SMT. GARGI versus STATE OF HARYANA on 19 September 2019

1. A combined look at the testimony of PW-7 (brother ofdeceased) and PW-8 (sister of deceased) brings to the fore oneof the significant facts that there had been an ancestral houseFbelonging to the family that was sold by PW-7 alone and the saleproceeds were utilised by him to open a grocery shop, one of themultiple ventures he had tried, mostly resulting in closure orfailure. The appellant had been categoric in her assertion thatthe property and money had been at the root of discord in theGfamily and the same had been the cause for the family of thedeceased implicating her. DW-3 has also testified to the effectthat the deceased had his tense moments because of moneydemands of his brother i.e., PW-7. Unfortunately, the Trial Courtas also the High Court have totally overlooked these factors andfeatures hovering over the prosecution story. [Para 24][40-C-D]H

2. Going further deep into the prosecution story, it is clearthat there is no direct and cogent evidence on record that theappellant was involved in illicit relations or was forcing thedeceased to transfer the property. It had not been the assertionof PW-7 or PW-8 that the alleged illicit relations of the appellantand/or her pressurising the deceased to transfer the propertyhad been the matters of their personal knowledge. No particularsof any person having illicit involvement with the appellant are tobe found on record. Such assertions have been made by thesewitnesses on the basis of the statements allegedly made by thedeceased to each of them individually and at different point oftime. The High Court and the Trial Court have readily acceptedthe suggestions of PW-7 and PW-8 that the deceased made thestatements to them as alleged; and have even labelled thestatement allegedly made to PW-7 as being the dying declarationof the deceased. Strictly speaking, the alleged statement madeto PW-7 could not have been taken as a ‘dying declaration’ forthe reason that at time of making of such statement, the deceasedwas not labouring under his imminent death and he was notrecounting the circumstance of the transaction relating to hisdeath. For the sake of arguments, and on the broad phraseologyof the first part of Section 32 (1) of the Indian Evidence Act, evenif it be assumed that the statement made by the deceased, beforethe cause of death had arisen, or before he had any reason toanticipate his killing, may also be taken as admissible, such analleged statement cannot be directly acted upon without concretecorroboration. In the present case, what to say of corroboration,even making of such statement by the deceased appears to bedoubtful. [Para 25][41-E-H; 42-A-B]

Last seen theory: Proof and effect

3. On the facts of the present case, it emerges that as perthe version of PW-7, the deceased was lastly in his company on28.04.1997 when he allegedly expressed his dejection and fearas also his plan to return with luggage. The appellant has pointedout that the deceased was with her in the morning of 29.04.1997when he pointed out his tour programme commencing that daywith scheduled return on 03.05.1997. It is not in dispute that thedeceased was regularly on tour for longer durations of about two AB

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Aweeks in connection with his duties. The dead body was recoveredon 01.05.1997 and as per post-mortem report, the probable timethat had elapsed between death and post-mortem (on 02.05.1997at 12.30 p.m.) was 24 to 72 hours. On the basis of this opinion, itcannot be assumed by way of arithmetical calculation that thedeceased might have met with his end on 29.04.1997. TheBpossibility of it being a day later is not ruled out. [Para 28.2][44-D-F]

4. In the given set of circumstances, the last seen theorycannot be operated against the appellant only because she wasthe wife of the deceased and was living with him. The gap betweenCthe point of time when the appellant and deceased were last seentogether and when the deceased was found dead had not beenthat small that possibility of any other person being the author ofthe crime is rendered totally improbable. [Para 28.3][44-G]

Subsequent conduct of the appellant and otherDcircumstances

5. Admittedly, the corpse was emitting foul smell and DW-8 reached the spot at about 4.30 in the morning though theappellant had noticed the dead body the previous evening andhad taken steps for informing the concerned through DW-3,ESurinder Kumar Bhat. In the given circumstances, no fault couldbe foisted on the appellant if she did not remain with the deadbody all through and until arrival of PW-8. The expression‘enjoying tea’ was coined by this witness PW-8 alone and for wantof corroboration and for omission of such a fact in the policeFstatement, there appears no reason to accept the same. If at allanything of subsequent conduct of appellant is to be taken intoconsideration, it is evident that she attended her office on30.04.1997 and 01.05.1997. It is not the case of the prosecutionthat during these two days, any abnormality in her behaviour wasnoticed by anyone. The appellant neither concealed herself norGaltered the scene of crime in any manner and there had not beenany evidence about any oddity in her manners and demeanour.[Para 29][45-D-F]

6. This Court would hasten to observe that merely for thereason of acquittal of co-accused, another accused in a criminalH

case may not be acquitted if cogent evidence against him isavailable and his case could be segregated from the case againstthe acquitted co-accused. However, on the basic facts of thepresent case, it is evident that the gruesome act in question hadnot been the handiwork of one person and it would be ratherpreposterous to assume that the appellant hanged the dead bodyby ceiling fan all by herself. In the given circumstances, when thealleged collaborators of the appellant are acquitted, the alreadyexisting clouds of doubts on the prosecution story get congealed.The High Court has proceeded with over-simplification of thematter by leaving the missing link as merely a fault of theinvestigating agency. In view of this Court, as soon as the brothersof the appellant were acquitted, the High Court ought to haveexamined the consequence of such acquittal that an importantlink in the prosecution theory was snapped and it was difficult toconclude that the prosecution has established its case againstthe appellant beyond all reasonable doubts. [Para 31.1][46-F-H; 47-A]

The prosecution case not established beyond reasonabledoubt

The prosecution case not established beyond reasonabledoubt

7. Thus, as regards the circumstances relied upon by theprosecution, the position obtainable from the material placed onrecord and the surrounding factors is that (a) the death ofdeceased was homicidal in nature and had not been suicidal thoughit was sought to be projected as suicide by the culprits by hangingthe dead body from a ceiling fan in his room; (b) there is no cogentand convincing evidence on record to come to a definite conclusionthat the relations of the deceased and the appellant were strainedor that the appellant was indulgent in illicit relations or she wasinsisting for transfer of property in her name; (c) it is also difficultto come to a definite conclusion that the deceased had expressedimminent danger to his life at the hands of the appellant; and (d)even if the deceased was last seen alive in the company of theappellant, the time gap between such last seen and finding of hisdead body had been of about 2 to 3 days. [Para 32][47-B-D]

Chandmal and Anr. v. State of Rajasthan: (1976) 1 SCC621;Sharad Birdhichand Sarda v. State of AB

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AMaharashtra: (1984) 4 SCC 116 : [1985] 1 SCR 88;Hanumanth v. State of Madhya Pradesh: AIR 1952 SC343: [1952] SCR 1091; Pakala Narayana Swami v. TheKing-Emperor: AIR 1939 PC 47 – relied on.

Rajkumar v. State of M.P. (2004) 12 SCC 77; SonvirBalias Somvir v. The State (NCT of Delhi): (2018) 8 SCC24 : [2018] 7 SCR 830; Ramesh and Ors v. State ofRajasthan: (2011) 3 SCC 685 : [2011] 4 SCR 585;SK. Yusuf v. State of West Bengal : (2011) 11 SCC 754:[2011] 8 SCR 83; Sawal Das v. State of Bihar: (1974) 4SCC 193 : [1974] 3 SCR 74 – referred to.

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A Text Book of Jurisprudence by B.W. Paton, FourthEdition, Page 598 – referred to.

Criminal Law by C.S. Kenny – referred to.

Modi: A textbook of Medical Jurisprudence andDToxicology – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.G1046 of 2010.

From the Judgment and Order dated 05.03.2008 of the High Courtof Punjab and Haryana at Chandigarh in Crl. Appeal No. 359-DB of1998.

Nidhesh Gupta, Sr. Adv., Tarun Gupta, Ms.Vriti Gujral, Ms.PallaviHSingh and Ms.Japneet Kaur for Ms.S.Janani, Advs. for the Appellant.

Anish Kumar Gupta, AAG, Avdhesh Kumar Singh, ChandraShekhar Sumar, Nisarg Chaudhary and Dr. Monika Gusain, Advs. forthe Respondent.

The Judgment of the Court was delivered by DINESH MAHESHWARI, J.

Preliminary

1. This appeal by special leave is directed against the commonjudgement and order dated 05.03.2008[1] whereby, the High Court of Punjaband Haryana at Chandigarh has partly affirmed the judgment and orderdated 09.06.1998 in Sessions Case No. 63 of 1997 by the AdditionalSessions Judge, Ambala; and hasupheld the conviction of the appellantfor the offence punishable under Section 302 of the Indian Penal Code(‘IPC’)even while acquitting the co-accused persons of the charge underSection 302 read with Section 120-B IPC.

1.1. In a brief outline of the material aspects, it may be noticedthat in the present case, the appellant was charged with theimputationsthatshe killed her husband by strangulation and,with the helpof co-accused persons (her brothers), hanged the dead body in one ofthe rooms in the house,as if it were a case of suicide. The matter restedon circumstantial evidencewhere, according to the prosecution, therelations of the deceased (husband)and the appellant (wife) were toostrained; the deceased had stated threat perceptions that his wife mightkill him, for she was involved in illicit relations and was desirous of grabbinghis 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 happymarried life with her husband for 18-19 years with two children; andthatthe brother of the deceased, on whose statement FIR was registeredand who was the prime prosecution witness, was carrying the ill-intentionsto grab the property of her husband and had managed her prosecution.TheTrial Court convicted all the accused persons while accepting theprosecution case and rejecting the defence version. In appeal, the HighCourt, though found that the circumstances brought on record were not A

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Asufficient to bring home the charge of conspiracy against the brothers ofthe appellant andacquitted them but, affirmed the findings against theappellant and maintained her conviction for the offence of murder of herhusband. Hence, this appeal.

The relevant facts and background aspectsB

2. Put in brief, the prosecution case had been that on 01.05.1997,having received information that a man had committed suicide in HouseNo. 1297, Sector-15, Panchkula, ASI Amar Singh (PW-9), accompaniedby UGC Bidhi Chand and UGC Baldev Singh, reached the spot at about11.30 p.m.[2], only to find that in the room on the second floor of house,Cthe deceased TirlokiNath, husband of the appellant, washanging by neckwith his feet touching the floor. They also found that a pool of blood hadcollected near the dead body; and that the dead body was emitting badodour. The appellant and her children were in the same house, but on thefirst floor.

