Case: GARGI Vs. STATE OF HARYANA

1.1. In a brief outline of the material aspects, it may be noticed that in the present case, the appellant was charged with the imputations that. she killed her husband by strangulation and, with the help of co- accused persons (her brothers), hanged the dead body in one of the rooms in the house, as if it were a case of suicide. The matter rested on circumstantial evidence where, according to the prosecution, the relations of the deceased (husband) and the appellant (wife) were too strained; the deceased had stated threat perceptions that his wife might kill him, for she was involved in illicit relations and was desirous of grabbing his property. Two of the siblings of deceased, one brother and one sister, testified in support of the prosecution case. Per contra, the appellant, while denying the imputations, took the plea that she was leading a happy married life with her husband for 18-19 years with two children; and that the brother of the deceased, on whose statement FIR was registered and who was the prime prosecution witness, was carrying the ill-intentions to grab the property of her husband and had managed her prosecution. The Trial Court convicted all the accused persons while accepting the prosecution case and rejecting the defence version. In appeal, the High Court, though found that the circumstances brought on record were not sufficient to bring home the charge of conspiracy against the brothers of the appellant and acquitted them but, affirmed the findings against the appellant and maintained her conviction for the offence of murder of her husband. Hence, this appeal.The relevant facts and background aspects2. Put in brief, the prosecution case had been that on 01.05.1997, having received information that a man had committed suicide in House No. 1297, Sector-15, Panchkula, ASI Amar Singh (PW-9), accompanied by UGC Bidhi Chand and UGC Baldev Singh, reached the spot at about 11.30 p.m. (At what time did the police and the complainant receive this information, by which mode of communication, and through whom, are some of the questions having bearing in this matter, as shall be noticed hereafter later.) , only to find that in the room on the second floor of house, the deceased Tirloki Nath, husband of the appellant, was hanging by neck with his feet touching the floor. They also found that a pool of blood had collected near the dead body; and that the dead body was emitting bad odour. The appellant and her children were in the same house, but on the first floor.2.1. At about 4.30 a.m. of 02.05.1997, i.e., nearly five hours after the police having arrived, the complainant Brij Bhushan Kaul (PW-7), brother of the deceased, reached the spot with his wife, mother, sister?s husband and sister Smt. Radha Puri (PW-8). The complainant made the statement that relationship of the deceased and the appellant was too strained due to which, they were residing in separate rooms in the same house; that the appellant had been ill-treating her husband, which included restricting his use of bathroom facilities in the same house; that the deceased had once expressed his fear that the appellant would leave the gas cylinder open with the intention to kill him; and that the deceased had also stated that ‘the character of his wife was bad? and she was living ‘with bad women?. The complainant also stated that on 28.04.1997, the deceased came to his house (at Ambala Cantt.) and told him that he would go to Panchkula and would come back with his luggage as he was ‘very much fed up and frightened?. The complainant further stated that in the night of 01.05.1997 at about 11.30 p.m., he received a message that his brother had passed away and thereupon, he arrived at the house of the deceased accompanied by his mother, wife, sister and brother-in-law, only to find the deceased in the condition as described hereinabove. While concluding, the complainant stated his suspicion that the appellant had murdered his brother because the deceased had not transferred his house as per her demands.2.2. For the incident in question, FIR No. 174 dated 02.05.1997 was registered on the basis of the statement so made by the complainant. In the preliminaries, the inquest report (Ex. PH/2) was prepared by ASI Amar Singh (PW-9); rough site sketch (Ex. PM) was prepared; photographs were taken by the photographer Shashi (PW 11); and the dead body was sent for post-mortem. Thereafter, the investigation was taken over by Inspector Jag Pravesh (PW-10), who recorded the statements of witnesses, visited the spot, got prepared the scaled site plan (Ex. PD) and also arrested the appellant. SI Ishwar Chander (PW-12) also partly investigated this case. He arrested and released the brothers of appellant, who were on anticipatory bail. Thereafter, the appellant was charge-sheeted for the offence punishable under Section 302 IPC while her brothers were charge-sheeted for the offence punishable under Section 302 read with Section 120-B IPC. Prosecution evidence3. After committal, the case was tried as Sessions Case No. 63 of 1997 in the Court of Additional Sessions Judge, Ambala. The prosecution, inter alia, examined 12 witnesses. Having regard to the subject matter of this appeal and the questions involved, it would be advantageous to take note of the relevant aspects emerging from the statements of material witnesses in requisite details, even at the cost of a little inflation.3.1. PW-1 Dr. Usha Bansal, who had been one of the members of the medical board that had conducted post-mortem of the body of deceased and had prepared the report Ex. PA, stated the observations and opinion asPW-7 Brij Bhushan Kaul (brother of the deceased) has been the prime witness of prosecution in this case. The relevant assertions occurring in his examination-in-chief read as under:This witness PW-7, in his cross-examination on behalf of the appellant, stated, inter alia, as under:In his further cross-examination on behalf of the appellant, this witness stated as under:PW-8 Radha Puri (sister of the deceased) purportedly corroborated the testimony of PW-7. The relevant parts of her assertions in the examination-in-chief could also be usefully extracted as under:-In her cross-examination on behalf of the appellant, this witness PW-8 Radha Puri stated, inter alia, as under:1.5.97, at night time about 11 PM, I was sleeping and my husband awoke me and told after hearing the telephone that Tirloki Nath was no more in the world and started weeping….. I myself, my husband, my brother Brij Bhushan, and his wife and my mother then went to Panchkula during night time…..Some police officials were sitting at the entrance of the gate of the house. ….Firstly we went to first floor, where we saw Gargi, her brothers, children and relatives to whom I do not know. There was no person from the mohalla, where the policemen were sitting. …..I do not know whether house No. 1297, Sector 15, Panchkula was built out of the joint income of Smt. Gargi and her husband Tirloki Nath. I do not know whether Gargi had taken any amount by way of advance from the Govt. or not.