Anuj Tyagi vs State Of U.P.
2022 Latest Caselaw 16799 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No.45
 

 
Criminal Appeal No. 1655 of 2017
 
          Anuj Tyagi 	 		                              Appellant
 
Vs 
 
          State of U.P. 					   	Respondent 
 

 
    	For Appellant	  :  	  Sri Manish Tiwary, Senior Advocte 					  Sri Atharva Dixit 
 
					  Sri Yashaswin Venugopal Bajpayee				 
 
	For Respondent       :	  Sri Amit Sinha, AGA
 

 

 
Hon'ble Pritinker Diwaker, J.

Hon'ble Nalin Kumar Srivastava, J.

Per: Pritinker Diwaker, J

(14.11.2022)

1. This appeal arises out of impugned judgment and order dated 10.03.2017, passed by Sessions Judge, Meerut in Sessions Trial No.444 of 2015 (State vs. Anuj Tyagi & Others), arising out of Crime No.139 of 2014, Police Station Medical, District Meerut, convicting and sentencing the accused appellant under Section 302 of IPC to undergo imprisonment for life with a fine of Rs. 20,000/-, in default thereof, to undergo six months simple imprisonment.

2. In the present case, name of the deceased is Aarti, wife of the accused appellant. Their marriage was solemnized on 18.06.2012. On 22.02.2014, the deceased died after consuming poisonous substance commonly known as ''Organophosphorus Insecticide'. On 22.02.2014 itself, F.I.R. Ex.Ka.-10 was lodged by Mahendra Singh (PW-1), father of the deceased against six accused-persons including that of appellant. Based on this FIR, offence under Sections 498A, 304B of IPC and 3/4 of Dowry Prohibition Act was registered against the accused-appellant.

3. Inquest on the dead body of the deceased was conducted on 22.02.2014 vide Ex.Ka-4 and postmortem was conducted on 23.02.2014 by Dinesh Kumar Sharma (PW-5) vide Ex.Ka-2. However, cause of death could not be ascertained and, therefore, the viscera was preserved. After receiving the viscera report dated 29.11.2014, it was marked as Ex.Ka.-13.

4. While framing the charge, the trial judge has framed the charge against the accused appellant under Sections 498A, 304B of IPC and 3/4 of Dowry Prohibition Act and alternatively charge under Section 302 of IPC has also been framed.

5. So as to hold the accused-appellant guilty, prosecution has examined nine witnesses and one defence witness has also been examined. The statement of accused-appellant was recorded under Section 313 Cr.P.C. in which, he pleaded his innocence and false implication.

6. By the impugned judgement, the trial judge has acquitted Umesh Tyagi, father of the appellant, and Chetan Tyagi, brother of the appellant, however, has convicted the appellant as mentioned in paragraph 1 of this judgement. Hence this appeal.

7. Learned counsel for the appellant submits:

i) that all the important prosecution witnesses including that of Mahendra Singh (PW-1), father of the deceased, have turned hostile and have not stated anything against the appellant;

ii) that there is absolutely no evidence on record to show that it was the appellant, who administered poison to the deceased;

iii) there is no evidence on record to show that as to in what manner, the poison was administered and from where the same was brought by the appellant;

iv) that the poisonous substance i.e. ''Organophosphorus Insecticide' has a pungent smell and if someone forcibly makes an attempt to give it to the other person, the said person will definitely resist and during that resistance, the possibility of that person sustaining some injury cannot be ruled out and at least some mark of resistance would be there on his/her body, but present is a case where no such evidence is available on record and this has also been proved by the doctor that no external injury was found on the body of the deceased;

v) that in absence of any positive evidence regarding the principles governing the law of murder by administering poison, the appellant cannot be convicted;

vi) that the appellant is in jail since 11.12.2014.

8. On the other hand, supporting the impugned judgment, it has been argued by the State counsel that the conviction of the appellant is strictly in accordance with law and there is no infirmity in the same. He, however, is not in a position to dispute that all the important witnesses of the prosecution have turned hostile.

9. We have heard learned counsel for the parties and perused the record.

10. Present is the case where the F.I.R. was lodged by Mahendra Singh (PW-1), father of the deceased, making serious allegations against the appellant and other accused-persons. However, in the Court, not only this witness, but other important witnesses have also not supported the prosecution case and have been declared hostile. In the examination-in-chief of Umesh Tyagi (PW-8), uncle of the deceased, recorded on 28.11.2016, he has supported the prosecution case, but later on, on 04.01.2017, when his statement was again recorded, he was declared hostile.

11. If the entire evidence is considered as it is, present becomes a case of no ocular evidence against the appellant. The only evidence against the appellant remains is that the deceased died after consuming ''Organophosphorus Insecticide'. However, the prosecution has utterly failed to prove that the said poisonous substance was administered by the appellant to the deceased. There is absolutely no evidence on record to show as to from where the said poisonous substance was brought by the appellant and it is he who administered the same to the deceased.

