PW-3 and PW-4 have deposed that they were under threat
from the concerned Investigating Officer who was present along
with them before the Magistrate. The concerned Investigating
Officer has been examined as PW-8 in the present case and
during his examination, there is not even a suggestion from the
appellants to the effect that he was present along with PW-3 and
PW-4 at the time of recording their statement under Section 164
or to the effect that he had threatened them to give incriminating
statements against the appellants. Furthermore, the concerned
Magistrate could have been examined as a witness in the present
matter to clear the controversy on this aspect and for unexplained reasons, he was never called for examination especially when a completely hostile version was being provided by the witnesses qua the proceedings which were conducted before him. The appellants failed to place any material on record to justify the allegation of threat and as discussed above, the statements of PW-3 and PW-4 recorded under Section 164 CrPC reflected the correct version of the events that transpired on the fateful day. {para 30}
Ratio: The Magistrate is usually summoned only if the defence challenges the manner of recording/voluntariness, or to clarify disputed aspects of compliance (warning, voluntariness, memorandum, etc.).
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 122 OF 2013
VIJAYA SINGH & ANR. Vs STATE OF UTTARAKHAND
Author: SATISH CHANDRA SHARMA, J.
1. In April, 2002, Devaki got married to Vijaya Singh. More
than an year after the wedding, on the fateful day of 14.09.2023,
Devaki died an unnatural death at the house of her in-laws. Vijaya
Singh, appellant no. 1 herein, was accused of murdering her
along with his mother, namely Basanti Devi, appellant no. 2
herein. The case was registered as FIR No. 04/2003 at PS R.P.
Jakholi, Rudraprayag, District Garhwal, Uttarakhand. After the
conclusion of investigation and trial, the Trial Court found the
appellants guilty. In appeal, the High Court of Uttarakhand also
found them guilty and upheld the decision of the Trial Court. The
Criminal Appeal No. 122 of 2013 Page 2 of 29
appellants, by way of instant appeal, have assailed the Judgment
and Order dated 29.08.2012 passed by the High Court of
Uttarakhand at Nainital in Criminal Appeal No. 148 of 2004,
whereby the said appeal preferred by the appellants was
dismissed.
2. The appellant No.1 happened to be the husband and the
appellant No.2 happened to be the mother-in-law of the deceased
Devaki. After the incident, the FIR was registered at the instance
of the complainant Shankar Singh (brother of the deceased
Devaki), against the present appellants and Shri. Matbar Singh
(father-in-law of the deceased). It was alleged inter alia in the
said complaint that on 14.09.2003 at about 9 P.M., he had
received one phone call from the in-laws of his sister at Gram
Sabha Dangi (Village Hariyali) informing him that his sister had
poured kerosene oil over her person at about 6 P.M. and had set
herself ablaze. According to the complainant, he along with his
two brothers went to the place of occurrence, where they saw that
their sister was lying in almost naked condition with green grass
having been put over her body and they suspected that their sister
was murdered and she had not committed suicide.
3. The Investigating Officer, after completing the
investigation, filed the chargesheet against the appellants for the
offences under Sections 302 and 201 of Indian Penal Code,
Criminal Appeal No. 122 of 2013 Page 3 of 29
18601. The case was committed for trial to the Sessions Court and
the District & Sessions Judge, Rudraprayag, vide the Judgment
and Order dated 14.05.2004, convicted both the appellants for the
commission of offence under Section 302 of IPC and sentenced
them to life imprisonment and fine of Rs.5,000/- each, and in
default thereof, to further undergo imprisonment for a period of
6 months. The said Court also convicted them for the offence
under Section 201 of IPC and sentenced them to undergo
imprisonment for a period of 2 years with payment of fine of Rs.
2000/- each, and in default thereof to further undergo
imprisonment for a period of 3 months. Being aggrieved by the
said Judgment and Order passed by the Trial Court, the appellants
had preferred an appeal being Criminal Appeal No.148 of 2004
before the High Court, which came to be dismissed by the High
Court vide the impugned Judgment and Order dated 29.08.2012.