……….I do not know whether Smt. Gargi and her husband were having cordial relations or not in the year 1994, when I visited her because I stayed there for a night and did not talk much, as the friend of Smt. Gargi and her children alongwith her husband had come there. I do not remember the names or antecedents of those persons. On 25.1.1997 when my brother Tirloki Nath had come to Yamuna Nagar, I found him very much disturbed and he talked to me regarding the behaviour of Smt. Gargi. I was alone. I narrated the facts to my husband in between the period from 25.1.97 to 1.5.97. I did not tell the aforesaid facts to any one else. It is incorrect to suggest that Brij Bhushan my brother was helped in his education, service and in his up-bringing by Tirloki Nath deceased. It is correct that the ancestral house was sold by my brother Brij Bhushan. However, it is wrong to suggest that he misappropriated the sale proceeds of the house. I do not know when the house was sold. I do not know whether Tirloki Nath was having any plot in Ambala Cantt or not. Again said, the plot at Ambala Cantt is in the name of my mother. Again said, I cannot say exactly in whose name it is…It is correct that I did not make any verification from any quarter regarding illicit relations of Smt. Gargi, as told by my brother Tirloki Nath. I believed my brother what Tirloki Nath stated to me regarding the ill-treatment meted to him from Smt. Gargi. This was also told by my mother. My brother had told all about this to all the family members (sic).….I enquired from Vaishali daughter of Tirloki Nath as to how Tirloki Nath had died. She did not tell even a word, though I was crying throughout. Vaishali told me as to why we had come there because we were not calledhad been further cross-examination of this witness also on behalf of the other accused persons where she was, inter alia, confronted with her police statements which did not carry several of the assertions made in the Court. However, all the major aspects of herASI Amar Singh led in evidence as PW-9. He had arrived at the spot after having received the information about the death of Tirloki Nath. As regards the mode and time of receiving information, this witness stated that?a telephonic message was received that one person in House No. 1297, Sector 15, Panchkula had committed suicide. This information was received at 11.15 PM.?In his cross- examination, PW-9 stated, inter alia, asGargi and her children were on the first floor of the house, whereas the dead body was on the top floor of the house. I did not record the statement of Smt. Gargi and her children. I have been making formal investigation before the arrival of complainant etc. I have not kept any record qua the formal investigation. The neighbourers did not come to the spot, though they were found by me standing in the street. I did not call any one. I have been giving information to the officers on telephone.…..I did not join any independent witness from the. Inspector Jag Parvesh, who carried out major part of investigation, was examined as PW-10 and stated in his examination- in-chief that he reached the hospital on 02.05.1997 where he was handed over the statement EX.PH as made by PW-7; the inquest report Ex.PH/2 prepared by PW-9; and the post-mortem report EX.PA. He drew up the necessary proceedings; recorded statements under Section 161 of the Code of Criminal Procedure Code (CrPC); collected blood from the spot; and arrested the appellant. In his cross- examination, this Investigating Officer stated, inter alia, as under:made verification from the locality regarding the character of Smt. Gargi but did not record any statement. I do not remember the names of those persons.I verified from 5/10 persons of mohalla. I did not mention this factum in the report u/s 173 Cr.PC. Report was prepared by the then SHO. …I interrogated Gargi accused while in custody. She had told that she was innocent and had not committed any offence…Gargi accused had told me that she was not having any dispute with her husband and was having cordial relations. I joined the children of Gargi accused in my investigation. I have not recorded their statements and as such, no record is there. The interrogation of Gargi was recorded in the zimini. I did not take finger prints from the rope. I had not at all taken finger prints from any other place where the dead body of Tirloki Nath was found. However, Finger Print Expert visited the place. None has told me that Brij Bhushan complainant used to harass Gargi and Tirloki Nath to extract money from them. It is correct that the stairs in the house are outside the door. If the door is closed, none can notice who is coming down and who is coming up. I investigated regarding the visitors in the house during the 3/4 days prior to the 2.5.97 and I had come across one Pandit who visited that house during this period. Smt. Gargi told that one Pandit was brought for performing Havan. I made verbal enquiries from the neighbourhood.had recorded statements of other witnesses i.e. mother, sister and brother-in-law of deceased in the hospital. …There is a direct stair case from the ground floor to the top floor of the house of Gargi and one can go upstairs and come down stairs without entering any room on the first. PW-2 H.S. Narula, the Deputy Manager, Oriental Insurance Company, Sector 22, Chandigarh was examined by the prosecution to testify that the deceased was working in his Company as Assistant Administrative Officer, who lastly attended the Office on 28.04.1997. In his cross-examination, this witness admitted the fact that deceased Tirloki Nath used to remain on tour for about two weeks in a month.3.7. PW-3 