Holding

The conviction under Section 302 IPC was set aside because the prosecution failed to establish a complete, unbroken chain of circumstantial evidence beyond reasonable doubt, and the benefit of doubt must be given to the appellant.

Summary

The appellant, Smt. Gargi, was convicted of murdering her husband by strangulation and subsequently hanging his body to simulate suicide, based largely on the testimony of the deceased's brother and sister. The prosecution alleged strained marital relations, illicit affairs, and a property dispute as motive, while the defence asserted a happy marriage and highlighted investigative lapses. The Supreme Court examined the reliability of the key witnesses, the absence of direct evidence, the inadequacy of the alleged dying declaration, and the significance of the time gap between the last sighting and the discovery of the body. It also considered the impact of the acquittal of the appellant's brothers on the prosecution's theory. Finding that the circumstantial evidence did not satisfy the stringent standards required for conviction and that reasonable doubt persisted, the Court set aside the conviction. Consequently, the appellant was acquitted and her bail bonds were cancelled.

Issues considered

The prosecution must prove the appellant's guilt beyond reasonable doubt based solely on circumstantial evidence.
Whether the statements of the deceased to his brother and sister constitute admissible dying declarations.
Whether the 'last seen' theory creates a presumption of guilt under Section 106 of the Evidence Act.
Whether the acquittal of co-accused (the appellant's brothers) undermines the prosecution's case against the appellant.
Whether investigative lapses and failure to record crucial evidence warrant a benefit of doubt.

Legislation cited

Code of Criminal Procedure, 1973s. 161, s. 173, s. 313
Indian Evidence Act, 1872s. 103, s. 106, s. 32(1)
Indian Penal Code, 1860s. 120-B, s. 302

Subjects

circumstantial evidencemurder convictionbenefit of doubtinvestigation lapsesdying declarationlast seen theorySection 302 IPCconspiracyIndian Evidence ActSection 106forensic pathologymedical jurisprudence

Judgment

[2019] 13 S.C.R. 1 1

SMT. GARGI A
v.
STATE OF HARYANA
(Criminal Appeal No. 1046 of 2010)
SEPTEMBER 19, 2019 B
[A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]
Penal Code, 1860 – s.302 – Conviction under – Prosecution
case was that appellant had killed her husband by strangulation
and with the help of co-accused persons (her brothers), thereafter, C
hanged the dead body in one of the rooms in the house, as if it were
a case of suicide – The matter rested on circumstantial evidence
where, according to the prosecution, the relations of the deceased
(husband) and the appellant (wife) were too strained; the deceased
had stated threat perceptions that his wife might kill him, for she
D
was involved in illicit relations and was desirous of grabbing his
property – PW-7 (brother of deceased) and PW-8 (sister of deceased)
testified in support of the prosecution case – Trial Court convicted
all the accused persons – However, the High Court found that
circumstances brought on record were not sufficient against the
brothers of the appellant and acquitted them but, affirmed the E
findings against the appellant – Appellant filed appeal before the
Supreme Court – Held: Both the Trial Court and the High Court
convicted appellant with reference to the testimony of PW-7 and
PW-8 – A combined look at the testimony of PW-7 and PW-8 brings
to the fore one of the significant facts that there was an ancestral F
house of the family and the same was sold by PW-7 alone and the
sale proceeds were utilised by him in multiple ventures, which resulted
in closure or failure – Appellant had stated categorically that the
property and money were the root of discord in the family and the
same was the cause for family of the deceased to implicate her – G
DW-3 also testified that the deceased had his tense moments because
of money demands of his brother i.e. PW-7 – As per sketch prepared
by PW-3, there was a bathroom-cum-toilet attached with room where
deceased was putting up as per witnesses PW-7 and PW-8 – It belied
the suggestion that deceased was forced to use the washroom of the
H
1
2 SUPREME COURT REPORTS [2019] 13 S.C.R.

A tenant on the ground floor – Trial Court and High Court totally
overlooked these factors – Strong elements of doubts surfaced on
record as regard to the reliability of the PW-7 and PW-8 – Further,
there was no direct and cogent evidence on record that the appellant
was involved in illicit relations or was forcing the deceased to transfer
B property – Other prosecution witnesses did not even remotely indicate
any traces of discord in the relations of the deceased and the
appellant – Insofar as last seen together theory is concerned, the
gap between the point of time when the appellant and deceased
were last seen together (29.04.1997) and when the deceased was
found died (01.05.1997) was not that small possibility of any other
C
person being the author of the crime can be rendered totally
improbable – That apart, the investigating agency and the
prosecution were not forthright – The relevant aspects of crimes
were not investigated properly and relevant witnesses like mother,
daughter and brother-in-law of deceased were not examined –
D Further, investigating agency avoided independent witness in the
investigation – In the circumstances, the benefit of doubt given to
the appellant – Hence, conviction of the appellant u/s.302 set aside.
Allowing the appeal, the Court

E HELD: Alleged last statement of deceased and motive of
appellant
1. A combined look at the testimony of PW-7 (brother of
deceased) and PW-8 (sister of deceased) brings to the fore one
of the significant facts that there had been an ancestral house
F belonging to the family that was sold by PW-7 alone and the sale
proceeds were utilised by him to open a grocery shop, one of the
multiple ventures he had tried, mostly resulting in closure or
failure. The appellant had been categoric in her assertion that
the property and money had been at the root of discord in the
G family and the same had been the cause for the family of the
deceased implicating her. DW-3 has also testified to the effect
that the deceased had his tense moments because of money
demands of his brother i.e., PW-7. Unfortunately, the Trial Court
as also the High Court have totally overlooked these factors and
features hovering over the prosecution story. [Para 24][40-C-D]
H
SMT. GARGI v. STATE OF HARYANA 3

2. Going further deep into the prosecution story, it is clear A
that there is no direct and cogent evidence on record that the
appellant was involved in illicit relations or was forcing the
deceased to transfer the property. It had not been the assertion
of PW-7 or PW-8 that the alleged illicit relations of the appellant
and/or her pressurising the deceased to transfer the property
B
had been the matters of their personal knowledge. No particulars
of any person having illicit involvement with the appellant are to
be found on record. Such assertions have been made by these
witnesses on the basis of the statements allegedly made by the
deceased to each of them individually and at different point of
time. The High Court and the Trial Court have readily accepted C
the suggestions of PW-7 and PW-8 that the deceased made the
statements to them as alleged; and have even labelled the
statement allegedly made to PW-7 as being the dying declaration
of the deceased. Strictly speaking, the alleged statement made
to PW-7 could not have been taken as a ‘dying declaration’ for
D
the reason that at time of making of such statement, the deceased
was not labouring under his imminent death and he was not
recounting the circumstance of the transaction relating to his
death. For the sake of arguments, and on the broad phraseology
of the first part of Section 32 (1) of the Indian Evidence Act, even
if it be assumed that the statement made by the deceased, before E
the cause of death had arisen, or before he had any reason to
anticipate his killing, may also be taken as admissible, such an
alleged statement cannot be directly acted upon without concrete
corroboration. In the present case, what to say of corroboration,
even making of such statement by the deceased appears to be
F
doubtful. [Para 25][41-E-H; 42-A-B]
Last seen theory: Proof and effect
3. On the facts of the present case, it emerges that as per
the version of PW-7, the deceased was lastly in his company on
28.04.1997 when he allegedly expressed his dejection and fear G
as also his plan to return with luggage. The appellant has pointed
out that the deceased was with her in the morning of 29.04.1997
when he pointed out his tour programme commencing that day
with scheduled return on 03.05.1997. It is not in dispute that the
deceased was regularly on tour for longer durations of about two
H
4 SUPREME COURT REPORTS [2019] 13 S.C.R.

A weeks in connection with his duties. The dead body was recovered
on 01.05.1997 and as per post-mortem report, the probable time
that had elapsed between death and post-mortem (on 02.05.1997
at 12.30 p.m.) was 24 to 72 hours. On the basis of this opinion, it
cannot be assumed by way of arithmetical calculation that the
deceased might have met with his end on 29.04.1997. The
B
possibility of it being a day later is not ruled out. [Para 28.2]
[44-D-F]
4. In the given set of circumstances, the last seen theory
cannot be operated against the appellant only because she was
the wife of the deceased and was living with him. The gap between
C the point of time when the appellant and deceased were last seen
together and when the deceased was found dead had not been
that small that possibility of any other person being the author of
the crime is rendered totally improbable. [Para 28.3][44-G]
Subsequent conduct of the appellant and other
D circumstances
5. Admittedly, the corpse was emitting foul smell and DW-
8 reached the spot at about 4.30 in the morning though the
appellant had noticed the dead body the previous evening and
had taken steps for informing the concerned through DW-3,
E Surinder Kumar Bhat. In the given circumstances, no fault could
be foisted on the appellant if she did not remain with the dead
body all through and until arrival of PW-8. The expression
‘enjoying tea’ was coined by this witness PW-8 alone and for want
of corroboration and for omission of such a fact in the police
F statement, there appears no reason to accept the same. If at all
anything of subsequent conduct of appellant is to be taken into
consideration, it is evident that she attended her office on
30.04.1997 and 01.05.1997. It is not the case of the prosecution
that during these two days, any abnormality in her behaviour was
noticed by anyone. The appellant neither concealed herself nor
G altered the scene of crime in any manner and there had not been
any evidence about any oddity in her manners and demeanour.
[Para 29][45-D-F]
6. This Court would hasten to observe that merely for the
reason of acquittal of co-accused, another accused in a criminal
H
SMT. GARGI v. STATE OF HARYANA 5

case may not be acquitted if cogent evidence against him is A
available and his case could be segregated from the case against
the acquitted co-accused. However, on the basic facts of the
present case, it is evident that the gruesome act in question had
not been the handiwork of one person and it would be rather
preposterous to assume that the appellant hanged the dead body
B
by ceiling fan all by herself. In the given circumstances, when the
alleged collaborators of the appellant are acquitted, the already
existing clouds of doubts on the prosecution story get congealed.
The High Court has proceeded with over-simplification of the
matter by leaving the missing link as merely a fault of the
investigating agency. In view of this Court, as soon as the brothers C
of the appellant were acquitted, the High Court ought to have
examined the consequence of such acquittal that an important
link in the prosecution theory was snapped and it was difficult to
conclude that the prosecution has established its case against
the appellant beyond all reasonable doubts. [Para 31.1]
D
[46-F-H; 47-A]
The prosecution case not established beyond reasonable
doubt
7. Thus, as regards the circumstances relied upon by the
prosecution, the position obtainable from the material placed on E
record and the surrounding factors is that (a) the death of
deceased was homicidal in nature and had not been suicidal though
it was sought to be projected as suicide by the culprits by hanging
the dead body from a ceiling fan in his room; (b) there is no cogent
and convincing evidence on record to come to a definite conclusion
that the relations of the deceased and the appellant were strained F
or that the appellant was indulgent in illicit relations or she was
insisting for transfer of property in her name; (c) it is also difficult
to come to a definite conclusion that the deceased had expressed
imminent danger to his life at the hands of the appellant; and (d)
even if the deceased was last seen alive in the company of the G
appellant, the time gap between such last seen and finding of his
dead body had been of about 2 to 3 days. [Para 32][47-B-D]
Chandmal and Anr. v. State of Rajasthan: (1976) 1 SCC
621; Sharad Birdhichand Sarda v. State of
H
6 SUPREME COURT REPORTS [2019] 13 S.C.R.