4. The Trial Court acknowledged that the entire case of the
prosecution was based on circumstantial evidence and further,
that the entire chain of evidence consistently pointed in the
direction of guilt of the appellants. It found that the testimonies
of the witnesses were credible and the retraction of their
statements by PW-3 and PW-4, sisters of appellant no. 1, was a
result of tutoring. Thus, the statements of the said witnesses
1 Hereinafter referred as “IPC”
Criminal Appeal No. 122 of 2013 Page 4 of 29
recorded under Section 164 of the Code of Criminal Procedure,
19732 were found to be truthful and natural.
5. The decision of the Trial Court was assailed before the
High Court and the High Court, in the impugned order/judgment,
found that the Trial Court had correctly analyzed the evidence on
record and no infirmity was found in the findings of the Trial
Court.
6. While assailing the judgement of the High Court, learned
counsel for the appellants submitted that there was a delay in the
registration of FIR as the same was registered after 24 hours from
the incident and the said period led to the fabrication of the entire
story by the complainant. It is further submitted that there was no
allegation of harassment at the time of registration of FIR and the
versions put forth by PW-1, PW-2, PW-5 and PW-6 are
inherently contradictory and there is no corroboration between
the same. It is further submitted that PW-1 was not the real
nephew of the deceased but was a distant relative belonging to
the same community and therefore, he could not have possessed
any direct knowledge of cruelty or harassment. It is further
submitted that the statements of PW-1 and PW-5 appeared to be
contrary to each other as PW-5 has not deposed regarding any
bodily injury to the deceased at any point of time and has deposed
2 Hereinafter referred as “CrPC”
Criminal Appeal No. 122 of 2013 Page 5 of 29
that the relationship between the appellants and the deceased was
cordial.
7. It is further submitted that the statements of PW-3 and PW-
4 recorded under Section 164 CrPC are liable to be rejected as
the said statements were recorded in the presence of the
Investigating Officer under threat, and could not be considered
as voluntary statements. It is further submitted that the said
statements could not be termed as substantive evidence and could
only be used to corroborate or contradict the testimony of a
witness in the Court. It is further submitted that the primary
witness of the prosecution is PW-7/doctor and his testimony is
fundamentally flawed. It is submitted that the concerned doctor
initially deposed that he could not definitively state whether the
death of the deceased was homicidal or suicidal, however, the
witness later opined that 100% percent burn injuries were
uncommon in suicide cases. It is submitted that in case of suicide,
the act of burning is a voluntary act and therefore, 100% burn
injuries are completely possible. To buttress, it is contended that
the evidence of an expert is not the evidence of fact and is only
advisory in nature. It is added that medical jurisprudence is not
an exact science and in the expert testimony cannot be considered
as a conclusive proof of the fact.
Criminal Appeal No. 122 of 2013 Page 6 of 29
8. Learned counsel has also submitted that the trial court and
the High Court have failed to analyze the circumstances of the
case in an objective manner and the findings of the said courts
are based more on conjectures and less on evidence.
9. Per contra, it has been contended on behalf of the
respondent State that the circumstances of the present case have
proved the guilt of the appellants beyond reasonable doubt. It has
been submitted that the chain of circumstances is complete and
falls within the parameters laid down by this Court with respect
to circumstantial evidence. Learned counsel appearing on behalf
of the respondent has placed reliance upon the decision of this
Court in Prabhudayal and Ors. v. State of Maharashtra3 to
contend that in bride burning cases, the absence of cries or shouts
from the victim is suggestive of the fact that it was not a case of
suicide. Learned counsel has also laid emphasis on the false plea
of alibi taken by appellant no. 2, and has submitted that if a false
plea is taken by the accused in the course of a trial, it could be
considered as an additional circumstance against the accused.
10. We have heard the respective parties and we may now
proceed to answer the seminal issue whether the findings arrived
at by the High Court are based on a correct appreciation of the
evidence on record and are sustainable in the eyes of law.
3 (1993) 3 SCC 573
Criminal Appeal No. 122 of 2013 Page 7 of 29
DISCUSSION
11. At the outset, it may be noted that the entire case of
prosecution hinges on the circumstantial evidence, in as much as
there was no eye witness to the incident in question. It is a well
settled principle of law that when a case is based on
circumstantial evidence, the circumstances proved must point
unequivocally to the guilt of the accused and must be
incompatible with any theory of his being innocent. The
principles governing the appreciation of circumstantial have
been laid down by this Court in unequivocal terms in Sharad
Birdhichand Sarda v. State of Maharashtra4. The principles,
termed as the Panchsheel or five principles of circumstantial
evidence, are traceable in the following para:
“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
4 (1984) 4 SCC 116
Criminal Appeal No. 122 of 2013 Page 8 of 29
v. 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
(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.”
