Chattisgarh High Court
Sangeeta Tiwari And Anr vs State Of Chhattisgarh on 18 January, 2023
Cr.A.No.826/2013
Page 1 of 30
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.826 of 2013
{Arising out of judgment dated 14-8-2013 in Sessions Trial
No.320/2010 of the Additional Sessions Judge, Ramanujganj}
Judgment reserved on: 14-12-2022
Judgment delivered on: 18-1-2023
1. Sangeeta Tiwari, W/o Buddhinarayan Tiwari, aged about 30 years,
R/o Village Karji (Udhenupara), Police Station Rajpur, Civil District
Surguja, Ambikapur, Revenue District Balrampur-Ramanujganj
(C.G.)
2. Shashikant Tiwari, S/o Late Jagannath Tiwari, aged about 33 years,
permanent R/o Village Potma, Police Station Garhwa (Jharkhand),
present R/o Village Karji (Udhenupara), Police Station Rajpur, Civil
District Surguja, Ambikapur, Revenue District Balrampur-
Ramanujganj (C.G.)
----- Appellants
Versus
State of Chhattisgarh, through the Police Station Rajpur, Civil
District Surguja, Ambikapur, Revenue District Balrampur-
Ramanujganj (C.G.)
----- Respondent
----------------------------------------------------------------------------------------------------
For Appellants: Mr. B.P. Sharma, Ms. Anuja Sharma and
Ms. Sameeksha Gupta, Advocates.
For Respondent/State: Mr. Sudeep Verma, Deputy Govt. Advocate.
----------------------------------------------------------------------------------------------------
Hon'ble Shri Sanjay K. Agrawal and
Hon'ble Shri Rakesh Mohan Pandey, JJ.
C.A.V. JUDGMENT
Sanjay K. Agrawal, J.
1. The appellants herein two in number namely Sangeeta Tiwari &
Cr.A.No.826/2013
Shashikant Tiwari have preferred this appeal under Section 374(2)
of the CrPC, calling in question legality, validity and correctness of
the impugned judgment of conviction and order of sentence dated
14-8-2013 passed by the Additional Sessions Judge, Ramanujganj,
in Sessions Trial No.320/2010, whereby the appellants have been
convicted under Sections 302 & 201 of the IPC and sentenced to
undergo imprisonment for life and pay a fine of ₹ 500/- each, in
default, additional rigorous imprisonment for six months and
rigorous imprisonment for three years and pay a fine of ₹ 500/-
each, in default, additional rigorous imprisonment for six months,
respectively.
Prosecution case: -
2. Case of the prosecution, in short, is that on 27-3-2010, night at
9.00 p.m., at Village Karji, Police Station Rajpur, the appellants
along with co-accused (juvenile) Roshan have murdered Priya
Tiwari - wife of appellant No.2 and in order to screen themselves
from the aforesaid offence, burnt her dead body and thereby
destroyed the evidence and thereby committed the aforesaid
offences. Further case of the prosecution is that marriage of Priya
Tiwari (deceased) was solemnized with appellant No.2 on 8-6-
2006 at Village Karanji, Udhenupara, Police Station Rajpur in
accordance with Hindu rites and they were blessed with a son
namely Utsav Tiwari on 3-6-2008. It is the further case of the
Cr.A.No.826/2013
prosecution that after solemnization of marriage, relation between
appellant No.2 & deceased Priya Tiwari was cordial, but thereafter,
the two appellants along with one juvenile accused started
demanding money from the deceased and they used to treat her
with cruelty, which the deceased had informed to her father in
March, 2009 that the appellants have attempted to murder her by
pouring kerosene oil on her body, and appellant No.2 has also
demanded money from his father-in-law Mahendranath (PW-11)
which was given by Mahendranath to brother of appellant No.2
Ramakant. On 27-3-2010, Mahendranath Tiwari (PW-11) had
gone to Government Hospital MEKAHARA at Raipur for
treatment of his son Banti, on that day, at 9.30 p.m., appellant
No.2 informed him by phone that Priya Tiwari died, then
Mahendranath reached to the house of appellant No.2 on 28-3-
2010 and noticed the dead body of his daughter Priya Tiwari in
the courtyard of appellant No.2. Kalicharan (PW-7) informed to
Rajpur Police Station pursuant to which morgue under Section 174
of the CrPC was registered and inquest proceeding was conducted
vide Ex.P-2 in presence of S.N. Bajpai (PW-12) - the then
Executive Magistrate-cum-Tahsildar who inspected the spot and
also prepared naksha panchnama (Ex.P-2) and he found the dead
body of deceased Priya Tiwari burnt fully in the courtyard of
appellant No.2 and tongue was protruded and in burnt condition
with no other bodily injury. As per the recommendation of
Cr.A.No.826/2013
Panchas, to ascertain cause of death, the dead body was sent for
postmortem examination which was conducted by Dr. Pritam Ram
(PW-13) who submitted his postmortem report vide Ex.P-11
disclosing the cause of death to be due to strangulation (asphyxia)
and nature of death to be homicidal. On the disclosure of
cognizable offence, the police took up the matter for investigation
and registered first information report (FIR) bearing Crime
No.31/2010. Thereafter, the police arrested appellant No.2 -
husband of deceased Priya Tiwari and recorded his memorandum
statement under Section 27 of the Evidence Act vide Ex.P-7 and
on the basis of memorandum statement, 5 litres of plastic jerrycan
containing half litre of kerosene oil has been seized vide Ex.P-8 in
presence of two witnesses Umesh Kumar (PW-10) & Sushil Yadav
(PW-9). Thereafter, the police recorded the statements of
prosecution witnesses Sukhlal (PW-1), Dalsai (PW-2), Kalicharan
(PW-7) & Sonar (PW-8), all these witnesses are residents of nearby
place to the house of appellant No.2 & deceased Priya Tiwari and
they reached immediately to the spot in the house of appellant
No.2 where they found that the deceased had already died and in
burnt condition. The police thereafter recorded the statements of
Mahendranath Tiwari (PW-11) - father of the deceased and Smt.