A Maharashtra: (1984) 4 SCC 116 : [1985] 1 SCR 88;
Hanumanth v. State of Madhya Pradesh: AIR 1952 SC
343: [1952] SCR 1091; Pakala Narayana Swami v. The
King-Emperor: AIR 1939 PC 47 – relied on.
Rajkumar v. State of M.P. (2004) 12 SCC 77; Sonvir
B alias Somvir v. The State (NCT of Delhi): (2018) 8 SCC
24 : [2018] 7 SCR 830; Ramesh and Ors v. State of
Rajasthan: (2011) 3 SCC 685 : [2011] 4 SCR 585;
SK. Yusuf v. State of West Bengal : (2011) 11 SCC 754:
[2011] 8 SCR 83; Sawal Das v. State of Bihar: (1974) 4
SCC 193 : [1974] 3 SCR 74 – referred to.
C
A Text Book of Jurisprudence by B.W. Paton, Fourth
Edition, Page 598 – referred to.
Criminal Law by C.S. Kenny – referred to.
Modi: A textbook of Medical Jurisprudence and
D Toxicology – referred to.
Case Law Reference
(2004) 12 SCC 77 referred to Para 8.5
[2018] 7 SCR 830 referred to Para 8.5
E [2011] 4 SCR 585 referred to Para 8.5
[1974] 3 SCR 74 referred to Para 8.5
(1976) 1 SCC 621 relied on Para 13.2
[1985] 1 SCR 88 relied on Para 13.3
F [1952] SCR 1091 relied on Para 13.3
AIR 1939 PC 47 relied on Para 25
[2011] 8 SCR 83 referred to Para 28.3
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
G 1046 of 2010.
From the Judgment and Order dated 05.03.2008 of the High Court
of Punjab and Haryana at Chandigarh in Crl. Appeal No. 359-DB of
1998.
Nidhesh Gupta, Sr. Adv., Tarun Gupta, Ms.Vriti Gujral, Ms.Pallavi
H Singh and Ms.Japneet Kaur for Ms.S.Janani, Advs. for the Appellant.
SMT. GARGI v. STATE OF HARYANA 7

Anish Kumar Gupta, AAG, Avdhesh Kumar Singh, Chandra A
Shekhar Sumar, Nisarg Chaudhary and Dr. Monika Gusain, Advs. for
the Respondent.
The Judgment of the Court was delivered by
DINESH MAHESHWARI, J. B
Preliminary
1. This appeal by special leave is directed against the common
judgement and order dated 05.03.20081 whereby, the High Court of Punjab
and Haryana at Chandigarh has partly affirmed the judgment and order
dated 09.06.1998 in Sessions Case No. 63 of 1997 by the Additional C
Sessions Judge, Ambala; and hasupheld the conviction of the appellant
for the offence punishable under Section 302 of the Indian Penal Code
(‘IPC’)even while acquitting the co-accused persons of the charge under
Section 302 read with Section 120-B IPC.
D
1.1. In a brief outline of the material aspects, it may be noticed
that in the present case, the appellant was charged with the
imputationsthatshe killed her husband by strangulation and,with the help
of co-accused persons (her brothers), hanged the dead body in one of
the rooms in the house,as if it were a case of suicide. The matter rested
on circumstantial evidencewhere, according to the prosecution, the E
relations of the deceased (husband)and the appellant (wife) were too
strained; the deceased had stated threat perceptions that his wife might
kill him, for she was involved in illicit relations and was desirous of grabbing
his property. Two of the siblings of deceased, one brother and one sister,
testified in support of the prosecution case. Per contra, the appellant, F
while denying the imputations, took the plea that she was leading a happy
married life with her husband for 18-19 years with two children; and
thatthe brother of the deceased, on whose statement FIR was registered
and who was the prime prosecution witness, was carrying the ill-intentions
to grab the property of her husband and had managed her prosecution.The G
Trial Court convicted all the accused persons while accepting the
prosecution case and rejecting the defence version. In appeal, the High
Court, though found that the circumstances brought on record were not

1
in Criminal Appeal Nos. 341-DB of 1998 and 359-DB of 1998. H
8 SUPREME COURT REPORTS [2019] 13 S.C.R.

A sufficient to bring home the charge of conspiracy against the brothers of
the appellant andacquitted them but, affirmed the findings against the
appellant and maintained her conviction for the offence of murder of her
husband. Hence, this appeal.
The relevant facts and background aspects
B
2. Put in brief, the prosecution case had been that on 01.05.1997,
having received information that a man had committed suicide in House
No. 1297, Sector-15, Panchkula, ASI Amar Singh (PW-9), accompanied
by UGC Bidhi Chand and UGC Baldev Singh, reached the spot at about
11.30 p.m.2, only to find that in the room on the second floor of house,
C the deceased TirlokiNath, husband of the appellant, washanging by neck
with his feet touching the floor. They also found that a pool of blood had
collected near the dead body; and that the dead body was emitting bad
odour. The appellant and her children were in the same house, but on the
first floor.
D 2.1. At about 4.30 a.m. of 02.05.1997, i.e., nearly five hours after
the police having arrived, the complainant BrijBhushanKaul (PW-7),
brother of the deceased, reached the spot with his wife, mother, sister’s
husband and sister Smt. RadhaPuri (PW-8). The complainant made the
statement thatrelationship of the deceased and the appellant was too
E strained due to which, they were residing in separate rooms in the same
house; that the appellant had been ill-treating her husband, which included
restricting his use of bathroom facilities in the same house; that the
deceased had once expressed his fear that the appellant would leave the
gas cylinder open with the intention to kill him; and that the deceased
had also stated that ‘the character of his wife was bad’and she was
F living ‘with bad women’. The complainant also stated that on 28.04.1997,
the deceased came to his house (at AmbalaCantt.) and told him that he
would go to Panchkula and would come back with his luggage as he
was ‘very much fed up and frightened’. The complainant further stated
that in the night of 01.05.1997 at about 11.30 p.m.,he received a message
G that his brother had passed away and thereupon, he arrived at the house
of the deceased accompanied by his mother, wife, sister and brother-in-
law, only to find the deceased in the condition as described hereinabove.

2
At what time did the police and the complainant receive this information, by which
mode of communication, and through whom, are some of the questions having bearing
H in this matter, as shall be noticed hereafter later.
SMT. GARGI v. STATE OF HARYANA 9
[DINESH MAHESHWARI, J.]

While concluding, the complainant stated his suspicion that the appellant A
hadmurdered his brother becausethedeceased had not transferredhis
house as per her demands.
2.2. For the incident in question, FIR No. 174 dated 02.05.1997
was registered on the basis of the statement so made by the complainant.
In the preliminaries, the inquest report (Ex. PH/2) was prepared by ASI B
Amar Singh (PW-9); rough site sketch (Ex. PM) was prepared;
photographs were taken by the photographer Shashi (PW 11); and the
dead body was sent for post-mortem. Thereafter, the investigation was
taken over by Inspector Jag Pravesh (PW-10), who recorded the
statements of witnesses, visited the spot,got prepared the scaled site C
plan (Ex. PD) and also arrested the appellant. SI IshwarChander (PW-
12) also partly investigated this case. He arrested and released the brothers
of appellant, who were on anticipatory bail. Thereafter, the appellant
was charge-sheeted for the offence punishable under Section 302 IPC
while her brothers were charge-sheeted for the offence punishable under
Section 302 read with Section 120-B IPC. D

Prosecution evidence
3. After committal, the case was tried as Sessions Case No. 63 of
1997 in the Court of Additional Sessions Judge, Ambala. The prosecution,
inter alia, examined 12 witnesses. Having regard to the subject matter E
of this appeal and the questions involved, it would be advantageous to
take note of the relevant aspects emerging from the statements of
material witnesses in requisite details, even at the cost of a little inflation.
3.1. PW-1 Dr.UshaBansal, who had been one of the members of
the medical board that had conducted post-mortem of the bodyof F
deceased and had prepared the report Ex. PA,stated the observations
and opinion as follows:
“...A well defined depressed ligature mark measuring 3 cm.
wide seen encircling the neck around the thyroid cartilage
with a knot present on left side of neck. This ligature mark G
was ante-mortem in nature. A ligature mark above the thyroid
cartilage going obliquely upward and posteriorly on left side
present with an irregular impression of knot on left side of
the neck measuring 1.5 cm wide present. This ligature mark
was of post-mortem nature....
H
xxx xxx xxx
10 SUPREME COURT REPORTS [2019] 13 S.C.R.

A In our opinion, the cause of death was asphyxia due to
strangulation...The probable time that elapsed between injury
and death was few minutes and between death and post-
mortem was 24 hours to 72 hours.....”
3.2. PW-7 BrijBhushanKaul (brother of the deceased)has been
B the prime witness of prosecution in this case. The relevant assertions
occurring in his examination-in-chief readas under: -
“…..Upto Dec., 1997 I remained at AmbalaCantt.TirlokiNath
used to visit AmbalaCantt and was always found by us to be
disturbed, because of the family problem. TirlokiNath told us
C that hewas shifted to a separate room at the top floor of the
house and that he was not provided any article of food and
was being mal-treated by his wife Smt. Gargi Devi. He also
told many a time that he was never allowed to enter the room
and toilet by his wife at night times. TirlokiNath deceased left
our house at AmbalaCantt lastly on 28.4.1997, around 7.45
D AM and while leaving, told that it was his last time to go to
Panchkula to collect his belongings and then would be coming
to AmbalaCantt for ever. On this, I asked him as to why he
was taking this step. He told me that he was very much upset
due to the illicit relations of his wife Smt. Gargi Devi and was
E afraid of that if he stayed in the same house at Panchkula, he
could be murdered, with the help of her three brothers…On
this I told him that it was not possible because a wife cannot
kill her husband. However, while leaving our house,he was
totally shattered. TirlokiNath used to take tea only in his room
at the top floor of the house, using his independent cylinder
F in his room. He was not provided even tea by Smt. Gargi and
the children. He told me that once his wife had opened the
gas cylinder in order to kill him…..I was on tour on 1.5.97. I
came back to my house at Ambala late in the night at about
11.30 PM. Immediately thereafter, I got a message from my
G neighbour, namely Mr. T.R. Malhotra giving me the message
that his(sic) brother TirlokiNath at Panchkula was no more,
as he received this information from some colleague of my
brother.(Objected to). My brother was murdered. At that time,
it was not clear by whom. Thereafter, I gave telephonic
messages to my relatives regarding the murder of my brother.
H
SMT. GARGI v. STATE OF HARYANA 11
[DINESH MAHESHWARI, J.]

So, I alongwith my brother-in-law Mr. A.C. Puri, my sister A
Smt. RadhaPuri, my mother Smt. Raj Kumari, my wife
Meenakshi went to Panchkula.On our reaching at Panchkula,
we found two ASIs sitting outside the house of Smt. Gargi. On
my enquiry, as to what had happened to my brother, I was
told that I should go up-stairs and found out myself. We all
B
went up-stairs and found the dead body of TirlokiNath hanging
with a fan. The feet of my brother were touching the floor.
Blood was noticed on the floor.The body was giving bad odour.
I reported the matter to the police vide statement Ex. PH. It
was signed by me.…….”
3.2.1. This witness PW-7, in his cross-examination on behalf of C
the appellant,stated, inter alia, as under:-
“It is correct that I was 1½ years old when my father died.
TirlokiNath was the eldest son of the second marriage of my
mother.…..There are two brothers and two sisters from the
second marriage of my mother. My father died as told, due to D
cancer at Delhi, in the year 1961. It is incorrect to suggest
that TirlokiNath deceased had brought up all the children of
my mother from both the marriages. ….He bore expenses for
some time regarding my education etc. The marriage of my
brother TirlokiNath was performed about 19-20 years E
ago.….My mother is having no source of income except the
family pension due to my father’s death and some rental income.
My mother had given on rent a house situated in Adarsh
Nagar, AmbalaCantt. I joined Navy in the year 1978. I was
married in the year 1984. It is incorrect to suggest that all the
expenses of my joining the service and on my marriage were F
borne by my brother TirlokiNath. Since I was attached to my
mother very well, I left my Navy job. TirlokiNath after his
marriage with Smt. Gargi probably in the year 1978, left my
mother alone and started living separately and so this was
the main reason that I left my Navy job in the year 1980. It is
wrong to suggest that I was involved in some case in the Navy G
and the police was after me and I absconded and left my job.
After leaving Navy, I joined ForbesForbes, Camp Bell &Co.
Ltd. at Jammu in the year 1981 or 1982 as Sales Executive……
I never took my mother to Jammu because I started my
business at Karnal and opened a kiryana shop. It is wrong to H
12 SUPREME COURT REPORTS [2019] 13 S.C.R.