Manohar Lal, who was working as a constable in S.P. Office, Ambala drew up the site plan Ex. PD of the place where the body of deceased was found. In his evidence, PW-3 pointed that there was a bathroom-cum-toilet, attached with the room on the second floor. The site plan of second floor (Ex. PD) shows about 10 feet x 3 feet space marked as bath/toilet.3.8. PW-4 Sant Lal Gupta, the then Assistant Audit Officer, AG Audit, Punjab, Chandigarh testified to fact that the appellant was working as Senior Auditor in his office; that she was on casual leave on 28.04.1997 and 29.04.1997; and that she attended the office on 30.04.1997 and 01.05.1997. In his cross-examination, this witness expressed want of knowledge if the appellant often used to come to the office with her husband and used to leave after office hours with her husband. This witness also stated that ‘no complaint was received from the side of husband of Smt. Gargi or any other relation of husband of Smt. Gargi against Smt. Gargi?.3.9. The other witnesses examined by the prosecution had been PW- 5 Head Constable Ramesh Kumar; PW-6 UGC Baldev Singh; PW-11 Shashi, who took the photographs at the site; and PW-12 SI Ishwar Chander, who also partly investigated the case.4. On behalf of the appellant, several features of the prosecution evidence have been highlighted with the contentions that there had been stark inconsistencies, contradictions, improvements and twists in the testimonies of PW-7 and PW-8; and that there had been several failings in the investigation. We shall refer to these features and contentions hereafter a little later.Defence Version and Evidence5. The appellant in her statement under Section 313 CrPC stated, inter alia, that her husband had informed about his going on a tour on 29.04.1997; and that she had taken casual leave on 28.04.1997 and 29.04.1997 on account of her ill-health. She also stated that she and her husband were having cordial relationship and would share the bed with their son. She also stated that the case against her was a motivated one and that she was not guilty of committing the murder of her husband. Some of the answers given by the appellant in her statement under Section 313 CrPC may be usefully extracted asFour witnesses were examined in defence. One of the relevant witness had been DW-3 Surinder Kumar Bhat, said to be a family friend and colleague of the deceased. The relevant assertions of this witness in the examination-in-chief read as under:This witness was thoroughly cross-examined by the prosecution where he stated, inter alia, asDW-4 Akhilesh Bhatnagar, Assistant, Oriental Insurance Company, Chandigarh was examined in relation to the tour programme of the deceased Tirloki Nath from 06.01.1997 to 31.01.1997 and the hotel expenses bills paid by the Company, which show that the deceased was at Karnal from 14.01.1997 to 01.02.1997. The testimony of other witnesses DW-1 and DW-2 is not relevant for the purpose of this appeal as they were examined in relation to the plea raised by the co-accused persons as regards their employment.The Trial Court found all the accused persons guilty6. The Sessions Court, in its judgment and order dated 09.06.1998, accepted the prosecution case; and while rejecting the contentions urged on behalf of the accused, held that the chain of circumstances was established by the prosecution, bringing home the guilt of the accused persons. The Trial Court, accordingly, convicted them for the aforementioned offences of criminal conspiracy and murder and awarded sentence of rigorous life imprisonment together with fine of Rs. 2,000/- each with default stipulations.6.1. The Trial Court concluded that the deceased was done to death by way of strangulation, essentially on the basis of medical evidence and with reference to the position of the hanging dead body and other features at the spot, like the one that door of the room in question was not bolted from inside. The finding that the appellant had committed the offence with her brothers in the intervening night of 28/29.04.1997 got its basis, inter alia, in the statement allegedly made by the deceased to PW-7 prior to his departure from Ambala Cantt. where he expressed fear of his life, as also in the facts that the appellant had taken leave from her office for 28.04.1997 and 29.04.1997 and that the appellant and her brothers were not grieving when the body of the deceased was found. The High Court affirmed the conviction of appellant while acquitting her brothers7. The appeals preferred by the appellant and her brothers against the judgement and order aforesaid, being Criminal Appeal No. 341-DB of 1998 and Criminal Appeal No. 359-DB of 1998, before the High Court of Punjab and Haryana at Chandigarh were considered together and decided by the common judgment dated 05.03.2008. The High Court held that it had been a case of homicide, essentially with reference to the medical evidence and the features of the scene of crime. The High Court also held that the culpability of the appellant stood established in view of the circumstances that: (a) when the appellant was sharing the same bedroom with deceased Tirloki Nath, the onus was heavy upon her to explain the circumstances leading to the death of her husband, which she failed to discharge; (b) the appellant had the motive to murder her husband when there were strained relations between them and the deceased had expressed apprehension to be done to death by the appellant; (c) the subsequent conduct of the appellant was also questionable, where she was found taking tea with her brothers on the first floor although the dead body of Tirloki Nath was hanging by rope in the Chaubara at the top floor; (d) and the appellant did not send any information to the brothers and other relations of Tirloki Nath immediately after noticing his demise. The High Court, however, rejected the prosecution case that brothers of the appellant had conspired with the appellant to carry out the murder and hanging of the deceased Tirloki Nath. Even after rejecting the prosecution case against brothers of the appellant, and even after finding that the crime in question was not the handiwork of one person, the High Court proceeded to observe that the appellant was rightly convicted in the matter as the principal offender, though the investigating agency failed to find out the other persons who were accomplice in