VIJAYA SINGH & ANR.versusSTATE OF UTTARAKHAND

                    [2024] 11 S.C.R. 906 : 2024 INSC 905

                              Vijaya Singh & Anr.
                                        v.
                              State of Uttarakhand
                        (Criminal Appeal No. 122 of 2013)
                                25 November 2024
            [Bela Trivedi and Satish Chandra Sharma,* JJ.]


                              Issue for Consideration
          Whether the Criminal Appeal filed by the Appellants challenging
          the conviction under Section 302/201 IPC can be entertained in
          the facts and circumstances of the case.

                                     Headnotes†
          Penal Code, 1860 – Section 302 – Criminal Procedure Code,
          1973 – Section 164 – Principles governing circumstantial
          evidence reiterated – On facts and circumstances, held that
          the Trial Court and the High Court have correctly appreciated
          the evidence, and the conviction of the Appellant upheld:
          Held: It is a well settled principle of law that when a case is
          based on circumstantial evidence, the circumstances proved
          must point unequivocally to the guilt of the accused and must
          be incompatible with any theory of being innocent – There are
          no material contradictions in the versions of the witnesses – The
          evidence of every witness cannot be subject to the same level
          of scrutiny and the Court must be alive to the social position of
          the witness – Further, it is trite law that mere presence of minor
          variations is not fatal to the case of the prosecution – It is so
          because natural testimony is bound to have variations – The
          question is whether the variations or contradictions could be
          termed as fatal to the case of the prosecution – The evidence
          adduced before the Court is to be examined as a whole and not
          in isolation – This principle assumes greater importance in cases
          which are based on circumstantial evidence as in the absence of
          direct evidence of the offence, the Court is required to analyze the
          proved circumstances in a collective sense to arrive at a reasonable
          finding – In such cases, the finding of the Court is essentially an
          irresistible inference which is drawn from the proved material on
          record. [Paras 11, 25, 39]

*Author
[2024] 11 S.C.R.                                                             907

               Vijaya Singh & Anr. v. State of Uttarakhand


     Jurisprudence concerning statements under Section 164
     CrPC – Discussed:
     Held: Statement under Section 164 CrPC is not considered as
     a substantive piece of evidence, as substantive oral evidence
     is one which is deposed before the Court and is subjected to
     cross- examination – However, Section 157 of Indian Evidence
     Act, 1872 makes it clear that a statement under Section 164 CrPC
     could be used for both corroboration and contradiction – It could
     be used to corroborate the testimonies of other witnesses – The
     need for recording the statement of a witness under Section 164
     CrPC arises when the witness appears to be connected to the
     accused and is prone to changing his version at a later stage
     due to influence – Considering the conceptual requirement of
     recording a statement before a Judicial Magistrate during the
     course of investigation and the utility thereof, as prescribed
     in Section 157 of Evidence Act, it could be observed that a
     statement under Section 164, although not a substantive piece
     of evidence, not only meets the test of relevancy but could also
     be used for the purposes of contradiction and corroboration –
     A statement recorded under Section 164 CrPC serves a special
     purpose in a criminal investigation as a greater amount of credibility
     is attached to it for being recorded by a Judicial Magistrate and
     not by the Investigating Officer – A statement under Section
     164 CrPC is not subjected to the constraints attached with a
     statement under Section 161 CrPC and the vigour of Section 162
     CrPC does not apply to a statement under Section 164 CrPC –
     Therefore, it must be considered on a better footing – However,
     relevancy, admissibility and reliability are distinct concepts in
     the realm of the law of evidence – The weight to be attached
     to such a statement (reliability thereof) is to be determined
     by the Court on a case-to-case basis and the same would
     depend to some extent upon whether the witness has remained
     true to the statement or has resiled from it, but it would not be a
     conclusive factor. [Paras 27, 28]

                                 List of Acts
     Penal Code, 1860; Criminal Procedure Code, 1973.

                              List of Keywords
     Circumstantial evidence; 164 statement.
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                             Case Arising From
       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
       122 of 2013
       From the Judgment and Order dated 29.08.2012 of the High Court
       of Uttarakhand at Nainital in CRLA No. 148 of 2004

                          Appearances for Parties
       Sachin Patil, Satyajit A Desai, Siddharth Gautam, Abhinav
       K. Mutyalwar, Sachin Singh, Ms. Anagha S. Desai, Advs. for the
       Appellants.
       Sudarshan Singh Rawat, Ms. Saakshi Singh Rawat, Ms. Rachna
       Gandhi, Advs. for the Respondent.

                  Judgment / Order of the Supreme Court

                                  Judgment

       Satish Chandra Sharma, J.