A suggest that I committed a fraud at Jammu and my services
were terminated and thereafter I started a kiryana shop at
Karnal. It is correct that the house in Adarsh Nagar,
AmbalaCanttwas sold and the proceeds of that house were
utilised by me in opening a kiryana shop at Karnal. My mother
started living with me at Karnal. It may be that the house was
B sold in the year 1980 and the sale proceeds were utilised by
opening a kiryana shop, which was closed by me,because I
did not like that business. After winding up my kiryana shop,
I came to AmbalaCantt and settled with my mother. It is wrong
to suggest that I misutilised the amount and so was having no
C option except to close the business and come back to
AmbalaCantt.……I have been serving as Manager in hotels,
namely Hide Out Tourist Complex, Palwal and Standard Hotel,
AmbalaCantt…. I was working with Camlin Ltd. Bombay but
was posted at Ludhiana as Sales Promotion Organizer (North)
for a period of about 3½ years. It is wrong to suggest that I
D committed a fraud at Ludhiana and my services were
terminated accordingly. It is incorrect to suggest that I have
been getting different Jobs with the efforts of TirlokiNath
deceased alone. I joined Veeto Hobbies Ambala for some time
as Manager Marketing. It is wrong to suggest that I also
committed a fraud and so my services were terminated.….I
E started my factory at AmbalaCantt. That factory was closed
after two years.…..It is correct that I obtained bank loan for
running my factory but not due to the efforts of TirlokiNath.
There was no surety. It is incorrect to suggest that I pressurized
Smt. Gargi to stand as a guarantee against bank loan, and
F on the refusal of Smt. Gargi, my brother TirlokiNath stood as
a guarantee. I have made payment of loan more than half the
amount taken by me.….
…..It is incorrect to suggest that one Mr.Narang had filed
civil suit against me and the company and which case was
G won by me. It is incorrect to suggest that Mr.TirlokiNath had
made payment to Mr.Narang and got the matter settled.
TirlokiNath might have come ten days, fifteen days prior to
28.4.1997, as he was constructing a house at AmbalaCantt.
He used to complain against the behaviour of his wife. It is
incorrect to suggest that the house was not being got
H
SMT. GARGI v. STATE OF HARYANA 13
[DINESH MAHESHWARI, J.]

constructed at AmbalaCantt by TirlokiNath for himself but A
was being constructed for the residence of the mother ….”
3.2.2. In his further cross-examination on behalf of the appellant,
this witness stated as under: -
“…….There was only one ancestralhouse at Model Town,
Ambala City (Adarsh Nagar). There is no other immoveable B
(ancestral) property.…….I do not know for how many days
TirlokiNath used to remain on tour in a month.It is correct
that he was going on tour oftenly..…On 28.4.97, I went on
tour after meeting my brother…I did not give any telephonic
call to him in the night time of 28.4.97 or even in the day time C
as to why he had not reached AmbalaCantt with his luggage,
as told by him….I never enquired either on 29.4.97 or
thereafter from TirlokiNath for his not coming to AmbalaCantt
with luggage……We talked to the Police officials for about
15 minutes in order to know the facts of the case. Thereafter
we went up-stairs, and started weeping and crying. 2/3 ladies D
two brothers of Smt. Gargi, one uncle of Smt. Gargi,and aged
person were present at the time, when we reached. The
children of Gargi were also present there at the first floor. No
person was sitting with the dead body of TirlokiNath at the
time we had gone there-(volunteered). In the morning time
about 25 persons fromthe neighbourhood had also come E
there, after my statement was recorded by the ASI.…..I do not
know whether the tenants on the ground floor came in the
year 1990 and litigation with them started in the year 1991….I
do not know whether the house atPanchkula was constructed
with the joint income of TirlokiNath and Smt.Gargi….It is F
incorrect to suggest that I was after TirlokiNath to get money
even after pledging the house. It is incorrect that there was
any pledging of the house in question and there was any
opposition from Smt. Gargi in this regard….It is incorrect to
suggest that in order to grab the house, I have falsely named
the accused in this case...”. 3 G

3
There had been further cross-examination of this witness PW-7 on behalf of the other
accused persons where he was, inter alia, confronted with his police statements which
did not carry some of the assertions made in the Court. However, all the major aspects
of his testimony having occurred in the extraction hereinabove, the other parts of his
testimony in further cross-examination are not being extracted. H
14 SUPREME COURT REPORTS [2019] 13 S.C.R.

A 3.3. PW-8RadhaPuri (sisterof the deceased) purportedly
corroborated the testimony of PW-7. The relevant parts of her
assertionsin the examination-in-chief could also be usefully extracted as
under:-
“…..TirlokiNath had come to Yamuna Nagar on 25.1.1997
B and met us. He was very much disturbed and upset at the
time. He told me that there used to remain tense situation at
every time in the house because Smt. Gargi wanted that the
house at Panchkula should be got mutated in the name of
Smt. Gargi. He further was told that he was afraid of Smt.
Gargi and her brothers and he apprehended danger to his
C life….He stated that he was residing in a room at the top floor
of the house and was getting meals from the Hotel. TirlokiNath
had stated that 2/3 times, he was attacked by Smt. Gargi and
the children and that he had saved himself some-how or other.
TirlokiNath stated that Smt. Gargi was having illicit relations
D and she never told where she used to go. He stated that on an
enquiry from Smt. Gargi, she always replied that he was having
no concern to ask such questions. According to TirlokiNath,
he was not allowed even to use bath-room facility. He was
using bath-room of the tenants on the ground-floor. However,
we pacified him. We were never allowed to visit our brother
E TirlokiNath at Panchkula by Smt. Gargi.
On 1.5.97, I came to know through my brother BrijBhushan
that TirlokiNath had committed suicide. He told that as per
the information, the neighbourers at Panchkula told that
TirlokiNath had committed suicide. So, I alongwith others
F reached Panchkula, and saw Smt. Gargi, her brothers and
sisters enjoying tea at the second floor of the house. I thought
that my brother had gone to Hospital and was saved and that
was the reason that they were enjoying the tea. Thereafter,
the police came and we went up-stairs, where the dead body
G of TirlokiNath was found hanging with a ceiling fan.…. I
suspect that Smt. Gargialongwith her brothers had murdered
my brother TirlokiNath.”
3.3.1. In her cross-examination on behalf of the appellant, this
witness PW-8RadhaPuri stated, inter alia, as under: -
H
SMT. GARGI v. STATE OF HARYANA 15
[DINESH MAHESHWARI, J.]

“On 1.5.97, at night time about 11 PM, I was sleeping and A
my husband awoke me and told after hearing the telephone
that TirlokiNath was no more in the world and started
weeping….. I myself, my husband, my brother BrijBhushan,
and his wife and my mother then went to Panchkula during
night time…..Some police officials were sitting at the entrance
B
of the gate of the house. ….Firstly we went to first floor, where
we saw Gargi, her brothers, children and relatives to whom I
do not know. There was no person from the mohalla, where
the policemen were sitting. …..I do not know whether house
No. 1297, Sector 15, Panchkula was built out of the joint
income of Smt. Gargi and her husband TirlokiNath. I do not C
know whether Gargi had taken any amount by way of
advance from the Govt. or not.
……….I do not know whether Smt. Gargi and her husband
were having cordial relations or not in the year 1994, when I
visited her because I stayed there for a night and did not talk D
much, as the friend of Smt. Gargi and her children alongwith
her husband had come there. I do not remember the names or
antecedents of those persons. On 25.1.1997 when my brother
TirlokiNath had come to Yamuna Nagar, I found him very much
disturbed and he talked to me regarding the behaviour of
Smt. Gargi. I was alone. I narrated the facts to my husband in E
between the period from 25.1.97 to 1.5.97. I did not tell the
aforesaid facts to anyone else. It is incorrect to suggest that
BrijBhushan my brother was helped in his education, service
and in his up-bringing by TirlokiNath deceased. It is correct
that the ancestral house was sold by my brother BrijBhushan. F
However, it is wrong to suggest that he misappropriated the
sale proceeds of the house. I do not know when the house
was sold. I do not know whether TirlokiNath was having any
plot in AmbalaCantt or not. Again said, the plot at
AmbalaCantt is in the name of my mother. Again said, I cannot
say exactly in whose name it is…It is correct that I did not G
make any verification from any quarter regarding illicit
relations of Smt. Gargi, as told by my brother TirlokiNath. I
believed my brother what TirlokiNath stated to me regarding
the ill-treatment meted to him from Smt. Gargi. This was also
H
16 SUPREME COURT REPORTS [2019] 13 S.C.R.

A told by my mother. My brother had told all about this to all
the family members(sic).….I enquired from Vaishali daughter
of TirlokiNath as to how TirlokiNath had died. She did not
tell even a word, though I was crying throughout. Vaishali
told me as to why we had come there because we were not
called there..…...”4
B
3.4. ASI Amar Singh led in evidence as PW-9. He hadarrived at
the spot after having received the information about the death of
TirlokiNath. As regards the mode and time of receiving information, this
witness stated that “a telephonic message was received that one
person in House No. 1297, Sector 15, Panchkula had committed
C suicide. This information was received at 11.15 PM.” In his cross-
examination, PW-9 stated, inter alia, as follows:-
“…Smt. Gargi and her children were on the first floor of the
house, whereas the dead body was on the top floor of the
house. I did not record the statement of Smt. Gargi and her
D children. I have been making formal investigation before the
arrival of complainant etc. I have not kept any record qua
the formal investigation. The neighbourers did not come to
the spot, though they were found by me standing in the street.
I did not call any one. I have been giving information to the
E officers on telephone.…..I did not join any independent witness
from the locality…”
(underlining supplied)
3.5. Inspector Jag Parvesh, who carried out major part of
investigation, was examined as PW-10 and stated in his examination-in-
F chief that he reached the hospital on 02.05.1997 where he was handed
over the statement EX.PH as made by PW-7; the inquest report Ex.PH/
2prepared by PW-9; and the post-mortem report EX.PA. He drew up
the necessary proceedings; recorded statements under Section 161 of
the Code of Criminal Procedure Code (‘CrPC’); collected blood from
G the spot; and arrested the appellant. In his cross-examination, this
Investigating Officer stated, inter alia, as under: -
4
There had been further cross-examination of this witness also on behalf of the other
accused persons where she was, inter alia, confronted with her police statements
which did not carry several of the assertions made in the Court. However, all the major
aspects of her testimony having occurred in the extraction hereinabove, the other parts
H of her testimony in further cross-examination are not being extracted.
SMT. GARGI v. STATE OF HARYANA 17
[DINESH MAHESHWARI, J.]

“…….I made verification from the locality regarding the A
character of Smt. Gargi but did not record any statement. I
do not remember the names of those persons.
I verified from 5/10 persons of mohalla. I did not mention this
factum in the report u/s 173 Cr.PC. Report was prepared by
the then SHO. …I interrogated Gargi accused while in custody. B
She had told that she was innocent and had not committed
any offence…Gargi accused had told me that she was not
having any dispute with her husband and was having cordial
relations. I joined the children of Gargi accused in my
investigation. I have not recorded their statements and as
such,no record is there. The interrogation of Gargi was C
recorded in the zimini. I did not take finger prints from the
rope. I had not at all taken finger prints from any other place
where the dead body of TirlokiNath was found. However,
Finger Print Expert visited the place. None has told me that
BrijBhushan complainant used to harass Gargi and D
TirlokiNathto extract money from them. It is correct that the
stairs in the house are outside the door. If the door is closed,
none can notice who is coming down and who is coming up.
I investigated regarding the visitors in the house during the
3/4 days prior to the 2.5.97 and I had come across one Pandit
who visited that house during this period. Smt. Gargi told E
that one Pandit was brought for performing Havan. I made
verbal enquiries from the neighbourhood. ……
……I had recorded statements of other witnesses i.e. mother,
sister and brother-in-law of deceased in the hospital. …There
is a direct stair case from the ground floor to the top floor of F
the house of Gargi and one can go upstairs and come down
stairs without entering any room on the first floor…..”
(underlining supplied)
3.6. PW-2 H.S. Narula, the Deputy Manager, Oriental Insurance G
Company, Sector 22, Chandigarh was examined by the prosecution to
testifythat the deceased was working in his Company as Assistant
Administrative Officer, who lastly attended the Office on 28.04.1997. In
his cross-examination, this witness admitted the fact that deceased
TirlokiNath used to remain on tour for about two weeks in a month.
H
18 SUPREME COURT REPORTS [2019] 13 S.C.R.

