Case: Dev Kanya Tiwari Vs. The State of U.P

well as the High Court mainly relied upon the evidence of the brother of the deceased (PW5) and the opinion of the Doctor (PW 6-Dr. Ashok Kumar Gupta) who conducted postmortem. According to PW5 when he reached the house of accused at 10 am, they started crying and confessed to him that they had committed the mistake of strangulating his brother as he was adamant to take his wife back. He further deposed that the accused pleaded him not to lodge police complaint and even after lodging FIR they requested him to withdraw. As there was no mention of this circumstance in the FIR, the trial Court disbelieved the version of PW5 as regards to extra judicial confession of accused, yet observed that panchanama was prepared prior to any member of the deceaseds family made a visit to the place of occurrence and none of his family members were present at the time of panchanama. It is important to note that PW5 in his cross examination admitted that he was present at the time of preparation of panchanama and when the body was sent for postmortem. As regards to the occurrence, he stated that he had no personal knowledge but only on hearsay basis, he came to know about the occurrence. 14. Dr. Ashok Kumar Gupta-(PW6) who performed postmortem on the body of the deceased, deposed that he found bloodstained fluid coming out of mouth and nose of the deceased, while his nails turned into bluish colour and tongue protruded out of mouth caught between teeth. An ante mortem injury of ligature mark 13½ x ½ was found on mid of neck while contusion present all over the neck situating horizontally. Internally, thyroid bone was found fractured. In his opinion, the cause of the death was asphyxia resulting from strangulation of throat. In the cross-examination, it was revealed that due to not getting the symptoms of poison, viscera has not been preserved. 15. On an analysis, it is clear that PW1- Santosh Kumar, PW2-Lallan, PW3-Shiv Lal have not supported the prosecution case but specifically supported the version of the accused. It assumes importance that these witnesses were not declared hostile. The evidence of I.O.-PW 8 made it clear that Dr. Hiralal disclosed to him that the deceased pleaded not to save his life as he was fed up with his life and had taken the sulfas tablets. The panchanama was accordingly prepared, admittedly in the presence of PW5, and there was no apparent injury on the dead body at the time of panchanama. PW7-Ram Niwas Pandey, who filled the panchanama (Ext. P2) and got the signatures of panch witnesses, also stated that no noticeable injury was found on the body of the deceased and it was the collective opinion of the panch witnesses that the deceased expired due to eating some poisonous substance and he also concurred with them. 16. In the above backdrop of the case, primarily when there existed a complaint lodged by the wife of deceased pointing out that the deceased committed suicide by consuming poison, generally it is expected that the Doctor will preserve viscera for chemical analysis. On this point, prosecution has failed in its duty as no steps have been taken to preserve viscera. Merely a statement by Doctor-PW 6 that viscera was not preserved as there is no presence of poison would not be suffice in the peculiar circumstances of this case, particularly when the independent panch witnesses together as well as the Investigating Officer recorded their view that it was a case of poisoning, which has been duly supported by PWs 1, 2 and 3.17. However, the allegation against the accused levelled by prosecution found support only from PW5-brother of the deceased. Even the evidence of father of the deceased (PW4) cannot be taken into consideration as it clearly appears that he has come to know about the incident through PW5 only. Medical evidence in the form of postmortem report (Ext. P1) though supports the case of prosecution, non-preservation of viscera by the Doctor remains fatal to the prosecution case. It is worthwhile to note that nowhere in his evidence, PW5 mentioned about noticing ligature mark on the neck of the deceased, nor he agitated the cause of death during panchanama. The fact remains that on certain aspects, the trial Court also disbelieved the version of PW5. In our opinion, the prosecution miserably failed to establish the chain of events, which points out at the guilt of the accused, and the Courts below gravely erred in not considering the case in accordance with the settled principles of law.18. The paramount consideration of the Court must be to ensure that miscarriage of justice is prevented. Much acclaimed notion in the administration of criminal justice is that if two views are possible basing on the evidence adduced in the case, one pointing to the guilt of the accused and the other to the innocence of accused, the view which is favourable to the accused should normally be adopted. As we have already observed in the case on hand there is no direct evidence as to the deceased consuming poison or having been done to death by throttling. The presence of blisters all over the body of the deceased and his nails turning into bluish colour, no mark of fingers on the body of the deceased as noted in the postmortem report and the presence of PW5 at the time of panchanama without any objection, non-examination of Dr. Hiralal, the corroborative statements by most of the prosecution witnesses and that of the I.O. to whom Dr. Hiralal also disclosed that the deceased consumed poison, all these circumstances form ample evidence to strengthen the case of the accused that the deceased committed suicide. We are therefore constrained to observe that the Courts below must have persuaded themselves to give the benefit of doubt to the appellant, as in the peculiar circumstances of this case, it is not safe to convict the accused under Section 302 IPC.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]16. In the above backdrop of the case, primarily when there existed a complaint lodged by the wife of deceased pointing out that the deceased committed suicide by consuming poison, generally it is expected that the Doctor will preserve viscera for chemical analysis. On this point, prosecution has failed in its duty as no steps have been taken to preserve viscera. Merely a statement by6 that viscera was not preserved as there is no presence of poison would not be suffice in the peculiar circumstances of this case, particularly when the independent panch witnesses together as well as the Investigating Officer recorded their view that it was a case of poisoning, which has been duly supported by PWs 1, 2 and 3.17. However, the allegation against the accused levelled by prosecution found support only fromof the deceased. Even the evidence of father of the deceased (PW4) cannot be taken into consideration as it clearly appears that he has come to know about the incident through PW5 only. Medical evidence in the form of postmortem report (Ext. P1) though supports the case of prosecution,of viscera by the Doctor remains fatal to the prosecution case. It is worthwhile to note that nowhere in his evidence, PW5 mentioned about noticing ligature mark on the neck of the deceased, nor he agitated the cause of death during panchanama. The fact remains that on certain aspects, the trial Court also disbelieved the version of PW5. In our opinion, the prosecution miserably failed to establish the chain of events, which points out at the guilt of the accused, and the Courts below gravely erred in not considering the case in accordance with the settled principles of law.18. The paramount consideration of the Court must be to ensure that miscarriage of justice is prevented. Much acclaimed notion in the administration of criminal justice is that if two views are possible basing on the evidence adduced in the case, one pointing to the guilt of the accused and the other to the innocence of accused, the view which is favourable to the accused should normally be adopted. As we have already observed in the case on hand there is no direct evidence as to the deceased consuming poison or having been done to death by throttling. The presence of blisters all over the body of the deceased and his nails turning into bluish colour, no mark of fingers on the body of the deceased as noted in the postmortem report and the presence of PW5 at the time of panchanama without any objection,of Dr. Hiralal, the corroborative statements by most of the prosecution witnesses and that of the I.O. to whom Dr. Hiralal also disclosed that the deceased consumed poison, all these circumstances form ample evidence to strengthen the case of the accused that the deceased committed suicide. We are therefore constrained to observe that the Courts below must have persuaded themselves to give the benefit of doubt to the appellant, as in the peculiar circumstances of this case, it is not safe to convict the accused under Section 302 IPC.