12. So far as the facts of the present case are concerned, it is
not disputed that deceased Devaki and the Appellant No.1 got
married in April, 2002 and the Appellant No.2 happened to be
the mother-in-law of the deceased. It is also not disputed that the
tragic incident occurred on 14.09.2003 i.e. within 17 months of
the marriage, when deceased Devaki succumbed to the burn
injuries at her matrimonial home i.e. at the home of the
appellants.
Criminal Appeal No. 122 of 2013 Page 9 of 29
13. The Prosecution had examined as many as 8 witnesses to
prove the charges levelled against the appellants, out of whom
PW-1 Vinod Singh happened to be the nephew of the deceased
who had inter alia stated that he used to go to leave his aunt
Devaki at her matrimonial home and used to feel that the
behaviour of appellant no. 2 was not good with her. He also stated
that in the month of August, 2002 when he had visited the
matrimonial home of his aunt to bring her back home, her
mother-in-law (appellant no.2) had indulged into a quarrel with
him saying that if he wanted to take his aunt with him, then he
should keep her permanently with him. He also deposed that the
appellant no. 2 had threatened him by saying that he had not seen
her anger till that point of time. On that day, PW-1 came back
home with his aunt/deceased. He also stated that in the year 2003,
when his aunt i.e. the deceased Devaki had visited her parental
home, she was found to have an injury on her eye and on his
asking about the injury, she had confidentially told him that the
said injury was caused by her husband - Vijaya Singh (appellant
no.1), however he had not disclosed the same to anyone so that
the matter may not aggravate further.
14. In cross-examination, PW-1 deposed that he used to go to
his aunt’s matrimonial house frequently as her brothers were not
residing in the maternal village. He also deposed that appellant
no. 1 was working in Chandigarh and used to come home in 3-4
Criminal Appeal No. 122 of 2013 Page 10 of 29
months. He further deposed that the deceased used to insist for
going to Chandigarh and the appellant had promised her that he
would take her soon. He further deposed that appellant no. 2 used
to quarrel with the deceased regarding household work and about
her desire of going to Chandigarh.
15. PW-2 (Shankar Singh), brother of the deceased Devaki
had stated before the Court that on 14.09.2003, a call was
received at about 12.00 - 1.00 o'clock in the midnight from the
village of his sister that his sister had poured kerosene oil on her
person and put herself ablaze. He, therefore, managed to go to the
village of his sister along with 5-6 people and when he reached
the matrimonial home of his sister, the appellants were sitting
outside the verandah and he was told that his sister had
committed suicide by pouring kerosene oil on herself. He further
stated that when he went inside the room, he saw that the dead
body of his sister was lying on the floor between two coats in
naked condition and green grass was put over her dead body. A
quilt was lying there in burnt condition along with water. He
further stated that at the time of incident, his sister was pregnant
and he had felt that his sister had not committed suicide but she
was murdered by her in-laws. He deposed that his sister used to
tell them about the harassment of her in-laws regarding nonperformance
of household work. In the cross-examination, he
admitted that his sister wanted to accompany her husband Vijaya
Criminal Appeal No. 122 of 2013 Page 11 of 29
and stay at Chandigarh instead of staying at village and that prior
to the death of his sister, the relationship between his sister and
the accused Vijaya Singh was quite cordial.
16. PW-3 Saroj happened to be the sister of the appellant no.1
and daughter of appellant no.2, whose statement was recorded
under Section 164 of Cr.P.C. during the course of investigation.
She admitted about the recording of her statement before the
Magistrate under Section 164 of Cr.P.C and admitted her
signatures on the statement. In cross- examination, she stated that
she was not present at home at the time of incident and that the
relationship between her sister-in-law Devaki and her mother and
brother was cordial. She further admitted that when the Patwari
brought her to the Magistrate for recording her statement, he had
threatened her, and had also remained present before the
Magistrate when her statement was being recorded. PW-3 denied
any statement regarding quarrel between the deceased and
appellant no. 2. PW-4 Preeti is also the sister of appellant no.1
and daughter of appellant no.2, and she also deposed to the same
effect as her sister Kumari Saroj/PW-3.