A 3.7. PW-3 ManoharLal, who was working as a constable in S.P.
Office, Ambala drew up thesite plan Ex. PD of the place where the
body of deceased was found. In his evidence, PW-3 pointed that there
was a bathroom-cum-toilet, attached with the room on the second floor.
The site plan of second floor (Ex. PD) shows about 10 feet x 3 feet
B space marked as bath/toilet.
3.8. PW-4 SantLal Gupta, the then Assistant Audit Officer, AG
Audit, Punjab, Chandigarh testified to fact that the appellant was working
as Senior Auditor in his office; that she was on casual leave on 28.04.1997
and 29.04.1997; and that she attended the office on 30.04.1997 and
C 01.05.1997. In his cross-examination, this witness expressed want of
knowledge if the appellant often used to come to the office with her
husband and used to leave after office hours with her husband. This
witness also stated that ‘no complaint was received from the side of
husband of Smt. Gargi or any other relation of husband of Smt.
Gargi against Smt. Gargi’.
D
3.9. The other witnesses examined by the prosecution had been
PW-5 Head Constable Ramesh Kumar; PW-6 UGC Baldev Singh; PW-
11 Shashi, who took the photographs at the site; and PW-12 SI
IshwarChander, who also partly investigated the case.

E 4. On behalf of the appellant, several features of the prosecution
evidence have been highlighted with the contentions that there had been
stark inconsistencies, contradictions, improvements and twists in the
testimonies of PW-7 and PW-8; and that there had been several failings
in the investigation. We shall refer to these features and contentions
hereafter a little later.
F
Defence Version and Evidence
5. The appellant in her statement under Section 313 CrPCstated,
inter alia, that her husband had informedabout his going on a tour on
29.04.1997; and that she had taken casual leave on 28.04.1997 and
G 29.04.1997 on account of herill-health. She also stated that she and her
husband were having cordial relationship and would share the bed with
their son. She also stated that the case against her was a motivated one
and that she was not guilty of committing the murder of her husband.
Some of the answers given by the appellant in her statement under Section
313 CrPC may be usefully extracted as under:-
H
SMT. GARGI v. STATE OF HARYANA 19
[DINESH MAHESHWARI, J.]

“Q:5 It is further in evidence against you that TirlokiNath A
used to reside at the top floor as you have not allowed him to
reside with you and your children. He was using independent
cylinder in his room to prepare tea and he had further told
that once you had opened the gas cylinder in order to kill
him. What have you to say?
B
Ans: It is incorrect. He was residing with the family on the
first floor. I and my husband have one common bed room and
my son Vaibhav was also sleeping with us in the same bed
room.
The top floor was never used for residence purposes. The C
same was being used as a store & for some time a family
friend used to stay there.
Q:6 It is further in evidence against you that on the night of
1.5.1997 at about 11.30 p.m. BrijBhushan PW received a
message that his brotherTirlokiNath at Panchkula was no more
and that he was murdered. He gave a telephonic message to D
his relatives and healongwith his brother in law A.C. Puri,
Sister Smt. RadhaPuri, mother Raj Kumari and his wife
Meenakshi went to Panchkula and found two ASI were sitting
outside the said house. What have you to say?
Ans: It is incorrect. I advised Mr.Bhutt a colleague of deceased E
TirlokiNath to telephonically inform all the relations and
friends and Mr.Bhutt gave the information of death
toMr.BrijBhushan.
*** *** ***
F
Q:8 It is further in evidence against you that the police of
P.S. Sector-19 Panchkula received an information regarding
that the dead body of TirlokiNath was hanging with the ceiling
fan in House No. 1297/15,Panchkula. ASI Amar Singh
alongwith other police officials reached the spot and informed
the relatives of the deceased. He also summoned the G
photographer, who took snaps of the spot. Negatives are Ex.
P6 to Ex. P8 and positives are Ex. P9 to Ex.P11.
Ans: It is incorrect. In fact, the police did not reach the spot
but was brought by Mr.Bhutt.
*** *** *** H
20 SUPREME COURT REPORTS [2019] 13 S.C.R.

A Q:12 It is further in evidence against you that TirlokiNath
deceased attended his office on 28.4.1997. Thereafter he did
not come to the office and you remained on casual leave on
28.4.1997 and 29.4.1997 and attended the office on
30.4.1997 and 1.5.1997. Letter to this effect is Ex.PE. What
have you to say?
B
Ans: It is incorrect. However, on 29.4.97 morning my husband
informed me that he was to go on tour and would be back on
3.5.97, in the evening &he would go to Ambala also before
coming to Chandigarh/Panchkula. I was sick on 28 th& 29th
April, 97.
C
*** *** ***
Q:15 Why this case has been made against you and why the
witnesses are deposing against you?
Ans:- This is a false case and PWs have deposited(sic) falsely.
D The case has been made up at the instance of BrijBhushan
who wanted to grab the property of my husband.
Q: Do you want to say anything else?
Ans:- I am innocent. I have been falsely implicated in the
case by BrijBhushan& his sister who wanted money from me
E
at the time when I was taken by the police in the morning of
2.5.97.”
5.1. Four witnesses were examined in defence. One of the relevant
witness had been DW-3 Surinder Kumar Bhat, said to be a family friend
and colleague of the deceased. The relevant assertions of this witness in
F
the examination-in-chief read as under: -
“I knew TirlokiNath deceased for the last about 18 years. I
belong to J&K State. TirlokiNath was also of that place. So, I
knew him well. He was working in our office but at the time
of death, he was in Sector 22 branch of our Insurance Co. in
G Sector 22, Internal Audit cell of our Insurance Co. is located
where deceased was working at the time of death. The house
of TirlokiNath is at a distance of 1½ furlongs from my house
in sector 15, Panchkula. I was having friendly as well as
homely relations with TirlokiNathdeceased. I know Smt. Gargi
H
SMT. GARGI v. STATE OF HARYANA 21
[DINESH MAHESHWARI, J.]

accused present in the court. She is the wife of TirlokiNath A
deceased. Whenever I visited the house of TirlokiNath, I always
found cordial relations between TirlokiNath and Smt. Gargi
Devi. TirlokiNath never complained as a friend to me against
Smt. Gargi. So far as I can say, Smt. Gargi is enjoying a good
reputation in the Mohalla. I know BrijBhushan, the younger
B
brother of TirlokiNath deceased. TirlokiNath used to remain
disturbed because his younger brother always demanded
money from him. I know that TirlokiNath deceased had helped
BrijBhushan in getting some employment for BrijBhushan in
J&K State about 9 years back with great efforts. We have
formed a society known as General Insurance Employees C
Cooperative Thrift and Earner Society. I am the Vice President
of the said society. TirlokiNath in mid April, 1997 met me
alongwith his brother BrijBhushan and wanted some loan from
our society. But I could not help due to certain obligations,
which could not be met with. I came to know at 6.30 – 7 PM
D
on 1.5.97 that TirlokiNath had committed suicide. I went to
the house of TirlokiNath. There were many persons collected
then. I went to Police Station, Industrial Area, Panchkula to
report the matter at 9.30 PM on 1.5.97. Smt. Gargi after my
meeting with her, gave me telephone numbers for giving
information to the relations of TirlokiNath deceased at Ambala. E
At about 11 PM, the information was conveyed to BrijBhushan
who reached Panchkula at 4 AM on 2.5.97. Two-three police
officials camealongwith me at the residence of TirlokiNath
deceased…..I remained throughout the night of 1.5.96(sic)
and left for my house at 6.30 AM on 2.5.97. No photographer
F
came there in my presence. I did not notice any gas cylinder
in the room where the dead body of TirlokiNath was found.
The house of TirlokiNath is two storeyed building having
ground floor in addition. Some tenant was residing at the
ground floor at the time TirlokiNath had died. That tenant
has not vacated the house, though not residing now. There G
are outer stairs upto second storey and one can go up-stairs
without entering into the ground floor and first floor. There is
gate of grills in between ground floor and first floor. It is
correct that the lock of the gate can be opened from both the
sides viz. from inside as well as from out side…..”
H
22 SUPREME COURT REPORTS [2019] 13 S.C.R.

A 5.1.1. This witness was thoroughly cross-examined by the
prosecution where he stated, inter alia, as under:-
“I treat Gargi accused as my Bhabi being wife of my deceased
friend-TirlokiNath. We have kept complete record of our credit
society. TirlokiNath did not give any application in writing
B for raising loan from our society….. It is incorrect to suggest
that deceased alongwithBrijBhushan never came to me for
any demand of loan a month prior to the occurrence and I
am deposing falsely just to support accused…..I have not kept
any slip where I noted down the telephone numbers of Ambala
for information the relations of TirlokiNath deceased…….It
C is correct that if the gate in between first floor and ground
floor is locked from both sides, no one can go up-stairs. At
the time I reached the house of TirlokiNath, the gate was open
and people were coming and going from there. No one told
that the lock or bolt of the grill gate of upstairs was broken
D by some one. It is also correct that TirlokiNath with my
assistance succeeded in getting employment for his brother
BrijBhushanin J&K State about nine years back. This he did
being a brother. I did not help BrijBhushan thereafter. …..It
is incorrect to suggest that TirlokiNath deceased was residing
all alone in the upper room of the house and was not residing
E with his family members. In fact, he was residing with his family
members on the first floor. It is incorrect to suggest that Smt.
Gargi was harassing her husband unnecessarily with the help
of her brothers on one pretext or the other……”
5.2. DW-4 AkhileshBhatnagar, Assistant, Oriental Insurance
F Company, Chandigarh was examined in relation to the tour programme
of the deceased TirlokiNath from 06.01.1997 to 31.01.1997 and the hotel
expenses bills paid by the Company, which show that the deceased was
at Karnal from 14.01.1997 to 01.02.1997. The testimony of other
witnesses DW-1 and DW-2 is not relevant for the purpose of this appeal
G as they were examined in relation to the plea raised by the co-accused
persons as regards their employment.
The Trial Court found all the accused persons guilty
6. The Sessions Court, in its judgment and order dated 09.06.1998,
accepted the prosecution case; and while rejecting the contentions urged
H
SMT. GARGI v. STATE OF HARYANA 23
[DINESH MAHESHWARI, J.]

on behalf of the accused, held that the chain of circumstances was A
established by the prosecution, bringing home the guilt of the accused
persons. The Trial Court,accordingly,convicted them for the
aforementioned offences of criminal conspiracy and murder and awarded
sentence of rigorous life imprisonment together with fine of Rs. 2,000/-
each with default stipulations.
B
6.1. The Trial Courtconcluded that thedeceased was done to death
by way of strangulation,essentially on the basis of medical evidence and
with reference to the position of the hanging dead body and other features
at the spot, like the one that door of the room in question was not bolted
from inside. The finding that the appellant had committed the offencewith
her brothersin the intervening night of 28/29.04.1997got its basis,inter C
alia, in the statement allegedly made by the deceased to PW-7 prior to
his departure from AmbalaCantt. where he expressed fear of his life,as
also in the facts that the appellant had taken leave from her office for
28.04.1997 and 29.04.1997 and that the appellant and her brothers were
not grieving when the body of the deceased was found. D
The High Court affirmed the conviction of appellant while
acquitting her brothers
7. The appeals preferred by the appellant and her brothers against
the judgement and order aforesaid, being Criminal Appeal No. 341-DB
of 1998 and Criminal Appeal No. 359-DB of 1998, before the High E
Court of Punjab and Haryana at Chandigarhwere considered together
and decided by the common judgment dated 05.03.2008. The High Court
held that it had been a case of homicide, essentially with reference to
the medical evidence and the features of the scene of crime. The High
Court also held that the culpability of the appellant stood established in F
view of the circumstances that: (a) when the appellant was sharing the
same bedroom with deceased TirlokiNath, the onus was heavy upon her
to explain the circumstances leading to the death of her husband, which
she failed to discharge; (b) the appellant had the motive to murder her
husband when there were strained relations between them and the
deceased had expressed apprehension to be done to death by the G
appellant; (c) the subsequent conduct of the appellant was also
questionable, where she was found taking tea with her brothers on the
first floor although the dead body of TirlokiNath was hanging by rope in
the Chaubara at the top floor; (d) and the appellant did not send any
H
24 SUPREME COURT REPORTS [2019] 13 S.C.R.

