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2009 DIGILAW 2965 (ALL)

Ravi Khandelwal v. State Of U. P.

2009-08-26

VIJAY KUMAR VERMA

body2009
JUDGMENT: Vijay Kumar Verma, J. Prayer for bail in this bail application under section 439 of the Code of Criminal Procedure (in short 'the Cr.P.C.') has been made on behalf of the applicant Ravi Khandelwal. He is the husband of deceased Smt. Tripti, whose murder was committed on 20.06.2008 in the house of applicant, situated in Radha Puram colony, Mathura. 2. The First Information Report about committing the murder of his wife was lodged by the applicant Ravi Khandelwal himself on 21.06.2008 at 2.30 a.m. at P.S. Highway, Mathura, where a case under section 302, 201 IPC was registered at crime No. 327 of 2008 against unknown persons. The allegations made in the FIR (Annexure-1), in brief, are that when the applicant Ravi Khandelwal was on his shop, situated in Dori Bazar in front of Gandhi Park, Mathura, an information was given to him on telephone on 20.06.2008 at about 6.00 p.m. by his neighbour Pankaj Agrawal, who informed the applicant that the maid servant has told that your wife is not in the house, which is closed and child is alone in the house. On getting this information, the applicant came to his house and found that the house was locked from outside and his wife was not in the house, whereas he had gone to his shop leaving his wife Smt. Tripti and son Kanak in the house at about 10.00 a.m. The applicant made search of his wife here and there, but in vain. When the lock of the house was opened in presence of other persons, the child was found tied, who was sleeping on the bed. The wife of the applicant was searched in the house, but she could not be traced out. On getting information, the parents of the applicant also came there. Further case of the prosecution is that when in the intervening night of 20/21.06.2008 at about 2.00 a.m. the mother of the applicant opened the bed with a view to take out gadda, the dead body of Smt. Tripti was found lying inside the box of the bed. After conducting inquest proceedings of the dead body, the post-mortem examination was conducted on 21.06.2008 at 3.30 p.m. According to the post-mortem report (Annexure-2), ante-mortem injuries were found on the person of deceased and cause of death was asphyxia as a result of ante-mortem neck injuries. 3. After conducting inquest proceedings of the dead body, the post-mortem examination was conducted on 21.06.2008 at 3.30 p.m. According to the post-mortem report (Annexure-2), ante-mortem injuries were found on the person of deceased and cause of death was asphyxia as a result of ante-mortem neck injuries. 3. After completion of the investigation, the charge-sheet has been submitted against the applicant himself on the charge of committing the murder of his wife and concealing her dead body in the box of the bed. 4. I have heard lengthy arguments of Sri V.P. Srivastava, learned Senior counsel, assisted by Sri Parshu Ram Chaturvedi, appearing for the applicant, Sri Pulak Ganguli Advocate, representing the father of deceased and AGA for the State. 5. The first and foremost submission made by learned counsel for the applicant was that the only incriminating evidence against the applicant for showing his complicity in the incident of committing the murder of his wife is the statement of his son Kanak, who is a child witness, aged about 5 years and since at the time of recording his statement under section 161 and 164 Cr.P.C., he was in the custody of his Nana, hence it is not safe to place any reliance on his statement and on this ground, the applicant deserves to be released on bail, because except the statement of child witness Kanak, there is no other evidence to show the complicity of the applicant in the incident of committing the murder of his wife Smt. Tripti. It was also submitted by learned counsel for the applicant in this context that the child witness Kanak was tutored by her Nana for giving statement against his father and since there is contradiction in the statement of this witness and post-mortem report about causing injuries to the deceased, hence on this ground also, the statement of child witness does not carry any weight. 6. Next submission made by learned counsel was that after conducting post-mortem examination on the dead body of deceased, the funeral of the dead body was made in presence of the father, mother and other family members, but they did not make any complaint at that time and subsequently the father of the deceased demanded Rs. 6. Next submission made by learned counsel was that after conducting post-mortem examination on the dead body of deceased, the funeral of the dead body was made in presence of the father, mother and other family members, but they did not make any complaint at that time and subsequently the father of the deceased demanded Rs. six lac from the applicant and when the applicant did not pay such huge amount to the father of the deceased, he moved false application to the authorities concerned and on the basis of tutored statement of child witness, the police has submitted false charge-sheet against the applicant. For this submission, my attention was drawn towards the copy of the telegram (annexure-6), which was sent on 23.06.2008 by the applicant Ravi Khandelwal to SSP and District Magistrate Mathura. Copy of the application dated 23.09.2008 (Annexure-7) was also referred in this context. 7. About the statements recorded during Narco Analysis Examination of the applicant, it was contended by Sri V .P. Srivastava, learned Senior Counsel that the answers given by the applicant during this examination cannot be used against him, as the person at the time of undergoing Narco Analysis examination does not remain conscious and any confessional statement made by him during such examination is not admissible in evidence. 