Inquest report not substantive evidence for ascertaining cause of death : Supreme Court

 IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1492 OF 2021 …Appellant Versus STATE OF JHARKHAND …Respondent CRIMINAL APPEAL NO.1202 1203 OF 2014 LAW TIWARI @ UPENDRA KUMAR TIWARI … Appellant THE STATE OF JHARKHAND …Respondent JUDGMENT SANJAY KISHAN KAUL J On 07.03.2000 at about 1:00 p.m. Vikas Kumar Singh aged about 22 years was going from his house towards Bhandar for performing physical exercise. It is the case of the prosecution that based on the fardbeyan of his younger brother Pankaj Kumar Singh which was recorded at Sadar Hospital Garhwa at 2:00 p.m. when Vikas Kumar Singh reached in front of the house of Ramadhar Ram all of a sudden six person who were sitting on the road surrounded him namely Pappu TiwariSanjay Ram Uday Pal Ajay Pal Pintu Tiwari and Law Tiwari and Section 27 of the Arms Act 1959against the six named accused persons Assistance Sub Inspector Rajnikant Jha prepared an inquest report but failed to identify the fire arm injury. The post mortem was conducted by Dr. Mahesh Prasad Singh Medical Officer Sub Divisional Hospital Garhwa and the cause of death was opined due to shock and haemorrhage caused by vital and multiple injuries. Injuries one and two were identified as firm arm injuries. The Maruti van was subsequently recovered on 09.03.2000. All the accused were arrested albeit Law @ Upendra Tiwari was arrested on 16.03.2000 On investigation being completed the chargesheet was submitted on 02.06.2000 against all the six persons under Sections 302 and 34 of the IPC and Section 27 of the Arms Act and cognizance of the offence was taken on the same date. The case was committed to the court of Sessions Judge on 26.07.2000 where all six accused persons were charged under Section 302 read with Section 34 of the IPC and Pappu Tiwari was additionally charged under Section 27 of the Arms Act In the course of Sessions Trial No.159 2001 the prosecution examined 22 witnesses and the defence examined two witnesses. In terms of the judgment dated 27.05.2002 all the accused persons were convicted as charged and in terms of order dated 28.05.2002 they were sentenced to undergo imprisonment for life. Pappu Tiwari was additionally sentenced to undergo rigorous imprisonment for three years under Section 27 of the Arms Act The challenge to the judgment of the trial court was laid by two separate appeals. Law Tiwari and Pintu Tiwari jointly filed Criminal Appeal No.242 2002 while the remaining four convicts filed Criminal Appeal No.398 2002. The High Court of Jharkhand vide a common judgment dated 07.05.2012 affirmed the judgment of conviction of the trial court against all the six convicts. However in pursuance of an inquiry conducted by the learned Chief Judicial Magistrate on the aspect of juvenility the High Court opined that since Pintu Tiwari was a minor on the date of the incident and had already remained in jail for more than three years no further order of detention could be passed in view of the provisions of Sections 15 & 16 of the Juvenile Justice Act 2000. Insofar as Sanjay Ram and Uday Pal are concerned both of them accepted the High Court judgment. That left three appellants who took up the matter further to this Court Pappu Tiwari filed a Special Leave Petitionwith an application seeking exemption from surrendering. That application was dismissed by this Court on 09.11.2012 granting four weeks time to Pappu Tiwari to surrender. On a prayer being made a further extension of four weeks was granted to Pappu Tiwari on 18.02.2013 to surrender failing which the SLP would be dismissed without reference to the Court Pappu Tiwari did not surrender and thus the SLP came to be dismissed in terms of the order dated 18.02.2013. Law @ Upendra Tiwari and Ajay Pal chose to jointly prefer an SLP along with an application for condonation of delay. The appeals came up for consideration on 19.11.2013 before this Court when the appeal qua Ajay Palwas dismissed while issuing notice qua the appeal filed by Law Tiwari. On 07.05.2014 leave was granted qua the said appeal which came to be registered as Criminal Appeal Pappu Tiwari was finally apprehended on 25.06.2015. Thereafter he filed an application seeking restoration of his SLP and condonation of delay in filing the restoration application but after issuing notice the same was dismissed on 07.03.2017 on the ground of failure to explain the delay of 862 days appropriately. Pappu Tiwari filed a review petition along with an application seeking bail on 22.01.2021. The review petition was considered and allowed on 27.01.2021. The appeals were thereafter directed to be listed In the mean time Law Tiwari was released on 28.09.2016 after having served out his sentence and thus on 01.09.2021 it was inquired whether he was still interested in prosecuting the appeal to which the answer was in the affirmative as Law Tiwari wanted to argue the aspect of his conviction As far as Pappu Tiwari is concerned his bail application was dismissed on 04.10.2021 but with a direction for the appeal itself to be taken up for hearing. Leave was also granted in the said SLP on listed before us for hearing The aforesaid is the background on which these two appeals were Crl.A. Nos.1202 1203 2014and Ajay Pal and appeal of Ajay Pal having been dismissed the evidence being common the role being common i.e. five people collectively inflicting knife injuries on the deceased after he was shot what could be the