1.     In April, 2002, Devaki got married to Vijaya Singh. More than an
       year after the wedding, on the fateful day of 14.09.2023, Devaki
       died an unnatural death at the house of her in-laws. Vijaya Singh,
       appellant no. 1 herein, was accused of murdering her along with his
       mother, namely Basanti Devi, appellant no. 2 herein. The case was
       registered as FIR No. 04/2003 at PS R.P. Jakholi, Rudraprayag,
       District Garhwal, Uttarakhand. After the conclusion of investigation
       and trial, the Trial Court found the appellants guilty. In appeal, the
       High Court of Uttarakhand also found them guilty and upheld the
       decision of the Trial Court. The appellants, by way of instant appeal,
       have assailed the Judgment and Order dated 29.08.2012 passed
       by the High Court of Uttarakhand at Nainital in Criminal Appeal No.
       148 of 2004, whereby the said appeal preferred by the appellants
       was dismissed.
2.     The appellant No.1 happened to be the husband and the appellant
       No.2 happened to be the mother-in-law of the deceased Devaki. After
       the incident, the FIR was registered at the instance of the complainant
       Shankar Singh (brother of the deceased Devaki), against the present
       appellants and Shri. Matbar Singh (father-in-law of the deceased).
[2024] 11 S.C.R.                                                         909

                    Vijaya Singh & Anr. v. State of Uttarakhand


      It was alleged inter alia in the said complaint that on 14.09.2003 at
      about 9 P.M., he had received one phone call from the in-laws of
      his sister at Gram Sabha Dangi (Village Hariyali) informing him that
      his sister had poured kerosene oil over her person at about 6 P.M.
      and had set herself ablaze. According to the complainant, he along
      with his two brothers went to the place of occurrence, where they
      saw that their sister was lying in almost naked condition with green
      grass having been put over her body and they suspected that their
      sister was murdered and she had not committed suicide.
3.    The Investigating Officer, after completing the investigation, filed the
      chargesheet against the appellants for the offences under Sections
      302 and 201 of Indian Penal Code, 1860.1 The case was committed
      for trial to the Sessions Court and the District & Sessions Judge,
      Rudraprayag, vide the Judgment and Order dated 14.05.2004,
      convicted both the appellants for the commission of offence under
      Section 302 of IPC and sentenced them to life imprisonment and
      fine of Rs.5,000/- each, and in default thereof, to further undergo
      imprisonment for a period of 6 months. The said Court also convicted
      them for the offence under Section 201 of IPC and sentenced them
      to undergo imprisonment for a period of 2 years with payment of
      fine of Rs. 2000/- each, and in default thereof to further undergo
      imprisonment for a period of 3 months. Being aggrieved by the said
      Judgment and Order passed by the Trial Court, the appellants had
      preferred an appeal being Criminal Appeal No.148 of 2004 before
      the High Court, which came to be dismissed by the High Court vide
      the impugned Judgment and Order dated 29.08.2012.
4.    The Trial Court acknowledged that the entire case of the prosecution
      was based on circumstantial evidence and further, that the entire
      chain of evidence consistently pointed in the direction of guilt of the
      appellants. It found that the testimonies of the witnesses were credible
      and the retraction of their statements by PW-3 and PW-4, sisters of
      appellant no. 1, was a result of tutoring. Thus, the statements of the
      said witnesses recorded under Section 164 of the Code of Criminal
      Procedure, 19732 were found to be truthful and natural.
5.    The decision of the Trial Court was assailed before the High Court
      and the High Court, in the impugned order/judgment, found that the


1    Hereinafter referred as “IPC”
2    Hereinafter referred as “CrPC”
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       Trial Court had correctly analyzed the evidence on record and no
       infirmity was found in the findings of the Trial Court.
6.     While assailing the judgement of the High Court, learned counsel for
       the appellants submitted that there was a delay in the registration
       of FIR as the same was registered after 24 hours from the incident
       and the said period led to the fabrication of the entire story by the
       complainant. It is further submitted that there was no allegation of
       harassment at the time of registration of FIR and the versions put
       forth by PW-1, PW-2, PW-5 and PW-6 are inherently contradictory
       and there is no corroboration between the same. It is further submitted
       that PW-1 was not the real nephew of the deceased but was a
       distant relative belonging to the same community and therefore,
       he could not have possessed any direct knowledge of cruelty or
       harassment. It is further submitted that the statements of PW-1
       and PW-5 appeared to be contrary to each other as PW-5 has not
       deposed regarding any bodily injury to the deceased at any point of
       time and has deposed that the relationship between the appellants
       and the deceased was cordial.
7.     It is further submitted that the statements of PW-3 and PW-4
       recorded under Section 164 CrPC are liable to be rejected as the
       said statements were recorded in the presence of the Investigating
       Officer under threat, and could not be considered as voluntary
       statements. It is further submitted that the said statements could
       not be termed as substantive evidence and could only be used to
       corroborate or contradict the testimony of a witness in the Court. It
       is further submitted that the primary witness of the prosecution is
       PW-7/doctor and his testimony is fundamentally flawed. It is submitted
       that the concerned doctor initially deposed that he could not definitively
       state whether the death of the deceased was homicidal or suicidal,
       however, the witness later opined that 100% percent burn injuries
       were uncommon in suicide cases. It is submitted that in case of
       suicide, the act of burning is a voluntary act and therefore, 100%
       burn injuries are completely possible. To buttress, it is contended
       that the evidence of an expert is not the evidence of fact and is only
       advisory in nature. It is added that medical jurisprudence is not an
       exact science and in the expert testimony cannot be considered as
       a conclusive proof of the fact.
8.     Learned counsel has also submitted that the trial court and the High
       Court have failed to analyze the circumstances of the case in an
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                   Vijaya Singh & Anr. v. State of Uttarakhand