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D2.1. At about 4.30 a.m. of 02.05.1997, i.e., nearly five hours afterthe police having arrived, the complainant BrijBhushanKaul (PW-7),brother of the deceased, reached the spot with his wife, mother, sister’shusband and sister Smt. RadhaPuri (PW-8). The complainant made thestatement thatrelationship of the deceased and the appellant was tooEstrained due to which, they were residing in separate rooms in the samehouse; that the appellant had been ill-treating her husband, which includedrestricting his use of bathroom facilities in the same house; that thedeceased had once expressed his fear that the appellant would leave thegas cylinder open with the intention to kill him; and that the deceasedhad also stated that ‘the character of his wife was bad’and she wasFliving ‘with bad women’. The complainant also stated that on 28.04.1997,the deceased came to his house (at AmbalaCantt.) and told him that hewould go to Panchkula and would come back with his luggage as hewas ‘very much fed up and frightened’. The complainant further statedthat in the night of 01.05.1997 at about 11.30 p.m.,he received a messageGthat his brother had passed away and thereupon, he arrived at the houseof the deceased accompanied by his mother, wife, sister and brother-in-law, only to find the deceased in the condition as described hereinabove.

2 At what time did the police and the complainant receive this information, by whichmode of communication, and through whom, are some of the questions having bearingHin this matter, as shall be noticed hereafter later.

While concluding, the complainant stated his suspicion that the appellanthadmurdered his brother becausethedeceased had not transferredhishouse as per her demands.

2.2. For the incident in question, FIR No. 174 dated 02.05.1997was registered on the basis of the statement so made by the complainant.In the preliminaries, the inquest report (Ex. PH/2) was prepared by ASIAmar Singh (PW-9); rough site sketch (Ex. PM) was prepared;photographs were taken by the photographer Shashi (PW 11); and thedead body was sent for post-mortem. Thereafter, the investigation wastaken over by Inspector Jag Pravesh (PW-10), who recorded thestatements of witnesses, visited the spot,got prepared the scaled siteplan (Ex. PD) and also arrested the appellant. SI IshwarChander (PW-12) also partly investigated this case. He arrested and released the brothersof appellant, who were on anticipatory bail. Thereafter, the appellantwas charge-sheeted for the offence punishable under Section 302 IPCwhile her brothers were charge-sheeted for the offence punishable underSection 302 read with Section 120-B IPC.

Prosecution evidence

3. After committal, the case was tried as Sessions Case No. 63 of1997 in the Court of Additional Sessions Judge, Ambala. The prosecution,inter alia, examined 12 witnesses. Having regard to the subject matterof this appeal and the questions involved, it would be advantageous totake note of the relevant aspects emerging from the statements ofmaterial witnesses in requisite details, even at the cost of a little inflation.

3.1. PW-1 Dr.UshaBansal, who had been one of the members ofthe medical board that had conducted post-mortem of the bodyofdeceased and had prepared the report Ex. PA,stated the observationsand opinion as follows:

“...A well defined depressed ligature mark measuring 3 cm.wide seen encircling the neck around the thyroid cartilagewith a knot present on left side of neck. This ligature markwas ante-mortem in nature. A ligature mark above the thyroidcartilage going obliquely upward and posteriorly on left sidepresent with an irregular impression of knot on left side ofthe neck measuring 1.5 cm wide present. This ligature markwas of post-mortem nature....

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In our opinion, the cause of death was asphyxia due tostrangulation...The probable time that elapsed between injuryand death was few minutes and between death and post-mortem was 24 hours to 72 hours.....”

3.2. PW-7 BrijBhushanKaul (brother of the deceased)has beenBthe prime witness of prosecution in this case. The relevant assertionsoccurring in his examination-in-chief readas under: -

“…..Upto Dec., 1997 I remained at AmbalaCantt.TirlokiNathused to visit AmbalaCantt and was always found by us to bedisturbed, because of the family problem. TirlokiNath told usthat hewas shifted to a separate room at the top floor of thehouse and that he was not provided any article of food andwas being mal-treated by his wife Smt. Gargi Devi. He alsotold many a time that he was never allowed to enter the roomand toilet by his wife at night times. TirlokiNath deceased leftour house at AmbalaCantt lastly on 28.4.1997, around 7.45AM and while leaving, told that it was his last time to go toPanchkula to collect his belongings and then would be comingto AmbalaCantt for ever. On this, I asked him as to why hewas taking this step. He told me that he was very much upsetdue to the illicit relations of his wife Smt. Gargi Devi and wasafraid of that if he stayed in the same house at Panchkula, hecould be murdered, with the help of her three brothers…Onthis I told him that it was not possible because a wife cannotkill her husband. However, while leaving our house,he wastotally shattered. TirlokiNath used to take tea only in his roomat the top floor of the house, using his independent cylinderin his room. He was not provided even tea by Smt. Gargi andthe children. He told me that once his wife had opened thegas cylinder in order to kill him…..I was on tour on 1.5.97. Icame back to my house at Ambala late in the night at about11.30 PM. Immediately thereafter, I got a message from myneighbour, namely Mr. T.R. Malhotra giving me the messagethat his(sic) brother TirlokiNath at Panchkula was no more,as he received this information from some colleague of mybrother.(Objected to). My brother was murdered. At that time,it was not clear by whom. Thereafter, I gave telephonicmessages to my relatives regarding the murder of my brother.

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So, I alongwith my brother-in-law Mr. A.C. Puri, my sisterSmt. RadhaPuri, my mother Smt. Raj Kumari, my wifeMeenakshi went to Panchkula.On our reaching at Panchkula,we found two ASIs sitting outside the house of Smt. Gargi. Onmy enquiry, as to what had happened to my brother, I wastold that I should go up-stairs and found out myself. We allwent up-stairs and found the dead body of TirlokiNath hangingwith 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. Itwas signed by me.…….”

3.2.1. This witness PW-7, in his cross-examination on behalf ofthe appellant,stated, inter alia, as under:-

“It is correct that I was 1½ years old when my father died.TirlokiNath was the eldest son of the second marriage of mymother.…..There are two brothers and two sisters from thesecond marriage of my mother. My father died as told, due tocancer at Delhi, in the year 1961. It is incorrect to suggestthat TirlokiNath deceased had brought up all the children ofmy mother from both the marriages. ….He bore expenses forsome time regarding my education etc. The marriage of mybrother TirlokiNath was performed about 19-20 yearsago.….My mother is having no source of income except thefamily pension due to my father’s death and some rental income.My mother had given on rent a house situated in AdarshNagar, AmbalaCantt. I joined Navy in the year 1978. I wasmarried in the year 1984. It is incorrect to suggest that all theexpenses of my joining the service and on my marriage wereborne by my brother TirlokiNath. Since I was attached to mymother very well, I left my Navy job. TirlokiNath after hismarriage with Smt. Gargi probably in the year 1978, left mymother alone and started living separately and so this wasthe main reason that I left my Navy job in the year 1980. It iswrong to suggest that I was involved in some case in the Navyand the police was after me and I absconded and left my job.After leaving Navy, I joined ForbesForbes, 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 mybusiness at Karnal and opened a kiryana shop. It is wrong to AB

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suggest that I committed a fraud at Jammu and my serviceswere terminated and thereafter I started a kiryana shop atKarnal. It is correct that the house in Adarsh Nagar,AmbalaCanttwas sold and the proceeds of that house wereutilised by me in opening a kiryana shop at Karnal. My motherstarted living with me at Karnal. It may be that the house wassold in the year 1980 and the sale proceeds were utilised byopening a kiryana shop, which was closed by me,because Idid not like that business. After winding up my kiryana shop,I came to AmbalaCantt and settled with my mother. It is wrongto suggest that I misutilised the amount and so was having nooption except to close the business and come back toAmbalaCantt.……I have been serving as Manager in hotels,namely Hide Out Tourist Complex, Palwal and Standard Hotel,AmbalaCantt…. I was working with Camlin Ltd. Bombay butwas posted at Ludhiana as Sales Promotion Organizer (North)for a period of about 3½ years. It is wrong to suggest that Icommitted a fraud at Ludhiana and my services wereterminated accordingly. It is incorrect to suggest that I havebeen getting different Jobs with the efforts of TirlokiNathdeceased alone. I joined Veeto Hobbies Ambala for some timeas Manager Marketing. It is wrong to suggest that I alsocommitted a fraud and so my services were terminated.….Istarted my factory at AmbalaCantt. That factory was closedafter two years.…..It is correct that I obtained bank loan forrunning my factory but not due to the efforts of TirlokiNath.There was no surety. It is incorrect to suggest that I pressurizedSmt. Gargi to stand as a guarantee against bank loan, andon the refusal of Smt. Gargi, my brother TirlokiNath stood asa guarantee. I have made payment of loan more than half theamount taken by me.….

…..It is incorrect to suggest that one Mr.Narang had filedcivil suit against me and the company and which case waswon by me. It is incorrect to suggest that Mr.TirlokiNath hadmade payment to Mr.Narang and got the matter settled.TirlokiNath might have come ten days, fifteen days prior to28.4.1997, as he was constructing a house at AmbalaCantt.He used to complain against the behaviour of his wife. It isincorrect to suggest that the house was not being got

constructed at AmbalaCantt by TirlokiNath for himself butwas 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: - “…….There was only one ancestralhouse at Model Town,Ambala City (Adarsh Nagar). There is no other immoveable(ancestral) property.…….I do not know for how many daysTirlokiNath used to remain on tour in a month.It is correctthat he was going on tour oftenly..…On 28.4.97, I went ontour after meeting my brother…I did not give any telephoniccall to him in the night time of 28.4.97 or even in the day timeas to why he had not reached AmbalaCantt with his luggage,as told by him….I never enquired either on 29.4.97 orthereafter from TirlokiNath for his not coming to AmbalaCanttwith luggage……We talked to the Police officials for about15 minutes in order to know the facts of the case. Thereafterwe went up-stairs, and started weeping and crying. 2/3 ladiestwo brothers of Smt. Gargi, one uncle of Smt. Gargi,and agedperson were present at the time, when we reached. Thechildren of Gargi were also present there at the first floor. Noperson was sitting with the dead body of TirlokiNath at thetime we had gone there-(volunteered). In the morning timeabout 25 persons fromthe neighbourhood had also comethere, after my statement was recorded by the ASI.…..I do notknow whether the tenants on the ground floor came in theyear 1990 and litigation with them started in the year 1991….Ido not know whether the house atPanchkula was constructedwith the joint income of TirlokiNath and Smt.Gargi….It isincorrect to suggest that I was after TirlokiNath to get moneyeven after pledging the house. It is incorrect that there wasany pledging of the house in question and there was anyopposition from Smt. Gargi in this regard….It is incorrect tosuggest that in order to grab the house, I have falsely namedthe accused in this case...”.[3]

3There had been further cross-examination of this witness PW-7 on behalf of the otheraccused persons where he was, inter alia, confronted with his police statements whichdid not carry some of the assertions made in the Court. However, all the major aspectsof his testimony having occurred in the extraction hereinabove, the other parts of histestimony in further cross-examination are not being extracted.

