mortem detection
of hyoid facture is relevant to the diagnosis of strangulation. However, since
many cases lack a hyoid fracture, the absence of this finding does not
exclude strangulation as a cause of death. The reasons why some hyoids
fracture and others do not may relate to the nature and magnitude of force
applied to the neck, age of the victim, nature of the instrument (ligature or
hands) used to strangle, and intrinsic anatomic features of the hyoid
bone…………”
41
bone would not lead to the conclusion that the deceased did not die of
strangulation.
18.2. For what has been discussed in preceding paragraphs, we have
no hesitation in affirming the findings in the impugned judgments that
the deceased Tirloki Nath was done to death by strangulation and
thereafter, his dead body was hanged from the ceiling fan in the room.
19. However, the question still remains as to whether the
circumstances brought on record establish beyond reasonable doubt
that such ghastly act of killing Tirloki Nath and hanging his dead body
was carried out by the appellant so as to maintain her conviction under
Section 302 IPC?
20. Before examining the circumstances brought on record by the
prosecution, we may observe in the passing that the Trial Court as also
the High Court have proceeded on the lines that once it was
established that the deceased Tirloki Nath was killed by way of
strangulation and the killer/s suspended his dead body from the fan so
as to mislead; and since the dead body was found in the very house he
was residing with the appellant who could not explain the reason of his
death, she was to be held responsible for the crime. In other words,
the Trial Court and the High Court have assumed that as soon as the
conclusion about the homicidal death of Tirloki Nath in his own room is
reached, all other aspects of the prosecution story about so-called
42
strained relations of the deceased and the appellant, and the alleged
threat perception of the appellant ipso facto come into operation; and
the finding on homicidal death itself has been taken as the answer to
other question as to whether homicide was to be imputed on the
appellant or not. In our view, while examining the question as to
whether the death in question was homicidal or suicidal, there was no
justification to mix up the other circumstances projected by the
prosecution, which indeed required separate assessment and analysis.
Be that as it may, appropriate now it would be to examine the
circumstances put forth in this case to find if the prosecution has been
able to bring home the guilt of the appellant beyond reasonable doubt.
Alleged last statement of deceased and motive of appellant
21. The main plank of prosecution case against appellant has been
that the relations between the deceased and the appellant were too
strained; the appellant was having illicit relations and was ill-treating
the deceased; the deceased had expressed even threat to his life at
the hands of the appellant; and the deceased was all set to move out
of the company of the appellant. These factors, imputing motive on
the appellant to kill her husband (and even deceased perceiving threat
to his life at the hands of the appellant), have been held proved by the
Trial Court and the High Court with reference to the testimony of PW-7
Brij Bhushan (brother of the deceased) and PW-8 Radha Puri (sister of
the deceased). As noticed, the Trial Court as also the High Court have
43
relied upon these two witnesses and have accepted their assertions in
toto. However, a close look at the testimony of these witnesses and the
assessment of their evidence with reference of other factors on record
bring forth several doubts, which have not been dispelled and which do
operate against the prosecution.
22. Though learned counsel of the appellant has attempted to
suggest, with reference to additional documents placed on record, that
PW-7 carried questionable antecedents and had been a proclaimed
offender but we are ignoring such submissions for the reason that
these aspects were not specifically put to the witness in his crossexamination. However, the question is as to whether his testimony
inspires such confidence that all the facts and the circumstances
suggested by him, and all his assertions, be accepted on their face
value? In our view, the answer to this question could only be in the
negative.
22.1. The Trial Court and the High Court have proceeded on the
assumption that PW-7 being the brother of deceased, would not be
interested in shielding the real culprit and to unnecessarily throw the
accusation on the appellant but, in our view, such an approach had
been fundamentally incorrect. In overall comprehension of the
statement made by this witness, a few relevant factors are immediately
noticeable that, after having served in Navy for about two years from
1978 to 1980, he had never been in a settled job or occupation. He
44
served in different establishments; also opened a grocer’s shop that
was closed; again served in some more establishments; and then,
established a factory that too was closed with about half of the amount
of loan repaid and remaining being due. Significantly, the ancestral
house of the family was sold by this witness and the proceeds were
utilised by him in opening the grocer’s shop, which was closed by him
because he ‘did not like that business’. He had taken loan for
establishing the factory and it had been the case of the appellant that
he was pressurising her to stand as a guarantor and upon her refusal,
the deceased Tirloki Nath stood as a guarantor. DW-3 Surinder Kumar
Bhat, a colleague of the deceased, testified to the fact that the
deceased remained disturbed for his younger brother (PW-7) regularly
demanding money from him; and has narrated in detail the efforts that
were made by the deceased in helping PW-7 Brij Bhushan getting
some employment and he even asked for a loan from the society
managed by DW-3. In the given state of affairs, this much is clear that
the testimony of PW-7 is required to be approached with extra care
and caution.