A information to the brothers and other relations of TirlokiNath immediately
after noticing his demise. The High Court, however, rejected the
prosecution case that brothers of the appellant had conspired with the
appellant to carry out the murder and hanging of the deceased TirlokiNath.
Even after rejecting the prosecution case against brothers of the appellant,
and even after finding that the crime in question was not the handiwork
B
of one person, the High Court proceeded to observe that the appellant
was rightly convicted in the matteras the principal offender,though the
investigating agency failed to find out the other persons who were
accomplice in this crime. The High Court also observed that the Trial
Court had discussed threadbare the defence evidence and had rightly
C disbelieved the testimony of DW-3 Surinder Kumar, who was introduced
by the appellant as an afterthought.
7.1. With the aforesaid findings and observations, the High Court
upheld the conviction of the appellant but acquitted her brothers on the
ground that there was no evidence on record to prove the existence of
D any conspiracy to murder the deceased. The High Court, inter alia,
observed and held as follows:
“21. …..TirlokiNath was sharing the same bed room, in which
Gargi Devi used to sleep, as stated by her in her statement
under section 313 Cr. P.C. The dead body of TirlokiNath was
E found hanging in the same house, in the chaubara. Thus,
heavy onus lay on Smt. Gargi to explain the circumstance,
leading to his death. She only stated, in her statement under
section 313 Cr. P.C. that she was falsely implicated, in the
instant case, and that the entire investigation, was at the
instance of BrijBhushan, PW.7. She, therefore, did not furnish
F any explanation, with regard to the circumstances, leading to
the death of TirlokiNath. This clearly proved her culpability.
*** *** ***
23. There were strained relations, between TirlokiNath and
G his wife. From the statement of BrijBhushan, PW-7 and
RadhaPuri, PW-8 it was proved that TirlokiNath was tense
and upset, as he was being ill treated by his wife. It is has
also come in the statement of RadhaPuri, PW-8, that
TirlokiNath was fearful that he would be killed one day. When

H
SMT. GARGI v. STATE OF HARYANA 25
[DINESH MAHESHWARI, J.]

TirlokiNath met RadhaPuri, his sister, and his brother-in-law, A
in Ambala he told them that he was apprehending danger to
his life at the hands of Smt. Gargi his wife. Even, it is evident,
from the statement of BrijBhushan, PW7, that TirlokiNath was
being ill-treated by his wife Smt. Gargi. Even on 28.4.1997 in
the morning when TirlokiNath left the house of BrijBhushan,
B
at Ambala, for Chandigarh, he told him that it was his last
visit to Panchkula, as he would be coming with his luggage,
to permanently settle at Ambala, as he was fearing that he
would be done to death by his wife Smt. Gargi. These last
words spoken by him to his brother, BrijBhushan on 28.4.1997
in the morning, as stated above, fall within the purview of his C
dying declaration. It was on account of the strained relations,
between TrilokiNath has his wife Smt. Gargi that she committed
her murder by strangulating him and thereafter hanged his
body with ceiling fan(sic). Smt. Gargi was definitely having a
motive to commit the murder of TrilokiNath, for the reasons
D
referred to hereinbefore. The motive plays a very significant
role, in case, which is based on the circumstantial evidence.
The culpability of Smt. Gargi, accused is thus proved.
*** *** ***
29. No doubt, it may be said that the commission of crime, in E
this case could not be the handwork of one person only.
SmtGargi might have taken the help of some other persons,
in hanging the body of TirlokiNath, deceased after
strangulating him, but it was not proved as to who those
persons were.As stated above, it was also not proved that
accused ShuhabsTiwari, Ramesh Tiwari and Rajneesh Tiwari F
hatched conspiracy with Smt.Gargi and in pursuance thereof
committed the murder of TirlokiNath. Who were those persons,
was for the Investigating Agency to find out. Even if, the
Investigating Agency, failed to find out those persons, Smt.
Gargi could not absolve herself of the liability. Smt. Gargi G
being the principal offender was rightly convicted and
sentenced for the commission of offence punishable under
section 302 IPC”
(underlining supplied)
H
26 SUPREME COURT REPORTS [2019] 13 S.C.R.

A Rival Contentions
8. Assailing the judgment and order aforesaid, learned counsel for
the appellant has strenuously argued that the appellant has been falsely
implicated in this case by her in-laws, whose main aim was to grab the
property of the deceased, while the actual culprits have escaped the
B prosecution. The learned counsel haselaborated on the submissions that
the relations between the deceased Tirloki Nathand his brother, PW-7
BrijBhushan (the complainant) were strained because of property dispute
for, at one point in time, their mother had bequeathed all the properties in
favour of the deceased, which was not appreciated by the complainant
andthe deceased gotthe property at AmbalaCantt.registered in his name
C just a month prior to his untimely demise. The learned counsel has referred
to the statement made by the appellant under Section 313 CrPC to submit
that the appellant and deceased were married for about 18-19 years;
their relations were cordial;and they were leading a happy married
life.The learned counsel has particularly referred to the statement made
D by the appellant that she and her deceased husband were sharing the
bedroom with their son and that the room on the top floor of the house
was not used for any other purpose except as a store.
8.1. The learned counsel has also argued that if the complainant
(PW-7) was aware on 28.04.1997 that the deceased apprehended some
E form of danger to his life and the deceased had stated that he would be
returning with his baggage, it remains inexplicable that this witness did
not make any effort to find the whereabouts of the deceased for a period
of three days and until he got the news of demise. The learned counsel
has also attempted to submit that the complainant had several vices; that
several criminal cases were pending against him; and his family members
F had published a newspaper advertisement that anyone dealing with him
shall be doing so at his own risk.
8.2. The learned counsel would submit that the case at hand hinges
around circumstantial evidence but there is no connecting link to associate
the appellant to the murder of her husband; and the prosecution has
G failed to prove the motive of the appellant. The learned counsel for the
appellant has also argued that there were lapses on part of the police
while collecting evidence where the FIR was registered only after the
arrival of complainant and his family members and the statements of the
persons who had gathered at the scene were not recorded at all.
H
SMT. GARGI v. STATE OF HARYANA 27
[DINESH MAHESHWARI, J.]

8.3. The learned counsel has also assailed the findings that it had A
been a matter of strangulation and hence of a homicidal death with the
submissions that as per medical jurisprudence,in case of strangulation,
some scratches, abrasions, bruises etc. would be found on the dead
body and hyoid bone would be found broken but, in the present case,
there were no such marks nor hyoid bone was broken.
B
8.4. The learned counsel has further contended that strangulation
of the deceased and then, hanging of his dead body from the ceiling fan
could not have been carried out by one person alone and it remains
entirely improbable that such taskswere carried out by a frail lady like
the appellant. Thus, according to the learned counsel, with the acquittal
of brothers of the appellants, the alleged chain of circumstances is broken C
on the material point and the appellant deserves to be acquitted on this
count alone.
8.5. The learned counsel for the appellant has referred to several
decisions of this Court, including those in Rajkumar v. State of M.P.:
(2004) 12 SCC 77;Sonvir alias Somvir v. The State (NCT of Delhi): D
(2018) 8 SCC 24; Ramesh and Ors v. State of Rajasthan: (2011) 3
SCC 685; S. K. Yusuf v. State of West Bengal: (2011) 11 SCC 754;
and Sawal Das v. State of Bihar: (1974) 4 SCC 193.
9. Per contra, learned counsel for the respondent has duly opposed
the submissions made on behalf of the appellant with reference to the E
evidence on record and the finding recorded by the Trial Court and the
High Court.
9.1. So far as the question as to whether it had been a case of
homicide or the deceased had committed suicide, learned counsel has
argued that in case of suicide, the dead body would be in a suspended F
position, feet would not reach the floor and knees would also not bend,
as found in the present case. The learned counsel has supported the
finding of the Trial Court that in almost all cases of suicide, the door
would be closed from inside rather than being left open, as had been the
scenario of the present case. Learned counsel has also highlighted that G
it was not a mere coincidence that the appellant remained on casual
leave during the very period when the deceased was done to death; and
when the deceased was admittedly seen last in the company of the
appellant on 29.04.1997 and whenhis corpse was found hanging in their
own house on 01.05.1997, burden was heavy upon her to explain if the
H
28 SUPREME COURT REPORTS [2019] 13 S.C.R.

A deceased had gone anywhere else,but shehas altogether failed to
discharge such a crucial burden.In the totality of circumstances, according
to the learned counsel, the conclusion remains inevitable that the appellant,
with her accomplice, had strangulated the deceased and hanged him by
a rope to cover-up the scene as that of suicide.
B 9.2. In relation to the argument that the complainant had not
attempted to contact the deceased for the threedays after he had left
AmbalaCantt., despite being aware that the deceased apprehended danger
to his life, learned counsel for the respondent has argued that the incident
took place in the year 1997 when mobile phones and connectivity was
not available to all and there was no telephone connection on the top
C floor of the house. Thus, according to the learned counsel, in the given
circumstances, mere want of efforts on the part of PW-7 to contact his
brother would not falsify the prosecution case.
9.3. The learned counsel for the respondenthas vehemently
contended that the factors like some minor and irrelevant variations in
D the statement of prosecution witnesses or want of some additional
evidence are of no effect because the material aspects stand established
on record; and all the proved circumstances form a complete chain,
ruling out any other hypothesis except guilt of the appellant and hence,
she has rightly been convicted.
E Preliminary Observations
10. Having given anxious consideration to the rival submissions
and having scanned through the entire record with reference to law
applicable, we are impelled to say at the outset of discussion that in this
matter, several fundamental shortcomings in the investigationand several
F loopholes in the prosecution propositions got overlooked by the Trial Court
as also by the High Court.In an overall comprehension of the matter, we
are clearly of the view that it would not be safe to accept the projected
propositions of the prosecution and to convict the appellant for the offence
of murder of her husband.
G The circumstances relied upon and the point for
determination
11. It is at once clear that in this case,no direct evidence is available
in answer to the material questions as to how the deceased, husband of
the appellant, met with his untimely death; and if it were not a case of
H
SMT. GARGI v. STATE OF HARYANA 29
[DINESH MAHESHWARI, J.]

suicide, who had carried out the gruesome and ghastly act of killing him A
and hanging the dead body in his room? The Trial Court and the High
Court have held that the major circumstances projected by the prosecution
against the appellant have been established beyond doubt, though the
High Court has not accepted the prosecution case that the brothers of
appellant were conspirators and collaborators in the crime. It is contended
B
on behalf of the appellant that it had been a case of suicide; that there
was no motive on the part of the appellant to eliminate her husband with
whom she was having cordial relations and was leading a happy married
life; that the deceased and the appellant were lastly in each other’s
company on 29.04.1997 when the deceased informed her that he shall
be going on tour and would be returning by 03.05.1997; and that the C
appellant’s prosecution wasfenagled by the brother of her husband, who
was having an eye on the property. On the other hand, according to the
prosecution, the crucial circumstances stand established thatthe homicidal
death was covertly sought to be shown as a case of suicide; that the
appellant had the motive and intent to kill her husband; that the deceased
D
was lastly in the company of the appellant; and that the appellant failed
to offer any explanation as to how her husband got killed and was hanged
though the dead body was found in the same house where deceased
was residing with her.
11.1. In other words, what is argued in this case for the prosecution
is that the entire chain of causation has been established beyond all E
reasonable doubts. It is submitted that the evidence on record has clearly
brought forth the following major factors against the appellant:-
a) that the death of the deceased was homicidal in nature and it
had not been suicidal as was sought to be projected by the culprits by
hanging the dead body from a rope; F

b) that the deceased had strained relations with his wife, the
appellant, for she was indulgent in illicit relations and was insistent on
transfer of property in her name;
c) that the deceased was having, and had expressed,imminent G
danger to his life at the hands of his wife, the appellant;
d) that the deceased was last seen with the appellant and she had
failed to explain as to how the deceased met with his end; and
e) that as per the post-mortem report, death had occurred 24 to
72 hours before post-mortem examination on 02.05.1997 and the appellant H
30 SUPREME COURT REPORTS [2019] 13 S.C.R.