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14SUPREME COURT REPORTS

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3.3. PW-8RadhaPuri (sisterof the deceased) purportedlycorroborated the testimony of PW-7. The relevant parts of herassertionsin the examination-in-chief could also be usefully extracted asunder:- “…..TirlokiNath had come to Yamuna Nagar on 25.1.1997Band met us. He was very much disturbed and upset at thetime. He told me that there used to remain tense situation atevery time in the house because Smt. Gargi wanted that thehouse at Panchkula should be got mutated in the name ofSmt. Gargi. He further was told that he was afraid of Smt.Gargi and her brothers and he apprehended danger to hisClife….He stated that he was residing in a room at the top floorof the house and was getting meals from the Hotel. TirlokiNathhad stated that 2/3 times, he was attacked by Smt. Gargi andthe children and that he had saved himself some-how or other.TirlokiNath stated that Smt. Gargi was having illicit relationsDand she never told where she used to go. He stated that on anenquiry from Smt. Gargi, she always replied that he was havingno concern to ask such questions. According to TirlokiNath,he was not allowed even to use bath-room facility. He wasusing bath-room of the tenants on the ground-floor. However,we pacified him. We were never allowed to visit our brotherETirlokiNath at Panchkula by Smt. Gargi.

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On 1.5.97, I came to know through my brother BrijBhushanthat TirlokiNath had committed suicide. He told that as perthe information, the neighbourers at Panchkula told thatTirlokiNath had committed suicide. So, I alongwith othersreached Panchkula, and saw Smt. Gargi, her brothers andsisters enjoying tea at the second floor of the house. I thoughtthat my brother had gone to Hospital and was saved and thatwas the reason that they were enjoying the tea. Thereafter,the police came and we went up-stairs, where the dead bodyof TirlokiNath was found hanging with a ceiling fan.…. Isuspect that Smt. Gargialongwith her brothers had murderedmy brother TirlokiNath.”

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3.3.1. In her cross-examination on behalf of the appellant, thiswitness PW-8RadhaPuri stated, inter alia, as under: - H

“On 1.5.97, at night time about 11 PM, I was sleeping andmy husband awoke me and told after hearing the telephonethat TirlokiNath was no more in the world and startedweeping….. I myself, my husband, my brother BrijBhushan,and his wife and my mother then went to Panchkula duringnight time…..Some police officials were sitting at the entranceof the gate of the house. ….Firstly we went to first floor, wherewe saw Gargi, her brothers, children and relatives to whom Ido not know. There was no person from the mohalla, wherethe policemen were sitting. …..I do not know whether houseNo. 1297, Sector 15, Panchkula was built out of the jointincome of Smt. Gargi and her husband TirlokiNath. I do notknow whether Gargi had taken any amount by way ofadvance from the Govt. or not.

……….I do not know whether Smt. Gargi and her husbandwere having cordial relations or not in the year 1994, when Ivisited her because I stayed there for a night and did not talkmuch, as the friend of Smt. Gargi and her children alongwithher husband had come there. I do not remember the names orantecedents of those persons. On 25.1.1997 when my brotherTirlokiNath had come to Yamuna Nagar, I found him very muchdisturbed and he talked to me regarding the behaviour ofSmt. Gargi. I was alone. I narrated the facts to my husband inbetween the period from 25.1.97 to 1.5.97. I did not tell theaforesaid facts to anyone else. It is incorrect to suggest thatBrijBhushan my brother was helped in his education, serviceand in his up-bringing by TirlokiNath deceased. It is correctthat the ancestral house was sold by my brother BrijBhushan.However, it is wrong to suggest that he misappropriated thesale proceeds of the house. I do not know when the housewas sold. I do not know whether TirlokiNath was having anyplot in AmbalaCantt or not. Again said, the plot atAmbalaCantt is in the name of my mother. Again said, I cannotsay exactly in whose name it is…It is correct that I did notmake any verification from any quarter regarding illicitrelations of Smt. Gargi, as told by my brother TirlokiNath. Ibelieved my brother what TirlokiNath stated to me regardingthe ill-treatment meted to him from Smt. Gargi. This was also AB

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Atold by my mother. My brother had told all about this to allthe family members(sic).….I enquired from Vaishali daughterof TirlokiNath as to how TirlokiNath had died. She did nottell even a word, though I was crying throughout. Vaishalitold me as to why we had come there because we were notcalled there..…...”[4]B

3.4. ASI Amar Singh led in evidence as PW-9. He hadarrived atthe spot after having received the information about the death ofTirlokiNath. As regards the mode and time of receiving information, thiswitness stated that “a telephonic message was received that oneperson in House No. 1297, Sector 15, Panchkula had committedCsuicide. This information was received at 11.15 PM.” In his cross-examination, PW-9 stated, inter alia, as follows:-

“…Smt. Gargi and her children were on the first floor of thehouse, whereas the dead body was on the top floor of thehouse. I did not record the statement of Smt. Gargi and herDchildren. I have been making formal investigation before thearrival of complainant etc. I have not kept any record quathe formal investigation. The neighbourers did not come tothe spot, though they were found by me standing in the street.I did not call any one. I have been giving information to theEofficers on telephone.…..I did not join any independent witnessfrom the locality…”

(underlining supplied)

3.5. Inspector Jag Parvesh, who carried out major part ofinvestigation, was examined as PW-10 and stated in his examination-in-Fchief that he reached the hospital on 02.05.1997 where he was handedover the statement EX.PH as made by PW-7; the inquest report Ex.PH/2prepared by PW-9; and the post-mortem report EX.PA. He drew upthe necessary proceedings; recorded statements under Section 161 ofthe Code of Criminal Procedure Code (‘CrPC’); collected blood fromGthe spot; and arrested the appellant. In his cross-examination, thisInvestigating Officer stated, inter alia, as under: - 4There had been further cross-examination of this witness also on behalf of the otheraccused persons where she was, inter alia, confronted with her police statementswhich did not carry several of the assertions made in the Court. However, all the majoraspects of her testimony having occurred in the extraction hereinabove, the other partsHof her testimony in further cross-examination are not being extracted.

“…….I made verification from the locality regarding thecharacter of Smt. Gargi but did not record any statement.Ido not remember the names of those persons.

I verified from 5/10 persons of mohalla. I did not mention thisfactum in the report u/s 173 Cr.PC.Report was prepared bythe then SHO. …I interrogated Gargi accused while in custody.She had told that she was innocent and had not committedany offence…Gargi accused had told me that she was nothaving any dispute with her husband and was having cordialrelations. I joined the children of Gargi accused in myinvestigation. I have not recorded their statements and assuch,no record is there. The interrogation of Gargi wasrecorded in the zimini. I did not take finger prints from therope. I had not at all taken finger prints from any other placewhere the dead body of TirlokiNath was found. However,Finger Print Expert visited the place.None has told me thatBrijBhushan complainant used to harass Gargi andTirlokiNathto extract money from them. It is correct that thestairs 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 the3/4 days prior to the 2.5.97 and I had come across one Panditwho visited that house during this period. Smt. Gargi toldthat one Pandit was brought for performing Havan. I madeverbal enquiries from the neighbourhood. ……

……I had recorded statements of other witnesses i.e. mother,sister and brother-in-law of deceased in the hospital. …Thereis a direct stair case from the ground floor to the top floor ofthe house of Gargi and one can go upstairs and come downstairs without entering any room on the first floor…..”

(underlining supplied)

3.6. PW-2 H.S. Narula, the Deputy Manager, Oriental InsuranceCompany, Sector 22, Chandigarh was examined by the prosecution totestifythat the deceased was working in his Company as AssistantAdministrative Officer, who lastly attended the Office on 28.04.1997. Inhis cross-examination, this witness admitted the fact that deceasedTirlokiNath used to remain on tour for about two weeks in a month.

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A3.7. PW-3 ManoharLal, who was working as a constable in S.P.Office, Ambala drew up thesite plan Ex. PD of the place where thebody of deceased was found. In his evidence, PW-3 pointed that therewas 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 feetBspace marked as bath/toilet.

3.8. PW-4 SantLal Gupta, the then Assistant Audit Officer, AGAudit, Punjab, Chandigarh testified to fact that the appellant was workingas Senior Auditor in his office; that she was on casual leave on 28.04.1997and 29.04.1997; and that she attended the office on 30.04.1997 and01.05.1997. In his cross-examination, this witness expressed want ofknowledge if the appellant often used to come to the office with herhusband and used to leave after office hours with her husband. Thiswitness also stated that ‘no complaint was received from the side ofhusband 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 beenPW-5 Head Constable Ramesh Kumar; PW-6 UGC Baldev Singh; PW-11 Shashi, who took the photographs at the site; and PW-12 SIIshwarChander, who also partly investigated the case.

E4. On behalf of the appellant, several features of the prosecutionevidence have been highlighted with the contentions that there had beenstark inconsistencies, contradictions, improvements and twists in thetestimonies of PW-7 and PW-8; and that there had been several failingsin the investigation. We shall refer to these features and contentionshereafter a little later.F

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Defence Version and Evidence

5. The appellant in her statement under Section 313 CrPCstated,inter alia, that her husband had informedabout his going on a tour on29.04.1997; and that she had taken casual leave on 28.04.1997 and29.04.1997 on account of herill-health. She also stated that she and herhusband were having cordial relationship and would share the bed withtheir son. She also stated that the case against her was a motivated oneand that she was not guilty of committing the murder of her husband.Some of the answers given by the appellant in her statement under Section313 CrPC may be usefully extracted as under:- G

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“Q:5 It is further in evidence against you that TirlokiNathused to reside at the top floor as you have not allowed him toreside with you and your children. He was using independentcylinder in his room to prepare tea and he had further toldthat once you had opened the gas cylinder in order to killhim. What have you to say?

Ans: It is incorrect. He was residing with the family on thefirst floor. I and my husband have one common bed room andmy son Vaibhav was also sleeping with us in the same bedroom.

The top floor was never used for residence purposes. Thesame was being used as a store & for some time a familyfriend used to stay there.

Q:6 It is further in evidence against you that on the night of1.5.1997 at about 11.30 p.m. BrijBhushan PW received amessage that his brotherTirlokiNath at Panchkula was no moreand that he was murdered. He gave a telephonic message tohis relatives and healongwith his brother in law A.C. Puri,Sister Smt. RadhaPuri, mother Raj Kumari and his wifeMeenakshi went to Panchkula and found two ASI were sittingoutside the said house. What have you to say?