17. PW-5 examined by the prosecution was Kamal Singh, who
happened to be the cousin brother of the deceased Devaki. He
stated that on receiving the telephone call on 14.09.2003 at 8:00
PM about the incident, he had gone to the house of the deceased
Criminal Appeal No. 122 of 2013 Page 12 of 29
and saw that the dead body of his sister Devaki was lying on the
floor in naked condition and some green grass was put over her
body. One bedding was also lying in the room and water was put
all over it. He also stated that on inspection of the room, he felt
that Devaki had not committed suicide but her mother-in-law and
husband had murdered her by setting her ablaze. He further
deposed that quarrels used to take place between the deceased
and the appellants over her desire of going to Chandigarh with
her husband.
18. During cross-examination, PW-5 deposed that the
deceased had told him that her mother-in-law was not allowing
her to visit Chandigarh.
19. PW-6 Sunita Devi, was the sister-in-law of the deceased
Devaki. She stated that as and when Devaki used to visit her
parental home, she used to tell her about the harassment caused
by her mother-in-law and husband. She used to tell her that she
(Devaki) was kept terrorized and threatened, and was not given
proper food at her matrimonial home and that her in-laws would
go out locking her in the house.
20. The expert witnesses regarding the cause of death,
examined by the prosecution, was PW-7 Dr. Shailendra Kumar,
who had carried out post-mortem of the deceased Devaki. He
stated that the deceased had sustained 100% burn injuries and the
Criminal Appeal No. 122 of 2013 Page 13 of 29
whole body was burnt from top to bottom. The cause of death
was ‘Death due to shock’ and semi digested food was found in
her stomach. No smell of any kind was felt from her person. He
further stated that a male womb measuring 10 cm having weight
200 gm was found in the uterus of the deceased. In the crossexamination,
he had stated that it was not possible to give opinion
whether the deceased had got herself burnt or somebody had
burnt her after pouring kerosene. However, in his opinion,
sustaining 100% burn injuries was not possible in case of selfinflicting
burns and that some percentage would have been left.
In the cross-examination, he had explained that 100% burns
would mean the body was lying burnt from top to bottom. He
also admitted that if the size of the room was very small, then
entering the room from outside would not be probable due to
smoke.
21. The Investigating Officer, Shyam Lal Patwari examined as
PW-8 had deposed about the investigation carried out by him
after receiving the complaint from PW-2 on 15.09.2003. He
deposed that he had seized the articles from the place of
occurrence, which included semi burnt bedding, two cans of
kerosene measuring 5 litre each, having half litre of kerosene
available in each can at that time, one burnt wood etc. and had
prepared a seizure memo. He further stated that when the accused
Vijaya Singh was arrested, he had found fresh abrasion injury
Criminal Appeal No. 122 of 2013 Page 14 of 29
marks on his face and Vijaya Singh had told him that he had
sustained those injuries due to scorching. Similarly, accused
Basanti Devi at the time of her arrest was found to have fresh
abrasion mark on her forehead and she also stated that the said
marks were due to scorching. He also stated that he had made
arrangement for recording of statements of witnesses Kumari
Saroj and Kumari Preeti under Section 164 Cr.P.C. before the
Judicial Magistrate. In the cross-examination, he had admitted
that he had not made any arrangement for the medical
examination of the injuries sustained by the accused Vijaya Singh
and Basanti Devi.
22. The statements of the appellants were recorded under
Section 313 of Cr.P.C. Both of them denied the allegations made
against them by the witnesses examined by the prosecution. The
appellant no.1-Vijaya Singh further stated that the deceased was
adamant to accompany him at Chandigarh, however, he had said
that it would take one to two months and therefore, she
committed suicide. The appellant no.2-Basanti Devi stated in her
further statement that at the time of incident, she had gone to a
flour mill which was located at the distance of 5 kms from her
village along with her sister Pitambari Devi, and when they came
back, the incident had already taken place.
Criminal Appeal No. 122 of 2013 Page 15 of 29
23. The appellants had examined a defence witness Pitambari
Devi. She had stated that on the date of incident in the morning,
she along with Basanti Devi had gone to Dharat (Flour Mill)
situated in Bajaira which was 5 kms away and had come back
home together in the evening at about 5.00 PM by bus. She
further stated that people told her that the incident of fire had
taken place in the house of the accused, however, she had not
seen the dead body of the deceased.