this crime. The High Court also observed that the Trial Court had discussed threadbare the defence evidence and had rightly disbelieved the testimony of DW-3 Surinder Kumar, who was introduced by the appellant as an afterthought.7.1. With the aforesaid findings and observations, the High Court upheld the conviction of the appellant but acquitted her brothers on the ground that there was no evidence on record to prove the existence of any conspiracy to murder the deceased. The High Court, inter alia, observed and held as…..Tirloki Nath was sharing the same bed room, in which Gargi Devi used to sleep, as stated by her in her statement under section 313 Cr. P.C. The dead body of Tirloki Nath was found hanging in the same house, in the chaubara. Thus, heavy onus lay on Smt. Gargi to explain the circumstance, leading to his death. She only stated, in her statement under section 313 Cr. P.C. that she was falsely implicated, in the instant case, and that the entire investigation, was at the instance of Brij Bhushan, PW.7. She, therefore, did not furnish any explanation, with regard to the circumstances, leading to the death of Tirloki Nath. This clearly proved her culpability.*** *** ***23. There were strained relations, between Tirloki Nath and his wife. From the statement of Brij Bhushan, PW-7 and Radha Puri, PW-8 it was proved that Tirloki Nath was tense and upset, as he was being ill treated by his wife. It is has also come in the statement of Radha Puri, PW-8, that Tirloki Nath was fearful that he would be killed one day. When Tirloki Nath met Radha Puri, his sister, and his brother-in-law, in Ambala he told them that he was apprehending danger to his life at the hands of Smt. Gargi his wife. Even, it is evident, from the statement of Brij Bhushan, PW7, that Tirloki Nath was being ill-treated by his wife Smt. Gargi. Even on 28.4.1997 in the morning when Tirloki Nath left the house of Brij Bhushan, at Ambala, for Chandigarh, he told him that it was his last visit to Panchkula, as he would be coming with his luggage, to permanently settle at Ambala, as he was fearing that he would be done to death by his wife Smt. Gargi. These last words spoken by him to his brother, Brij Bhushan on 28.4.1997 in the morning, as stated above, fall within the purview of his dying declaration. It was on account of the strained relations, between Triloki Nath has his wife Smt. Gargi that she committed her murder by strangulating him and thereafter hanged his body with ceiling fan (sic). Smt. Gargi was definitely having a motive to commit the murder of Triloki Nath, for the reasons referred to hereinbefore. The motive plays a very significant role, in case, which is based on the circumstantial evidence. The culpability of Smt. Gargi, accused is thus proved.*** *** ***29. No doubt, it may be said that the commission of crime, in this case could not be the handwork of one person only. Smt Gargi might have taken the help of some other persons, in hanging the body of Tirloki Nath, deceased after strangulating him, but it was not proved as to who those persons were. As stated above, it was also not proved that accused Shuhabs Tiwari, Ramesh Tiwari and Rajneesh Tiwari hatched conspiracy with Smt. Gargi and in pursuance thereof committed the murder of Tirloki Nath. Who were those persons, was for the Investigating Agency to find out. Even if, the Investigating Agency, failed to find out those persons, Smt. Gargi could not absolve herself of the liability. Smt. Gargi being the principal offender was rightly convicted and sentenced for the commission of offence punishable under section 302 IPC" (underlining supplied)

Reasoning: 10. Having given anxious consideration to the rival submissions and having scanned through the entire record with reference to law applicable, we are impelled to say at the outset of discussion that in this matter, several fundamental shortcomings in the investigation and several loopholes in the prosecution propositions got overlooked by the Trial Court as also by the High Court. In an overall comprehension of the matter, we are clearly of the view that it would not be safe to accept the projected propositions of the prosecution and to convict the appellant for the offence of murder of her husband.The manner of dealing with this case by the investigating agency, right at the inception, has left a few serious questions unanswered i.e., as to when did the police receive information about dead body of the husband of the appellant, by what mode, and through whom? PW-9 in his testimony before the Court conveniently stated that such an information was received through ?telephonic message? but did not state the particulars of such informant. No entry in the roznamcha or general diary has been produced to show that such an information was duly entered in the record before proceeding for investigation. Significantly, in the first note drawn up in the matter at 5.30 a.m. on 02.05.1997 (EX. PH/1), PW-9 only stated that ‘the information was received at the police station?. The fact that it had been a telephonic information is conspicuously missing in Ex.PH/1. This aspect has got a material bearing in the matter because the defence witness DW-3 specifically testified to the fact that he was the first person informed by the appellant about the demise of Tirloki Nath; and that he went to the police station at about 9.30 p.m. on 01.05.1997 and divulged the information. He further asserted having accompanied the police to the site and having conveyed the information to PW-7.15.2. It is also noteworthy that as per PW-7, he got the information from one T.R. Malhotra at about 11.30 p.m. who, in turn, had received the information on telephone from a colleague of the deceased. Neither any enquiry was made from the said T.R. Malhotra nor any other effort was made to find out the colleague of the deceased who had telephoned him.15.3. In the face of such a gap in the prosecution evidence, there appears no reason to disbelieve the testimony of DW-3 Surinder Kumar Bhat as regards the time of information to police and himself being the informant. In such a scenario, it remains absolutely inexplicable as to why the information given by DW-3 was not reduced in writing and the proceedings were not conducted on that basis. This question magnifies itself to tougher questions for the prosecution as to the time when PW-9 ASI Amar Singh reached