      objective manner and the findings of the said courts are based more
      on conjectures and less on evidence.
9.    Per contra, it has been contended on behalf of the respondent State
      that the circumstances of the present case have proved the guilt of the
      appellants beyond reasonable doubt. It has been submitted that the
      chain of circumstances is complete and falls within the parameters laid
      down by this Court with respect to circumstantial evidence. Learned
      counsel appearing on behalf of the respondent has placed reliance
      upon the decision of this Court in Prabhudayal and Ors. v. State of
      Maharashtra3 to contend that in bride burning cases, the absence
      of cries or shouts from the victim is suggestive of the fact that it was
      not a case of suicide. Learned counsel has also laid emphasis on the
      false plea of alibi taken by appellant no. 2, and has submitted that if
      a false plea is taken by the accused in the course of a trial, it could
      be considered as an additional circumstance against the accused.
10. We have heard the respective parties and we may now proceed
    to answer the seminal issue whether the findings arrived at by the
    High Court are based on a correct appreciation of the evidence on
    record and are sustainable in the eyes of law.

      DISCUSSION
11. At the outset, it may be noted that the entire case of prosecution
    hinges on the circumstantial evidence, in as much as there was no
    eye witness to the incident in question. It is a well settled principle
    of law that when a case is based on circumstantial evidence, the
    circumstances proved must point unequivocally to the guilt of the
    accused and must be incompatible with any theory of his being
    innocent. The principles governing the appreciation of circumstantial
    have been laid down by this Court in unequivocal terms in Sharad
    Birdhichand Sarda v. State of Maharashtra.4 The principles, termed
    as the Panchsheel or five principles of circumstantial evidence, are
    traceable in the following para:
             “153. A close analysis of this decision would show that
             the following conditions must be fulfilled before a case
             against an accused can be said to be fully established:


3    [1993] 3 SCR 878 : (1993) 3 SCC 573
4    [1985] 1 SCR 88 : (1984) 4 SCC 116
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          (1) the circumstances from which the conclusion of guilt
          is to be drawn should be fully established.
          It may be noted here that this Court indicated that the
          circumstances concerned “must or should” and not “may
          be” established. There is not only a grammatical but a
          legal distinction between “may be proved” and “must be
          or should be proved” as was held by this Court in Shivaji
          Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC
          793] where the observations were made:
          “Certainly, it is a primary principle that the accused must
          be and not merely may be guilty before a court can convict
          and the mental distance between ‘may be’ and ‘must be’ is
          long and divides vague conjectures from sure conclusions.”
          (2) the facts so established should be consistent only with
          the hypothesis of the guilt of the accused, that is to say,
          they should not be explainable on any other hypothesis
          except that the accused is guilty,
          (3) the circumstances should be of a conclusive nature
          and tendency,
          (4) they should exclude every possible hypothesis except
          the one to be proved, and
          (5) there must be a chain of evidence so complete as
          not to leave any reasonable ground for the conclusion
          consistent with the innocence of the accused and must
          show that in all human probability the act must have been
          done by the accused.”
12. So far as the facts of the present case are concerned, it is not
    disputed that deceased Devaki and the Appellant No.1 got married
    in April, 2002 and the Appellant No.2 happened to be the mother-in-
    law of the deceased. It is also not disputed that the tragic incident
    occurred on 14.09.2003 i.e. within 17 months of the marriage, when
    deceased Devaki succumbed to the burn injuries at her matrimonial
    home i.e. at the home of the appellants.
13. The Prosecution had examined as many as 8 witnesses to prove
    the charges levelled against the appellants, out of whom PW-1
    Vinod Singh happened to be the nephew of the deceased who had
[2024] 11 S.C.R.                                                       913