24. On a careful appreciation of the evidence on record, it
could be seen that the appellant no. 1 was working in Chandigarh
and used to visit his village once in 3-4 months. During these
intervals, the deceased used to live alone with her in-laws in the
village. The witnesses have invariably deposed that the deceased
was desirous of going to Chandigarh along with her husband and
appellant no. 2 had an objection regarding the same. The basis of
that objection becomes clear from the testimony of PWs as the
appellant no. 2 wanted the deceased to help with the domestic
chores at home.
25. The story of the prosecution begins much before the
commission of the alleged offence. PW-1 and PW-6 have
deposed in no uncertain terms that the deceased used to share
with them her agony at her matrimonial home. They have
deposed regarding the desire of the deceased to go to Chandigarh
Criminal Appeal No. 122 of 2013 Page 16 of 29
as well as regarding the harassment caused by appellant no. 2 for
that reason. PW-1 has also deposed regarding the presence of an
injury on the body of the deceased when she once visited her
parental house soon after her wedding. Their versions have
largely remained unrebutted despite elaborate cross-examination.
The appellants have raised questions regarding their versions
stating that they are contradictory. We are unable to find any
material contradiction in their versions and the Trial Court and
the High Court have correctly appreciated their evidence in light
of their background. For, the witnesses were essentially villagers
and their testimonies cannot be subjected to mathematical
precision. The evidence of every witness cannot be subject to the
same level of scrutiny and the Court must be alive to the social
position of the witness. Further, it is trite law that mere presence
of minor variations is not fatal to the case of the prosecution. It is
so because a natural testimony is bound to have variations. The
question is whether the variations or contradictions could be
termed as fatal to the case of the prosecution. The said question
needs to be answered in light of the other evidence on record by
examining whether the oral testimonies have found corroboration
from other evidence or have remained isolated testimonies.
26. In the present case, the testimonies of PW-1 and PW-6 are
supported by the testimonies of PW-3 and PW-4, who are the
sisters of appellant no. 1 and daughters of appellant no. 2. They
Criminal Appeal No. 122 of 2013 Page 17 of 29
are not interested witnesses and their testimonies must be given
due credence. The statements of PW-3 and PW-4 were recorded
before the Judicial Magistrate under Section 164 of CrPC in the
aftermath of the incident. However, the issue with respect to their
evidence is that they have sought to retract from their statements
recorded under Section 164 CrPC and have denied a material part
of their statements before the Sessions Court. The reason for
retraction is that the statements were recorded under threat of the
concerned Patwari who was present before the Judicial
Magistrate along with the witnesses. The weight to be attached
to such a statement during appreciation of evidence is the
question that arises before us at this juncture.
27. The jurisprudence concerning a statement under Section
164 CrPC is fairly clear. Such a statement is not considered as a
substantive piece of evidence, as substantive oral evidence is one
which is deposed before the Court and is subjected to crossexamination.
However, Section 157 of Indian Evidence Act,
18725 makes it clear that a statement under Section 164 CrPC
could be used for both corroboration and contradiction. It could
be used to corroborate the testimonies of other witnesses. In R.