Ans: It is incorrect. I advised Mr.Bhutt a colleague of deceasedTirlokiNath to telephonically inform all the relations andfriends and Mr.Bhutt gave the information of deathtoMr.BrijBhushan.

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Q:8 It is further in evidence against you that the police ofP.S. Sector-19 Panchkula received an information regardingthat the dead body of TirlokiNath was hanging with the ceilingfan in House No. 1297/15,Panchkula. ASI Amar Singhalongwith other police officials reached the spot and informedthe relatives of the deceased. He also summoned thephotographer, 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 spotbut was brought by Mr.Bhutt.*********

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Q:12 It is further in evidence against you that TirlokiNathdeceased attended his office on 28.4.1997. Thereafter he didnot come to the office and you remained on casual leave on28.4.1997 and 29.4.1997 and attended the office on30.4.1997 and 1.5.1997. Letter to this effect is Ex.PE. Whathave you to say?

Ans: It is incorrect. However, on 29.4.97 morning my husbandinformed me that he was to go on tour and would be back on3.5.97, in the evening &he would go to Ambala also beforecoming to Chandigarh/Panchkula. I was sick on 28[th]& 29[th]April, 97.

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Q:15 Why this case has been made against you and why thewitnesses 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 BrijBhushanwho 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 thecase by BrijBhushan& his sister who wanted money from meat the time when I was taken by the police in the morning of2.5.97.”

5.1. Four witnesses were examined in defence. One of the relevantwitness had been DW-3 Surinder Kumar Bhat, said to be a family friendand colleague of the deceased. The relevant assertions of this witness inthe examination-in-chief read as under: - “I knew TirlokiNath deceased for the last about 18 years. Ibelong to J&K State. TirlokiNath was also of that place. So, Iknew him well. He was working in our office but at the timeof death, he was in Sector 22 branch of our Insurance Co. inSector 22, Internal Audit cell of our Insurance Co. is locatedwhere deceased was working at the time of death. The houseof TirlokiNath is at a distance of 1½ furlongs from my housein sector 15, Panchkula. I was having friendly as well ashomely relations with TirlokiNathdeceased. I know Smt. Gargi

accused present in the court. She is the wife of TirlokiNathdeceased. Whenever I visited the house of TirlokiNath, I alwaysfound cordial relations between TirlokiNath and Smt. GargiDevi. TirlokiNath never complained as a friend to me againstSmt. Gargi. So far as I can say, Smt. Gargi is enjoying a goodreputation in the Mohalla. I know BrijBhushan, the youngerbrother of TirlokiNath deceased. TirlokiNath used to remaindisturbed because his younger brother always demandedmoney from him. I know that TirlokiNath deceased had helpedBrijBhushan in getting some employment for BrijBhushan inJ&K State about 9 years back with great efforts. We haveformed a society known as General Insurance EmployeesCooperative Thrift and Earner Society. I am the Vice Presidentof the said society. TirlokiNath in mid April, 1997 met mealongwith his brother BrijBhushan and wanted some loan fromour society. But I could not help due to certain obligations,which could not be met with. I came to know at 6.30 – 7 PMon 1.5.97 that TirlokiNath had committed suicide. I went tothe house of TirlokiNath. There were many persons collectedthen. I went to Police Station, Industrial Area, Panchkula toreport the matter at 9.30 PM on 1.5.97. Smt. Gargi after mymeeting with her, gave me telephone numbers for givinginformation to the relations of TirlokiNath deceased at Ambala.At about 11 PM, the information was conveyed to BrijBhushanwho reached Panchkula at 4 AM on 2.5.97. Two-three policeofficials camealongwith me at the residence of TirlokiNathdeceased…..I remained throughout the night of 1.5.96(sic)and left for my house at 6.30 AM on 2.5.97. No photographercame there in my presence. I did not notice any gas cylinderin the room where the dead body of TirlokiNath was found.The house of TirlokiNath is two storeyed building havingground floor in addition. Some tenant was residing at theground floor at the time TirlokiNath had died. That tenanthas not vacated the house, though not residing now. Thereare outer stairs upto second storey and one can go up-stairswithout entering into the ground floor and first floor. There isgate of grills in between ground floor and first floor. It iscorrect that the lock of the gate can be opened from both thesides viz. from inside as well as from out side…..”

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A5.1.1. This witness was thoroughly cross-examined by theprosecution where he stated, inter alia, as under:- “I treat Gargi accused as my Bhabi being wife of my deceasedfriend-TirlokiNath. We have kept complete record of our creditsociety. TirlokiNath did not give any application in writingBfor raising loan from our society….. It is incorrect to suggestthat deceased alongwithBrijBhushan never came to me forany demand of loan a month prior to the occurrence and Iam deposing falsely just to support accused…..I have not keptany slip where I noted down the telephone numbers of Ambalafor information the relations of TirlokiNath deceased…….ItCis correct that if the gate in between first floor and groundfloor is locked from both sides, no one can go up-stairs. Atthe time I reached the house of TirlokiNath, the gate was openand people were coming and going from there. No one toldthat the lock or bolt of the grill gate of upstairs was brokenDby some one. It is also correct that TirlokiNath with myassistance succeeded in getting employment for his brotherBrijBhushanin J&K State about nine years back. This he didbeing a brother. I did not help BrijBhushan thereafter. …..Itis incorrect to suggest that TirlokiNath deceased was residingall alone in the upper room of the house and was not residingEwith his family members. In fact, he was residing with his familymembers on the first floor. It is incorrect to suggest that Smt.Gargi was harassing her husband unnecessarily with the helpof her brothers on one pretext or the other……”

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5.2. DW-4 AkhileshBhatnagar, Assistant, Oriental InsuranceFCompany, Chandigarh was examined in relation to the tour programmeof the deceased TirlokiNath from 06.01.1997 to 31.01.1997 and the hotelexpenses bills paid by the Company, which show that the deceased wasat Karnal from 14.01.1997 to 01.02.1997. The testimony of otherwitnesses DW-1 and DW-2 is not relevant for the purpose of this appealGas they were examined in relation to the plea raised by the co-accusedpersons as regards their employment.

The Trial Court found all the accused persons guilty

6. The Sessions Court, in its judgment and order dated 09.06.1998,accepted the prosecution case; and while rejecting the contentions urged H

on behalf of the accused, held that the chain of circumstances wasestablished by the prosecution, bringing home the guilt of the accusedpersons. The Trial Court,accordingly,convicted them for theaforementioned offences of criminal conspiracy and murder and awardedsentence of rigorous life imprisonment together with fine of Rs. 2,000/-each with default stipulations.

6.1. The Trial Courtconcluded that thedeceased was done to deathby way of strangulation,essentially on the basis of medical evidence andwith reference to the position of the hanging dead body and other featuresat the spot, like the one that door of the room in question was not boltedfrom inside. The finding that the appellant had committed the offencewithher brothersin the intervening night of 28/29.04.1997got its basis,interalia, in the statement allegedly made by the deceased to PW-7 prior tohis departure from AmbalaCantt. where he expressed fear of his life,asalso in the facts that the appellant had taken leave from her office for28.04.1997 and 29.04.1997 and that the appellant and her brothers werenot grieving when the body of the deceased was found.

The High Court affirmed the conviction of appellant whileacquitting her brothers

7. The appeals preferred by the appellant and her brothers againstthe judgement and order aforesaid, being Criminal Appeal No. 341-DBof 1998 and Criminal Appeal No. 359-DB of 1998, before the HighCourt of Punjab and Haryana at Chandigarhwere considered togetherand decided by the common judgment dated 05.03.2008. The High Courtheld that it had been a case of homicide, essentially with reference tothe medical evidence and the features of the scene of crime. The HighCourt also held that the culpability of the appellant stood established inview of the circumstances that: (a) when the appellant was sharing thesame bedroom with deceased TirlokiNath, the onus was heavy upon herto explain the circumstances leading to the death of her husband, whichshe failed to discharge; (b) the appellant had the motive to murder herhusband when there were strained relations between them and thedeceased had expressed apprehension to be done to death by theappellant; (c) the subsequent conduct of the appellant was alsoquestionable, where she was found taking tea with her brothers on thefirst floor although the dead body of TirlokiNath was hanging by rope inthe Chaubara at the top floor; (d) and the appellant did not send any A

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SUPREME COURT REPORTS

Ainformation to the brothers and other relations of TirlokiNath immediatelyafter noticing his demise. The High Court, however, rejected theprosecution case that brothers of the appellant had conspired with theappellant to carry out the murder and hanging of the deceased TirlokiNath.Even after rejecting the prosecution case against brothers of the appellant,and even after finding that the crime in question was not the handiworkBof one person, the High Court proceeded to observe that the appellantwas rightly convicted in the matteras the principal offender,though theinvestigating agency failed to find out the other persons who wereaccomplice in this crime. The High Court also observed that the TrialCourt had discussed threadbare the defence evidence and had rightlyCdisbelieved the testimony of DW-3 Surinder Kumar, who was introducedby the appellant as an afterthought.

7.1. With the aforesaid findings and observations, the High Courtupheld the conviction of the appellant but acquitted her brothers on theground that there was no evidence on record to prove the existence ofDany conspiracy to murder the deceased. The High Court, inter alia,observed and held as follows:

“21. …..TirlokiNath was sharing the same bed room, in whichGargi Devi used to sleep, as stated by her in her statementunder section 313 Cr. P.C. The dead body of TirlokiNath wasfound 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 undersection 313 Cr. P.C. that she was falsely implicated, in theinstant case, and that the entire investigation, was at theinstance of BrijBhushan, PW.7. She, therefore, did not furnishany explanation, with regard to the circumstances, leading tothe death of TirlokiNath. This clearly proved her culpability.