12. In the case of death after consuming poisonous substance, the prosecution is required to prove the same by circumstantial evidence. In the case of Bhupinder Singh Vs. State of Punjab, (1988) 3 SCC 513, in paragraph nos. 14 and 17, it has been held as under:

14. This takes us to the main contention urged for the appellant. It was urged that in a case of murder by poison there are three main points to be proved, firstly did the deceased die of the poison in question; secondly, had the accused got the poison in question in his or her possession; and thirdly, had the accused an opportunity to administer the poison in question to the deceased. It was also urged that if the prosecution fails to prove these factors, then the accused cannot be convicted. The evidence in the case, according to learned counsel falls short of these requirements and, in particular, as to the question of proof of possession of the poison with the accused and therefore the accused is entitled to acquittal.

17. Dharambir Singh v. State of Punjab, (Criminal Appeal No. 98 of 1958 decided on 4.11.1958) is another case of homicidal action by cyanide poisoning. It was perhaps in this case, the guidelines as to the proof of certain facts in "poison murder cases" were laid down by this Court. It was observed:

"Where the evidence is circumstantial the fact that the accused had motive to cause death of the deceased, though relevant, is not enough to dispense with the proof of certain facts which are essential to be proved in such cases, namely (firstly) did the deceased die of poison in question? (secondly) had the accused the poison in his possession? and (thirdly) had the accused an opportunity to administer the poison in question to the deceased? It is only when the motive is there and these facts are all proved that the court may be able to draw the inference, that the poison was administered by the accused to the deceased resulting in his death."

13. In Sharad Birdichand Sarda v. State of Maharashtra (1984) 4 SCC 116, the Supreme Court has held that in cases of death by poisoning the Court must carefully scan the evidence and determine the four important circumstances which alone can justify a conviction:-

(1) that there is a clear motive for the accused to

administer poison to the deceased;

(2) that the deceased died of poison said to have

been administered;

(3) that the accused had the poison in his

possession;

(4) that he had an opportunity to administer the

poison to the deceased.

14. Similar view has been taken by the Supreme Court in the case of Rajbir Singh Vs. The State of Punjab passed on 24.08.2022 in Criminal Appeal No. 2152 of 2010.

15. The instant case was based on circumstantial evidence.

In a case based on circumstantial evidence, the circumstances must

be fully established; the circumstances should be of conclusive

nature and tendency; the circumstances, so established, must not be

capable of being explained and the chain of circumstantial evidence

also must be complete. Law in respect of circumstantial evidence is very clear:

16. In Sattatiya @ Satish Rajanna Kartalla Vs. State of Maharashtra, (2008) 3 SCC 210 the Supreme Court, while dealing with circumstantial evidence, observed as under:

"11. In Hanumant Govind Nargundkar v. State of M.P. [AIR 1952 SC 343], which is one of the earliest decisions on the subject, this court observed as under:

"10. ...... It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

12. In Padala Veera Reddy v. State of AP [(1989) Supp (2) SCC 706], this court held that when a case rests upon circumstantial evidence, the following tests must be satisfied:

"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else."

13. In Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116], it was held that the onus was on the prosecution to prove that the chain is complete and falsity or untenability of the defence set up by the accused cannot be made basis for ignoring serious infirmity or lacuna in the prosecution case. The Court then proceeded to indicate the conditions which must be fully established before conviction can be based on circumstantial evidence. These are:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;

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

(3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved; and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

17. In the case of Devi Lal vs. State of Rajasthan (Criminal Appeal No. 148 of 2010) decided on 08.01.2019, the Supreme Court, while dealing with circumstantial evidence, observed as under:

14. The classic enunciation of law pertaining to circumstantial evidence, its relevance and decisiveness, as a proof of charge of a criminal offence, is amongst others traceable decision of the Court in Sharad Birdhichand Sarda Vs. State of Maharashtra 1984 (4) SCC 116. The relevant excerpts from para 153 of the decision is assuredly apposite:

153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

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

It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade & Anr. Vs. State of Maharashtra [(1973) 2 SCC 793 where the observations were made:

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

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

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

18. It has further been considered by Apex Court in Sujit Biswas Vs. State of Assam 2013(12) SCC 406 and Raja alias Rajinder Vs. State of Haryana 2015(11) SCC 43, wherein it has been propounded that while scrutinising the circumstantial evidence, a Court has to evaluate it to ensure that the chain of events is established clearly and completely to rule out any reasonable likelihood of innocence of the accused. The underlying principle is whether the chain is complete or not, indeed it would depend on the facts of each case emanating from the evidence and there cannot be a straight jacket formula which can be laid down for the purpose. But the circumstances adduced when considered collectively, it must lead only to the conclusion that there cannot be a person other than the accused who alone is the perpetrator of the crime alleged and the circumstances must establish the conclusive nature consistent only with the hypothesis of the guilt of the accused.

19. If the above proposition of law, decided in the above cases, are applied in the present case, there is hardly any evidence against the appellant showing his involvement in the present case and looking to the nature of evidence, it will not be safe for this Court to uphold the conviction of the appellant as has been done by the trial court.

20. The appellant is entitled to get the benefit of doubt. The judgement of the trial court is set aside.

21. The appeal is allowed.

22. The appellant is reported to be in jail. He be set free forthwith, if not required in any other case.

23. A copy of this judgment along with the original lower court record be sent to the concerned trial court for necessary compliance and information.

 
       Date: 14.11.2022
 
       SK
 
         (N.K. Srivastava, J.)       (Pritinker Diwaker, J.)