22.2. On a closer look at the record, it is noticed that some material
improvements were made by PW-7 while deposing in the Court over
the initial version, on the basis whereof FIR was registered by PW-9.
For example, in the Court statement, this witness alleged that the
deceased was apprehending murder by the appellant with the help of
45
her brothers while improving over the expression that the deceased
was ‘fed up and frightened’, as occurring in the initial version. Further,
the initial allegation that the appellant was not providing food to the
deceased ‘at proper time’ was improved in the Court statement to the
effect that she was not providing food to the deceased.
22.2.1. Even if the aforementioned aspects are left aside for a moment
and it be assumed that the deceased met PW-7 on 28.04.1997 and
stated all his apprehensions as also the plan to leave Panchkula with
luggage, it remains entirely inexplicable that such a concerned brother
of the deceased did not accompany him to Panchkula for safety and
support; and did not share the apprehensions stated by the deceased
with other members of the family; and even did not enquire about the
welfare of his brother for next three days. Obviously, the conduct of this
witness had not been altogether free from doubt and his statement
cannot be accepted without proper corroboration. Now, the attempted
corroboration is suggested only with reference to the statement of the
sister of this witness viz., PW-8 Radha Puri. However, her testimony
carries excessive features of doubts, as would occur infra.
23. It is evident on the face of the record that in her testimony, PW-8
Radha Puri made several improvements over the statement made
during investigation. The allegations that upon reaching the spot, she
saw the appellant and her brothers ‘enjoying tea’ were not made in her
police statement. The witness had gone to the extent of stating that the
46
deceased was attacked by his wife and children on two-three
occasions though no such allegation appeared in her initial version
during investigation. It is more than apparent that the efforts on the
part of this witness PW-8 had been to level accusations not only
against the appellant but even against the children of the appellant,
particularly her daughter, by suggesting that the said daughter
questioned her presence on the spot though such had not been the
case of the prosecution. As regards the plot at Ambala Cantt., this
witness gave out vacillating answers where she first of all stated want
of knowledge; then stated that the plot was in the name of mother; and
again stated her inability to say exactly in whose name it was. Leaving
aside these aspects, the noteworthy feature emerging from her
statement is the admission of the fact that the ancestral house was
sold by Brij Bhushan (PW-7).
24. A combined look at the testimony of PW-7 and PW-8 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
47
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.
25. 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
48
arguments, and on the broad phraseology of the first part of Section 32
(1) of the Indian Evidence Act9
, 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 admissible10, 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.
25.1. The other prosecution witnesses have not even remotely
indicated any traces of discord in the relations of the deceased and the
appellant for any reason whatsoever. The appellant has specifically
refuted such allegations in her statement under Section 313 CrPC. The
defence witness DW-3 Surinder Kumar Bhat, who had been the
colleague of the deceased and was living nearby, has been categorical
that the deceased and the appellant were maintaining good relations
and that the appellant was enjoying a good reputation. Nothing has
occurred in his cross-examination to discredit this witness as
untrustworthy. Another noteworthy factor emerges from the testimony
of DW-4 Akhilesh Bhatnagar, Assistant, Oriental Insurance Company,
9 32. Cases in which statement of relevant fact by a person who is dead or cannot be
found, etc., is relevant.-Statements, written or verbal, of relevant facts made by a person
who is dead, or who cannot be found, or who has become incapable of giving evidence, or
whose attendance cannot be procured without an amount of delay or expense, which, under
the circumstances of the case, appears to the Court unreasonable, are themselves relevant
facts in the following cases:-
(1) when it relates to cause of death.- When the statement is made by a person
as to the cause of his death, or as to any of the circumstances of the transaction which
resulted in his death, in cases in which the cause of that person's death comes into question.