Kiran Devi (PW-15) - mother of the deceased. The Patwari drawn
spot map (nazri naksha) vide Ex.P-3 showing the place of incident
at point No.3 outside the house of appellant No.2, but it was
Cr.A.No.826/2013
surrounded by wooden logs. Incriminating articles have been seized
from the spot vide Ex.P-6. Seized articles were sent for chemical
examination to the Forensic Science Laboratory on 23-4-2010,
but no FSL report has been brought on record by the prosecution
for the reasons best known to them. The jurisdictional police after
conclusion of investigation, submitted charge-sheet to the criminal
court having jurisdiction against the appellants including the case of
juvenile co-accused which was committed to the Court of Sessions
for trial in accordance with law in which the two appellants herein
have abjured the guilt and entered into defence by stating that they
have not committed the offence and they have been falsely
implicated.
3. The prosecution in order to bring home the offence, examined as
many as 15 witnesses PW-1 to PW-15 in support of its case and
brought into record 13 documents Exs.P-1 to P-13, whereas on
behalf of defence, three witnesses including appellant No.2 as DW-
1, Beersai (DW-2) & Ashok Agrawal (DW-3) were examined and
documents Exs.D-1 to D-6C were brought on record to prove the
defence version.
4. Statements of the appellants were recorded under Section 313 of
the CrPC in which they abjured the guilt and pleaded innocence
and false implication and claimed to be tried.
Finding of the trial Court: -
Cr.A.No.826/2013
5. The trial Court after completion of trial and upon appreciation of
oral and documentary evidence on record, by its impugned
judgment, categorically recorded a finding that death of deceased
Priya Tiwari was homicidal in nature on account of asphyxia due to
strangulation and further recorded a finding that the appellants are
perpetrators of crime and proceeded to hold them guilty for the
aforesaid offences under Sections 302 & 201 of the IPC and
accordingly, convicted and sentenced them for the period as
mentioned in the opening paragraph of this judgment against which
the instant appeal has been preferred under Section 374(2) of the
CrPC questioning the judgment of conviction recorded and
sentences awarded.
Submissions of parties: -
6. Mr. B.P. Sharma with Ms. Anuja Sharma and Ms. Sameeksha
Gupta, learned counsel appearing for the appellants, would submit
as under: -
1. The prosecution has failed to establish that the death of the
deceased was homicidal in nature, as the statement of Dr.
Pritam Ram (PW-13), who conducted postmortem vide Ex.P-
11 is itself contradictory in themselves. As per the
postmortem report, both the chambers of heart were empty
and in case of asphyxia due to strangulation, blood is usually
found in the chambers of heart, especially the right chamber
Cr.A.No.826/2013
and also undigested food and water were present in stomach.
The doctor has preserved viscera and sent parts of trachea,
mucus membrane of nose, skin of hand and upper layer of
lungs for examination, but FSL report is not available on
record. Therefore, it cannot be held that death of the
deceased was homicidal in nature. Reliance has been placed
upon the decision of the Supreme Court in the matter of
Mulakh Raj and others v. Satish Kumar and others 1.
2. Relying upon the decision of the Supreme Court in the
matter of Nagendra Sah v. State of Bihar 2, it has been
contended that on the basis of postmortem report, accused
cannot be convicted for offence under Section 302 of the
IPC, as the postmortem report itself is not a substantive piece
of evidence and conviction cannot be made solely on the
basis of postmortem report.
3. Ocular testimonies of witnesses Kalicharan (PW-7) & Sonar
(PW-8) holds greater value vis-a-vis medical evidence and
ocular evidence holds more weightage than medical evidence.
Reliance has further been placed upon the decision of the
Supreme Court in the matter of Umesh Singh v. State of
Bihar3.
4. Appellant No.2 has examined himself as defence witness and
1 (1992) 3 SCC 43
2 (2021) 10 SCC 725
3 (2013) 4 SCC 360
Cr.A.No.826/2013
he has explained the facts and as such, defence witness must
stand at par with prosecution witness. Reliance has also been
placed upon the decision of the Supreme Court in the matter
of State of Haryana v. Ram Singh4.