               Vijaya Singh & Anr. v. State of Uttarakhand


     inter alia stated that he used to go to leave his aunt Devaki at her
     matrimonial home and used to feel that the behaviour of appellant
     no. 2 was not good with her. He also stated that in the month of
     August, 2002 when he had visited the matrimonial home of his aunt
     to bring her back home, her mother-in-law (appellant no.2) had
     indulged into a quarrel with him saying that if he wanted to take his
     aunt with him, then he should keep her permanently with him. He
     also deposed that the appellant no. 2 had threatened him by saying
     that he had not seen her anger till that point of time. On that day,
     PW-1 came back home with his aunt/deceased. He also stated
     that in the year 2003, when his aunt i.e. the deceased Devaki had
     visited her parental home, she was found to have an injury on her
     eye and on his asking about the injury, she had confidentially told
     him that the said injury was caused by her husband - Vijaya Singh
     (appellant no.1), however he had not disclosed the same to anyone
     so that the matter may not aggravate further.
14. In cross-examination, PW-1 deposed that he used to go to his aunt’s
    matrimonial house frequently as her brothers were not residing in the
    maternal village. He also deposed that appellant no. 1 was working
    in Chandigarh and used to come home in 3-4 months. He further
    deposed that the deceased used to insist for going to Chandigarh
    and the appellant had promised her that he would take her soon.
    He further deposed that appellant no. 2 used to quarrel with the
    deceased regarding household work and about her desire of going
    to Chandigarh.
15. PW-2 (Shankar Singh), brother of the deceased Devaki had stated
    before the Court that on 14.09.2003, a call was received at about
    12.00 - 1.00 o’clock in the midnight from the village of his sister that
    his sister had poured kerosene oil on her person and put herself
    ablaze. He, therefore, managed to go to the village of his sister along
    with 5-6 people and when he reached the matrimonial home of his
    sister, the appellants were sitting outside the verandah and he was
    told that his sister had committed suicide by pouring kerosene oil
    on herself. He further stated that when he went inside the room, he
    saw that the dead body of his sister was lying on the floor between
    two coats in naked condition and green grass was put over her dead
    body. A quilt was lying there in burnt condition along with water. He
    further stated that at the time of incident, his sister was pregnant
    and he had felt that his sister had not committed suicide but she was
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       murdered by her in-laws. He deposed that his sister used to tell them
       about the harassment of her in-laws regarding non-performance of
       household work. In the cross-examination, he admitted that his sister
       wanted to accompany her husband Vijaya and stay at Chandigarh
       instead of staying at village and that prior to the death of his sister,
       the relationship between his sister and the accused Vijaya Singh
       was quite cordial.
16. PW-3 Saroj happened to be the sister of the appellant no.1 and
    daughter of appellant no.2, whose statement was recorded under
    Section 164 of Cr.P.C. during the course of investigation. She admitted
    about the recording of her statement before the Magistrate under
    Section 164 of Cr.P.C and admitted her signatures on the statement.
    In cross- examination, she stated that she was not present at home at
    the time of incident and that the relationship between her sister-in-law
    Devaki and her mother and brother was cordial. She further admitted
    that when the Patwari brought her to the Magistrate for recording her
    statement, he had threatened her, and had also remained present
    before the Magistrate when her statement was being recorded. PW-3
    denied any statement regarding quarrel between the deceased and
    appellant no. 2. PW-4 Preeti is also the sister of appellant no.1 and
    daughter of appellant no.2, and she also deposed to the same effect
    as her sister Kumari Saroj/PW-3.
17. PW-5 examined by the prosecution was Kamal Singh, who happened
    to be the cousin brother of the deceased Devaki. He stated that on
    receiving the telephone call on 14.09.2003 at 8:00 PM about the
    incident, he had gone to the house of the deceased and saw that
    the dead body of his sister Devaki was lying on the floor in naked
    condition and some green grass was put over her body. One bedding
    was also lying in the room and water was put all over it. He also
    stated that on inspection of the room, he felt that Devaki had not
    committed suicide but her mother-in-law and husband had murdered
    her by setting her ablaze. He further deposed that quarrels used to
    take place between the deceased and the appellants over her desire
    of going to Chandigarh with her husband.
18. During cross-examination, PW-5 deposed that the deceased had told
    him that her mother-in-law was not allowing her to visit Chandigarh.
19. PW-6 Sunita Devi, was the sister-in-law of the deceased Devaki.
    She stated that as and when Devaki used to visit her parental
[2024] 11 S.C.R.                                                     915