10 Vide Pakala Narayana Swami v. The King-Emperor: AIR 1939 PC 47
49
Chandigarh. He has proved the hotel expenses bills paid by the
employer of the deceased for his stay at Karnal from 14.01.1997 to
01.02.1997. If that were so, the assertion of PW-8 Radha Puri that the
deceased made some statement to her at Yamuna Nagar on
25.01.1997 becomes doubtful. As noticed, though the husband of PW8 (with whom she allegedly conferred about the alleged statement of
the deceased) was cited as prosecution witness but was not examined
in the Court.
26. We may, in the passing also point out another glaring factor in
relation to the testimonies of PW-7 and PW-8. It is but apparent that
PW-7, even before reaching the spot of crime, had already concluded
that his brother had been murdered. In his words: ‘I gave telephonic
messages to my relatives regarding the murder of my brother’. PW-8
has directly contradicted him while saying: ‘On 1.5.97, I came to know
through my brother Brij Bhushan that Tirloki Nath had committed
suicide. He told that as per the information, the neighbourers at
Panchkula told that Tirloki Nath had committed suicide.’ Another
feature of the case is that as per the site sketch prepared by PW-3
Manohar Lal, (Ex. PD), there was a bathroom-cum-toilet of 10 feet x 3
feet size, attached with the room in question where the deceased was
putting up, as per the witnesses PW-7 and PW-8. It clearly belies the
suggestion that the deceased was forced to use the washroom of the
tenant at the ground floor.
50
27. For what has been discussed hereinabove, strong elements of
doubts surface on record as regards reliability of these two witnesses
PW-7 and PW-8. In the given circumstances, it is difficult to accept that
the prosecution has been able to establish by cogent and reliable
evidence that the appellant was involved in illicit relations or was
pressurising the deceased to transfer the property in her name and that
there had been strong acrimony between the deceased and the
appellant. It is also difficult to accept, for want of cogent corroborative
evidence, if the deceased had made any alleged statements about
discord with his wife and threat perceptions to PW-7 and PW-8. In the
given circumstances, the possibility of levelling of imputations on the
appellant for intentions other than bringing the real culprit/s to the book
is not ruled out altogether.
Last seen theory: Proof and effect
28. The prosecution has relied upon another circumstance that the
deceased was lastly in the company of the appellant and she had
failed to explain his whereabouts as also the circumstances leading to
his death.
28.1. Insofar as the ‘last seen theory’ is concerned, there is no doubt
that the appellant being none other than the wife of the deceased and
staying under the same roof, was the last person the deceased was
seen with. However, such companionship of the deceased and the
51
appellant, by itself, does not mean that a presumption of guilt of the
appellant is to be drawn. The Trial Court and the High Court have
proceeded on the assumption that Section 106 of the Indian Evidence
Act11 directly operates against the appellant. In our view, such an
approach has also not been free from error where it was omitted to be
considered that Section 106 of the Indian Evidence Act does not
absolve the prosecution of its primary burden. This Court has
explained the principle in Sawal Das (supra) in the following:-
“10. Neither an application of Section 103 nor of 106 of
the Evidence Act could, however, absolve the prosecution
from the duty of discharging its general or primary burden
of proving the prosecution case beyond reasonable doubt.
It is only when the prosecution has led evidence which, if
believed, will sustain a conviction, or which makes out a
prima facie case, that the question arises of considering
facts of which the burden of proof may lie upon the
accused……”
28.2. 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
11 106. Burden of proving fact especially within knowledge.- When any fact is especially
within the knowledge of any person, the burden of proving that fact is upon him.
52
report, the probable time that had elapsed between death and postmortem (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.
28.3. 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. In SK. Yusuf (supra), this Court has said:-
“21. The last seen theory comes into play where the
time gap between the point of time when the accused and
the deceased were last seen alive and when the deceased
is found dead is so small that possibility of any person
other than the accused being the author of the crime
becomes impossible.”
Subsequent conduct of the appellant and other circumstances
29. The Trial Court and the High Court have readily, and rather
heavily, relied upon an assertion made by PW-8 in her statement that
upon her reaching the site, the appellant was ‘enjoying tea’ with her
brothers and other relations on the first floor; and was not found
stressed or perplexed or saddened. This part of the assertion on the
part of PW-8 has its own shortcomings. Such an assertion was not
53
made by her in the police statement; and is not even remotely
corroborated by any other prosecution witness including PW-7.