7. Per contra, Mr. Sudeep Verma, learned Deputy Government
Advocate appearing for the State/respondent, would support the
impugned judgment and submit that the trial Court has rightly held
the cause of death of the deceased to be asphyxia due to
strangulation and nature of death to be homicidal, as Sukhlal (PW-
1), Dalsai (PW-2), Kalicharan (PW-7) & Sonar (PW-8) have
clearly stated that at the time when they reached to the house of
the accused, the deceased was already burnt up to 100% and she
was dead. Learned State counsel would further submit that the trial
Court is justified in holding that dead body of the deceased was
smelling kerosene oil, tongue was protruded and there is no blood
clot found in any organ of the body which clearly shows that before
burning, she was not alive. This fact is further fortified by the fact
that blackish coal particles were not seen in the respiratory system
of the deceased. Further, no witness proximate to the spot heard
cries of the deceased which is unnatural as even in case of suicide,
the person who is under fire is bound to make cries out of pain and
the place where the deceased died is surrounded by boundary
owned, possessed and controlled by appellant No.2 himself and he
4 2002(1) R.C.R. (Criminal) 443
Cr.A.No.826/2013
has failed to offer any explanation in his statement under Section
313 of the CrPC and also in his defence statement made before the
Court as DW-1 and therefore the trial Court has rightly convicted
him for offence under Section 302 of the IPC. Similarly, there is
sufficient evidence available against appellant No.1 for offence
under Sections 302 & 201 of the IPC. Therefore, conviction of
the appellants is well merited and it does not require any
interference by this Court in exercise of appellate jurisdiction, as
such, the appeal deserves to be dismissed.
8. We have heard learned counsel for the parties and considered their
rival submissions made herein-above and also went through the
record with utmost circumspection.
Legal analysis: -
9. After hearing learned counsel for the parties and after going
through the record, following two questions arise for
consideration:-
1. Whether the death of deceased Priya Tiwari was homicidal in
nature as held by the trial Court?
2. Whether the appellants are perpetrators of the crime and
whether they have committed the murder of deceased Priya
Tiwari - wife of appellant No.2 herein?
Nature of death: -
Cr.A.No.826/2013
10. The trial Court relying upon the testimony of Dr. Pritam Ram (PW-
13), who conducted postmortem over the dead body of the
deceased vide Ex.P-11, came to a categorical conclusion that death
of deceased Priya Tiwari was homicidal in nature holding that
trachea was congested, there was no blister found over the body,
skin of hands & legs was black, hairs of head were also burnt except
hairs of occipital region, whereas, if she herself could have poured
kerosene oil, hairs of occipital region could also have burnt, and
thus, held the death to be homicidal in nature. Dr. Pritam Ram
(PW-13) has conducted postmortem on the body of the deceased
and his report is Ex.P-11. According to the postmortem report
Ex.P-11, cause of death is asphyxia due to strangulation and nature
of death is homicidal. External examination of deceased Priya
Tiwari states as under: -
"External examination: - Body lying supine position.
100% burnt body. Legs flexed and both arms are flexed
and so rigid. Small piece of partial burnt clothes firmly
attached on waist region (petticoat, sari and underwear).
There are characteristic kerosene oil smell present. Eye
open pupils dilated cornea hazy, conjunctiva congested.
Face, nose and around the mouth blackish colour of skin
present. Colourless liquid present on nose. Tongue
protruded and burnt. Neck swollen after dissection huge
quantity of blood present. Trachea congested, vesication
not present all over the body. Skin of palms are dry and
intact there is not vesication. Colour was blackish. Head
of hair are burnt except occipital region hairs are intact.
All burns are occur postmortem."
11. In the statement before the Court, while proving the report Ex.P-
Cr.A.No.826/2013
11, Dr. Pritam Ram (PW-13) made following statement: -
(1) eSa o"kZ 2005 esa lkeq- LokLF; dsUnz] jktiqj esa fpfdRlk vf/kdkjh ds
in ij inLFk gwaA fnukad 28-03-2010 dks vkj{kd dz- 635 eqjyh/kj ;kno
ds }kjk e`frdk fiz;k frokjh dks iksLV ekVZe ds fy, esjs le{k yk;s FksA
'ko dk igpku jekdkar frokjh] egsUnz ukFk frokjh] ,oa 'kf'kdkar frokjh
ds }kjk fd;k x;k FkkA ih-,e- djus ij eSus ik;k fd 'ko 100 izfr'kr
tyk gqvk FkkA nksuksa iSj vkSj gkFk Q~ysDlM Fks] iwjs 'kjhj esa vdM+u FkkA
diM+s dk NksVk lk VqdM+k tyk gqvk dej ij fpidk gqvk Fkk] tks fd
isfVdksV] lkM+h] vkSj v.Mjfo;j dk VqdMk+ FkkA ''kjhj ij ls feV~Vh rsy
dk nqxZU/k vk jgk FkkA vka[k [kqyk gqvk Fkk rFkk iqryh QSyh gqbZ FkhA
vka[k ds dUtsVkbZok esa ykyhek FkkA psgjk] ukd vkSj eqag iwjk tydj
dkyk iMk gqvk FkkA ukd ij ,d jaxghu nzO; ekStwn FkkA 'thHk