Shaji v. State of Kerala6, this Court discussed the two-fold
objective of a statement under Section 164 CrPC as:
5 Hereinafter referred as “Evidence Act”
6 MANU/SC/0087/2013
Criminal Appeal No. 122 of 2013 Page 18 of 29
“15. So far as the statement of witnesses recorded
under Section 164 is concerned, the object is two
fold; in the first place, to deter the witness from
changing his stand by denying the contents of his
previously recorded statement, and secondly, to tide
over immunity from prosecution by the witness under
Section 164. A proposition to the effect that if a
statement of a witness is recorded under Section 164,
his evidence in Court should be discarded, is not at
all warranted …”
The Court also recognized that the need for recording the
statement of a witness under Section 164 CrPC arises when the
witness appears to be connected to the accused and is prone to
changing his version at a later stage due to influence. The relevant
para reads thus:
“16. … During the investigation, the Police Officer
may sometimes feel that it is expedient to record the
statement of a witness under Section 164 Code of
Criminal Procedure. This usually happens when the
witnesses to a crime are clearly connected to the
accused, or where the accused is very influential,
owing to which the witnesses may be influenced …”
28. Considering the conceptual requirement of recording a
statement before a Judicial Magistrate during the course of
investigation and the utility thereof, as prescribed in Section 157
of Evidence Act, it could be observed that a statement under
Section 164, although not a substantive piece of evidence, not
only meets the test of relevancy but could also be used for the
purposes of contradiction and corroboration. A statement
recorded under Section 164 CrPC serves a special purpose in a
criminal investigation as a greater amount of credibility is
attached to it for being recorded by a Judicial Magistrate and not
by the Investigating Officer. A statement under Section 164
CrPC is not subjected to the constraints attached with a statement
under Section 161 CrPC and the vigour of Section 162 CrPC does
not apply to a statement under Section 164 CrPC. Therefore, it
must be considered on a better footing. However, relevancy,
admissibility and reliability are distinct concepts in the realm of
the law of evidence. Thus, the weight to be attached to such a
statement (reliability thereof) is to be determined by the Court on
a case-to-case basis and the same would depend to some extent
upon whether the witness has remained true to the statement or
has resiled from it, but it would not be a conclusive factor. For,
even if a witness has retracted from a statement, such retraction
could be a result of manipulation and the Court has to examine
the circumstances in which the statement was recorded, the
reasons stated by the witness for retracting from the statement
etc. Ultimately, what counts is whether the Court believes a
statement to be true, and the ultimate test of reliability happens
during the trial upon a calculated balancing of conflicting
versions in light of the other evidence on record.
29. In the present case, the statements of PW-3 and PW-4 were
recorded by the Judicial Magistrate on 09.10.2003 i.e. almost 25
Criminal Appeal No. 122 of 2013 Page 20 of 29
days after the incident. Thus, their statements were recorded after
the passage of a considerable time and could not be termed as
hasty statements as there was sufficient cooling period for the
witnesses to think over and contemplate the consequences of
their statements. During this entire period, both PW-3 and PW-4
remained with their family and it is not their case that they were
kept under influence or were tutored during this period.
Pertinently, PW-1 has also deposed that on certain occasions,
PW-3 had accompanied the deceased Devaki to her maternal
home, which indicates that PW-3 had a sense of attachment with
the deceased and the same could have been the reason for giving
a statement against her own brother and mother. In fact, the
retraction of these statements by PW-3 and PW-4 before the
Court appears to be a result of tutoring and manipulation as the
said witnesses could have easily been won over by their family
members during the intervening period. Furthermore, the
witnesses have admitted that the statements were signed by them
and there is no suggestion to the effect that the witnesses could
not have understood the statements. The statements have been
certified by the concerned Magistrate to the effect that they have
been read by the witnesses and their consequences have been
explained to the witnesses.
30. PW-3 and PW-4 have deposed that they were under threat
from the concerned Investigating Officer who was present along
Criminal Appeal No. 122 of 2013 Page 21 of 29
with them before the Magistrate. The concerned Investigating
Officer has been examined as PW-8 in the present case and
during his examination, there is not even a suggestion from the
appellants to the effect that he was present along with PW-3 and
PW-4 at the time of recording their statement under Section 164
or to the effect that he had threatened them to give incriminating
statements against the appellants. Furthermore, the concerned
Magistrate could have been examined as a witness in the present
matter to clear the controversy on this aspect and for unexplained reasons, he was never called for examination especially when a completely hostile version was being provided by the witnesses qua the proceedings which were conducted before him. The appellants failed to place any material on record to justify the allegation of threat and as discussed above, the statements of PW-3 and PW-4 recorded under Section 164 CrPC reflected the
correct version of the events that transpired on the fateful day.
31. Having said so, we deem it fit to observe that a statement
under Section 164 CrPC cannot be discarded at the drop of a hat
and on a mere statement of the witness that it was not recorded
correctly. For, a judicial satisfaction of the Magistrate, to the
effect that the statement being recorded is the correct version of
the facts stated by the witness, forms part of every such statement
and a higher burden must be placed upon the witness to retract
from the same. To permit retraction by a witness from a signed
statement recorded before the Magistrate on flimsy grounds or on
mere assertions would effectively negate the difference between
a statement recorded by the police officer and that recorded by
the Judicial Magistrate. In the present matter, there is no
reasonable ground to reject the statements recorded under
Section 164 CrPC and reliance has correctly been placed upon
the said statements by the courts below.