Moreover, it had been too unrealistic on the part of the Trial Court and
the High Court to observe that the appellant ought to have been found
sitting with the dead body. Admittedly, the corpse was emitting foul
smell and DW-8 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.
30. Another circumstance taken against the appellant had been that
she allegedly did not send any information to the brothers and other
relations of the deceased immediately after noticing his death. Such
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observations and findings have been recorded against the appellant
while totally overlooking the statement of DW-3. In this regard, it gets
perforce reiterated that the prosecution has not produced any evidence
which could displace the statement of DW-3 that he indeed informed
the police at the asking of the appellant at about 9.30 p.m. on
01.05.1997 and did also inform the brother of the deceased. As
noticed, PW-9 ASI Amar Singh did not specify as to how the
information was received by him. Moreover, the person said to have
divulged the information to the witness PW-7 was never examined.
Given such omissions in the prosecution case, we find no reason to
discard the testimony of DW-3. Once his testimony is accepted,
several blocks of the prosecution story are knocked to the ground.
Effect of the acquittal of co-accused persons
31. There is yet another lacuna in the prosecution case that has
magnified itself with acquittal of the co-accused, brothers of the
appellant. It cannot be denied that if the appellant had been the killer,
she, by herself, could not have hanged the dead body by the ceiling
fan; and the act had definitely been performed by more than one
person. That being the position, the Trial Court readily accepted the
case against the brothers of the appellant as conspirators without
cogent and convincing evidence. The High Court rightly acquitted them
for want of evidence and even observed that the prosecution had failed
to book the real culprit in place of the brothers of the appellant.
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However, the High Court yet considered it proper to maintain the
conviction of the appellant as the principal culprit while failing to
consider that an important link in the prosecution story was snapped as
soon as brothers of the appellant were acquitted.
31.1. We 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 oversimplification of the matter by leaving the missing link as merely a fault
of the investigating agency. In our view, 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.
The prosecution case not established beyond reasonable doubt
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32. 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 Tirloki
Nath 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.
33. Apart from the factors above, there are several other loopholes
whereby the alleged circumstances sought to be relied upon by the
prosecution lose their worth and force. As noticed, the investigating
agency and the prosecution had not been forthright. The relevant
aspects pertaining to the crime in question were not properly
investigated and even the relevant witnesses were not examined.
Moreover, as noticed, the prosecution case was framed in the manner
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that the appellant committed the crime with the help of her brothers
who have been acquitted.
33.1. In the given circumstances, the fact that the staircase from the
ground floor was directly leading to the room in question where the
dead body was found, acquires immense significance. Even if it be
assumed that the deceased was putting up in the said room, some
person or persons reaching there directly from the ground floor and
carrying out the crime is not ruled out. In the alternative, some person
or persons having executed the crime at some other place and then
having brought the dead body and hanged it in the room in question is
also the possibility which cannot be brushed aside as entirely
improbable.
34. In the given circumstances, when the prosecution has not been
able to remove the aforesaid doubts and the motive as imputed on the
appellant does not appear existing, the benefit of doubt, obviously,
goes to the appellant.
CONCLUSION
35. For what has been discussed hereinabove, we are clearly of the
view that the Trial Court and the High Court have approached the case
from an altogether wrong angle and have overlooked the major flaws
and shortcomings in the prosecution case. In the given set of facts and
circumstances, even if the prosecution has been able to create some
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suspicion against the appellant, it would be unsafe to accept that the
implicating circumstances have been established by cogent evidence
and such circumstances form a complete chain that rules out any other
hypothesis except guilt of appellant. Hence, the conviction of the
appellant cannot be sustained; she is entitled to the benefit of doubt.
36. Consequently, this appeal is allowed in the manner that the
impugned judgment and orders convicting the appellant for the offence
punishable under Section 302 IPC are set aside; the appellant is
extended the benefit of doubt and is, accordingly, acquitted. Her bail
bonds are cancelled and sureties are discharged.
...............................................J.
(A.M. KHANWILKAR)
..............................................J.
(DINESH MAHESHWARI)
New Delhi,
Date: 19th September, 2019.
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