fudyk ,oa tyk gqvk FkkA xnZu esa lwtu Fkk ftls vkWijs'ku djus ds ckn
mlesa jDr tek gqvk ik;k x;k Fkk 'okl uyh Vªsfd;k datLVsM FkkA 'kjhj
esa QQksys ekStwn ugha Fkk rFkk peM+h gkFk vkSj iSj dkys iM+ x;s FksA flj
ds cky ty x;s Fks] flQZ vkWDlhihVy fjtu ihNs ds cky ugha tys FksA
vkarfjd ijh{k.k & [kksiM+h] f>Yyh] efLr"kd vkSj es:jTtk datLVsM Fks]
blh rjg QsQM+k] daBs ,oa 'okl uyh] nka;k cka;k QsQM+k datLVsM FkkA
g`n; ds nksuksa d{k [kkyh FksA blh mnj esa ijnk] vkarksa dh f>Yyh] eqag
rFkk xzkl uyh datLVsM FksA isV esa fcuk ipk gqvk [kkn~; inkFkZ vkSj ikuh
ekStwn FkkA yhoj] Lihu] fdM+uh] lHkh daTkLVsM FksA blds lkFk tap esa
Hksth x;h oLrqvksa esa vk/kk tyk gqvk diM+s dk VwdMk iSdsV cukdj lhycan
dj Hkstk x;k FkkA blh rjg foljk esa Vªsfd;k dk VqdMk vkSj QsQMs dk
fgLls dk Hkkx vkSj gkFk dh PkeMh vkSj ukd dk E;wdl esejsu dks tkap ds
fy, lhycan dj Hkstk x;k FkkA
vfHker& esjs erkuqlkj e`R;q dk dkj.k ,DlQsfDl;k Fkk] tks fd LVªsaxqys'ku
ds dkj.k gqvk FkkA e`R;q dh izd`fr gR;kRed Fkk] tks fd iksLVekVZe dh
vof/k 12 ls 24 ?k.Vs dh FkhA esjs }kjk nh xbZ 'ko ijh{k.k fjiksVZ iz- ih-
11 gS] ftlds v ls v Hkkx ij esjs gLrk{kj gSaA
12. A careful perusal of the statement of Dr. Pritam Ram (PW-13),
who conducted postmortem, would show that body of the
deceased was 100% burnt and was smelling kerosene oil, eyes &
eye balls were dilated, tongue protruded and burnt, trachea was
Cr.A.No.826/2013
congested, blisters were not present, skin of hands & legs were
blackish, hairs of head were burnt except of occipital region, and
skull brain & spinal cord were congested. Similarly, trachea and
both lungs were congested, both chambers of heart were empty
and undigested food and water were present in stomach. Liver,
spleen and kidney were also congested. The doctor has opined the
death to be due to asphyxia. No symptoms of vomiting was
noticed by Dr. Pritam Ram (PW-13).
13. Now, the question is whether, death of the deceased was homicidal
in nature, as found by the trial Court.
14. The Essentials of Forensic Medicine and Toxicology , Sixth Edn. at
page 255, by Dr. K.S. Narayan Reddy, Professor of Forensic
Medicine, Osmania Medical College, Hyderabad, relied upon by
the Supreme Court in the matter of Prabhudayal and others v.
State of Maharashtra5, gives descriptions of internal as well as
external symptoms of manual strangulation. At page 255 while
dealing with signs of asphyxia, the learned author states as under :
"The face may be livid, blotchy and swollen, the eyes
wide open, bulging and suffused, the pupils dilated, the
tongue swollen, dark-coloured and protruded. Petechial
haemorrhages are common into the skin of the eyelids,
face, forehead, behind the ears and scalp. Bloody froth
may escape from the mouth and nostrils and there may
be bleeding from the nose and ears. The hands are
usually clenched. The genital organs may be congested
and there may be discharge of urine, faeces and seminal
5 (1993) 3 SCC 573
Cr.A.No.826/2013
fluid."
Internal injuries described little later included as under :
'The larynx, trachea and bronchi are congested
and contain frothy, often blood stained mucus. The
lungs are markedly congested and show ecchymoses
and larger subpleural haemorrhages. Dark fluid
blood exudes on section. Silvery-looking spots under
the pleural surface due to rupture of the air cells
which disappear on pricking, are seen in more than
30% cases. The parenchymatous organs show
intense venous congestion, and in young persons
ecchymoses are usually seen on the heart and
kidneys. The brain is congested and shows petechial
haemorrhages. The right side of the heart is full of
dark fluid blood and the left empty. Both the
cavities are full if the heart stopped during diastole."
15. Further, the learned author in his same treatise at pages 237-238,
as noticed by the Supreme Court in Prabhudayal (supra), has
observed as under :
"31. Whereas in burn injuries, the learned author at
pages 237-238 observes, "the brain is usually shrunken,
firm and yellow to light brown due to cooking. The
dura matter is leathery." (Dura matter is meninges of
the brain.) If the death has occurred from suffocation,
aspirated blackish coal particles are seen in the nose,
mouth and whole of the respiratory tract. Their
presence is proof that the victim was alive when the fire
occurred. The pleurae are congested or inflamed. The
lungs are usually congested, may be shrunken and rarely
anemic ... Visceral congestion is marked in many cases
... The heart is usually filled with clotted blood. The
adrenals (glands above kidneys) may be enlarged and
congested."
16. Further, their Lordships of the Supreme Court in Prabhudayal
(supra) have noticed that some of these symptoms of internal and
Cr.A.No.826/2013
external injuries are common in case of strangulation and burn, like
face is swollen and distorted, the tongue protruded, the lungs are
usually congested, visceral congestion is marked in many cases.