               Vijaya Singh & Anr. v. State of Uttarakhand


     home, she used to tell her about the harassment caused by her
     mother-in-law and husband. She used to tell her that she (Devaki)
     was kept terrorized and threatened, and was not given proper food
     at her matrimonial home and that her in-laws would go out locking
     her in the house.
20. The expert witnesses regarding the cause of death, examined by the
    prosecution, was PW-7 Dr. Shailendra Kumar, who had carried out
    post-mortem of the deceased Devaki. He stated that the deceased
    had sustained 100% burn injuries and the whole body was burnt
    from top to bottom. The cause of death was ‘Death due to shock’
    and semi digested food was found in her stomach. No smell of any
    kind was felt from her person. He further stated that a male womb
    measuring 10 cm having weight 200 gm was found in the uterus of
    the deceased. In the cross-examination, he had stated that it was not
    possible to give opinion whether the deceased had got herself burnt
    or somebody had burnt her after pouring kerosene. However, in his
    opinion, sustaining 100% burn injuries was not possible in case of
    self-inflicting burns and that some percentage would have been left.
    In the cross-examination, he had explained that 100% burns would
    mean the body was lying burnt from top to bottom. He also admitted
    that if the size of the room was very small, then entering the room
    from outside would not be probable due to smoke.
21. The Investigating Officer, Shyam Lal Patwari examined as PW-8 had
    deposed about the investigation carried out by him after receiving the
    complaint from PW-2 on 15.09.2003. He deposed that he had seized
    the articles from the place of occurrence, which included semi burnt
    bedding, two cans of kerosene measuring 5 litre each, having half
    litre of kerosene available in each can at that time, one burnt wood
    etc. and had prepared a seizure memo. He further stated that when
    the accused Vijaya Singh was arrested, he had found fresh abrasion
    injury marks on his face and Vijaya Singh had told him that he had
    sustained those injuries due to scorching. Similarly, accused Basanti
    Devi at the time of her arrest was found to have fresh abrasion
    mark on her forehead and she also stated that the said marks were
    due to scorching. He also stated that he had made arrangement
    for recording of statements of witnesses Kumari Saroj and Kumari
    Preeti under Section 164 Cr.P.C. before the Judicial Magistrate. In
    the cross-examination, he had admitted that he had not made any
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       arrangement for the medical examination of the injuries sustained
       by the accused Vijaya Singh and Basanti Devi.
22. The statements of the appellants were recorded under Section 313
    of Cr.P.C. Both of them denied the allegations made against them by
    the witnesses examined by the prosecution. The appellant no.1-Vijaya
    Singh further stated that the deceased was adamant to accompany
    him at Chandigarh, however, he had said that it would take one to
    two months and therefore, she committed suicide. The appellant
    no.2-Basanti Devi stated in her further statement that at the time
    of incident, she had gone to a flour mill which was located at the
    distance of 5 kms from her village along with her sister Pitambari
    Devi, and when they came back, the incident had already taken place.
23. The appellants had examined a defence witness Pitambari Devi. She
    had stated that on the date of incident in the morning, she along
    with Basanti Devi had gone to Dharat (Flour Mill) situated in Bajaira
    which was 5 kms away and had come back home together in the
    evening at about 5.00 PM by bus. She further stated that people
    told her that the incident of fire had taken place in the house of the
    accused, however, she had not seen the dead body of the deceased.
24. On a careful appreciation of the evidence on record, it could be seen
    that the appellant no. 1 was working in Chandigarh and used to visit
    his village once in 3-4 months. During these intervals, the deceased
    used to live alone with her in-laws in the village. The witnesses
    have invariably deposed that the deceased was desirous of going
    to Chandigarh along with her husband and appellant no. 2 had an
    objection regarding the same. The basis of that objection becomes
    clear from the testimony of PWs as the appellant no. 2 wanted the
    deceased to help with the domestic chores at home.
25. The story of the prosecution begins much before the commission of
    the alleged offence. PW-1 and PW-6 have deposed in no uncertain
    terms that the deceased used to share with them her agony at her
    matrimonial home. They have deposed regarding the desire of the
    deceased to go to Chandigarh as well as regarding the harassment
    caused by appellant no. 2 for that reason. PW-1 has also deposed
    regarding the presence of an injury on the body of the deceased
    when she once visited her parental house soon after her wedding.
    Their versions have largely remained unrebutted despite elaborate
    cross-examination. The appellants have raised questions regarding
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     their versions stating that they are contradictory. We are unable to
     find any material contradiction in their versions and the Trial Court
     and the High Court have correctly appreciated their evidence in light
     of their background. For, the witnesses were essentially villagers
     and their testimonies cannot be subjected to mathematical precision.
     The evidence of every witness cannot be subject to the same level
     of scrutiny and the Court must be alive to the social position of the
     witness. Further, it is trite law that mere presence of minor variations
     is not fatal to the case of the prosecution. It is so because a natural
     testimony is bound to have variations. The question is whether the
     variations or contradictions could be termed as fatal to the case of
     the prosecution. The said question needs to be answered in light
     of the other evidence on record by examining whether the oral
     testimonies have found corroboration from other evidence or have
     remained isolated testimonies.
26. In the present case, the testimonies of PW-1 and PW-6 are supported
    by the testimonies of PW-3 and PW-4, who are the sisters of appellant
    no. 1 and daughters of appellant no. 2. They are not interested
    witnesses and their testimonies must be given due credence. The
    statements of PW-3 and PW-4 were recorded before the Judicial
    Magistrate under Section 164 of CrPC in the aftermath of the incident.
    However, the issue with respect to their evidence is that they have
    sought to retract from their statements recorded under Section 164
    CrPC and have denied a material part of their statements before the
    Sessions Court. The reason for retraction is that the statements were
    recorded under threat of the concerned Patwari who was present
    before the Judicial Magistrate along with the witnesses. The weight
    to be attached to such a statement during appreciation of evidence
    is the question that arises before us at this juncture.
27. The jurisprudence concerning a statement under Section 164 CrPC
    is fairly clear. Such a statement is not considered as a substantive
    piece of evidence, as substantive oral evidence is one which is
    deposed before the Court and is subjected to cross-examination.
    However, Section 157 of Indian Evidence Act, 18725 makes it clear
    that a statement under Section 164 CrPC could be used for both
    corroboration and contradiction. It could be used to corroborate the