32. Thus, it stands proved from the testimonies of PW-3 and
PW-4 that on the fateful day, the deceased and appellant no. 1
had proceeded to the bus stand to leave for Chandigarh but they
returned back as they could not find any bus. Naturally, despite
the disappointment of not finding a bus, the deceased must have
been happy to have finally found a way to go to Chandigarh along
with her husband. However, after she came back, a quarrel took
place between the appellant no. 2 and the deceased. This was at
around 4 PM, after the return of appellant no. 2 from Dharat.
Thereafter, PW-3 and PW-4 left for picking grass and when they
returned around 6 PM, the deceased was found dead due to
burning. During this interval, only the appellants were at home
along with the deceased. The presence of appellant no. 2 at the
place of occurrence is duly established and the testimony of
DW-1 stands falsified in light of the versions put forth by PW-3
and PW-4. Even otherwise, as per DW-1, appellant no. 2 came
back at 5 PM and incident is stated to be of 6 PM. The courts
Criminal Appeal No. 122 of 2013 Page 23 of 29
below have correctly analyzed this aspect and no case for alibi is
made out.
33. The appellants have urged that the death of the deceased
was suicidal and not homicidal. The reason given for suicide is
that the deceased was frustrated as she could not go to
Chandigarh along with her husband. The reason does not inspire
confidence at all. For, there is no proportionality of this reason
with the drastic act of suicide and even otherwise, on the date of
incident, the deceased and appellant no. 1 had left for Chandigarh
and had to return due to non-availability of bus. Thus, the
deceased had no reason to be frustrated about it as things were
finally moving as per her desire. Furthermore, the deceased was
pregnant at the time of incident and she could not have taken a
drastic step of suicide with a womb in her stomach. On the
contrary, it is not difficult to accept that appellant no. 2 must have
been angry with the deceased for going to Chandigarh and the
quarrel which took place between the deceased and appellant
no. 2, as per PW-3 and PW-4, was consistent with the natural
course of events on the fateful day.
34. So far as the possibility of suicide is concerned, it is
difficult to believe that the deceased managed to procure two
cans of kerosene (5 litres each) on her own for committing
suicide within a time bracket of two hours, that too in the
Criminal Appeal No. 122 of 2013 Page 24 of 29
presence of the appellants in the house. It is equally difficult to
believe that the deceased poured almost 9 litres of kerosene on
herself, put herself on fire and kept on burning till her body
suffered 100% burns, without the appellants getting a whisper
about the same despite being present in the same house. If it was
indeed a case of self-immolation, the appellants must have done
something to save her and her body would not have suffered
100% burns. This fact assumes greater gravity when it is seen
that the room was not bolted from inside and was open for access.
Thus, the conduct of the appellants, previous to and at the time
of the incident, pointed in an incriminating direction.
Furthermore, as per the testimonies of PWs, no smell of kerosene
could be detected at the place of occurrence or in the body of the
deceased which is not consistent with the allegation of selfimmolation
using an enormous quantity of kerosene.
35. Yet another circumstance which merited an explanation,
and could not be explained by the appellants, was the presence of
fresh injury and abrasion marks on the faces of the appellants at
the time of their arrest. Both the appellants tried to explain away
the presence of injuries/marks by stating that they occurred due
to scorching. Although, the investigating officer ought to have
ensured the conduct of medical examination of the fresh
injuries/marks, however, the reason stated by the appellants is
completely incredible. The appellants were residing in the same
Criminal Appeal No. 122 of 2013 Page 25 of 29
area and if at all the marks were due to scorching, they could not
have been fresh marks. The only inference which could be drawn
from the presence of fresh injuries is that there was physical
resistance from the deceased when she was being set ablaze. It
could not have been explained away in this manner.
36. Equally questionable was the subsequent conduct of the
appellants. The conduct of the appellants in the aftermath of the
incident was unnatural and does not exonerate them in any
manner. The deceased, as per the versions of PW-3 and PW-4,
was dead by the time they returned i.e. around 6 PM. As per
DW-1, the deceased had put herself on fire when she returned
with appellant no. 2 from Dharat at around 5 PM. Irrespective of
whether the time of death is taken as 5 PM or 6 PM, the fact
remains that intimation of death was not given to the family
members of the deceased before 8 PM (as per PW-5 and 9 PM as
per the FIR), and in the interim, no complaint whatsoever was
given by the appellants to the local police. Moreover, no effort
was made by the appellants to provide medical attention to the
deceased or to take her to any nearby hospital. The appellants
were found to be sitting outside the house when PW-2 and PW-5
reached. That the appellants chose to remain silent in their house
for over two hours, despite witnessing that the deceased had
completely succumbed to burn injuries, goes on to show a
completely unnatural conduct and points in the direction of their
Criminal Appeal No. 122 of 2013 Page 26 of 29
guilt. Moreover, instead of taking measures to take legal or
medical assistance without loss of time, the appellants were
actually tampering with the scene of crime, as discussed in the
following para.