17. The Supreme Court in Prabhudayal (supra) relying upon The
Essentials of Forensic Medicine and Toxicology has also held that if
it was a case of merely burns, the blood of the heart would have
got clotted, and observed in paragraph 34 as under :
"34. As is clear from the aforesaid commentary of Dr.
K.S. Narayan Reddy that if it was a case of merely burns
the blood of the heart would have got clotted. Even the
post-mortem report does not say that asphyxia was due
to burn. Coupled with (sic), all the internal injuries
which occur in the case of strangulation, are present in
this case."
18. In Gradwohl's Legal Medicine, Second Edition noticed in Mulakh
(supra) in Chapter 18 under the caption Interpretation of Post-
Mortem Appearances in Death from Respiratory Obstruction and
Compression of the Neck, at page 336 it was stated that systemic
and pulmonary congestion and dilatation of the heart are classically
described as signs of an asphyxial death.
19. Medical Jurisprudence by Raju and Jhala in Chapter XXV Death
from asphyxia and death from drowning at page 226 stated that
the heart in asphyxia, specifically right chambers, is always found
full of dark venous blood. This is important to note as usually with
death, blood disappears from the heart. The venous system of
circulation, because of back pressure, is always found distended
Cr.A.No.826/2013
with blood. The blood in heart and veins is not only dark blue but
also liquid and remains liquid. The internal organs and mucous
membrane also present the general signs of congestion. This
congestion has to be looked for and has to be found in all cases of
genuine asphyxia.
20. The Supreme Court in Mulakh Raj (supra) relying upon Medical
Jurisprudence and Toxicology, 13th Edn. by Modi, pointed out the
distinction between ante-mortem and post-mortem burns in
paragraph 13 of the report as under: -
"13. Regarding the distinction between ante-mortem
and post- mortem burns, he pointed out the lines of
redness, of vasication and reparative processes as
distinctive features. He elaborated the same later. A
reading of it gives the distinction and would be
concluded thus:
(1) Ante-mortem burn injuries are characterised
by the presence of burnt carbon particles (soot) in the
trachea which is absent in the case of post-mortem burn
injuries.
(2) Carbodyhaemoglobin is present in the heart
blood in ante-mortem burning which is absent in case of
post-mortem burning.
(3) Ante-mortem burns are usually red owing to
the tendency of the system of rush blood towards the
injured parts for repairs, which is distinctly different from
post-mortem burns which are hard and yellowish in
colour.
(4) Blisters are prominently present in ante-
mortem burns. Some blisters may appear in post-
mortem burns, but they are distinctly different from
ante-mortem burns, where blisters are full of protein rich
Cr.A.No.826/2013
fluid that contains a substantial amount of white cells,
caused by the tendency of the system to rush in white
cells to fight against infection. The presence of protein is
so high that it becomes solid on heating. Post-mortem
blisters hardly contain any protein in their fluid and
whatever fluid is contained has so little protein that on
heating only a faint opalescence is seen. The fluid in
post-mortem blisters does not contain any white blood
cells.
(5) In ante-mortem burns, reparative enzymes are
present in the vicinity of burnt areas as the reparative
enzymes would try to repair the burnt areas. Their
presence could also be used for predicting the time since
the person was burnt. Various enzymes appear at the
following time:
(a) Enzyme esterase - 30 minutes. (b)
Leucine aminopeptidase - 2 hours approx. (c) Acid
Phosphatase - 3 hours approx. (d) Alkaline
Phosphatase - 5 hours. Reparative enzymes are not
detected in post-mortem burns.
(6) Signs of infection in a burn injury only lead to
the conclusion that the burn injury is ante-mortem in
nature as there cannot be infection in a post-mortem
burn injury, only putrefaction. Since infection occurs
roughly 36 hours after the burn, one can easily predict
the time since the burn injuries occurred."
21. Reverting to the facts of the case in light of the descriptions of
internal as well as external symptoms of manual strangulation and
burning, it is quite vivid that, (1) tongue of the deceased was
protruded and burnt; (2) there were no blisters found over the
body of the deceased which is usually found in case of burn
injuries; (3) trachea was congested and eyes were wide open and
pupils dilated; (4) both lungs were congested, brain & spinal cord
Cr.A.No.826/2013
were also congested, both chambers of heart were empty, and
brain was not shrunken; (5) there was complete absence of carbon
particles in trachea as ante-mortem burn injuries are always
characterised by the presence of burnt carbon particles; and (6)
blisters, which are prominently present in ante-mortem burns, are
absent. As such, all the symptoms available in the postmortem
report duly proved by Dr. Pritam Ram (PW-13) in his statement
before the Court would indicate that it is a case of death by
asphyxia due to strangulation. Merely because both the chambers
of heart were found with no blood, it cannot be held that death
was not on account of strangulation, as Medical Jurisprudence by
Raju and Jhala, as quoted above, would show that usually with
death, blood disappears from the heart. Their Lordships of the
Supreme Court in Prabhudayal (supra), in paragraph 34, relying
upon the commentary of Dr. K.S. Narayan Reddy i.e. The
Essentials of Forensic Medicine and Toxicology, have also held that
if it was a case of merely burns, the blood of the heart would have
got clotted, which is clearly missing in the instant case as Dr. Pritam
Ram (PW-13) has found both the chambers of heart empty and it
is the case of the appellants also, and even the postmortem report
clearly says that death occurred on account of asphyxia due to
strangulation. As such, all the internal and external symptoms
which occur in case of strangulation are present in the instant case.