5   Hereinafter referred as “Evidence Act”
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       testimonies of other witnesses. In R. Shaji v. State of Kerala,6 this
       Court discussed the two-fold objective of a statement under Section
       164 CrPC as:
            “15. So far as the statement of witnesses recorded under
            Section 164 is concerned, the object is two fold; in the
            first place, to deter the witness from changing his stand by
            denying the contents of his previously recorded statement,
            and secondly, to tide over immunity from prosecution by
            the witness under Section 164. A proposition to the effect
            that if a statement of a witness is recorded under Section
            164, his evidence in Court should be discarded, is not at
            all warranted …”
       The Court also recognized that the need for recording the statement
       of a witness under Section 164 CrPC arises when the witness appears
       to be connected to the accused and is prone to changing his version
       at a later stage due to influence. The relevant para reads thus:
            “16. … During the investigation, the Police Officer may
            sometimes feel that it is expedient to record the statement
            of a witness under Section 164 Code of Criminal Procedure.
            This usually happens when the witnesses to a crime are
            clearly connected to the accused, or where the accused
            is very influential, owing to which the witnesses may be
            influenced …”
28. Considering the conceptual requirement of recording a statement
    before a Judicial Magistrate during the course of investigation and
    the utility thereof, as prescribed in Section 157 of Evidence Act, it
    could be observed that a statement under Section 164, although
    not a substantive piece of evidence, not only meets the test of
    relevancy but could also be used for the purposes of contradiction and
    corroboration. A statement recorded under Section 164 CrPC serves
    a special purpose in a criminal investigation as a greater amount of
    credibility is attached to it for being recorded by a Judicial Magistrate
    and not by the Investigating Officer. A statement under Section 164
    CrPC is not subjected to the constraints attached with a statement
    under Section 161 CrPC and the vigour of Section 162 CrPC does


6   MANU/SC/0087/2013
[2024] 11 S.C.R.                                                          919

               Vijaya Singh & Anr. v. State of Uttarakhand


     not apply to a statement under Section 164 CrPC. Therefore, it must
     be considered on a better footing. However, relevancy, admissibility
     and reliability are distinct concepts in the realm of the law of evidence.
     Thus, the weight to be attached to such a statement (reliability thereof)
     is to be determined by the Court on a case-to-case basis and the
     same would depend to some extent upon whether the witness has
     remained true to the statement or has resiled from it, but it would not
     be a conclusive factor. For, even if a witness has retracted from a
     statement, such retraction could be a result of manipulation and the
     Court has to examine the circumstances in which the statement was
     recorded, the reasons stated by the witness for retracting from the
     statement etc. Ultimately, what counts is whether the Court believes
     a statement to be true, and the ultimate test of reliability happens
     during the trial upon a calculated balancing of conflicting versions
     in light of the other evidence on record.
29. In the present case, the statements of PW-3 and PW-4 were recorded
    by the Judicial Magistrate on 09.10.2003 i.e. almost 25 days after the
    incident. Thus, their statements were recorded after the passage of
    a considerable time and could not be termed as hasty statements
    as there was sufficient cooling period for the witnesses to think over
    and contemplate the consequences of their statements. During this
    entire period, both PW-3 and PW-4 remained with their family and it
    is not their case that they were kept under influence or were tutored
    during this period. Pertinently, PW-1 has also deposed that on certain
    occasions, PW-3 had accompanied the deceased Devaki to her
    maternal home, which indicates that PW-3 had a sense of attachment
    with the deceased and the same could have been the reason for giving
    a statement against her own brother and mother. In fact, the retraction
    of these statements by PW-3 and PW-4 before the Court appears to be
    a result of tutoring and manipulation as the said witnesses could have
    easily been won over by their family members during the intervening
    period. Furthermore, the witnesses have admitted that the statements
    were signed by them and there is no suggestion to the effect that the
    witnesses could not have understood the statements. The statements
    have been certified by the concerned Magistrate to the effect that they
    have been read by the witnesses and their consequences have been
    explained to the witnesses.
30. PW-3 and PW-4 have deposed that they were under threat from
    the concerned Investigating Officer who was present along with
920                                                       [2024] 11 S.C.R.