A was at home during this period, as she was admittedly on leave on
28.04.1997 and 29.04.1997.
11.2. The question is as to whether the Trial Court and the High
Courtare right in holding thatthe aforementioned circumstances stand
established beyond reasonable doubt and do form a complete chain, ruling
B out any other hypothesis except guilt of the appellant?
The principles governing circumstantial evidence
12. When the present case pivots around circumstantial evidence,
having regard to the questions involved, apposite it would be to take note
of a few fundamental principles governing the circumstantial evidence
C
and its appreciation.
13. It remains trite that in judicial proceedings, proof is made by
means of production of evidence, which may be either oral or
documentary. As regards its nature, the evidence is either director
circumstantial. The direct evidenceproves the existence of a particular
D
fact that emanates from a document or an object and/or what has been
observed by the witness. The circumstantialevidence is the one
wherebyother facts are proved from which the existence of fact in
issue may either be logically inferred, or at least rendered more
probable 5 .
E
13.1. In umpteen number of decisions, this Court has explainedthe
essentials before a particular fact could be held proved by way of the
proof of other fact or facts; and has expounded on the principles as to
how circumstantial evidence need to be approached in a criminal case.
We need not multiply on the case law on the subject; only a brief
F reference to the relevant decisions would suffice.
13.2. In the case of Chandmal and Anr. v. State of Rajasthan:
(1976) 1 SCC 621, this Court said:-
“14. It is well settled that when a case rests entirely on
circumstantial evidence, such evidence must satisfy three tests.
G
Firstly, the circumstances from which an inference of guilt is
sought to be drawn, must be cogently and firmly established.
Secondly, these circumstances should be of a definite tendency
unerringly pointing towards the guilt of the accused. Thirdly,

H
5
A Text Book of Jurisprudence by G.W.Paton,Fourth Edition, Page 598.
SMT. GARGI v. STATE OF HARYANA 31
[DINESH MAHESHWARI, J.]

the circumstances, taken cumulatively, should form a chain A
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. That is to say, the circumstances
should be incapable of explanation on any reasonable
hypothesis save that of the accused’s guilt.” B
13.3. In the case of Sharad Birdhichand Sarda v. State of
Maharashtra: (1984) 4 SCC 116, this Court laid down the golden
principles of standard of proof required in a case sought to be established
on circumstantial evidence with reference to several past decisions,
including that in the case of Hanumanth v. State of Madhya Pradesh: C
AIR 1952 SC 343, in the following:-
“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 D
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 E
be proved” as was held by this Court in ShivajiSahabraoBobade
v. State of Maharashtra[(1973) 2 SCC 793] where the
observations were made: [SCC para 19, p. 807: SCC (Cri) p.
1047]
“Certainly, it is a primary principle that the accused F
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 G
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, H
32 SUPREME COURT REPORTS [2019] 13 S.C.R.

A (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
B human probability the act must have been done by the
accused.
154. These five golden principles, if we may say so, constitute
the panchsheel of the proof of a case based on circumstantial
evidence.”
C
13.4. In the decision cited by the learned counsel for the appellant
in Sonvir(supra), this Court, after taking note of the other cited decisions,
pointed out the principles as under:-
“82.….Law of conviction based on circumstantial evidence
is well settled. It is sufficient to refer to the judgment of this
D
Court in Ramesh v. State of Rajasthan (2011) 3 SCC 685 where
in para 17 the following has been held: (SCC p. 693)
“17. Before we proceed with the matter, it has to be
borne in mind that this case depends upon circumstantial
evidence and, as such, as per the settled law, every
E
circumstance would have to be proved beyond reasonable
doubt and further the chain of circumstances should be so
complete and perfect that the only inference of the guilt of
the accused should emanate therefrom. At the same time,
there should be no possibility whatsoever of the defence
F version being true.”
13.5. Thus,circumstantial evidence, in the context of a crime,
essentially means such facts and surrounding factors which do point
towards the complicity of the charged accused; and then, chain of
circumstances means such unquestionable linking of the facts and the
G surrounding factors that they establish only the guilt of the charged
accused beyond reasonable doubt, while ruling out any other theory or
possibility or hypothesis.
13.6. Incidental to the principles aforesaid, which are neither of
any doubt nor of any dispute, profitable it would be to keep in view the
H
SMT. GARGI v. STATE OF HARYANA 33
[DINESH MAHESHWARI, J.]

caveat entered by G.W. Paton 6 as regards circumstantial evidence A
thus:
“On the other hand, circumstances may mislead or false clues
may have been laid by the wrong doer to cast suspicion on
another”. 7
Several loopholes in investigation; withholding of relevant B
evidence by prosecution
14. Having taken note of the point arising for determination and
the basic principles to be kept in view while dealing with this case based
on circumstantial evidence, when we examine the record, several
shortcomings and loopholes in the investigation and in prosecution C
evidence manifest themselves at once. Before analysing the evidence
adduced on record, it appears rather necessary to take note of such
features of shortcomings, which are apparent on the face of record and
have a material bearing on the questions involved.
15. In the present case, the very approach of the investigating D
agency had been shrouded in so much of unexplained obscurities that a
question perforce arises if there had been a fair and unbiased investigation
of the crime in question?
15.1. The manner of dealing with this case by the investigating
agency, right at the inception, has left a few serious questions unanswered E
i.e., as to when did the police receiveinformation about dead body of the
husband of the appellant, by what mode, and through whom? PW-9 in
his testimony before the Court conveniently stated that such an information
was received through “telephonic message” but did not state the
particulars of such informant. No entry in the roznamcha or general F
diary has been produced to show that such an information was duly
entered in the record before proceeding for investigation. Significantly,
in the first note drawn up in the matter at 5.30 a.m. on 02.05.1997 (EX.
PH/1), PW-9 only stated that ‘the information was received at the police
station’. The fact that it had been a telephonic information is conspicuously
G
6
ibid., page 598
7
This has been stated with reference to ¶514 in Criminal Law by C.S.Kenny wherein,
it is cautioned that: though ‘circumstances cannot lie’, they can mislead. They may even
have been brought about for the very purpose of misleading, as when Joseph’s silver
cup was placed in Benjamin’s sack, or when Lady Macbeth ‘smeared the sleeping
grooms with blood’. H
34 SUPREME COURT REPORTS [2019] 13 S.C.R.

A missing in Ex.PH/1. This aspect has got a material bearing in the matter
because the defence witness DW-3 specificallytestifiedto the fact that
he was the first person informed by the appellant about the demise of
TirlokiNath; and that he went to the police station at about 9.30 p.m. on
01.05.1997 and divulged the information. He further asserted having
accompanied the police to the site and having conveyed the information
B
to PW-7.
15.2. It is also noteworthy that as per PW-7, he got the information
from one T.R. Malhotra at about 11.30 p.m. who, in turn, had received
the information on telephone from a colleague of the deceased. Neither
any enquiry was made from the said T.R. Malhotranor any other effort
C wasmade to find out the colleague of the deceased who had telephoned
him.
15.3. In the face of such a gap in the prosecution evidence, there
appears no reason to disbelieve the testimony of DW-3Surinder Kumar
Bhat as regards the time of information to police and himself being the
D informant. In such a scenario, it remains absolutely inexplicable as to
why the information given by DW-3 was not reduced in writing and the
proceedings were not conducted on that basis. This question magnifies
itself to tougher questions for the prosecution as to the time when PW-
9 ASI Amar Singh reached the site and with whom. From the evidence
E on record and surrounding facts, it appears that the said ASI had reached
the site at around 10.30 p.m. accompanied by DW-3 Surinder Kumar
Bhat. The toughness of these questions further amplifies into the harder,
and unanswered, question for the investigating agency as to why for a
long period of about 4 to 5 hours at the site, the ASI (PW-9) did not carry
out any investigation and did not record any statement.
F
15.4. It is not the case of prosecution that the ASI (PW-9) was
prevented by any reason to immediately attend on his duties after reaching
the site. It is also not the case that he attempted to make any enquiry
from any person until arrival of the complainant and other family members
of the deceased.Even if it be assumed that the other family members of
G the deceased were on the way and the ASI knew about this fact, nothing
had prevented him from attending on his duties of investigation. Strangely
enough, even the first panchnama was prepared only after reaching of
the complainant. It is also not clear as to why the statements of the
children of the deceased were not taken when his daughter, 16 years of
H
SMT. GARGI v. STATE OF HARYANA 35
[DINESH MAHESHWARI, J.]

age, was very much present at the site. It is also not explained as to why A
in this kind of matter, carrying suspicious overtones, PW-9 did not make
any enquiry from any of the neighbours, who were available at the site;
and from the tenant,who was residing at the ground floor of the same
building and whose washroom was allegedly being used by the deceased
(as per the assertion of PW-8)?It is difficult to say that the conduct of B
this Investigating Officer (PW-9) had been totally free from doubt.
15.5. Apart from the above-noted omissions at the very initial stage,
we find absolutely no reason that the Investigating Officer PW-10,even
after allegedly making enquiries in the locality regarding the character
of the appellant from 5-10 persons, neither mentioned this fact in the C
investigation report nor recorded the statement of anyone of them. This
Investigating Officer further stated to have joined the children of the
appellant in the investigation but did not record their statements either.
This Officer also did not bother to take the statement of the tenant,
whose testimony would have been of immense significance, looking to
the nature of accusations as also the factors related with the building in D
question.
15.6. Moreover, in this matter, where it was prima facie appearing
that the clues available at the site might play a significant role in reaching
to the real culprits, it is also intriguing to notice that the Investigating
Officer did not take even elementary care to obtain fingerprints from E
the material objects and to get them analysed properly. The Investigating
Officer (PW-10) has stated, rather with impunity, that he did not take
any fingerprints at all, even while admitting that the fingerprint expert
did visit the site. It is not stated that the so-called expert expressed
inability to collect such prints for any reason. It is left only for one to F
wonder as to for what purpose did the so-called fingerprint expert visit
the site, if no prints were to be taken at all!
15.7. The above-mentioned unexplained shortcomings,perforce,
indicate that in this case, the investigation was carried out either with
pre-conceived notions or with a particular result in view. It is difficult to G
accept that the investigation in this case had been fair and impartial.
From another viewpoint, on the facts and in the circumstances of this
case, the omissions on the part of investigating agency cannot be ignored
as mere oversight. These omissions, perforce, give rise to adverse
inferences against the prosecution.
H
36 SUPREME COURT REPORTS [2019] 13 S.C.R.

A 16. In this case, it is also interesting to notice that though the
prosecution had cited the other relations of the deceased as witnesses,
including his mother and brother-in-law (husband of PW-8 - who had
otherwise signed the inquest report)but did not examine them before the
Court. Withholding of relevant witnesses could only lead to further adverse
B inference that if examined, they would not have supported the prosecution
case. This is apart from the fact that the investigating agency avoided to
include any independent witness in the investigation and did not carry
out necessary enquires from the persons other than in-laws of the
appellant.
C 17. Hereinabove, we have only indicated a few broad aspects of
shortcomings and lacunae in the prosecution case which is otherwise
resting on circumstantial evidence and on the theory propounded by the
brother of deceased (PW-7),as supported by his sister (PW-8). The
upshot of the discussion foregoing is that the propositions projected by
D the prosecution require deeper scrutiny to find if the case against the
appellant is established beyond reasonable doubt; and if the elements of
adverse inferences do not materially affect the prosecution case.
Homicide or suicide
18. As noticed, the first question that concerns us in this matter is
E
as to whether death of TirlokiNath was suicidal or it had been a matter
of homicide. The Trial Court as also the High Court have returned
concurrent findings that it had been a matter of homicidal death. Both
the Courts came to this conclusion essentially with reference to the medical
opinion that the cause of death was asphyxia due to strangulation; and
F also with reference to some of the surrounding factors that the feet of
the hanging dead bodywere touching the floor;the knees were bent; the
slippers were not removed; and the room in question was wide open.
Assailing such findings, it is contended on behalf of the appellant that as
per medical jurisprudence, scratches, abrasions, bruises etc. are usually
G present and hyoid bone would be usually found brokenin case of
strangulation but, in the present case, there were no such marks nor
hyoid bone was broken.
18.1. We have closely examined the testimony of PW-
1Dr.UshaBansal, who was one of members of the board that had
H conducted post-mortem. We have also taken into account the features
SMT. GARGI v. STATE OF HARYANA 37
[DINESH MAHESHWARI, J.]