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23. There were strained relations, between TirlokiNath andhis wife. From the statement of BrijBhushan, PW-7 andRadhaPuri, PW-8 it was proved that TirlokiNath was tenseand upset, as he was being ill treated by his wife. It is hasalso come in the statement of RadhaPuri, PW-8, thatTirlokiNath was fearful that he would be killed one day. When G

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TirlokiNath met RadhaPuri, his sister, and his brother-in-law,in Ambala he told them that he was apprehending danger tohis life at the hands of Smt. Gargi his wife. Even, it is evident,from the statement of BrijBhushan, PW7, that TirlokiNath wasbeing ill-treated by his wife Smt. Gargi. Even on 28.4.1997 inthe morning when TirlokiNath left the house of BrijBhushan,at Ambala, for Chandigarh, he told him that it was his lastvisit to Panchkula, as he would be coming with his luggage,to permanently settle at Ambala, as he was fearing that hewould be done to death by his wife Smt. Gargi. These lastwords spoken by him to his brother, BrijBhushan on 28.4.1997in the morning, as stated above, fall within the purview of hisdying declaration. It was on account of the strained relations,between TrilokiNath has his wife Smt. Gargi that she committedher murder by strangulating him and thereafter hanged hisbody with ceiling fan(sic). Smt. Gargi was definitely having amotive to commit the murder of TrilokiNath, for the reasonsreferred to hereinbefore. The motive plays a very significantrole, in case, which is based on the circumstantial evidence.The culpability of Smt. Gargi, accused is thus proved.

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29. No doubt, it may be said that the commission of crime, inthis case could not be the handwork of one person only.SmtGargi might have taken the help of some other persons,in hanging the body of TirlokiNath, deceased afterstrangulating him, but it was not proved as to who thosepersons were.As stated above, it was also not proved thataccused ShuhabsTiwari, Ramesh Tiwari and Rajneesh Tiwarihatched conspiracy with Smt.Gargi and in pursuance thereofcommitted the murder of TirlokiNath. Who were those persons,was for the Investigating Agency to find out. Even if, theInvestigating Agency, failed to find out those persons, Smt.Gargi could not absolve herself of the liability. Smt. Gargibeing the principal offender was rightly convicted andsentenced for the commission of offence punishable undersection 302 IPC”

(underlining supplied)

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ARival Contentions

8. Assailing the judgment and order aforesaid, learned counsel forthe appellant has strenuously argued that the appellant has been falselyimplicated in this case by her in-laws, whose main aim was to grab theproperty of the deceased, while the actual culprits have escaped theBprosecution. The learned counsel haselaborated on the submissions thatthe relations between the deceased Tirloki Nathand his brother, PW-7BrijBhushan (the complainant) were strained because of property disputefor, at one point in time, their mother had bequeathed all the properties infavour of the deceased, which was not appreciated by the complainantandthe deceased gotthe property at AmbalaCantt.registered in his nameCjust a month prior to his untimely demise. The learned counsel has referredto the statement made by the appellant under Section 313 CrPC to submitthat the appellant and deceased were married for about 18-19 years;their relations were cordial;and they were leading a happy marriedlife.The learned counsel has particularly referred to the statement madeDby the appellant that she and her deceased husband were sharing thebedroom with their son and that the room on the top floor of the housewas 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 someEform of danger to his life and the deceased had stated that he would bereturning with his baggage, it remains inexplicable that this witness didnot make any effort to find the whereabouts of the deceased for a periodof three days and until he got the news of demise. The learned counselhas also attempted to submit that the complainant had several vices; thatseveral criminal cases were pending against him; and his family membersFhad published a newspaper advertisement that anyone dealing with himshall be doing so at his own risk.

8.2. The learned counsel would submit that the case at hand hingesaround circumstantial evidence but there is no connecting link to associatethe appellant to the murder of her husband; and the prosecution hasGfailed to prove the motive of the appellant. The learned counsel for theappellant has also argued that there were lapses on part of the policewhile collecting evidence where the FIR was registered only after thearrival of complainant and his family members and the statements of thepersons who had gathered at the scene were not recorded at all.

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8.3. The learned counsel has also assailed the findings that it hadbeen a matter of strangulation and hence of a homicidal death with thesubmissions that as per medical jurisprudence,in case of strangulation,some scratches, abrasions, bruises etc. would be found on the deadbody and hyoid bone would be found broken but, in the present case,there were no such marks nor hyoid bone was broken.

8.4. The learned counsel has further contended that strangulationof the deceased and then, hanging of his dead body from the ceiling fancould not have been carried out by one person alone and it remainsentirely improbable that such taskswere carried out by a frail lady likethe appellant. Thus, according to the learned counsel, with the acquittalof brothers of the appellants, the alleged chain of circumstances is brokenon the material point and the appellant deserves to be acquitted on thiscount alone.

8.5. The learned counsel for the appellant has referred to severaldecisions 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) 3SCC 685; S. K. 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 opposedthe submissions made on behalf of the appellant with reference to theevidence on record and the finding recorded by the Trial Court and theHigh Court.

9.1. So far as the question as to whether it had been a case ofhomicide or the deceased had committed suicide, learned counsel hasargued that in case of suicide, the dead body would be in a suspendedposition, feet would not reach the floor and knees would also not bend,as found in the present case. The learned counsel has supported thefinding of the Trial Court that in almost all cases of suicide, the doorwould be closed from inside rather than being left open, as had been thescenario of the present case. Learned counsel has also highlighted thatit was not a mere coincidence that the appellant remained on casualleave during the very period when the deceased was done to death; andwhen the deceased was admittedly seen last in the company of theappellant on 29.04.1997 and whenhis corpse was found hanging in theirown house on 01.05.1997, burden was heavy upon her to explain if the A

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Adeceased had gone anywhere else,but shehas altogether failed todischarge such a crucial burden.In the totality of circumstances, accordingto the learned counsel, the conclusion remains inevitable that the appellant,with her accomplice, had strangulated the deceased and hanged him bya rope to cover-up the scene as that of suicide.

B9.2. In relation to the argument that the complainant had notattempted to contact the deceased for the threedays after he had leftAmbalaCantt., despite being aware that the deceased apprehended dangerto his life, learned counsel for the respondent has argued that the incidenttook place in the year 1997 when mobile phones and connectivity wasnot available to all and there was no telephone connection on the topCfloor of the house. Thus, according to the learned counsel, in the givencircumstances, mere want of efforts on the part of PW-7 to contact hisbrother would not falsify the prosecution case.

9.3. The learned counsel for the respondenthas vehementlycontended that the factors like some minor and irrelevant variations inDthe statement of prosecution witnesses or want of some additionalevidence are of no effect because the material aspects stand establishedon 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.

EPreliminary Observations

10. Having given anxious consideration to the rival submissionsand having scanned through the entire record with reference to lawapplicable, we are impelled to say at the outset of discussion that in thismatter, several fundamental shortcomings in the investigationand severalFloopholes in the prosecution propositions got overlooked by the Trial Courtas also by the High Court.In an overall comprehension of the matter, weare clearly of the view that it would not be safe to accept the projectedpropositions of the prosecution and to convict the appellant for the offenceof murder of her husband.

GThe circumstances relied upon and the point fordetermination

11. It is at once clear that in this case,no direct evidence is availablein answer to the material questions as to how the deceased, husband ofthe appellant, met with his untimely death; and if it were not a case of H

suicide, who had carried out the gruesome and ghastly act of killing himand hanging the dead body in his room? The Trial Court and the HighCourt have held that the major circumstances projected by the prosecutionagainst the appellant have been established beyond doubt, though theHigh Court has not accepted the prosecution case that the brothers ofappellant were conspirators and collaborators in the crime. It is contendedon behalf of the appellant that it had been a case of suicide; that therewas no motive on the part of the appellant to eliminate her husband withwhom she was having cordial relations and was leading a happy marriedlife; that the deceased and the appellant were lastly in each other’scompany on 29.04.1997 when the deceased informed her that he shallbe going on tour and would be returning by 03.05.1997; and that theappellant’s prosecution wasfenagled by the brother of her husband, whowas having an eye on the property. On the other hand, according to theprosecution, the crucial circumstances stand established thatthe homicidaldeath was covertly sought to be shown as a case of suicide; that theappellant had the motive and intent to kill her husband; that the deceasedwas lastly in the company of the appellant; and that the appellant failedto offer any explanation as to how her husband got killed and was hangedthough the dead body was found in the same house where deceasedwas residing with her.

11.1. In other words, what is argued in this case for the prosecutionis that the entire chain of causation has been established beyond allreasonable doubts. It is submitted that the evidence on record has clearlybrought forth the following major factors against the appellant:-

a) that the death of the deceased was homicidal in nature and ithad not been suicidal as was sought to be projected by the culprits byhanging the dead body from a rope;

b) that the deceased had strained relations with his wife, theappellant, for she was indulgent in illicit relations and was insistent ontransfer of property in her name;

c) that the deceased was having, and had expressed,imminentdanger to his life at the hands of his wife, the appellant;

d) that the deceased was last seen with the appellant and she hadfailed to explain as to how the deceased met with his end; and

e) that as per the post-mortem report, death had occurred 24 to72 hours before post-mortem examination on 02.05.1997 and the appellant AB

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11.2. The question is as to whether the Trial Court and the HighCourtare right in holding thatthe aforementioned circumstances standestablished beyond reasonable doubt and do form a complete chain, rulingBout any other hypothesis except guilt of the appellant?

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 noteof a few fundamental principles governing the circumstantial evidenceCand its appreciation.

13. It remains trite that in judicial proceedings, proof is made bymeans of production of evidence, which may be either oral ordocumentary. As regards its nature, the evidence is either directorcircumstantial. The direct evidenceproves the existence of a particularDfact that emanates from a document or an object and/or what has beenobserved by the witness. The circumstantialevidence is the onewherebyother facts are proved from which the existence of fact inissue may either be logically inferred, or at least rendered moreprobable[5].

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13.1. In umpteen number of decisions, this Court has explainedtheessentials before a particular fact could be held proved by way of theproof of other fact or facts; and has expounded on the principles as tohow circumstantial evidence need to be approached in a criminal case.We need not multiply on the case law on the subject; only a briefFreference to the relevant decisions would suffice.

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 oncircumstantial evidence, such evidence must satisfy three tests.GFirstly, the circumstances from which an inference of guilt issought to be drawn, must be cogently and firmly established.Secondly, these circumstances should be of a definite tendencyunerringly pointing towards the guilt of the accused. Thirdly, H5A Text Book of Jurisprudence by G.W.Paton,Fourth Edition, Page 598.

the circumstances, taken cumulatively, should form a chainso complete that there is no escape from the conclusion thatwithin all human probability the crime was committed by theaccused and none else. That is to say, the circumstancesshould be incapable of explanation on any reasonablehypothesis save that of the accused’s guilt.”

13.3. In the case of Sharad Birdhichand Sarda v. State ofMaharashtra: (1984) 4 SCC 116, this Court laid down the goldenprinciples of standard of proof required in a case sought to be establishedon 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 thefollowing conditions must be fulfilled before a case againstan accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is tobe drawn should be fully established.