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       them before the Magistrate. The concerned Investigating Officer
       has been examined as PW-8 in the present case and during his
       examination, there is not even a suggestion from the appellants to
       the effect that he was present along with PW-3 and PW-4 at the time
       of recording their statement under Section 164 or to the effect that
       he had threatened them to give incriminating statements against the
       appellants. Furthermore, the concerned Magistrate could have been
       examined as a witness in the present matter to clear the controversy
       on this aspect and for unexplained reasons, he was never called
       for examination especially when a completely hostile version was
       being provided by the witnesses qua the proceedings which were
       conducted before him. The appellants failed to place any material
       on record to justify the allegation of threat and as discussed above,
       the statements of PW-3 and PW-4 recorded under Section 164
       CrPC reflected the correct version of the events that transpired on
       the fateful day.
31. Having said so, we deem it fit to observe that a statement under
    Section 164 CrPC cannot be discarded at the drop of a hat and on
    a mere statement of the witness that it was not recorded correctly.
    For, a judicial satisfaction of the Magistrate, to the effect that the
    statement being recorded is the correct version of the facts stated
    by the witness, forms part of every such statement and a higher
    burden must be placed upon the witness to retract from the same.
    To permit retraction by a witness from a signed statement recorded
    before the Magistrate on flimsy grounds or on mere assertions would
    effectively negate the difference between a statement recorded by
    the police officer and that recorded by the Judicial Magistrate. In the
    present matter, there is no reasonable ground to reject the statements
    recorded under Section 164 CrPC and reliance has correctly been
    placed upon the said statements by the courts below.
32. Thus, it stands proved from the testimonies of PW-3 and PW-4 that
    on the fateful day, the deceased and appellant no. 1 had proceeded
    to the bus stand to leave for Chandigarh but they returned back as
    they could not find any bus. Naturally, despite the disappointment of
    not finding a bus, the deceased must have been happy to have finally
    found a way to go to Chandigarh along with her husband. However,
    after she came back, a quarrel took place between the appellant
    no. 2 and the deceased. This was at around 4 PM, after the return
    of appellant no. 2 from Dharat. Thereafter, PW-3 and PW-4 left for
[2024] 11 S.C.R.                                                           921

               Vijaya Singh & Anr. v. State of Uttarakhand


     picking grass and when they returned around 6 PM, the deceased was
     found dead due to burning. During this interval, only the appellants
     were at home along with the deceased. The presence of appellant
     no. 2 at the place of occurrence is duly established and the testimony
     of DW-1 stands falsified in light of the versions put forth by PW-3 and
     PW-4. Even otherwise, as per DW-1, appellant no. 2 came back at
     5 PM and incident is stated to be of 6 PM. The courts below have
     correctly analyzed this aspect and no case for alibi is made out.
33. The appellants have urged that the death of the deceased was suicidal
    and not homicidal. The reason given for suicide is that the deceased
    was frustrated as she could not go to Chandigarh along with her
    husband. The reason does not inspire confidence at all. For, there
    is no proportionality of this reason with the drastic act of suicide and
    even otherwise, on the date of incident, the deceased and appellant
    no. 1 had left for Chandigarh and had to return due to non-availability
    of bus. Thus, the deceased had no reason to be frustrated about it
    as things were finally moving as per her desire. Furthermore, the
    deceased was pregnant at the time of incident and she could not
    have taken a drastic step of suicide with a womb in her stomach.
    On the contrary, it is not difficult to accept that appellant no. 2 must
    have been angry with the deceased for going to Chandigarh and the
    quarrel which took place between the deceased and appellant no. 2,
    as per PW-3 and PW-4, was consistent with the natural course of
    events on the fateful day.
34. So far as the possibility of suicide is concerned, it is difficult to believe
    that the deceased managed to procure two cans of kerosene (5
    litres each) on her own for committing suicide within a time bracket
    of two hours, that too in the presence of the appellants in the house.
    It is equally difficult to believe that the deceased poured almost 9
    litres of kerosene on herself, put herself on fire and kept on burning
    till her body suffered 100% burns, without the appellants getting a
    whisper about the same despite being present in the same house.
    If it was indeed a case of self-immolation, the appellants must have
    done something to save her and her body would not have suffered
    100% burns. This fact assumes greater gravity when it is seen that
    the room was not bolted from inside and was open for access. Thus,
    the conduct of the appellants, previous to and at the time of the
    incident, pointed in an incriminating direction. Furthermore, as per
    the testimonies of PWs, no smell of kerosene could be detected at
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       the place of occurrence or in the body of the deceased which is not
       consistent with the allegation of self-immolation using an enormous
       quantity of kerosene.
35. Yet another circumstance which merited an explanation, and could
    not be explained by the appellants, was the presence of fresh injury
    and abrasion marks on the faces of the appellants at the time of
    their arrest. Both the appellants tried to explain away the presence
    of injuries/marks by stating that they occurred due to scorching.
    Although, the investigating officer ought to have ensured the
    conduct of medical examination of the fresh injuries/marks, however,
    the reason stated by the appellants is completely incredible. The
    appellants were residing in the same area and if at all the marks
    were due to scorching, they could not have been fresh marks. The
    only inference which could be drawn from the presence of fresh
    injuries is that there was physical resistance from the deceased
    when she was being set ablaze. It could not have been explained
    away in this manner.
36. Equally questionable was the subsequent conduct of the appellants.
    The conduct of the appellants in the aftermath of the incident
    was unnatural and does not exonerate them in any manner. The
    deceased, as per the versions of PW-3 and PW-4, was dead by the
    time they returned i.e. around 6 PM. As per DW-1, the deceased
    had put herself on fire when she returned with appellant no. 2
    from Dharat at around 5 PM. Irrespective of whether the time of
    death is taken as 5 PM or 6 PM, the fact remains that intimation
    of death was not given to the family members of the deceased
    before 8 PM (as per PW-5 and 9 PM as per the FIR), and in the
    interim, no complaint whatsoever was given by the appellants to
    the local police. Moreover, no effort was made by the appellants
    to provide medical attention to the deceased or to take her to any
    nearby hospital. The appellants were found to be sitting outside
    the house when PW-2 and PW-5 reached. That the appellants
    chose to remain silent in their house for over two hours, despite
    witnessing that the deceased had completely succumbed to burn
    injuries, goes on to show a completely unnatural conduct and
    points in the direction of their guilt. Moreover, instead of taking
    measures to take legal or medical assistance without loss of time,
    the appellants were actually tampering with the scene of crime, as
    discussed in the following para.
[2024] 11 S.C.R.                                                        923