defence which would be available to Law Tiwari Learned counsel fairly stated that his appeal is within a limited scope and this Court also admitted the appeal on his plea of alibi Learned counsel drew our attention to the judgment of the trial court as according to him there was hardly any discussion in the appellate court judgment on the particular aspect. The trial court referred to the depositions of the two defence witnesses Rajendra Yadavand Samsuddin Ansariand stated that he had x rayed the knee on the advise of Dr. M.P. Singh. DW 2 stated that he knew Law Upendra Tiwari and on 24.01.2000 he had come to Garhwa from Silliya Donger by bus. He saw Law Tiwari after falling from motorcycle who was reeling in pain. He saw another man holding him. A rickshaw was called and Law Tiwari was put on rickshaw and brought to Garhwa Hospital to Dr. M.P. Singh who advised an x ray. The x ray was done in Janta Clinic and the doctor had opined that his leg had broken near the knee. The man who is stated to have helped Law Tiwari was identified as Kanchan Yadav. After handing over Law Tiwari to him DW 2 went Two witnesses were also examined as court witnesses on the prayer of the defence Almuddin Khan who proved the certificate of Dr. M.P. Singhand receipt of medicineas well as Akshay Kumar Mahto who stated that he knew Law Tiwari that Law Tiwari had come to Garhwa for marketing and had gone to see the ailing son of his cousin Mohan Prasad Mahto in hospital He claimed to be a witness to the treatment and that Law @ Upendra Tiwari was on bed with his leg plastered though he did not talk to him In view of the said testimony the argument which was advanced before the trial court as recorded as also before us was that since on the date of the occurrence his leg was fractured it was not possible for Law Tiwari to have taken part in the crime and he was falsely implicated in the case The trial court noted that neither the x ray plate nor the advise of Dr M.P. Singh had been produced in court. The doctor had also not been produced by the defence. No papers of admission or treatment at the Garhwa Hospital have been produced in support of the case of admission or treatment of his fractured leg in hospital and the certificate did not support such a case 15. On the other hand the case of the prosecution was and is that inter alia as per the fardbeyan a formal FIR was registered in PS case No.6 2000 under Section 364 365 and 120B of the IPC. The date of occurrence was 26.01.2000 and the allegation was of kidnapping for purposes of murder in that case. Law Tiwari was named as an accused in that case too. The occurrence was of 26.01.2000 and the defence is that the leg of Law Tiwari was fractured on 24.01.2000. Law Tiwari was convicted under Section 365 of the IPC vide judgment dated 28.02.2000 We may however note that as per learned counsel for the appellant in the appeal filed against that conviction Law Tiwari was acquitted on Learned counsel for the State also submitted that there are three eye witnesses Pankaj Kumar SinghSubodh Kumar Singhand Chandraman Singhand their testimonies have broadly been consistent which assign the role to Law Tiwari. The endeavour to apprehend him on 07.03.2000 was not successful as he was found absconding by the IO on six different occasions when his premises were visited. He was only subsequently arrested and taken on remand on 04.04.2000. The contention of learned counsel for the State was that neither the advise of Dr. M.P. Singh nor the x ray having been produced and Dr. M.P. Singh not having been produced as a defence witness or summoned there was not a piece of paper evidencing the admission and treatment of Law Tiwari in the hospital which could be produced in support of his plea of alibi. He also drew our attention to the fardbeyan to indicate that Law Tiwari and other accused had demanded a motorcycle of the deceased to go to Meral in connection with a case which was declined. Learned counsel for the State also submitted that the conduct of Law Tiwari even during custody was not proper as he had extended a threat to the informant and the informant had suffered fire arm injury on 13.06.2001. Consequently case No.107 2001 was registered at the Garhwa Police Station. In the end it was contended that there was no attempt made to distinguish the appellant’s role from that of Ajay Pal and the appeal of Ajay Pal being dismissed the only aspect which had to be examined was whether the concurrent findings of the two courts below rejecting the plea of alibi was required to be interfered with by this Court when the burden lay heavy on the appellant as when such a plea is raised the accused must discharge that burden. We may refer to the judicial view in this behalf in Vijay Pal v. Statewhich he failed to discharge. It was not a case where opportunity was not granted to him. In fact two witnesses were produced in defence by Law Tiwari and two court witnesses were also summoned. However the relevant evidence was not led It has been rightly pointed out that the most material witness would have been Dr. M.P. Singh who was not produced as a defence witness nor summoned 19. We may note that there is some identity confusion in the judgment of the trial court as a reference has been made to one Dr. M.P. Singh PW 1) who is not the same doctor. The advise stated to be given by Dr M.P. Singh was also not proved nor was the x ray plate produced. DW 2 stated that he took Law Tiwari to Garhwa Hospital but no papers of admission