37. The evidence has revealed that the scene of crime was
actually found to be altered by the time the Investigating Officer
and the PWs reached the spot. The presence of two kerosene jars
of 5 litres each, presence of grass on the body of the deceased,
sprinkling of water on the quilt, placement of body between two
unburnt coats etc. are the circumstances which indicate the
alteration of the crime scene by the appellants in order to shield
themselves from suspicion. Since the deceased had suffered
100% burns, the water could not have been poured to save the
deceased from burns and must have been poured afterwards to
demonstrate that they had made efforts to save her. If water was
indeed poured at the time of burning, the deceased ought not have
suffered 100% burns from top to bottom and the act of pouring
the water later on the quilt clearly amounts to manipulation of
evidence. The findings on this count also remain unchallenged
and are not open to any doubt.
38. Thus, we may observe that the circumstantial evidence
available on record appears to be consistent and does not leave
much scope for the innocence of the appellants. The
Criminal Appeal No. 122 of 2013 Page 27 of 29
circumstances overwhelmingly point in the direction of guilt of
the appellants and the cumulative effect of the circumstances has
been analyzed correctly by the courts below. An alternate
possibility is not in sight. To add to it, the evidence of PW-7 also
states that it was not possible for the body to sustain 100% burns
in the case of suicide or self-immolation and this opinion finds
support from other evidence on record. Therefore, this opinion
has been appreciated by the High Court and Trial Court in correct
context.
39. Once the entire evidence led by the prosecution is
examined collectively and comprehensively, the only possibility
that emerges is of the guilt of the appellants. The appellants have
attempted to raise questions regarding the evidence of PW-7 and
PW-3/PW-4 for various other isolated reasons. However, as
discussed above, in order to arrive at the true picture, the
evidence adduced before the Court is to be examined as a whole
and not in isolation. This principle assumes greater importance in
cases which are based on circumstantial evidence as in the
absence of direct evidence of the offence, the Court is required to
analyze the proved circumstances in a collective sense so as to
arrive at a reasonable finding. In such cases, the finding of the
Court is essentially an irresistible inference which is drawn from
the proved material on record.
Criminal Appeal No. 122 of 2013 Page 28 of 29
40. We have also examined other grounds such as the delay in
registration of FIR, however, we are unable to find any merit in
the same. PW-2 was informed about the incident at night on
14.09.2003 and as soon as he received the information, he
travelled to the appellants’ village. Thereafter, he went to lodge
a complaint, but the Patwari was not available at night, which is
quite understandable as it was late. The complaint was lodged the
very next day. Even otherwise, it could take a reasonable time for
a family member to process the news of a tragic death and as long
as the delay is not unreasonable or suspicious, any delay in the
lodging of complaint would not be of much consequence,
especially when other evidence is of incriminating value.
41. In light of the foregoing discussion, we are of the
considered view that the Trial Court and High Court have
correctly appreciated the evidence on record. We are unable to
find any infirmity in the findings of the courts below and the
impugned order is sustainable in the eyes of law. In the absence
of a finding of illegality or perversity or impossibility of the
impugned findings, consistent views taken by two courts cannot
be disturbed on mere conjectures or surmises. Accordingly, the
present appeal is dismissed.
42. The appellants, if enlarged on bail, shall surrender before
the concerned Jail Superintendent within two weeks from the
Criminal Appeal No. 122 of 2013
date of this judgment for serving their sentence. Registry to
communicate the order forthwith.
43. The present appeal stands disposed of in terms of this
judgment. Interim application(s), if any, shall also stand disposed
of. No costs.
……………………………………J.
[BELA M. TRIVEDI]
……………………………………J.
[SATISH CHANDRA SHARMA]
NEW DELHI
November 25, 2024
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