the site and with whom. From the evidence on record and surrounding facts, it appears that the said ASI had reached the site at around 10.30 p.m. accompanied by DW-3 Surinder Kumar Bhat. The toughness of these questions further amplifies into the harder, and unanswered, question for the investigating agency as to why for a long period of about 4 to 5 hours at the site, the ASI (PW-9) did not carry out any investigation and did not record any statement.15.4. It is not the case of prosecution that the ASI (PW-9) was prevented by any reason to immediately attend on his duties after reaching the site. It is also not the case that he attempted to make any enquiry from any person until arrival of the complainant and other family members of the deceased. Even if it be assumed that the other family members of the deceased were on the way and the ASI knew about this fact, nothing had prevented him from attending on his duties of investigation. Strangely enough, even the first panchnama was prepared only after reaching of the complainant. It is also not clear as to why the statements of the children of the deceased were not taken when his daughter, 16 years of age, was very much present at the site. It is also not explained as to why in this kind of matter, carrying suspicious overtones, PW-9 did not make any enquiry from any of the neighbours, who were available at the site; and from the tenant, who was residing at the ground floor of the same building and whose washroom was allegedly being used by the deceased (as per the assertion of PW-8)? It is difficult to say that the conduct of this Investigating Officer (PW-9) had been totally free from doubt.15.5. Apart from the above-noted omissions at the very initial stage, we find absolutely no reason that the Investigating Officer PW-10, even after allegedly making enquiries in the locality regarding the character of the appellant from 5-10 persons, neither mentioned this fact in the investigation report nor recorded the statement of anyone of them. This Investigating Officer further stated to have joined the children of the appellant in the investigation but did not record their statements either. This Officer also did not bother to take the statement of the tenant, whose testimony would have been of immense significance, looking to the nature of accusations as also the factors related with the building in question.15.6. Moreover, in this matter, where it was prima facie appearing that the clues available at the site might play a significant role in reaching to the real culprits, it is also intriguing to notice that the Investigating Officer did not take even elementary care to obtain fingerprints from the material objects and to get them analysed properly. The Investigating Officer (PW-10) has stated, rather with impunity, that he did not take any fingerprints at all, even while admitting that the fingerprint expert did visit the site. It is not stated that the so-called expert expressed inability to collect such prints for any reason. It is left only for one to wonder as to for what purpose did the so-called fingerprint expert visit the site, if no prints were to be taken at all!15.7. The above-mentioned unexplained shortcomings, perforce, indicate that in this case, the investigation was carried out either with pre-conceived notions or with a particular result in view. It is difficult to accept that the investigation in this case had been fair and impartial. From another viewpoint, on the facts and in the circumstances of this case, the omissions on the part of investigating agency cannot be ignored as mere oversight. These omissions, perforce, give rise to adverse inferences against the prosecution.16. In this case, it is also interesting to notice that though the prosecution had cited the other relations of the deceased as witnesses, including his mother and brother-in-law (husband of PW-8 - who had otherwise signed the inquest report) but did not examine them before the Court. Withholding of relevant witnesses could only lead to further adverse inference that if examined, they would not have supported the prosecution case. This is apart from the fact that the investigating agency avoided to include any independent witness in the investigation and did not carry out necessary enquires from the persons other than in-laws of the appellant.17. Hereinabove, we have only indicated a few broad aspects of shortcomings and lacunae in the prosecution case which is otherwise resting on circumstantial evidence and on the theory propounded by the brother of deceased (PW-7), as supported by his sister (PW-8). The upshot of the discussion foregoing is that the propositions projected by the prosecution require deeper scrutiny to find if the case against the appellant is established beyond reasonable doubt; and if the elements of adverse inferences do not materially affect the prosecutionTrial Court as also the High Court have returned concurrent findings that it had been a matter of homicidal death. Both the Courts came to this conclusion essentially with reference to the medical opinion that the cause of death was asphyxia due to strangulation; and also with reference to some of the surrounding factors that the feet of the hanging dead body were touching the floor; the knees were bent; the slippers were not removed; and the room in question was wide open. Assailing such findings, it is contended on behalf of the appellant that as per medical jurisprudence, scratches, abrasions, bruises etc. are usually present and hyoid bone would be usually found broken in case of strangulation but, in the present case, there were no such marks nor hyoid bone was broken.18.1. We have closely examined the testimony of PW-1 Dr. Usha Bansal, who was one of members of the board that had conducted post-mortem. We have also taken into account the features noticeable from the site plan, the inquest report and the photographs placed on record. Having examined the relevant material, we find nothing of infirmity in the findings of the Trial Court and the High Court that it had been a case of strangulation, as could be seen from the post-mortem report that the dead body carried?well defined depressed ligature mark measuring 3 cm. wide seen encircling the neck around thyroid cartilage with a knot present on left side of neck and this ligature mark was anti-mortem inThe other ligature mark was on