Therefore, we are of the considered opinion that the trial Court is
Cr.A.No.826/2013
absolutely justified in holding that it is a case of homicidal death
which has clearly been established by the prosecution. We hereby
affirm the finding of the trial Court that death of the deceased was
homicidal in nature.
Accusation of the appellants: -
22. Now, the question is, who is the author of the offence in question /
murder of deceased Priya Tiwari?
23. It is admitted position on record that there is no direct evidence to
connect the appellants with the offence of murder and the
prosecution case entirely rests only on circumstantial evidence.
There are umpteen number of judgments of their Lordships of the
Supreme Court eloquently and clearly propounding the cardinal
principle to be followed in cases in which the evidence is purely of
circumstantial nature. The essential ingredients to prove guilt of an
accused person by circumstantial evidence are:
1. The circumstances from which the conclusion is drawn should
be fully proved;
2. the circumstances should be conclusive in nature;
3. all the facts so established should be consistent only with the
hypothesis of guilt and inconsistent with innocence;
4. the circumstances should, to a moral certainty, exclude the
possibility of guilt of any person other than the accused.
Cr.A.No.826/2013
24. The five golden principles which constitute the panchsheel of the
proof of a case based on circumstantial evidence and which must
be fulfilled before a case against the accused can be said to be fully
established, have been authoritatively laid down by their Lordships
of the Supreme Court in the matter of Sharad Birdhichand Sarda v.
State of Maharashtra6 in paragraph 153.
25. Now, we will deal with the incriminating circumstances against the
two appellants, one by one. Considering the nature of offence and
material, we will take-up the case of appellant No.2 first.
Motive of offence: -
26. It is the case of the prosecution that appellant No.2 was married to
deceased Priya Tiwari on 8-6-2006 and they were blessed with a
son Utsav Tiwari on 3-6-2008, but immediately one year after the
birth of Utsav Tiwari, appellant No.2 started treating his wife Priya
Tiwari with cruelty demanding money from time to time which was
being partly fulfilled by Mahendranath Tiwari (PW-11) - father of
the deceased, but yet, the two appellants and the juvenile co-
accused treated the deceased with cruelty and that was the motive
for commission of offence which the trial Court in paragraph 28 of
the judgment found proved that the appellants used to demand
money from the parents of the deceased and used to harass the
deceased for the said amount.
6 (1984) 4 SCC 116
Cr.A.No.826/2013
27. The Supreme Court in Mulakh Raj (supra) has held that
undoubtedly in cases of circumstantial evidences, motive bears
important significance. Motive always locks up in the mind of the
accused and some time it is difficult to unlock. People do not act
wholly without motive. The failure to discover the motive of an
offence does not signify its non-existence. The failure to prove
motive is not fatal as a matter of law. Proof of motive is never an
indispensable for conviction. It has also been held that when facts
are clear it is immaterial that no motive has been proved.
Therefore, absence of proof of motive does not break the link in
the chain of circumstances connecting the accused with the crime,
nor militates against the prosecution case.
28. In this case, though the trial Court has proved the motive partly
proved that appellant No.2 used to demand money from the
father of the deceased - Mahendranath Tiwari (PW-11) and used
to harass the deceased which is clearly born out from the statement
of Mahendranath Tiwari (PW-11) as well as mother of the
deceased Smt. Kiran Devi (PW-15), as such, motive of the offence
is established.
Ocular Evidence: -
29. Sukhlal (PW-1) is the neighbour of appellant No.2. He has clearly
stated that on the fateful day, on hearing the cry of appellant No.2
"daudo daudo", he (PW-1), Sonar (PW-8), Monar (PW-6), Dalsai
Cr.A.No.826/2013
(PW-2) & Kalicharan (PW-7) all reached to the house of appellant
No.2 and they saw that the deceased was already dead and at that
time, appellants No.1 & 2 and juvenile co-accused Roshan Tiwari
were present. He has further stated that appellant No.2 and his
sister-in-law (brother's wife) - appellant No.1, both, used to reside
separately and when they reached, appellant No.2 was trying to
extinguish the fire and the body of the deceased was smelling
kerosene oil, appellant No.1 and the juvenile co-accused were
standing near the door.
30. Dalsai (PW-2) has made similar statement that on hearing the cry
of appellant No.2, he (PW-2) & Kalicharan (PW-7) reached to the
house of appellant No.2 and thereafter, other witnesses Sonar
(PW-8), Somarsai & Sukhlal (PW-1) reached, then they found
Priya Tiwari fully burnt and she was dead at that time and they
smell kerosene oil from her body. He has also admitted the fact
that Shashikant - appellant No.2 herein and his brother were
residing separately and he (PW-2) & Kalicharan (PW-7) reached to
the place of incident first in time and appellant No.2 was
extinguishing the fire upon the deceased.
31. Monar (PW-6) has also made similar statement that when he heard
the noise of Shashikant, he along with other witnesses reached to
the spot, by that time, Priya Tiwari was burnt fully and dead, three
accused persons were standing therein and smell of kerosene oil
Cr.A.No.826/2013
was coming from there.