noticeable from the site plan, the inquest report and the photographs A
placed on record. Having examined the relevant material, we find nothing
of infirmity in the findings of the Trial Court and the High Court that it
had beena case of strangulation, as could be seen from the post-mortem
report that the dead body carried “well defined depressed ligature
mark measuring 3 cm. wide seen encircling the neck around thyroid
cartilage with a knot present on left side of neck and this ligature B
mark was anti-mortem in nature”. The other ligature mark was on the
left side of the neck measuring 1.5 cm wide and that was post-mortem
in nature. The board had undoubtedlybeen of the opinion that the cause
of death was”asphyxia due to strangulation”.With such categorical
medical opinion coupled with all therelevant features surrounding the C
suspended dead body in the room in question, it is difficult to say that it
had been a case of suicide merely because hyoid bone was not broken
or because the marks of resistance like abrasions/scratches were not
reported.The presence of marks of resistance would depend on a variety
of factors, including the method and manner of execution of the act of
strangulation by the culprits; and mere want of such marks cannot be D
decisive of the matter. Equally, it is not laid down as an absolute rule in
medical jurisprudence that in all cases of strangulation, hyoid bone would
invariably be fractured. On the contrary, medical jurisprudence suggests
that only in a fraction of such cases, a fracture of hyoid bone is found. 8
In other words, absence of fracture of hyoid bone would not lead to the
conclusion that the deceased did not die of strangulation. E

18.2. For what has been discussed in preceding paragraphs, we
have no hesitation in affirming the findings in the impugned judgments
that the deceased TirlokiNath was done to death by strangulation and
thereafter, his dead body was hanged from the ceiling fan in the room.
F
Modi: A textbook of Medical Jurisprudence and Toxicology, 26 th Edition page 529
8

where it is also noted:
“In the Journal of Forensic Sciences Volume 41 under the Title – Fracture of
the Hyoid Bone in Strangulation: Comparison of Fractured and Unfractured
Hyoids from Victims of Strangulation, it is stated:
The hyoid is the U-shaped bone of the neck that is fractured in one-third of
all homicides by strangulation. On this basis, post-mortem detection of G
hyoid facture is relevant to the diagnosis of strangulation. However, since
many cases lack a hyoid fracture, the absence of this finding does not
exclude strangulation as a cause of death. The reasons why some hyoids
fracture and others do not may relate to the nature and magnitude of force
applied to the neck, age of the victim, nature of the instrument (ligature or
hands) used to strangle, and intrinsic anatomic features of the hyoid
bone…………” H
38 SUPREME COURT REPORTS [2019] 13 S.C.R.

A 19. However, the question still remains as to whether the
circumstances brought on record establish beyond reasonable doubt that
such ghastly act of killing TirlokiNath and hanging his dead body was
carried out by the appellant so as to maintain her conviction under Section
302 IPC?
B 20. Before examining the circumstances brought on record by
the prosecution, we may observe in the passing that the Trial Court as
also the High Court have proceeded on the lines that once it was
established that the deceased TirlokiNath was killed by way of
strangulation and the killer/s suspended his dead body from the fan so as
C to mislead; and since the dead body was found in the very house he was
residing with the appellant who could not explain the reason of his
death,she was to be held responsible for the crime. In other words, the
Trial Court and the High Court have assumed that as soon as the
conclusion about the homicidal death of TirlokiNath in his own room is
reached, all other aspects of the prosecution story about so-called strained
D relations of the deceased and the appellant, and the alleged threat
perception of the appellant ipso facto come into operation; andthe finding
on homicidal death itself has been taken asthe answer to other question
as to whether homicide was to be imputed on the appellant or not. In our
view, while examining the question as to whether the death in question
E was homicidal or suicidal, there was no justification to mix up the other
circumstances projected by the prosecution, which indeed required
separate assessment and analysis. Be that as it may, appropriate now it
would be toexamine the circumstances put forthin this case to find if the
prosecution has been able to bring home the guilt of the appellant beyond
reasonable doubt.
F
Alleged last statement of deceasedand motive of appellant
21. The main plank of prosecution case against appellant has been
that the relations between the deceased and the appellant were too
strained; the appellant was having illicit relations and was ill-treating the
G deceased; the deceased had expressed even threat to his life at thehands
of the appellant; and the deceased was all set to move out of the company
of the appellant. These factors, imputing motive on the appellant to kill
her husband (and even deceased perceiving threat to his life at the
hands of the appellant), have been held proved by the Trial Court and
the High Court with reference to the testimony of PW-7 Brij Bhushan
H
SMT. GARGI v. STATE OF HARYANA 39
[DINESH MAHESHWARI, J.]

(brother of the deceased) and PW-8 RadhaPuri (sister of the deceased). A
As noticed, the Trial Court as also the High Court have relied upon these
two witnesses and have accepted their assertionsin toto. However, a
close look at the testimony of these witnesses and the assessment of
their evidence with reference of other factors on record bring forth several
doubts, which have not been dispelledand which do operate against the B
prosecution.
22. Though learned counsel of the appellant has attempted to
suggest, with reference to additional documents placed on record, that
PW-7 carried questionable antecedents and had been a proclaimed
offender but we are ignoring such submissions for the reason that these C
aspects were not specifically put to the witness in his cross-examination.
However, the question is as to whether his testimony inspires such
confidence that all the facts and the circumstances suggested by him,
and all his assertions, be accepted on their face value? In our view, the
answer to this question could only be in the negative.
D
22.1. The Trial Court and the High Court have proceeded on the
assumption that PW-7 being the brother of deceased, would not be
interested in shielding the real culprit and to unnecessarily throw the
accusation on the appellant but, in our view, such an approach had been
fundamentally incorrect.In overall comprehension of the statement made
by this witness, a few relevant factors are immediately noticeable that, E
after having served in Navy for about two years from 1978 to 1980, he
had never been in a settled job or occupation. He served in different
establishments; also opened a grocer’s shop that was closed; again served
in some more establishments; and then, established a factory that too
was closed with about half of the amount of loan repaid and remaining F
being due. Significantly, the ancestral house of the family was sold by
this witness and the proceeds were utilised by him in opening the grocer’s
shop, which was closed by him because he ‘did not like that business’.
He had taken loan for establishing the factory and it had been the case
of the appellant that he was pressurising her to stand as a guarantor
G
andupon her refusal, the deceased TirlokiNath stood as a guarantor.
DW-3 Surinder Kumar Bhat, a colleague of the deceased,testified to the
fact that the deceased remained disturbed for his younger brother (PW-
7) regularly demanding money from him; and has narrated in detail the
efforts that were made by the deceased in helping PW-7 BrijBhushan
H
40 SUPREME COURT REPORTS [2019] 13 S.C.R.

A getting some employment and he even asked for a loan from the society
managed by DW-3. In the given state of affairs, this much is clear that
the testimony of PW-7 is required to be approached with extra care and
caution.
22.2. On a closer look at the record, it is noticed that some material
B improvements were made by PW-7 while deposing in the Court over the
initial version, on the basis whereof FIR was registered by PW-9. For
example, in the Court statement, this witness alleged that the deceased
was apprehending murder by the appellant with the help of her brothers
while improving over the expression that the deceased was ‘fed up and
frightened’, as occurring in the initial version. Further, the initial allegation
C
that the appellant was not providing food to the deceased‘at proper
time’ was improved in the Court statement to the effect that she was not
providing food to the deceased.
22.2.1. Even if the aforementioned aspects are left aside for a
moment and it be assumed that the deceased met PW-7 on 28.04.1997
D
and stated all his apprehensions as also the plan to leave Panchkula with
luggage, it remains entirely inexplicable that such a concerned brother
of the deceased did not accompany him to Panchkula for safety and
support; anddid not share the apprehensions stated by the deceased with
other members of the family;andeven did not enquire about the welfare
E of his brother for next three days.Obviously, the conduct of this witness
had not been altogether free from doubt and his statement cannot be
accepted without proper corroboration. Now, the attempted corroboration
is suggested only with reference to the statement of the sister of this
witness viz., PW-8 RadhaPuri. However, her testimony carries excessive
features of doubts, as would occur infra.
F
23. It is evident on the face of the record that in her testimony,
PW-8 RadhaPuri made several improvements over the statement made
during investigation. The allegations that upon reaching the spot, she
saw the appellant and her brothers ‘enjoying tea’were not made in her
police statement. The witness had gone to the extent of stating that the
G deceased was attacked by his wife and children on two-three occasions
though no such allegation appeared in her initial version during
investigation. It is more than apparent that the efforts on the part of this
witness PW-8 had been to level accusations not only against the appellant
but even against the children of the appellant, particularly her daughter,by
H suggesting that the said daughter questioned her presence on the spot
SMT. GARGI v. STATE OF HARYANA 41
[DINESH MAHESHWARI, J.]

though such had not been the case of the prosecution. As regards the A
plot at AmbalaCantt., this witness gave out vacillating answers where
she first of all stated want of knowledge; then stated that the plot was in
the name of mother; and again stated her inability to say exactly in whose
name it was. Leaving aside these aspects, the noteworthy feature
emerging from her statement is the admission of the fact that the ancestral
B
house was sold by Brij Bhushan (PW-7).
24. A combined look at the testimony of PW-7 and PW-8 brings
to the fore one of the significant facts that there had been an ancestral
house belonging to the familythat was sold by PW-7alone and the sale
proceeds were utilised by him to open a grocery shop, one of the multiple
ventures he had tried, mostly resulting in closure or failure. The appellant C
had been categoric in her assertion that the property and money had
been at the root of discord in the family and the same had been the
cause for the family of the deceased implicating her. DW-3 has also
testified to the effect that the deceased had his tense moments because
of money demands of his brother i.e., PW-7. Unfortunately, the Trial D
Court as also the High Courthave totally overlooked these factors and
features hovering over the prosecution story.
25. Going further deep into the prosecution story, it is clear that
there is no direct and cogent evidence on record that the appellant was
involved in illicit relations or was forcing the deceased to transfer the E
property. It had not been the assertion of PW-7 or PW-8 that the alleged
illicit relations of the appellant and/or her pressurising the deceased to
transfer the property had been the matters of their personal knowledge.
No particulars of any person having illicit involvement with the appellant
are to be found on record.Such assertions have been made by these
F
witnesses on the basis of the statements allegedly made by the deceased
to each of them individually and at different point of time. The High
Court and the Trial Court have readily accepted the suggestions of PW-
7 and PW-8 that the deceased made the statements to them as alleged;
and have even labelled the statement allegedly made to PW-7 as being
the dying declaration of the deceased. Strictly speaking, the alleged G
statement made to PW-7 could not have been taken as a ‘dying
declaration’ for the reason that at time of making of such statement, the
deceased was not labouring under his imminent death and he was not
recounting the circumstance of the transaction relating to his death. For
the sake of arguments, and on the broad phraseology of the first part of H
42 SUPREME COURT REPORTS [2019] 13 S.C.R.