the left side of the neck measuring 1.5 cm wide and that was post-mortem in nature. The board had undoubtedly been of the opinion that the cause of death was ?asphyxia due to strangulation?. With such categorical medical opinion coupled with all the relevant features surrounding the suspended dead body in the room in question, it is difficult to say that it had been a case of suicide merely because hyoid bone was not broken or because the marks of resistance like abrasions/scratches were not reported. The presence of marks of resistance would depend on a variety of factors, including the method and manner of execution of the act of strangulation by the culprits; and mere want of such marks cannot be decisive of the matter. Equally, it is not laid down as an absolute rule in medical jurisprudence that in all cases of strangulation, hyoid bone would invariably be fractured. On the contrary, medical jurisprudence suggests that only in a fraction of such cases, a fracture of hyoid bone isother words, absence of fracture of hyoid bone would not lead to the conclusion that the deceased did not die of strangulation.18.2. For what has been discussed in preceding paragraphs, we have no hesitation in affirming the findings in the impugned judgments that the deceased Tirloki Nath was done to death by strangulation and thereafter, his dead body was hanged from the ceiling fan in the room.Before examining the circumstances brought on record by the prosecution, we may observe in the passing that the Trial Court as also the High Court have proceeded on the lines that once it was established that the deceased Tirloki Nath was killed by way of strangulation and the killer/s suspended his dead body from the fan so as to mislead; and since the dead body was found in the very house he was residing with the appellant who could not explain the reason of his death, she was to be held responsible for the crime. In other words, the Trial Court and the High Court have assumed that as soon as the conclusion about the homicidal death of Tirloki Nath in his own room is reached, all other aspects of the prosecution story about so-called strained relations of the deceased and the appellant, and the alleged threat perception of the appellant ipso facto come into operation; and the finding on homicidal death itself has been taken as the answer to other question as to whether homicide was to be imputed on the appellant or not. In our view, while examining the question as to whether the death in question was homicidal or suicidal, there was no justification to mix up the other circumstances projected by the prosecution, which indeed required separate assessment and analysis. Be that as it may, appropriate now it would be to examine the circumstances put forth in this case to find if the prosecution has been able to bring home the guilt of the appellant beyond reasonable doubt.Alleged last statement of deceased and motive of appellant21. The main plank of prosecution case against appellant has been that the relations between the deceased and the appellant were too strained; the appellant was having illicit relations and was ill-treating the deceased; the deceased had expressed even threat to his life at the hands of the appellant; and the deceased was all set to move out of the company of the appellant. These factors, imputing motive on the appellant to kill her husband (and even deceased perceiving threat to his life at the hands of the appellant), have been held proved by the Trial Court and the High Court with reference to the testimony of PW-7 Brij Bhushan (brother of the deceased) and PW-8 Radha Puri (sister of the deceased). As noticed, the Trial Court as also the High Court have relied upon these two witnesses and have accepted their assertions in toto. However, a close look at the testimony of these witnesses and the assessment of their evidence with reference of other factors on record bring forth several doubts, which have not been dispelled and which do operate against the prosecution.22. Though learned counsel of the appellant has attempted to suggest, with reference to additional documents placed on record, that PW-7 carried questionable antecedents and had been a proclaimed offender but we are ignoring such submissions for the reason that these aspects were not specifically put to the witness in his cross- examination. However, the question is as to whether his testimony inspires such confidence that all the facts and the circumstances suggested by him, and all his assertions, be accepted on their face value? In our view, the answer to this question could only be in the negative.A combined look at the testimony of PW-7 and PW-8 brings to the fore one of the significant facts that there had been an ancestral house belonging to the family that was sold by PW-7 alone and the sale proceeds were utilised by him to open a grocery shop, one of the multiple ventures he had tried, mostly resulting in closure or failure. The appellant had been categoric in her assertion that the property and money had been at the root of discord in the family and the same had been the cause for the family of the deceased implicating her. DW-3 has also testified to the effect that the deceased had his tense moments because of money demands of his brother i.e., PW-7. Unfortunately, the Trial Court as also the High Court have totally overlooked these factors and features hovering over the prosecution story.25. Going further deep into the prosecution story, it is clear that there is no direct and cogent evidence on record that the appellant was involved in illicit relations or was forcing the deceased to transfer the property. It had not been the assertion of PW-7 or PW-8 that the alleged illicit relations of the appellant and/or her pressurising the deceased to transfer the property had been the matters of their personal knowledge. No particulars of any person having illicit involvement with the appellant are to be found on record. Such assertions have been made by these witnesses on the basis of the statements allegedly made by the deceased to each of them individually and at different point of time. The High Court and the Trial Court have readily accepted the suggestions of PW-7 and PW-8 that the deceased made the statements to them as alleged; and have even labelled the statement allegedly made to PW-7 as being the dying declaration of the deceased. Strictly speaking, the alleged statement made to PW-7 could not have been taken as a ‘dying declaration? for the reason that at time of making of such statement, the deceased was not labouring under his imminent death and he was not recounting the circumstance of the transaction relating to his death. For the sake of arguments, and on the broad phraseology of the first part of Section 32 (1) of the Indian Evidence Act (32. Cases in which statement of relevant fact by a person who is dead or cannot be found, etc., is relevant.-Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense, which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:- (1) when it relates to cause of death.- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that persons death comes into question ) , even if it be assumed that the statement made by the deceased, before the cause of death had arisen, or before he had any reason to anticipate his killing, may also be taken as admissible (Vide Pakala Narayana Swami v. The King-Emperor: AIR 1939 PC 47 ) , such an alleged statement cannot be directly acted upon without concrete corroboration. In the present case, what to say of corroboration, even making of such statement by the deceased appears to be doubtful.For what has been discussed hereinabove, strong elements of doubts surface on record as regards reliability of these two witnesses PW-7 and PW-8. In the given circumstances, it is difficult to accept that the prosecution has been able to establish by cogent and reliable evidence that the appellant was involved in illicit relations or was pressurising the deceased to transfer the property in her name and that there had been strong acrimony between the deceased and the appellant. It is also difficult to accept, for want of cogent corroborative evidence, if the deceased had made any alleged statements about discord with his wife and threat perceptions to PW-7 and PW-8. In the given circumstances, the possibility of levelling of imputations on the appellant for intentions other than bringing the real culprit/s to the book is not ruled out altogether.Last seen theory: Proof and effect28.On the facts of the present case, it emerges that as per the version of PW-7, the deceased was lastly in his companywhen he allegedly expressed his dejection and fear as also his plan to return with luggage. The appellant has pointed out that the deceased was with her in the morning of 29.04.1997 when he pointed out his tour programme commencing that day with scheduled return on 03.05.1997. It is not in dispute that the deceased was regularly on tour for longer durations of about two weeks in connection with his duties. The dead body was recovered on 01.05.1997 and as per post-mortem report, the probable time that had elapsed between death and post- mortem (on 02.05.1997 at 12.30 p.m.) was 24 to 72 hours. On the basis of this opinion, it cannot be assumed by way of arithmetical calculation that the deceased might have met with his end on 29.04.1997. The possibility of it being a day later is not ruled out.28.3. In the given set of circumstances, the last seen theory cannot be operated against the appellant only because she was the wife of the deceased and was living with him. The gap between the point of time when the appellant and deceased were last seen together and when the deceased was found dead had not been that small that possibility of any other person being the author of the crime is rendered totally improbable.The Trial Court and the High Court have readily, and rather heavily, relied upon an assertion made by PW-8 in her statement that upon her reaching the site, the appellant was ‘enjoying tea? with her brothers and other relations on the first floor; and was not found stressed or perplexed or saddened. This part of the assertion on the part of PW-8 has its own shortcomings. Such an assertion was not made by her in the police statement; and is not even remotely corroborated by any other prosecution witness including PW-7. Moreover, it had been too unrealistic on the part of the Trial Court and the High Court to observe that the appellant ought to have been found sitting with the dead body. Admittedly, the corpse was emitting foul smell and DW-8 reached the spot at about 4.30 in the morning though the appellant had noticed the dead body the previous evening and had taken steps for informing the concerned through DW-3, Surinder Kumar Bhat. In the given circumstances, no fault could be foisted on the appellant if she did not remain with the dead body all through and until arrival of PW-8. The expression ‘enjoying tea? was coined by this witness PW-8 alone and for want of corroboration and for omission of such a fact in the police statement, there appears no reason to accept the same. If at all anything of subsequent conduct of appellant is to be taken into consideration, it is evident that she attended her office on 30.04.1997 and 01.05.1997. It is not the case of the prosecution that during these two days, any abnormality in her behaviour was noticed by anyone. The appellant neither concealed herself nor altered the scene of crime in any manner and there had not been any evidence about any oddity in her manners and demeanour.30. Another circumstance taken against the appellant had been that she allegedly did not send any information to the brothers and other relations of the deceased immediately after noticing his death. Such observations and findings have been recorded against the appellant while totally overlooking the statement of DW-3. In this regard, it gets perforce reiterated that the prosecution has not produced any evidence which could displace the statement of DW-3 that he indeed informed the police at the asking of the appellant at about 9.30 p.m. on 01.05.1997 and did also inform the brother of the deceased. As noticed, PW-9 ASI Amar Singh did not specify as to how the information was received by him. Moreover, the person said to have divulged the information to the witness PW-7 was never examined. Given such omissions in the prosecution case, we find no reason to discard the testimony of DW-3. Once his testimony is accepted, several blocks of the prosecution story are knocked to the ground.Effect of the acquittal of co-accused persons31.Thus, circumstantial evidence, in the context of a crime, essentially means such facts and surrounding factors which do point towards