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

2. The facts of the case, as culled out from the prosecution case, are that theBhushan Tiwari (PW5) lodged a complaint (Annexure95 with Karchhana Police Station, District Allahabad, which was registered as Crime Case No. 177 of 1995, stating that his brother Brij Bhushan Tiwari (deceased) went to his995 to see the well being of his children, and to his belief his brother was killed by his wife andThe wife of the deceased has also given a complaint to the police. The StationNiwas Pandey (PW7) held the inquest of the dead body, prepared panchayatnama (Ext. P2) and sent the body for postmortem. Dr. Ashok Kumar Gupta (PW6) conducted postmortem on 1st October, 1995 and the postmortem report is marked as Ex.P1. The Doctor opined that the cause of death was asphyxia due to strangulation of throat.3. The Investigating Officer (PWBahadur Singh after making necessary entries in the general diary, visited the spot and prepared site plan (Ext. P5), recorded statements of witnesses and filed charge sheet (Ext. P6) against the accused. The Chief Judicial Magistrate, First Class, Allahabad took cognizance of the offence and committed the case to the Sessions Court for trial. Learned Additional Sessions Judge framed charges under Section 302/34, IPC against the accused Santosh Devi (wife of the deceased) and Dev Kanya Tiwariof the accused and appellant herein). They denied to have committed the crime and requested for trial. They took the defence that the deceased had committed suicide by consuming poisonous tablets and they were falsely implicated in the case by the complainant as he wanted to usurp the whole property. However, during the pendency of trial, accused Santoshof the deceased had passed away.4. At the trial, the prosecution in support of its case examined as many as eight witnesses. The trial Court came to the conclusion that the explanation given by the accused for the death of the deceased was false. Having satisfied that the prosecution could prove the guilt of the accused beyond reasonable doubt, the trial Court convicted theunder Section 302/34 IPC and sentenced to suffer life imprisonment and to pay a fine of Rs. 10,000/failing which to further suffer rigorous imprisonment of six months.5. Dissatisfied with the order of conviction and sentence passed by the trial Court, thewent in appeal before the High Court. By the judgment impugned herein, the High Court affirmed the order passed by the trial Court and dismissed the appeal of theAggrieved by the decision of Courts below, the appellant preferred this appeal before us.

Reasoning: 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.