               Vijaya Singh & Anr. v. State of Uttarakhand


37. The evidence has revealed that the scene of crime was actually
    found to be altered by the time the Investigating Officer and the
    PWs reached the spot. The presence of two kerosene jars of 5 litres
    each, presence of grass on the body of the deceased, sprinkling of
    water on the quilt, placement of body between two unburnt coats
    etc. are the circumstances which indicate the alteration of the crime
    scene by the appellants in order to shield themselves from suspicion.
    Since the deceased had suffered 100% burns, the water could not
    have been poured to save the deceased from burns and must have
    been poured afterwards to demonstrate that they had made efforts
    to save her. If water was indeed poured at the time of burning, the
    deceased ought not have suffered 100% burns from top to bottom
    and the act of pouring the water later on the quilt clearly amounts
    to manipulation of evidence. The findings on this count also remain
    unchallenged and are not open to any doubt.
38. Thus, we may observe that the circumstantial evidence available on
    record appears to be consistent and does not leave much scope for
    the innocence of the appellants. The circumstances overwhelmingly
    point in the direction of guilt of the appellants and the cumulative
    effect of the circumstances has been analyzed correctly by the
    courts below. An alternate possibility is not in sight. To add to it, the
    evidence of PW-7 also states that it was not possible for the body
    to sustain 100% burns in the case of suicide or self-immolation and
    this opinion finds support from other evidence on record. Therefore,
    this opinion has been appreciated by the High Court and Trial Court
    in correct context.
39. Once the entire evidence led by the prosecution is examined
    collectively and comprehensively, the only possibility that emerges
    is of the guilt of the appellants. The appellants have attempted to
    raise questions regarding the evidence of PW-7 and PW-3/PW-4
    for various other isolated reasons. However, as discussed above,
    in order to arrive at the true picture, the evidence adduced before
    the Court is to be examined as a whole and not in isolation. This
    principle assumes greater importance in cases which are based on
    circumstantial evidence as in the absence of direct evidence of the
    offence, the Court is required to analyze the proved circumstances
    in a collective sense so as to arrive at a reasonable finding. In such
    cases, the finding of the Court is essentially an irresistible inference
    which is drawn from the proved material on record.
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40. We have also examined other grounds such as the delay in
    registration of FIR, however, we are unable to find any merit in the
    same. PW-2 was informed about the incident at night on 14.09.2003
    and as soon as he received the information, he travelled to the
    appellants’ village. Thereafter, he went to lodge a complaint, but the
    Patwari was not available at night, which is quite understandable
    as it was late. The complaint was lodged the very next day. Even
    otherwise, it could take a reasonable time for a family member to
    process the news of a tragic death and as long as the delay is not
    unreasonable or suspicious, any delay in the lodging of complaint
    would not be of much consequence, especially when other evidence
    is of incriminating value.
41. In light of the foregoing discussion, we are of the considered view
    that the Trial Court and High Court have correctly appreciated the
    evidence on record. We are unable to find any infirmity in the findings
    of the courts below and the impugned order is sustainable in the
    eyes of law. In the absence of a finding of illegality or perversity or
    impossibility of the impugned findings, consistent views taken by
    two courts cannot be disturbed on mere conjectures or surmises.
    Accordingly, the present appeal is dismissed.
42. The appellants, if enlarged on bail, shall surrender before the
    concerned Jail Superintendent within two weeks from the date of
    this judgment for serving their sentence. Registry to communicate
    the order forthwith.
43. The present appeal stands disposed of in terms of this judgment.
    Interim application(s), if any, shall also stand disposed of. No costs.

       Result of the case: Appeals dismissed.



       †
           Headnotes prepared by: Mukund P Unny, Hony. Associate Editor
                                   (Verified by: Kanu Agrawal, Adv.)