A Section 32 (1) of the Indian Evidence Act 9, even if it be assumed that
the statement made by the deceased, before the cause of death had
arisen, or before he had any reason to anticipate his killing, may also be
taken as admissible10, such an alleged statement cannot be directly acted
upon without concrete corroboration. In the present case, what to say of
B corroboration, even making of such statement by the deceased appears
to be doubtful.
25.1. The other prosecution witnesses have not even remotely
indicated any traces of discord in the relations of the deceased and the
appellant for any reason whatsoever. The appellant has specifically
C refuted such allegations in her statement under Section 313 CrPC. The
defence witness DW-3 Surinder KumarBhat, who had been the colleague
of the deceased and was living nearby, has been categorical that the
deceased and the appellant were maintaining good relations and that the
appellant was enjoying a good reputation. Nothing has occurred in his
cross-examination to discredit this witness as untrustworthy. Another
D noteworthy factor emerges from the testimony of DW-4 Akhilesh
Bhatnagar, Assistant, Oriental Insurance Company, Chandigarh. He has
proved the hotel expenses bills paid by the employer of the deceased for
his stay at Karnal from 14.01.1997 to 01.02.1997. If that were so, the
assertion of PW-8 RadhaPuri that the deceased made some statement
E to her at Yamuna Nagar on 25.01.1997 becomes doubtful. As noticed,
though the husband of PW-8 (with whom she allegedly conferred about
the alleged statement of the deceased) was cited as prosecution witness
but was not examined in the Court.
26. We may, in the passing also point out another glaring factor in
F relation to the testimonies of PW-7 and PW-8. It is but apparent that
PW-7, even before reaching the spot of crime, had already concluded
9
32. Cases in which statement of relevant fact by a person who is dead or cannot
be found, etc., is relevant.-Statements, written or verbal, of relevant facts made by a
person who is dead, or who cannot be found, or who has become incapable of giving
evidence, or whose attendance cannot be procured without an amount of delay or
G expense, which, under the circumstances of the case, appears to the Court unreasonable,
are themselves relevant facts in the following cases:-
(1) when it relates to cause of death.- When the statement is made by a person as to
the cause of his death, or as to any of the circumstances of the transaction which
resulted in his death, in cases in which the cause of that person’s death comes into
question.
H
10
Vide PakalaNarayana Swami v. The King-Emperor: AIR 1939 PC 47
SMT. GARGI v. STATE OF HARYANA 43
[DINESH MAHESHWARI, J.]

that his brother had been murdered. In his words: ‘I gave telephonic A
messages to my relatives regarding the murder of my brother’. PW-
8 has directly contradicted him while saying:‘On 1.5.97, I came to know
through my brother BrijBhushan that TirlokiNath had committed
suicide. He told that as per the information, the neighbourers at
Panchkula told that TirlokiNath had committed suicide.’Another B
feature of the case is that as per the site sketch prepared by PW-
3ManoharLal, (Ex. PD), there was a bathroom-cum-toilet of 10 feet x 3
feet size, attached with the room in question where the deceased was
putting up, as per the witnesses PW-7 and PW-8. It clearly belies the
suggestion that the deceased was forced to use the washroom of the
tenant at the ground floor. C

27. For what has been discussed hereinabove, strong elements of
doubts surface on record as regards reliability of these two witnesses
PW-7 and PW-8. In the given circumstances, it is difficult to accept that
the prosecution has been able to establish by cogent and reliable evidence
that the appellant was involved in illicit relations or was pressurising the D
deceased to transfer the property in her name and that there had been
strong acrimony between the deceased and the appellant. It is also difficult
to accept, for want of cogent corroborative evidence, if the deceased
had made any alleged statements about discord with his wife and threat
perceptions to PW-7 and PW-8. In the given circumstances, the possibility E
of levelling of imputations on the appellant for intentions other than
bringing the real culprit/s to the book is not ruled out altogether.
Last seen theory: Proof and effect
28. The prosecution has relied upon another circumstance that
the deceased was lastly in the company of the appellant and she had F
failed to explain his whereabouts as also the circumstances leading to
his death.
28.1. Insofar as the ‘last seen theory’ is concerned, there is no
doubt that the appellant being none other than the wife of the deceased
and staying under the same roof, was the last person the deceased was G
seen with. However, such companionship of the deceased and the
appellant, by itself, does not mean that a presumption of guilt of the
appellant is to be drawn. The Trial Court and the High Court have
proceeded on the assumption that Section 106 of the Indian Evidence
H
44 SUPREME COURT REPORTS [2019] 13 S.C.R.

A Act11 directly operates against the appellant. In our view,such an approach
has also not been free from error where it was omitted to be considered
that Section 106 of the Indian Evidence Act does not absolve the
prosecution of its primary burden. This Court has explained the principle
in Sawal Das (supra) in the following:-
B “10. Neither an application of Section 103 nor of 106 of the
Evidence Act could, however, absolve the prosecution from
the duty of discharging its general or primary burden of
proving the prosecution case beyond reasonable doubt. It is
only when the prosecution has led evidence which, if believed,
C will sustain a conviction, or which makes out a prima facie
case, that the question arises of considering facts of which
the burden of proof may lie upon the accused……”
28.2. On the facts of the present case, it emerges that as per the
version of PW-7, the deceased was lastly in his company on 28.04.1997
D when he allegedly expressed his dejection and fear as also his plan to
return with luggage. The appellant has pointed out that the deceased
was with her in the morning of 29.04.1997 when he pointed out his tour
programme commencing that day with scheduled return on 03.05.1997.
It is not in dispute that the deceased was regularly on tour for longer
durations of about two weeks in connection with his duties. The dead
E body was recovered on 01.05.1997 and as per post-mortem report, the
probable time that had elapsed between death and post-mortem (on
02.05.1997 at 12.30 p.m.) was 24 to 72 hours. On the basis of this opinion,
it cannot be assumed by way of arithmetical calculation that the deceased
might have met with his end on 29.04.1997. The possibility of it being a
F day later is not ruled out.
28.3. In the given set of circumstances, the last seen theory cannot
be operated against the appellant only because she was the wife of the
deceased and was living with him. The gap between the point of time
when the appellant and deceased were last seen together and when the
G deceased was found dead had not been that small that possibility of any
other person being the author of the crime is rendered totally improbable.
In SK. Yusuf (supra), this Court has said:-

106. Burden of proving fact especially within knowledge.- When any fact is
11

especially within the knowledge of any person, the burden of proving that fact is upon
H him.
SMT. GARGI v. STATE OF HARYANA 45
[DINESH MAHESHWARI, J.]

“21. The last seen theory comes into play where the time gap A
between the point of time when the accused and the deceased
were last seen alive and when the deceased is found dead is
so small that possibility of any person other than the accused
being the author of the crime becomes impossible.”
Subsequent conduct of the appellant and other B
circumstances
29. The Trial Court and the High Court have readily, and rather
heavily,reliedupon an assertion made by PW-8 in her statement that upon
her reaching the site, the appellant was ‘enjoying tea’ with her brothers
and other relations on the first floor; and was not found stressed or C
perplexed or saddened. This part of the assertion on the part of PW-8
has its own shortcomings. Such an assertion was not made by her in the
police statement; and is not even remotely corroborated by any other
prosecution witness including PW-7. Moreover, it had been too unrealistic
on the part of the Trial Court and the High Court to observe that the
appellant ought to have been found sitting with the dead body. Admittedly, D
the corpse was emitting foul smell and DW-8 reached the spot at about
4.30 in the morning though the appellant had noticed the dead body the
previous evening and had taken steps for informing the concerned through
DW-3, Surinder KumarBhat. In the given circumstances, no fault could
be foisted on the appellant if she did not remain with the dead body all E
through and until arrival of PW-8. The expression ‘enjoying tea’ was
coined by this witness PW-8 alone and for want of corroboration and for
omission of such a fact in the police statement, there appears no reason
to accept the same. If at all anything of subsequent conduct of appellant
is to be taken into consideration, it is evident that she attendedher office
on 30.04.1997 and 01.05.1997. It is not the case of the prosecution that F
during these two days, any abnormality in her behaviour was noticed by
anyone. The appellant neither concealed herself nor altered the scene
of crime in any manner and there had not been any evidence about any
oddity in her manners and demeanour.
30. Another circumstance taken against the appellant had been G
that she allegedly did not send any information to the brothers and other
relations of the deceased immediately after noticing his death. Such
observations and findings have been recorded against the appellant while
totally overlooking the statement of DW-3. In this regard, it gets perforce
reiterated that the prosecution has not produced any evidence which H
46 SUPREME COURT REPORTS [2019] 13 S.C.R.

A could displace the statement of DW-3 that he indeed informed the police
at the asking of the appellant at about 9.30 p.m. on 01.05.1997 and did
also inform the brother of the deceased. As noticed, PW-9 ASI Amar
Singh did not specify as to how the information was received by him.
Moreover, the person said to have divulged the information to the witness
PW-7 was never examined. Given such omissions in the prosecution
B
case, we find no reason to discard the testimony of DW-3. Once his
testimony is accepted, several blocks of the prosecution story are
knocked to the ground.
Effect of the acquittal of co-accused persons
C 31. There is yet another lacuna in the prosecution case that has
magnified itself with acquittal of the co-accused, brothers of the appellant.
It cannot be denied that if the appellant had been the killer, she, by herself,
could not have hanged the dead body by the ceiling fan; and the act had
definitely been performed by more than one person. That being the
position, the Trial Court readily accepted the case against the brothers
D of the appellant as conspirators without cogent and convincing evidence.
The High Court rightly acquitted them for want of evidence and even
observed that the prosecution had failed to book the real culprit in place
of the brothers of the appellant. However, the High Court yet considered
it proper to maintain the conviction of the appellant as the principal culprit
E while failing to consider that an important link in the prosecution story
was snapped as soon as brothers of the appellant were acquitted.
31.1. We would hasten to observe that merely for the reason of
acquittal of co-accused, another accused in a criminal case may not be
acquitted if cogent evidence against him is available and his case could
F be segregated from the case against the acquitted co-accused. However,
on the basic facts of the present case, it is evident that the gruesome act
in question had not been the handiwork of one person and it would be
rather preposterous to assume that the appellant hanged the dead body
by ceiling fan all by herself. In the given circumstances,when the alleged
collaborators of the appellant are acquitted, the already existing clouds
G of doubts on the prosecution story getcongealed. The High Court has
proceeded with over-simplification of the matter by leaving the missing
link as merely a fault of the investigating agency. In our view, as soon as
the brothers of the appellant were acquitted, the High Court ought to
have examined the consequence of such acquittal that an important link
H in the prosecution theory was snapped and it was difficult to conclude
SMT. GARGI v. STATE OF HARYANA 47
[DINESH MAHESHWARI, J.]

that the prosecution has established its case against the appellant beyond A
all reasonable doubts.
The prosecution case not established beyond reasonable
doubt
32. Thus, as regards the circumstances relied upon by the
prosecution, the position obtainable from the material placed on record B
and the surrounding factors is that (a) the death of deceased TirlokiNath
was homicidal in nature and had not been suicidal though it was sought
to be projected as suicide by the culprits by hanging the dead body from
a ceiling fan in his room; (b) there is no cogent and convincing evidence
on record to come to a definite conclusion that the relations of the C
deceased and the appellant were strained or that the appellant was
indulgent in illicit relations or she was insisting for transfer of property in
her name; (c) it is also difficult to come to a definite conclusion that the
deceased had expressedimminent danger to his life at the hands of the
appellant;and (d) even if the deceased was last seen alive in the company
of the appellant, the time gap between such last seen and finding of his D
dead body had been of about 2 to 3 days.
33. Apart from the factors above, there are several other loopholes
whereby the alleged circumstances sought to be relied upon by the
prosecution lose their worth and force. As noticed, the investigating
agency and the prosecution had not been forthright. The relevant aspects E
pertaining to the crime in question were not properly investigated and
even the relevant witnesses were not examined. Moreover, as noticed,the
prosecution case was framed in the manner that the appellant
committedthe crimewith the help of her brothers who have been
acquitted.
F
33.1. In the given circumstances, the fact that the staircase from
the ground floor was directly leading to the room in question where the
dead body was found,acquires immense significance. Even if it be
assumed that the deceased was putting up in the said room, some person
or persons reaching there directly from the ground floor and carrying
out the crime is not ruled out. In the alternative, some person or persons G
having executed the crime at some other place and then having brought
the dead body and hanged it in the room in question is also the possibility
which cannot be brushed aside as entirely improbable.
34. In the given circumstances, when the prosecution has not
been able to remove the aforesaid doubts and the motive as imputed on H
48 SUPREME COURT REPORTS [2019] 13 S.C.R.

A the appellant does not appear existing, the benefit of doubt, obviously,
goes to the appellant.
CONCLUSION
35. For what has been discussed hereinabove, we are clearly of
the view that the Trial Court and the High Court have approached the
B case from an altogether wrong angle and have overlooked the major
flaws and shortcomings in the prosecution case. In the given set of facts
and circumstances, even if the prosecution has been able to create some
suspicion against the appellant, it would be unsafe to accept that the
implicating circumstances have been established by cogent evidence
C and such circumstances form a complete chain that rules out any other
hypothesis except guilt of appellant. Hence, the conviction of the appellant
cannot be sustained; she is entitled to the benefit of doubt.
36. Consequently, this appeal is allowed in the manner that the
impugned judgment and orders convicting the appellant for the offence
D punishable under Section 302 IPC are set aside; the appellant is extended
the benefit of doubt and is, accordingly, acquitted. Her bail bonds are
cancelled and sureties are discharged.

Ankit Gyan Appeal allowed.
E

F

G

H