32. Similarly, Kalicharan (PW-7), who has also lodged first information
report, has made similar statement that when he reached to the
spot along with other witnesses, he found that appellant No.2 was
covering the body of the deceased by blanket. He has clearly
stated that appellant No.2's brother Buddhinarayan Tiwari and his
wife - appellant No.1 used to reside separately from appellant
No.2 and appellant No.2 used to stay with his wife deceased Priya
Tiwari and his son Utsav Tiwari, and his brother-in-law Banti also
used to stay with him, but on the date of incident, Banti has gone
to Government Hospital, Raipur as he suffered injury due to
electrocution and he was referred to hospital. He has also stated
that appellant No.1 was also present there along with blanket and
appellant No.2's mother, his brother Buddhinarayan and another
brother Ramakant were not present in the house.
33. Sonar (PW-8) has also made similar statement and he has clearly
stated that Sangeeta & Shashikant - appellants herein, used to stay
separately and he has seen that appellant No.1 was giving blanket
to appellant No.2 for extinguishing the fire.
34. S.N. Bajpai (PW-12) - the then Executive Magistrate-cum-
Tahsildar, who reached immediately to the spot on being informed,
found the dead body lying burnt fully in the courtyard of appellant
No.2, both the eyes were open and tongue protruded in burnt
Cr.A.No.826/2013
condition with no other bodily injuries. In order to ascertain the
cause of death, Panchas recommended the dead body to be sent
for postmortem.
35. From the statements of aforesaid prosecution witnesses, it is quite
established that,
1. On the date of offence, appellant No.2, his wife Priya Tiwari,
his minor son Utsav Tiwari aged about 2 years and his
brother-in-law Banti used to stay in the house mentioned in
Ex.P-3 (spot map), but on account of electrocution, Banti
suffered some injury and he was referred to Government
Hospital, Raipur and thus, he was not present in the house.
As such, the appellant, his wife Priya Tiwari and his son were
staying in the house on the date of offence.
2. On 27-3-2010 at 6-7 p.m., hearing the cry of appellant
No.2, Sukhlal (PW-1), Dalsai (PW-2), Monar (PW-6),
Kalicharan (PW-7) & Sonar (PW-8) all reached to the spot
and they have noticed that outside the house of appellant
No.2 but inside the boundary fenced with wooden logs, the
deceased was lying in 100% burnt condition, she was already
dead and appellant No.2 was trying to extinguish the fire and
appellant No.1 was giving blanket to appellant No.2 for
extinguishing the fire.
3. Immediately after the incident, the Executive Magistrate
Cr.A.No.826/2013
reached to the spot and panchnama was conducted and dead
body was sent for postmortem.
4. In the course of extinguishing the fire, appellant No.2 has
also suffered some minor burn injuries vide Ex.P-12 proved
by Dr. Pritam Ram (PW-13).
Medical Evidence: -
36. As noticed herein-above, Dr. Pritam Ram, who has conducted
postmortem of the deceased, has been examined as PW-13 and he
has proved the postmortem report Ex.P-11 in which he has clearly
stated that body of the deceased was 100% burnt and it was
smelling kerosene oil, eyes were open; eye balls were dilated;
tongue was protruded and burnt; carbon particles were absent in
the trachea; no blisters were present over the body; brain, lungs
and trachea were congested; both the chambers of heart were
empty; undigested food and water were present in the stomach;
liver, spleen and kidney all were congested; and cause of death was
asphyxia due to strangulation.
37. Thus, from ocular and medical evidence on record, the following
circumstances are found established :
1. On the date and time of incident, there was no outsider in
the house of appellant No.2 except appellant No.2, his wife
Priya Tiwari (deceased) and their two years old son Utsav
Tiwari, as the other inmate of the house Banti - brother-in-
Cr.A.No.826/2013
law of appellant No.2 had already gone to Government
Hospital, Raipur for treatment on account of injury suffered
due to electrocution.
2. Motive for the occurrence has also been established, as the
appellants used to demand money from the parents of the
deceased - Mahendranath Tiwari (PW-11) & Smt. Kiran
Devi (PW-15).
3. The place (Ex.P-3) where the incident took place was in
complete control, possession and occupation of appellant
No.2 only.
4. The incident happened at night 6-7 p.m. when nobody else
was there in the house when the incident allegedly occurred.
5. According to appellant No.2, who examined himself as
defence witness (DW-1) under Section 315 of the CrPC, the
deceased herself has poured five litres of kerosene oil on her
body. As such, appellant No.2 has admitted his presence on
the date and time of incident at the place of occurrence.
6. Positive feature of suffering death by burning i.e. evidence of
vomiting is missing.
7. There is clear cut opinion of Dr. Pritam Ram (PW-13) that
death was on account of asphyxia due to strangulation. Apart
from that, the appellant and the deceased were blessed with a
son on 3-6-2008 and on the date of incident, their son was
Cr.A.No.826/2013
only one year six months old.
8. Extensive use of kerosene oil has been made as per the
statement of appellant No.2 as DW-1 in paragraph 4 that the
deceased is said to have taken bath with kerosene oil.
9. Total absence of any shout or cry by the deceased except the
cry made by appellant No.2 "daudo daudo".
10. Blood in heart was not found clotted.
11. In case of burn injury, brain is usually shrunken and firm,
whereas in strangulation, it is congested and in the present
case, brain was found to be congested.