It may be noted here that this Court indicated that thecircumstances concerned “must or should” and not “may be”established. There is not only a grammatical but a legaldistinction between “may be proved” and “must be or shouldbe proved” as was held by this Court in ShivajiSahabraoBobadev. State of Maharashtra[(1973) 2 SCC 793] where theobservations were made: [SCC para 19, p. 807: SCC (Cri) p.1047]

“Certainly, it is a primary principle that the accusedmust be and not merely may be guilty before a courtcan convict and the mental distance between ‘may be’and ‘must be’ is long and divides vague conjecturesfrom sure conclusions.”

(2) the facts so established should be consistent only with thehypothesis of the guilt of the accused, that is to say, theyshould not be explainable on any other hypothesis exceptthat the accused is guilty,

(3) the circumstances should be of a conclusive nature andtendency, A

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(4) they should exclude every possible hypothesis except theone to be proved, and

(5) there must be a chain of evidence so complete as not toleave any reasonable ground for the conclusion consistentwith the innocence of the accused and must show that in allBhuman probability the act must have been done by theaccused.

154. These five golden principles, if we may say so, constitutethe panchsheel of the proof of a case based on circumstantialevidence.”

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13.4. In the decision cited by the learned counsel for the appellantin 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 evidenceis well settled. It is sufficient to refer to the judgment of thisDCourt in Ramesh v. State of Rajasthan (2011) 3 SCC 685 wherein para 17 the following has been held: (SCC p. 693)

“17. Before we proceed with the matter, it has to beborne in mind that this case depends upon circumstantialevidence and, as such, as per the settled law, everyEcircumstance would have to be proved beyond reasonabledoubt and further the chain of circumstances should be socomplete and perfect that the only inference of the guilt ofthe accused should emanate therefrom. At the same time,there should be no possibility whatsoever of the defenceFversion being true.”

13.5. Thus,circumstantial evidence, in the context of a crime,essentially means such facts and surrounding factors which do pointtowards the complicity of the charged accused; and then, chain ofcircumstances means such unquestionable linking of the facts and theGsurrounding factors that they establish only the guilt of the chargedaccused beyond reasonable doubt, while ruling out any other theory orpossibility or hypothesis.

13.6. Incidental to the principles aforesaid, which are neither ofany doubt nor of any dispute, profitable it would be to keep in view the H

caveat entered by G.W. Paton[6 ]as regards circumstantial evidencethus:

“On the other hand, circumstances may mislead or false cluesmay have been laid by the wrong doer to cast suspicion onanother”.[7]

Several loopholes in investigation; withholding of relevantevidence by prosecution

14. Having taken note of the point arising for determination andthe basic principles to be kept in view while dealing with this case basedon circumstantial evidence, when we examine the record, severalshortcomings and loopholes in the investigation and in prosecutionevidence manifest themselves at once. Before analysing the evidenceadduced on record, it appears rather necessary to take note of suchfeatures of shortcomings, which are apparent on the face of record andhave a material bearing on the questions involved.

15. In the present case, the very approach of the investigatingagency had been shrouded in so much of unexplained obscurities that aquestion perforce arises if there had been a fair and unbiased investigationof the crime in question?

15.1. The manner of dealing with this case by the investigatingagency, right at the inception, has left a few serious questions unansweredi.e., as to when did the police receiveinformation about dead body of thehusband of the appellant, by what mode, and through whom? PW-9 inhis testimony before the Court conveniently stated that such an informationwas received through “telephonic message” but did not state theparticulars of such informant. No entry in the roznamcha or generaldiary has been produced to show that such an information was dulyentered 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 policestation’. The fact that it had been a telephonic information is conspicuously 6ibid., 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 evenhave been brought about for the very purpose of misleading, as when Joseph’s silvercup was placed in Benjamin’s sack, or when Lady Macbeth ‘smeared the sleepinggrooms with blood’.

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Amissing in Ex.PH/1. This aspect has got a material bearing in the matterbecause the defence witness DW-3 specificallytestifiedto the fact thathe was the first person informed by the appellant about the demise ofTirlokiNath; and that he went to the police station at about 9.30 p.m. on01.05.1997 and divulged the information. He further asserted havingaccompanied the police to the site and having conveyed the informationBto PW-7.

15.2. It is also noteworthy that as per PW-7, he got the informationfrom one T.R. Malhotra at about 11.30 p.m. who, in turn, had receivedthe information on telephone from a colleague of the deceased. Neitherany enquiry was made from the said T.R. Malhotranor any other effortCwasmade to find out the colleague of the deceased who had telephonedhim.

15.3. In the face of such a gap in the prosecution evidence, thereappears no reason to disbelieve the testimony of DW-3Surinder KumarBhat as regards the time of information to police and himself being theDinformant. In such a scenario, it remains absolutely inexplicable as towhy the information given by DW-3 was not reduced in writing and theproceedings were not conducted on that basis. This question magnifiesitself to tougher questions for the prosecution as to the time when PW-9 ASI Amar Singh reached the site and with whom. From the evidenceEon record and surrounding facts, it appears that the said ASI had reachedthe site at around 10.30 p.m. accompanied by DW-3 Surinder KumarBhat. The toughness of these questions further amplifies into the harder,and unanswered, question for the investigating agency as to why for along period of about 4 to 5 hours at the site, the ASI (PW-9) did not carryout any investigation and did not record any statement.

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15.4. It is not the case of prosecution that the ASI (PW-9) wasprevented by any reason to immediately attend on his duties after reachingthe site. It is also not the case that he attempted to make any enquiryfrom any person until arrival of the complainant and other family membersof the deceased.Even if it be assumed that the other family members ofGthe deceased were on the way and the ASI knew about this fact, nothinghad prevented him from attending on his duties of investigation. Strangelyenough, even the first panchnama was prepared only after reaching ofthe complainant. It is also not clear as to why the statements of thechildren of the deceased were not taken when his daughter, 16 years of H

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age, was very much present at the site. It is also not explained as to whyin this kind of matter, carrying suspicious overtones, PW-9 did not makeany 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 samebuilding 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 ofthis 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,evenafter allegedly making enquiries in the locality regarding the characterof the appellant from 5-10 persons, neither mentioned this fact in theinvestigation report nor recorded the statement of anyone of them. ThisInvestigating Officer further stated to have joined the children of theappellant 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 tothe nature of accusations as also the factors related with the building inquestion.

15.6. Moreover, in this matter, where it was prima facie appearingthat the clues available at the site might play a significant role in reachingto the real culprits, it is also intriguing to notice that the InvestigatingOfficer did not take even elementary care to obtain fingerprints fromthe material objects and to get them analysed properly. The InvestigatingOfficer (PW-10) has stated, rather with impunity, that he did not takeany fingerprints at all, even while admitting that the fingerprint expertdid visit the site. It is not stated that the so-called expert expressedinability to collect such prints for any reason. It is left only for one towonder as to for what purpose did the so-called fingerprint expert visitthe 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 withpre-conceived notions or with a particular result in view. It is difficult toaccept that the investigation in this case had been fair and impartial.From another viewpoint, on the facts and in the circumstances of thiscase, the omissions on the part of investigating agency cannot be ignoredas mere oversight. These omissions, perforce, give rise to adverseinferences against the prosecution.

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A16. In this case, it is also interesting to notice that though theprosecution had cited the other relations of the deceased as witnesses,including his mother and brother-in-law (husband of PW-8 - who hadotherwise signed the inquest report)but did not examine them before theCourt. Withholding of relevant witnesses could only lead to further adverseBinference that if examined, they would not have supported the prosecutioncase. This is apart from the fact that the investigating agency avoided toinclude any independent witness in the investigation and did not carryout necessary enquires from the persons other than in-laws of theappellant.

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C17. Hereinabove, we have only indicated a few broad aspects ofshortcomings and lacunae in the prosecution case which is otherwiseresting on circumstantial evidence and on the theory propounded by thebrother of deceased (PW-7),as supported by his sister (PW-8). Theupshot of the discussion foregoing is that the propositions projected byDthe prosecution require deeper scrutiny to find if the case against theappellant is established beyond reasonable doubt; and if the elements ofadverse inferences do not materially affect the prosecution case.

Homicide or suicide

Homicide or suicide

18. As noticed, the first question that concerns us in this matter isEas to whether death of TirlokiNath was suicidal or it had been a matterof homicide. The Trial Court as also the High Court have returnedconcurrent findings that it had been a matter of homicidal death. Boththe Courts came to this conclusion essentially with reference to the medicalopinion that the cause of death was asphyxia due to strangulation; andFalso with reference to some of the surrounding factors that the feet ofthe hanging dead bodywere touching the floor;the knees were bent; theslippers were not removed; and the room in question was wide open.Assailing such findings, it is contended on behalf of the appellant that asper medical jurisprudence, scratches, abrasions, bruises etc. are usuallyGpresent and hyoid bone would be usually found brokenin case ofstrangulation but, in the present case, there were no such marks norhyoid bone was broken.

18.1. We have closely examined the testimony of PW-1Dr.UshaBansal, who was one of members of the board that hadHconducted post-mortem. We have also taken into account the features

noticeable from the site plan, the inquest report and the photographsplaced on record. Having examined the relevant material, we find nothingof infirmity in the findings of the Trial Court and the High Court that ithad beena case of strangulation, as could be seen from the post-mortemreport that the dead body carried “well defined depressed ligaturemark measuring 3 cm. wide seen encircling the neck around thyroidcartilage with a knot present on left side of neck and this ligaturemark was anti-mortem in nature”. The other ligature mark was on theleft side of the neck measuring 1.5 cm wide and that was post-mortemin nature. The board had undoubtedlybeen of the opinion that the causeof death was”asphyxia due to strangulation”.With such categoricalmedical opinion coupled with all therelevant features surrounding thesuspended dead body in the room in question, it is difficult to say that ithad been a case of suicide merely because hyoid bone was not brokenor because the marks of resistance like abrasions/scratches were notreported.The presence of marks of resistance would depend on a varietyof factors, including the method and manner of execution of the act ofstrangulation by the culprits; and mere want of such marks cannot bedecisive of the matter. Equally, it is not laid down as an absolute rule inmedical jurisprudence that in all cases of strangulation, hyoid bone wouldinvariably be fractured. On the contrary, medical jurisprudence suggeststhat only in a fraction of such cases, a fracture of hyoid bone is found.[8]In other words, absence of fracture of hyoid bone would not lead to theconclusion that the deceased did not die of strangulation.

18.2. For what has been discussed in preceding paragraphs, wehave no hesitation in affirming the findings in the impugned judgmentsthat the deceased TirlokiNath was done to death by strangulation andthereafter, his dead body was hanged from the ceiling fan in the room.