8. It was also submitted by learned counsel that the applicant is languishing in jail since 23.09.2008 and hence, he should be released on bail now. 9. The bail application was vehemently opposed by the learned counsel for the father of deceased and AGA contending that on the basis of the statements of son (Kanak) of the applicant recorded under sections 161 and 164 Cr.P.C., his complicity in the incident of committing the murder of his wife is fully established and hence, in this heinous crime, he should not be released on bail. 10. It was further submitted by learned counsel for the father of deceased that murder of the deceased was not committed by any outsider, because, if the murder of the deceased was committed by some outsider, then her dead body would not have been concealed inside the box of the bed. 10. It was further submitted by learned counsel for the father of deceased that murder of the deceased was not committed by any outsider, because, if the murder of the deceased was committed by some outsider, then her dead body would not have been concealed inside the box of the bed. The contention of the learned counsel was that in normal course, after committing such crime, the offenders tried to flee away from the place of incident immediately and they would not have wasted time in concealing the dead body inside the box of bed and dead body inside the box of bed can be concealed only when the murder is committed by any inmate of the house. 11. It was also submitted by learned counsel for the father of the deceased that child Kanak (son of the applicant) was produced in this Court on 14.02.2009 at the time of disposal of Habeas Corpus Writ Petition No. 52691 of 2008 and at that time also, statement of the child was recorded in High Court and in that statement, the child had declined to go with his Dada and Dadi saying that they would kill him in the manner they killed his mother and hence keeping in view the statement of child witness Kanak recorded in the High Court as well as during the investigation under section 161 and 164 Cr.P.C., the applicant should not be enlarged on bail, because the only eyewitness about committing the murder of deceased is the child witness Kanak and if the bail is granted, then after coming out from jail, either the the applicant would eliminate his son Kanak also, or would tutor him for giving evidence in his favour. For that submission, my attention was drawn towards copy of the order dated 14.02. 2009 (Annexure C.A.-7 to the counter affidavit dated 28.07.2009), passed by this Court in aforesaid Habeas Corpus Writ Petition. 12. Placing reliance on Golla Yelugu Govindu vs. State of A.P. [2009 (64) ACC 892], it was further submitted by learned counsel for the father of deceased that child is also a competent witness and there is no legal bar to base conviction on the basis of the testimony of child witness alone, if his testimony is found worthy of reliance. 13. I have carefully gone through the entire case diary and other material on record. 13. I have carefully gone through the entire case diary and other material on record. Annexure-5 to the bail application is the copy of statement of witness Kanak Kahadelwal @ Cheenu, which was recorded by the investigating officer on 18.09.2008 during investigation. In this statement the witness has specifically stated that his father (Papa) had caught hold the neck of his mother (Mammi) and another uncle had caught hold his feet, and after tying him from chunni of mother (Mammi) kept him on the bed in the room of TV and, thereafter, he had slept. Statement of the child witness Kanak Khandelwal was recorded on 24.09.2008 by the ACJM Mathura under section 164 Cr.P.C. Annexure-5A (Paper No. 28) to the bail application is the copy of that statement. In this statement also, the child Kanak Khandelwal @ Cheenu has stated that on the day of incident when there was sunlight, his father (Papa) and one boy came in the house and his Papa caught the neck of his mother by both hands and the boy, who had come with his Papa, tied his hands and feet by chunni and closed the door from outside. It is further specifically stated by the child Kanak that his Papa had killed his Mummi (mother) by pressing her neck by both hands and he had seen his father (Papa) pressing the neck of his Mummi. There is evidence in the case diary to show that when the door of the house of applicant was opened, the child Kanak was found tied with chunni, which was taken into possession by the investigating officer. Therefore, having taken all these facts into consideration and keeping in view the specific averments made by child witness Kanak Khandelwal @ Cheenu in his statements under sections 161 and 164 Cr. P. C. against his father Ravi Khadelwal about committing the murder of deceased, but without expressing any opinion about merit of the case, in this heinous crime of committing murder of his wife and concealing her dead body inside the box of the bed, the applicant does not deserve bail. 14. In my considered opinion, the applicant can not be admitted to bail on the basis of the period of detention in jail also. 14. In my considered opinion, the applicant can not be admitted to bail on the basis of the period of detention in jail also. In this regard, reference may be made to the case of Pramod Kumar Saxena vs. Union of India and others 2008 (63) ACC 115, in which the Hon'ble Apex Court has held that mere long period of incarceration in jail would not be per-se illegal. If the accused has committed offence, he has to remain behind bars. Such detention in jail even as an under trial prisoner would not be violative of Article 21 of the Constitution. 15. Consequently, the bail application is hereby rejected. 16. The trial court concerned is directed to conclude the trial of the applicant within a period of six months applying the provisions of section 309 Cr.P.C. and avoiding unnecessary adjournments. 17. SSP Mathura also is directed to depute special messenger to procure the attendance of witnesses after obtaining their summons from the court concerned and it must be ensured that all the witnesses are produced for evidence in session trial No. 992 of 2008 without causing any delay. 18. The Office is directed to send a copy of this order within a week to the trial court concerned and SSP Mathura for necessary action.