the complicity of the charged accused; and then, chain of circumstances means such unquestionable linking of the facts and the surrounding factors that they establish only the guilt of the charged accused beyond reasonable doubt, while ruling out any other theory or possibility orOn the facts of the present case, it emerges that as per the version of PW-7, the deceased was lastly in his company7 when heallegedly expressed his dejection and fear as also his plan to return with luggage. The appellant has pointed out that the deceased was with her in the morning ofted out his tour programme commencing that day with scheduled return on 03.05.1997. It is not in dispute that the deceased was regularly on tour for longer durations of about two weeks in connection with his duties. The dead body was recovered on 01.05.1997 and as per post-mortem report, the probable time that had elapsed between death and post- mortem (on 02.05.1997 at 12.30 p.m.) was 24 to 72 hours. On the basis of this opinion, it cannot be assumed by way of arithmetical calculation that the deceased might have met with his end on 29.04.1997. The possibility of it being a day later is not ruled out.There is yet another lacuna in the prosecution case that has magnified itself with acquittal of the co-accused, brothers of the appellant. It cannot be denied that if the appellant had been the killer, she, by herself, could not have hanged the dead body by the ceiling fan; and the act had definitely been performed by more than one person. That being the position, the Trial Court readily accepted the case against the brothers of the appellant as conspirators without cogent and convincing evidence. The High Court rightly acquitted them for want of evidence and even observed that the prosecution had failed to book the real culprit in place of the brothers of the appellant. However, the High Court yet considered it proper to maintain the conviction of the appellant as the principal culprit while failing to consider that an important link in the prosecution story was snapped as soon as brothers of the appellant were acquitted.31.1. We would hasten to observe that merely for the reason of acquittal of co-accused, another accused in a criminal case may not be acquitted if cogent evidence against him is available and his case could be segregated from the case against the acquitted co-accused. However, on the basic facts of the present case, it is evident that the gruesome act in question had not been the handiwork of one person and it would be rather preposterous to assume that the appellant hanged the dead body by ceiling fan all by herself. In the given circumstances, when the alleged collaborators of the appellant are acquitted, the already existing clouds of doubts on the prosecution story get congealed. The High Court has proceeded with over- simplification of the matter by leaving the missing link as merely a fault of the investigating agency. In our view, as soon as the brothers of the appellant were acquitted, the High Court ought to have examined the consequence of such acquittal that an important link in the prosecution theory was snapped and it was difficult to conclude that the prosecution has established its case against the appellant beyond all reasonable doubts.The prosecution case not established beyond reasonable doubt32. Thus, as regards the circumstances relied upon by the prosecution, the position obtainable from the material placed on record and the surrounding factors is that (a) the death of deceased Tirloki Nath was homicidal in nature and had not been suicidal though it was sought to be projected as suicide by the culprits by hanging the dead body from a ceiling fan in his room; (b) there is no cogent and convincing evidence on record to come to a definite conclusion that the relations of the deceased and the appellant were strained or that the appellant was indulgent in illicit relations or she was insisting for transfer of property in her name; (c) it is also difficult to come to a definite conclusion that the deceased had expressed imminent danger to his life at the hands of the appellant; and (d) even if the deceased was last seen alive in the company of the appellant, the time gap between such last seen and finding of his dead body had been of about 2 to 3 days.33. Apart from the factors above, there are several other loopholes whereby the alleged circumstances sought to be relied upon by the prosecution lose their worth and force. As noticed, the investigating agency and the prosecution had not been forthright. The relevant aspects pertaining to the crime in question were not properly investigated and even the relevant witnesses were not examined. Moreover, as noticed, the prosecution case was framed in the manner that the appellant committed the crime with the help of her brothers who have been acquitted.33.1. In the given circumstances, the fact that the staircase from the ground floor was directly leading to the room in question where the dead body was found, acquires immense significance. Even if it be assumed that the deceased was putting up in the said room, some person or persons reaching there directly from the ground floor and carrying out the crime is not ruled out. In the alternative, some person or persons having executed the crime at some other place and then having brought the dead body and hanged it in the room in question is also the possibility which cannot be brushed aside as entirely improbable.34. In the given circumstances, when the prosecution has not been able to remove the aforesaid doubts and the motive as imputed on the appellant does not appear existing, the benefit of doubt, obviously, goes to the appellant.CONCLUSION35. For what has been discussed hereinabove, we are clearly of the view that the Trial Court and the High Court have approached the case from an altogether wrong angle and have overlooked the major flaws and shortcomings in the prosecution case. In the given set of facts and circumstances, even if the prosecution has been able to create some suspicion against the appellant, it would be unsafe to accept that the implicating circumstances have been established by cogent evidence and such circumstances form a complete chain that rules out any other hypothesis except guilt of appellant. Hence, the conviction of the appellant cannot be sustained; she is entitled to the benefit of doubt.