8Modi: A textbook of Medical Jurisprudence and Toxicology, 26th Edition page 529where it is also noted:

“In the Journal of Forensic Sciences Volume 41 under the Title – Fracture ofthe Hyoid Bone in Strangulation: Comparison of Fractured and UnfracturedHyoids from Victims of Strangulation, it is stated:

The hyoid is the U-shaped bone of the neck that is fractured in one-third ofall homicides by strangulation. On this basis, post-mortem detection ofhyoid facture is relevant to the diagnosis of strangulation. However, sincemany cases lack a hyoid fracture, the absence of this finding does notexclude strangulation as a cause of death. The reasons why some hyoidsfracture and others do not may relate to the nature and magnitude of forceapplied to the neck, age of the victim, nature of the instrument (ligature orhands) used to strangle, and intrinsic anatomic features of the hyoidbone…………”

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A19. However, the question still remains as to whether thecircumstances brought on record establish beyond reasonable doubt thatsuch ghastly act of killing TirlokiNath and hanging his dead body wascarried out by the appellant so as to maintain her conviction under Section302 IPC?B20. Before examining the circumstances brought on record by B20. Before examining the circumstances brought on record bythe prosecution, we may observe in the passing that the Trial Court asalso the High Court have proceeded on the lines that once it wasestablished that the deceased TirlokiNath was killed by way ofstrangulation and the killer/s suspended his dead body from the fan so asCto mislead; and since the dead body was found in the very house he wasresiding with the appellant who could not explain the reason of hisdeath,she was to be held responsible for the crime. In other words, theTrial Court and the High Court have assumed that as soon as theconclusion about the homicidal death of TirlokiNath in his own room isreached, all other aspects of the prosecution story about so-called strainedDrelations of the deceased and the appellant, and the alleged threatperception of the appellant ipso facto come into operation; andthe findingon homicidal death itself has been taken asthe answer to other questionas to whether homicide was to be imputed on the appellant or not. In ourview, while examining the question as to whether the death in questionEwas homicidal or suicidal, there was no justification to mix up the othercircumstances projected by the prosecution, which indeed requiredseparate assessment and analysis. Be that as it may, appropriate now itwould be toexamine the circumstances put forthin this case to find if theprosecution has been able to bring home the guilt of the appellant beyondreasonable doubt.F

Alleged last statement of deceasedand motive of appellant

21. The main plank of prosecution case against appellant has beenthat the relations between the deceased and the appellant were toostrained; the appellant was having illicit relations and was ill-treating theGdeceased; the deceased had expressed even threat to his life at thehandsof the appellant; and the deceased was all set to move out of the companyof the appellant. These factors, imputing motive on the appellant to killher husband (and even deceased perceiving threat to his life at thehands of the appellant), have been held proved by the Trial Court andthe High Court with reference to the testimony of PW-7 Brij BhushanH

(brother of the deceased) and PW-8 RadhaPuri (sister of the deceased).As noticed, the Trial Court as also the High Court have relied upon thesetwo witnesses and have accepted their assertionsin toto. However, aclose look at the testimony of these witnesses and the assessment oftheir evidence with reference of other factors on record bring forth severaldoubts, which have not been dispelledand which do operate against theprosecution.

22. Though learned counsel of the appellant has attempted tosuggest, with reference to additional documents placed on record, thatPW-7 carried questionable antecedents and had been a proclaimedoffender but we are ignoring such submissions for the reason that theseaspects were not specifically put to the witness in his cross-examination.However, the question is as to whether his testimony inspires suchconfidence that all the facts and the circumstances suggested by him,and all his assertions, be accepted on their face value? In our view, theanswer to this question could only be in the negative.

22.1. The Trial Court and the High Court have proceeded on theassumption that PW-7 being the brother of deceased, would not beinterested in shielding the real culprit and to unnecessarily throw theaccusation on the appellant but, in our view, such an approach had beenfundamentally incorrect.In overall comprehension of the statement madeby this witness, a few relevant factors are immediately noticeable that,after having served in Navy for about two years from 1978 to 1980, hehad never been in a settled job or occupation. He served in differentestablishments; also opened a grocer’s shop that was closed; again servedin some more establishments; and then, established a factory that toowas closed with about half of the amount of loan repaid and remainingbeing due. Significantly, the ancestral house of the family was sold bythis witness and the proceeds were utilised by him in opening the grocer’sshop, 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 caseof the appellant that he was pressurising her to stand as a guarantorandupon her refusal, the deceased TirlokiNath stood as a guarantor.DW-3 Surinder Kumar Bhat, a colleague of the deceased,testified to thefact that the deceased remained disturbed for his younger brother (PW-7) regularly demanding money from him; and has narrated in detail theefforts that were made by the deceased in helping PW-7 BrijBhushan AB

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Agetting some employment and he even asked for a loan from the societymanaged by DW-3. In the given state of affairs, this much is clear thatthe testimony of PW-7 is required to be approached with extra care andcaution.

22.2. On a closer look at the record, it is noticed that some materialBimprovements were made by PW-7 while deposing in the Court over theinitial version, on the basis whereof FIR was registered by PW-9. Forexample, in the Court statement, this witness alleged that the deceasedwas apprehending murder by the appellant with the help of her brotherswhile improving over the expression that the deceased was ‘fed up andfrightened’, as occurring in the initial version. Further, the initial allegationCthat the appellant was not providing food to the deceased‘at propertime’ was improved in the Court statement to the effect that she was notproviding food to the deceased.

22.2.1. Even if the aforementioned aspects are left aside for amoment and it be assumed that the deceased met PW-7 on 28.04.1997Dand stated all his apprehensions as also the plan to leave Panchkula withluggage, it remains entirely inexplicable that such a concerned brotherof the deceased did not accompany him to Panchkula for safety andsupport; anddid not share the apprehensions stated by the deceased withother members of the family;andeven did not enquire about the welfareEof his brother for next three days.Obviously, the conduct of this witnesshad not been altogether free from doubt and his statement cannot beaccepted without proper corroboration. Now, the attempted corroborationis suggested only with reference to the statement of the sister of thiswitness viz., PW-8 RadhaPuri. However, her testimony carries excessivefeatures of doubts, as would occur infra.F

23. It is evident on the face of the record that in her testimony,PW-8 RadhaPuri made several improvements over the statement madeduring investigation. The allegations that upon reaching the spot, shesaw the appellant and her brothers ‘enjoying tea’were not made in herpolice statement. The witness had gone to the extent of stating that theGdeceased was attacked by his wife and children on two-three occasionsthough no such allegation appeared in her initial version duringinvestigation. It is more than apparent that the efforts on the part of thiswitness PW-8 had been to level accusations not only against the appellantbut even against the children of the appellant, particularly her daughter,byHsuggesting that the said daughter questioned her presence on the spot

though such had not been the case of the prosecution. As regards theplot at AmbalaCantt., this witness gave out vacillating answers whereshe first of all stated want of knowledge; then stated that the plot was inthe name of mother; and again stated her inability to say exactly in whosename it was. Leaving aside these aspects, the noteworthy featureemerging from her statement is the admission of the fact that the ancestralhouse was sold by Brij Bhushan (PW-7).

24. A combined look at the testimony of PW-7 and PW-8 bringsto the fore one of the significant facts that there had been an ancestralhouse belonging to the familythat was sold by PW-7alone and the saleproceeds were utilised by him to open a grocery shop, one of the multipleventures he had tried, mostly resulting in closure or failure. The appellanthad been categoric in her assertion that the property and money hadbeen at the root of discord in the family and the same had been thecause for the family of the deceased implicating her. DW-3 has alsotestified to the effect that the deceased had his tense moments becauseof money demands of his brother i.e., PW-7. Unfortunately, the TrialCourt as also the High Courthave totally overlooked these factors andfeatures hovering over the prosecution story.

25. Going further deep into the prosecution story, it is clear thatthere is no direct and cogent evidence on record that the appellant wasinvolved in illicit relations or was forcing the deceased to transfer theproperty. It had not been the assertion of PW-7 or PW-8 that the allegedillicit relations of the appellant and/or her pressurising the deceased totransfer the property had been the matters of their personal knowledge.No particulars of any person having illicit involvement with the appellantare to be found on record.Such assertions have been made by thesewitnesses on the basis of the statements allegedly made by the deceasedto each of them individually and at different point of time. The HighCourt 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 beingthe dying declaration of the deceased. Strictly speaking, the allegedstatement made to PW-7 could not have been taken as a ‘dyingdeclaration’ for the reason that at time of making of such statement, thedeceased was not labouring under his imminent death and he was notrecounting the circumstance of the transaction relating to his death. Forthe sake of arguments, and on the broad phraseology of the first part of A

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ASection 32 (1) of the Indian Evidence Act[9], even if it be assumed thatthe statement made by the deceased, before the cause of death hadarisen, or before he had any reason to anticipate his killing, may also betaken as admissible[10], such an alleged statement cannot be directly actedupon without concrete corroboration. In the present case, what to say ofBcorroboration, even making of such statement by the deceased appearsto be doubtful.

25.1. The other prosecution witnesses have not even remotelyindicated any traces of discord in the relations of the deceased and theappellant for any reason whatsoever. The appellant has specificallyCrefuted such allegations in her statement under Section 313 CrPC. Thedefence witness DW-3 Surinder KumarBhat, who had been the colleagueof the deceased and was living nearby, has been categorical that thedeceased and the appellant were maintaining good relations and that theappellant was enjoying a good reputation. Nothing has occurred in hiscross-examination to discredit this witness as untrustworthy. AnotherDnoteworthy factor emerges from the testimony of DW-4 AkhileshBhatnagar, Assistant, Oriental Insurance Company, Chandigarh. He hasproved the hotel expenses bills paid by the employer of the deceased forhis stay at Karnal from 14.01.1997 to 01.02.1997. If that were so, theassertion of PW-8 RadhaPuri that the deceased made some statementEto her at Yamuna Nagar on 25.01.1997 becomes doubtful. As noticed,though the husband of PW-8 (with whom she allegedly conferred aboutthe alleged statement of the deceased) was cited as prosecution witnessbut was not examined in the Court.