or treatment at the hospital were produced in support of the treatment of a fractured leg in the hospital. Thus on all these aspects Law Tiwari failed to discharge the burden to establish the plea of alibi and thus the trial court and the High Court cannot be said to have fallen into any error in rejecting the plea of alibi. This was the only aspect to be examined by us 20. We may note that there is discussion in the trial court judgment on the aspect of another case registered against Law Tiwari and his conviction in the said case. The incident was contemporaneous to his alleged fracture and thus the plea based on the fracture was found to be unsustainable as Law Tiwari was convicted in the said case. He has however filed the order of acquittal in appeal. This is the reason we have not delved on this aspect but in view of our finding aforesaid this The result of the aforesaid is that we find no merit in the criminal aspect does not remain crucial appeal of Law @ Upendra Tiwari Crl.A. No.1492 2021and the post mortem report (Ex.1). This aspect was actually sought to be linked to the plea of the FIR being ante timed. There are stated to be differences in the version which would indicate that the fardbeyan was lodged only after the post mortem report. The factual basis for the same is stated to be that in the inquest report six injuries are mentioned with no mention of gunshot injury while the post mortem report shows that there are 26 injuries including the gunshot injury. The pistol was not recovered from him nor any cartridge found and A.S.I. Rajnikant Jha who recorded both the fardbeyan as well as the inquest report was not examined by the prosecution. On this aspect learned counsel relied upon the observations in Maula Bux & Ors. v. State of Rajasthan6 30. On the other hand learned counsel for the State sought to submit that inquest report cannot be treated as substantive evidence but may be utilised for contradicting the witness of inquest (Suresh Roy v. State of Bihar7). He submitted that the inquest report is not really an evidence by itself and cannot be pitted against the evidence of the medical witness in court (Surjan & Ors. v. State of Rajasthan8). Learned counsel drew our attention to the observations in Pedda Narayana & Ors v. State of Andhra Pradesh9 opining that the object of proceedings under Section 174 Cr.P.C. is merely to ascertain that whether the person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of death. The details however as to how the deceased was assaulted or who assaulted him would be foreign to the scope of proceedings under Section 174 of the Cr.P.C. nor are such details required to be mentioned in the inquest report (Yogesh Singh v Mahabeer Singh & Ors.10 Learned counsel next turned to the more recent judgment of this Court in Tehseen Poonawalla v. Union of India11 opining that the purpose of holding an inquest is limited and the inquest report does not constitute substantive evidence. As compared to an inquest report the doctor who conducts the post mortem examination examines the body from a medico legal perspective. It is thus the post mortem report that is expected to contain the details of injuries through a scientific examination. In that context he submitted that Maula Bux & Ors.12 case did not help the appellant as a police officer who prepared the inquest panchnama is not an expert in medical jurisprudence 32. On examination of the aforesaid pleas insofar as the factual context is concerned there is little doubt that there is not a minor but a major difference in recording the number of injuries suffered by the deceased in the inquest report and the post mortem report. However this will not be fatal in our view. We say so keeping in mind the purpose of an inquest report which is not a substantive evidence. The objective is to find out whether a person who has died under suspicious circumstances what may be the apparent cause of his death. In the present case the death was unnatural. There were wounds. There is no doubt that it is a homicide case. The expert is the doctor who carries out the post mortem and has been medico legal expert. The two fire arm injuries have been clearly identified with the wounds at the entry and at the exit being identified. We have already discussed the proximity of the time period between the intimation and the police proceeding with it right up to the stage when the post mortem commenced. We do not find any substance in this plea The third aspect emphasised by learned counsel for the appellant was the alleged discrepancy between the medical evidence and ocular evidence. PW 1 found 26 injuries on carrying out the post mortem on the deceased. Learned counsel pointed out that on being asked about the distance from which the fire arm was used he did not express any opinion. Learned counsel also points out that the case of prosecution is that after the fire arm injury by Pappu Tiwari the deceased fell down and the other accused persons assaulted him with knives. No explanation is forthcoming on the backside of the deceased. As per the story of the prosecution the witness was going towards the gym at around 1:00 p.m but the post mortem report reveals that the stomach was empty and the rectum and the bladder full which would show that the person had not eased himself and had also not taken his breakfast. This should be a position in the morning hours and not in day time 34. On the other hand learned counsel for the State referred to the testimony