38. The Supreme Court in the matter of State of U.P. v. Dr Ravindra
Prakash Mittal7, relying upon Taylor's 'Principles and Practice of
Medical Jurisprudence', held as under: -
"30. In Taylor's 'Principles and Practice of Medical
Jurisprudence', a detailed opinion is recorded by giving
the symptoms for determining whether the burns were
sustained before or after the death of a victim which are
of considerable medical legal importance in cases of
death by fire. After examining the evidence on record
in the light of the opinion of the authors of the two
textbooks on Medical Jurisprudence, we are unable to
agree with the submissions of the defence counsel that all
the symptoms found in the dead body could have been
due to the intensity of heat of the fire. In fact, the
opinion in Taylor's Medical Jurisprudence is rather in
support of the prosecution case than that of the defence,
which opinion reads thus:
"Not uncommonly the victim who inhales
7 (1992) 3 SCC 300
Cr.A.No.826/2013
smoke also vomits and inhales some vomit,
presumably due to bouts of coughing, and plugs of
regurgitated stomach contents mixed with soot may
be found in the smaller bronchi, in the depths of the
lungs."
39. Reverting to the facts of the case in light of the aforesaid
incriminating circumstances found established, it is quite vivid that
the prosecution has been able to prove the motive for the offence,
as appellant No.2 used to demand money from the parents of the
deceased - Mahendranath Tiwari (PW-11) & Smt. Kiran Devi
(PW-15). Furthermore, the place (Ex.P-3) where the murder of
appellant No.2's wife was committed i.e. the courtyard of
appellant No.2's house was in exclusive possession and occupation
of appellant No.2 and he stayed in that house along with his wife
and his minor son. As such, the offence has taken place in the
dwelling house where appellant No.2 has stayed with his wife Priya
Tiwari i.e. the deceased. It is for appellant No.2 to offer
explanation as to how his wife received injuries. If the accused
does not offer any explanation how the wife received injuries or
offers an explanation which is found to be false, it is a strong
circumstance which indicates that he is responsible for commission
of the offence, as the murder of Priya Tiwari has taken place inside
the courtyard of appellant No.2's house and appellant No.2 was
under an obligation to give a plausible explanation for the cause of
her death in his statement under Section 313 of the CrPC. {See
Cr.A.No.826/2013
Trimukh Maroti Kirkan v. State of Maharashtra 8 (paragraph 22).}
Furthermore, the explanation offered by appellant No.2 in his
statement under Section 313 of the CrPC and statement as DW-1
is not acceptable, as deceased - wife having a child of 1½ years
would not commit suicide for the fishy dispute of hiring a vehicle
for his friends and family to visit temple. As such, the explanation
offered by appellant No.2 is completely false. Moreover, there is
no evidence of vomiting brought out by the prosecution, as the
victim who inhales smoke also vomits and inhales some vomit,
presumably due to bouts of coughing, which is missing in the
present case. According to appellant No.2 (DW-1) himself, the
deceased had taken bath of kerosene oil by pouring 5 litres of
kerosene oil over her body, if that was the case, she was likely to
get fainted and would not be in a position thereafter to burn
herself. As held by the Supreme Court in Prabhudayal (supra), by
the time a person could take a bath of kerosene, she is likely to get
fainted and would not be in a position thereafter to burn herself.
Furthermore, there is total absence of any shout or cry made by
the deceased which she could have made while suffering burn
injuries and this is one of the strong and incriminating
circumstances against appellant No.2. From the medical evidence
of Dr. Pritam Ram (PW-13), it is quite established that blood in
heart was not found clotted and brain was congested, whereas in
8 (2006) 10 SCC 681
Cr.A.No.826/2013
case of burn, it could have been usually shrunken.
40. As such, we are fully satisfied that it is a case of murder and not
suicidal death and the prosecution has been able to prove the five
golden principles laid down by their Lordships of the Supreme
Court in Sharad Birdhichand Sarda (supra) to constitute the
panchsheel of the proof of a case based on circumstantial evidence.
Consequently, we do not find any inconsistency between ocular
and medical evidence and the decision relied upon by learned
counsel for the appellants in Nagendra Sah (supra) is also not
applicable as conviction is not based on the postmortem report in
the instant case and there is overwhelming evidence on record to
hold appellant No.2 guilty for offence under Section 302 of the
IPC. Therefore, the trial Court is absolutely justified in convicting
appellant No.2 for offence under Section 302 of the IPC and for
destroying the evidence under Section 201 of the IPC. The appeal
so far as it relates to appellant No.2 deserves to be dismissed.
41. So far as appellant No.1 is concerned, admittedly, she was living
separately from appellant No.2 as admitted by the prosecution and
merely because she was present and helping appellant No.2 by
giving blanket to him to extinguish the fire, in absence of other
incriminating evidence, she cannot be convicted under Section 302
IPC & 201 IPC and thus, we are inclined to give the benefit of
doubt to appellant No.1.
Cr.A.No.826/2013
42. Accordingly, the appeal of appellant No.1 namely Sangeeta Tiwari
is allowed. Conviction and sentences imposed upon appellant
No.1 under Sections 302 & 201 of the IPC are hereby set aside
and she is acquitted of the said charges. She is on bail. She need
not surrender. However, the bail bonds will remain in force for a
period of six months in view of Section 437-A of the CrPC. The
appeal of appellant No.2, as held herein-above, is dismissed being
merit-less.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
Soma