26. We may, in the passing also point out another glaring factor inFrelation to the testimonies of PW-7 and PW-8. It is but apparent thatPW-7, even before reaching the spot of crime, had already concluded

932. Cases in which statement of relevant fact by a person who is dead or cannotbe found, etc., is relevant.-Statements, written or verbal, of relevant facts made by aperson who is dead, or who cannot be found, or who has become incapable of givingevidence, or whose attendance cannot be procured without an amount of delay orGexpense, 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 tothe cause of his death, or as to any of the circumstances of the transaction whichresulted in his death, in cases in which the cause of that person’s death comes intoquestion.H10 Vide PakalaNarayana Swami v. The King-Emperor: AIR 1939 PC 47

that his brother had been murdered. In his words: ‘I gave telephonicmessages to my relatives regarding the murder of my brother’. PW-8 has directly contradicted him while saying:‘On 1.5.97, I came to knowthrough my brother BrijBhushan that TirlokiNath had committedsuicide. He told that as per the information, the neighbourers atPanchkula told that TirlokiNath had committed suicide.’Anotherfeature of the case is that as per the site sketch prepared by PW-3ManoharLal, (Ex. PD), there was a bathroom-cum-toilet of 10 feet x 3feet size, attached with the room in question where the deceased wasputting up, as per the witnesses PW-7 and PW-8. It clearly belies thesuggestion that the deceased was forced to use the washroom of thetenant at the ground floor.

27. For what has been discussed hereinabove, strong elements ofdoubts surface on record as regards reliability of these two witnessesPW-7 and PW-8. In the given circumstances, it is difficult to accept thatthe prosecution has been able to establish by cogent and reliable evidencethat the appellant was involved in illicit relations or was pressurising thedeceased to transfer the property in her name and that there had beenstrong acrimony between the deceased and the appellant. It is also difficultto accept, for want of cogent corroborative evidence, if the deceasedhad made any alleged statements about discord with his wife and threatperceptions to PW-7 and PW-8. In the given circumstances, the possibilityof levelling of imputations on the appellant for intentions other thanbringing 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 thatthe deceased was lastly in the company of the appellant and she hadfailed to explain his whereabouts as also the circumstances leading tohis death.

28.1. Insofar as the ‘last seen theory’ is concerned, there is nodoubt that the appellant being none other than the wife of the deceasedand staying under the same roof, was the last person the deceased wasseen with. However, such companionship of the deceased and theappellant, by itself, does not mean that a presumption of guilt of theappellant is to be drawn. The Trial Court and the High Court haveproceeded on the assumption that Section 106 of the Indian Evidence A

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AAct[11 ]directly operates against the appellant. In our view,such an approachhas also not been free from error where it was omitted to be consideredthat Section 106 of the Indian Evidence Act does not absolve theprosecution of its primary burden. This Court has explained the principlein Sawal Das (supra) in the following:-B“10. Neither an application of Section 103 nor of 106 of theEvidence Act could, however, absolve the prosecution fromthe duty of discharging its general or primary burden ofproving the prosecution case beyond reasonable doubt. It isonly when the prosecution has led evidence which, if believed,Cwill sustain a conviction, or which makes out a prima faciecase, that the question arises of considering facts of whichthe burden of proof may lie upon the accused……”

28.2. On the facts of the present case, it emerges that as per theversion of PW-7, the deceased was lastly in his company on 28.04.1997Dwhen he allegedly expressed his dejection and fear as also his plan toreturn with luggage. The appellant has pointed out that the deceasedwas with her in the morning of 29.04.1997 when he pointed out his tourprogramme commencing that day with scheduled return on 03.05.1997.It is not in dispute that the deceased was regularly on tour for longerdurations of about two weeks in connection with his duties. The deadEbody was recovered on 01.05.1997 and as per post-mortem report, theprobable time that had elapsed between death and post-mortem (on02.05.1997 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 deceasedmight have met with his end on 29.04.1997. The possibility of it being aFday later is not ruled out.

28.3. In the given set of circumstances, the last seen theory cannotbe operated against the appellant only because she was the wife of thedeceased and was living with him. The gap between the point of timewhen the appellant and deceased were last seen together and when theGdeceased was found dead had not been that small that possibility of anyother person being the author of the crime is rendered totally improbable.In SK. Yusuf (supra), this Court has said:-

11106. Burden of proving fact especially within knowledge.- When any fact isespecially within the knowledge of any person, the burden of proving that fact is uponHhim.

“21. The last seen theory comes into play where the time gapbetween the point of time when the accused and the deceasedwere last seen alive and when the deceased is found dead isso small that possibility of any person other than the accusedbeing the author of the crime becomes impossible.”

Subsequent conduct of the appellant and othercircumstances

29. The Trial Court and the High Court have readily, and ratherheavily,reliedupon an assertion made by PW-8 in her statement that uponher reaching the site, the appellant was ‘enjoying tea’ with her brothersand other relations on the first floor; and was not found stressed orperplexed or saddened. This part of the assertion on the part of PW-8has its own shortcomings. Such an assertion was not made by her in thepolice statement; and is not even remotely corroborated by any otherprosecution witness including PW-7. Moreover, it had been too unrealisticon the part of the Trial Court and the High Court to observe that theappellant ought to have been found sitting with the dead body. Admittedly,the corpse was emitting foul smell and DW-8 reached the spot at about4.30 in the morning though the appellant had noticed the dead body theprevious evening and had taken steps for informing the concerned throughDW-3, Surinder KumarBhat. In the given circumstances, no fault couldbe foisted on the appellant if she did not remain with the dead body allthrough and until arrival of PW-8. The expression ‘enjoying tea’ wascoined by this witness PW-8 alone and for want of corroboration and foromission of such a fact in the police statement, there appears no reasonto accept the same. If at all anything of subsequent conduct of appellantis to be taken into consideration, it is evident that she attendedher officeon 30.04.1997 and 01.05.1997. It is not the case of the prosecution thatduring these two days, any abnormality in her behaviour was noticed byanyone. The appellant neither concealed herself nor altered the sceneof crime in any manner and there had not been any evidence about anyoddity in her manners and demeanour.

30. Another circumstance taken against the appellant had beenthat she allegedly did not send any information to the brothers and otherrelations of the deceased immediately after noticing his death. Suchobservations and findings have been recorded against the appellant whiletotally overlooking the statement of DW-3. In this regard, it gets perforcereiterated that the prosecution has not produced any evidence which A

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Acould displace the statement of DW-3 that he indeed informed the policeat the asking of the appellant at about 9.30 p.m. on 01.05.1997 and didalso inform the brother of the deceased. As noticed, PW-9 ASI AmarSingh did not specify as to how the information was received by him.Moreover, the person said to have divulged the information to the witnessPW-7 was never examined. Given such omissions in the prosecutionBcase, we find no reason to discard the testimony of DW-3. Once histestimony is accepted, several blocks of the prosecution story areknocked to the ground.

-Effect of the acquittal of coaccused persons

-Effect of the acquittal of coaccused persons

C31. There is yet another lacuna in the prosecution case that hasmagnified 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 haddefinitely been performed by more than one person. That being theposition, the Trial Court readily accepted the case against the brothersDof the appellant as conspirators without cogent and convincing evidence.The High Court rightly acquitted them for want of evidence and evenobserved that the prosecution had failed to book the real culprit in placeof the brothers of the appellant. However, the High Court yet consideredit proper to maintain the conviction of the appellant as the principal culpritEwhile failing to consider that an important link in the prosecution storywas snapped as soon as brothers of the appellant were acquitted.

31.1. We would hasten to observe that merely for the reason ofacquittal of co-accused, another accused in a criminal case may not beacquitted if cogent evidence against him is available and his case couldFbe segregated from the case against the acquitted co-accused. However,on the basic facts of the present case, it is evident that the gruesome actin question had not been the handiwork of one person and it would berather preposterous to assume that the appellant hanged the dead bodyby ceiling fan all by herself. In the given circumstances,when the allegedcollaborators of the appellant are acquitted, the already existing cloudsGof doubts on the prosecution story getcongealed. The High Court hasproceeded with over-simplification of the matter by leaving the missinglink as merely a fault of the investigating agency. In our view, as soon asthe brothers of the appellant were acquitted, the High Court ought tohave examined the consequence of such acquittal that an important linkHin the prosecution theory was snapped and it was difficult to conclude

that the prosecution has established its case against the appellant beyondall reasonable doubts.The prosecution case not established beyond reasonabledoubt

32. Thus, as regards the circumstances relied upon by theprosecution, the position obtainable from the material placed on recordand the surrounding factors is that (a) the death of deceased TirlokiNathwas homicidal in nature and had not been suicidal though it was soughtto be projected as suicide by the culprits by hanging the dead body froma ceiling fan in his room; (b) there is no cogent and convincing evidenceon record to come to a definite conclusion that the relations of thedeceased and the appellant were strained or that the appellant wasindulgent in illicit relations or she was insisting for transfer of property inher name; (c) it is also difficult to come to a definite conclusion that thedeceased had expressedimminent danger to his life at the hands of theappellant;and (d) even if the deceased was last seen alive in the companyof the appellant, the time gap between such last seen and finding of hisdead body had been of about 2 to 3 days.

33. Apart from the factors above, there are several other loopholeswhereby the alleged circumstances sought to be relied upon by theprosecution lose their worth and force. As noticed, the investigatingagency and the prosecution had not been forthright. The relevant aspectspertaining to the crime in question were not properly investigated andeven the relevant witnesses were not examined. Moreover, as noticed,theprosecution case was framed in the manner that the appellantcommittedthe crimewith the help of her brothers who have beenacquitted.

33.1. In the given circumstances, the fact that the staircase fromthe ground floor was directly leading to the room in question where thedead body was found,acquires immense significance. Even if it beassumed that the deceased was putting up in the said room, some personor persons reaching there directly from the ground floor and carryingout the crime is not ruled out. In the alternative, some person or personshaving executed the crime at some other place and then having broughtthe dead body and hanged it in the room in question is also the possibilitywhich cannot be brushed aside as entirely improbable.

34. In the given circumstances, when the prosecution has notbeen able to remove the aforesaid doubts and the motive as imputed on A

B

C

D

E

F

G

H

Athe 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 ofthe view that the Trial Court and the High Court have approached theBcase from an altogether wrong angle and have overlooked the majorflaws and shortcomings in the prosecution case. In the given set of factsand circumstances, even if the prosecution has been able to create somesuspicion against the appellant, it would be unsafe to accept that theimplicating circumstances have been established by cogent evidenceCand such circumstances form a complete chain that rules out any otherhypothesis except guilt of appellant. Hence, the conviction of the appellantcannot be sustained; she is entitled to the benefit of doubt.

36. Consequently, this appeal is allowed in the manner that theimpugned judgment and orders convicting the appellant for the offenceDpunishable under Section 302 IPC are set aside; the appellant is extendedthe benefit of doubt and is, accordingly, acquitted. Her bail bonds arecancelled and sureties are discharged.

E

Ankit Gyan

Appeal allowed.

F

G

H