of the eye witnesses as also of the medical officer PW 1. On the issues such as what fire arm was used whether the injuries were caused by bullet or pellet and the distance from which the fire arm was used it was submitted that where the weapon and ammunition is of uncertain make and quality the normal pellet pattern based on standard weapon and ammunition cannot be applied with accuracy (Prahlad Singh & Ors. v. State of M.P.13 35. On consideration of this plea we find that really there is no discrepancy between the medical and ocular evidence but too much is sought to be made out by learned counsel for the appellant on the doctor not opining about the distance from which the fire arm injury was caused. Further the eye witnesses are categorical that the other accused attacked the deceased with knives. In such a process of five persons attacking the deceased it cannot be said that the deceased would be lying in the same position and thus there is every possibility of injuries both at the back and front. In the nature of the incident and the testimony of the eye witnesses a doubt must be cast on the story and not merely some aspect of the food consumption pointed out. We cannot really see any such infirmity which would cause us to reverse the concurrent findings of the courts below The remaining arguments of learned counsel for the appellant are based on plea of defective investigation absence of independent witnesses but then there is no reason why the eye witnesses story which is believable should not be given full credence. The test which is applied of proving the case beyond reasonable doubt does not mean that the endeavour should be to nick pick and somehow find some excuse to The last aspect urged by learned counsel for the appellant was that the IO has referred to the antecedents of the appellant and other accused which has been erroneously taken into account by the High Court contrary to the statutory provisions of Section 53 of the Indian Evidence Act 1872. The said provision stipulates that the previous bad character is not relevant except in reply i.e. unless evidence has been given of a good character in which case it becomes relevant. However what has happened in the present case is that the part of the testimony of the IO that the accused persons were dangerous was not supported by any evidence being led nor has it weighed with the courts below. PW 13 was able to identify the appellants because they used to pass through the road and are stated to have been known to be “boss of the area”. We are thus of the view that despite best endeavour learned counsel for the appellant has not been able to cast any doubt on the impugned judgment of the trial court and the High Court In the conspectus of the discussion aforesaid we are of the view that the story put forth by the prosecution has been established and has not been dented by the appellant accused so as to cast a doubt and entitle them to benefit of doubt. The result is that both the appeals are dismissed leaving the parties to bear their own costs January 31 2022 Sanjay Kishan Kaul

Summary: In a criminal case, inquest report by the police cannot be considered as a substantive evidence when a person dies under suspicious circumstances and object of court is to ascertain apparent cause of death was upheld in the Supreme Court of India through the learned division bench led by HONOURABLE MR. JUSTICE SANJAY KISHAN KAUL and HONOURABLE MR. JUSTICE MM SUNDRESH in the case of Pappu Tiwari v. State of Jharkhand (Criminal Appeal No. 1492 of 2021). Brief facts of the case are that the accused Pappu Tiwari allegedly shot at the late Vikas Kumar Singh, who was on his way for the same reason. The other accused then allegedly injured Singh using a knife and he died. The defendants were charged with murder. The inquest report failed to identify the gunshot injury but post mortem depicted that the cause of death was from shock and bleeding caused by vital and multiple injuries. Injuries were defined as one and two firm arm injuries. The counsel for appellant contended that There were great differences between the investigation report and the autopsy report. An attempt was made to relate this issue to the claim that the FIR was pre-timed. It was stated that there were differences in the version, showing that Fardbeyan was admitted only after the autopsy report. In addition, six injuries were mentioned without a gunshot wound in the investigation report, while the autopsy report stated that there were 26 injuries including gunshot wounds. The counsel for respondent contended that the investigation report cannot be considered as the main evidence, but it can be used to oppose the investigation witness. He argued that the investigation report was not in itself evidence and that the testimony of the medical witness in court could not be challenged. The Supreme Court of India held the investigation report is not substantive evidence as its purpose is to reveal only the apparent cause of death of the suspiciously deceased person, the differences between the investigation report and the autopsy report, even if these differences are large, are not fatal to the prosecution case. The court said that since the expert was the doctor who performed the autopsy and he was a forensic expert, he did not suspect that it was a murder case.Two gunshot wounds were clearly identified by detecting wounds at entry and exit. Therefore, the Court dismissed the appeal. Click here to read the judgement