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2010 DIGILAW 890 (ALL)

B. N. Das @ Bhagwan Das v. State Of U. P.

2010-03-17

AMAR SARAN, SHYAM SHANKAR TIWARI

body2010
Shyam Shankar Tiwari, J. 1. Heard Sri Santosh Tripathi, learned counsel assisted by Sri Kailash Choudhary for the appellant, who appeared to press the bail application moved on behalf of the appellant Dr.B.N.Das @ Bhagwan Das in Criminal Appeal No.6476 of 2009 and the learned Additional Government Advocate. Prayer for bail has been made on behalf of the appellant Dr.B.N.Das @ Bhagwan Das,, in this criminal appeal as he has been convicted in S.T. No.288 of 2008 ( State Vs. Dr.B.N.Das @ Bhagwan Das ) and sentenced to undergo life imprisonment and a fine of Rs.3000/- and in default of payment of fine further three months additional imprisonment under section 302 I.P.C., P.S. Chauri Chaura, district Gorakhpur. 2. The prosecution case in brief is that the deceased Chandra Kala was married with appellant about 6-7 years before the occurrence. The appellant entangled himself with some other lady after the marriage due to which the relations between the deceased and the appellant became strained. The deceased used to oppose this act of the appellant and he used to torture her frequently and ultimately, in the night of 29.4.2008 the appellant killed the deceased by poisoning her. An F.I.R. in this regard was lodged by the informant against the appellant, which was registered at the Police Station concerned under section 302 I.P.C. After investigation a chargesheet was submitted against the appellant under section 302 I.P.C. 3. After committal of the case, the learned Additional Sessions Judge relied upon the evidence adduced by the prosecution and recorded a finding of conviction as stated above. 4. It is contended on behalf of the appellant that it is a case of only circumstantial evidence. There is no direct evidence implicating the appellant with this crime. There was no motive in this case with the appellant to commit this crime. The witnesses adduced by the prosecution are related and highly interested. The appellant has been falsely implicated in this case by the informant and his family members in order to grab his property. After getting information that his wife was not feeling well, the appellant carried her to a hospital in Gorakhpur where she was declared dead. 5. It is submitted by the learned A.G.A. that there was clear motive for commission of this crime by the appellant. He was habitual of changing wives one after the other in order to satisfy his lust. 5. It is submitted by the learned A.G.A. that there was clear motive for commission of this crime by the appellant. He was habitual of changing wives one after the other in order to satisfy his lust. After the marriage with the deceased he came in contact with another lady which was being opposed by the deceased, hence the appellant killed her by poisoning. The witnesses examined by the prosecution are reliable and trustworthy. The appellant is a man of loose character and his conduct in marrying ladies one after the other shows his desire to quench his thirst for unlawful lust and for the same he wanted to get rid off the deceased, hence he committed this crime. It is submitted by prosecution that appellant had a strong motive to commit this crime. There is evidence on record that the appellant had contacted two earlier marriages before coming in contact with the deceased. His first marriage was with one Raj Kumari. After few years he neglected her and came in contact with another lady known as Munni Devi. After few years he came in contact with the present deceased and concealing the factum of his relations with previous ladies, he got married with deceased by a registered deed through a court marriage. After passing a few years with the deceased he entangled himself with some other lady which was in the knowledge of the deceased and when she opposed it, he used to torture her and ultimately caused her death by poisoning. The witnesses examined by the prosecution have specifically stated these facts on record and the documentary evidence has also been filed by the prosecution in support of these facts. The prosecution has also filed documents showing the strained relations between the deceased and the appellant before this incident. It is averred by the prosecution that the deceased had moved applications against the appellant before the higher authorities of the police and proceedings under sections 107 and 116 Cr.P.C. were initiated against them. Some compromise was also made between the parties with the interference of the police authorities. A will has also been executed by the deceased regarding her property apprehending danger to her life. 6. The appellant in his statement under Section 313 Cr.P.C. has not given any explanation whatsoever regarding the cause of death of the deceased who was living in his house with the appellant. A will has also been executed by the deceased regarding her property apprehending danger to her life. 6. The appellant in his statement under Section 313 Cr.P.C. has not given any explanation whatsoever regarding the cause of death of the deceased who was living in his house with the appellant. Even on the date of incident she was present in the house of the appellant and the appellant was fully aware of all the happenings between the deceased and himself. The appellant has not come forward with a case of suicide by the deceased. It is also pertinent to mention here that the appellant has not disclosed the time of death of the deceased, though she died when she was in the company of the appellant. The evidence on record reveals that in the house of the appellant on the date of incident the father of the deceased and D.W.2 Km. Aneeta, daughter of the appellant from his first wife Raj Kumari were present. It is not the case of the defence that Km.Aneeta or the father of the deceased administered poison to the deceased. According to his own statement under section 313 Cr.P.C. she was alive when he came to the first floor of his house and carried the deceased to hospital. Till the last neither the name of the doctor nor the name of the hospital where she was carried has been disclosed by the appellant. 7. The learned trial court has discussed the above facts at length and relying upon the provisions contained under Section 106 of the Indian Evidence Act concluded that these facts were in personal knowledge of the appellant and he was legally bound to disclose these facts in order to get him absolved of the charge levelled against him. It is true that there is no direct evidence in the present case, but the circumstances in which the incident took place and the previous history of the appellant regarding his continuous effort to change the ladies one after the other to satisfy his unlawful lust, his silence about the time, place and reason of the death of the deceased clearly indicate about the guilt of the appellant . The medical report shows that in the viscera report, Indo Salfan (Organo Flora ) insecticide poison has been found, which apparently reveals that the cause of death of the deceased was poison. The medical report shows that in the viscera report, Indo Salfan (Organo Flora ) insecticide poison has been found, which apparently reveals that the cause of death of the deceased was poison. There is no evidence of suicide by the deceased. On the other hand, the circumstances put forward by the prosecution complete the chain of circumstances indicating the guilt of the appellant. He is the only person who had full knowledge about all the happenings between him and the deceased till the last. In the peculiar facts of the case the prosecution has proved its case and the circumstances pointing out only to the guilt of the appellant. 8. In the case of Narendra Vs. State of Karnataka (2009) 2 SCC-929 it has been held by the Apex Court as under - "If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. ( See Stirland v. Director of Public Prosecutions?quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh 2004 SCC (Crl)135) The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him." 9. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him." 9. In view of the above discussions, considering the various facts and circumstances available on record including the nature of the offence and evidence adduced in court, we are of the view, that the appellant does not deserve to be enlarged on bail. Accordingly, his prayer for bail is hereby rejected. However, the observations made in this order will not affect the merit of the appeal. Office is directed to prepare the paper books preferably within three months and to list the appeal for hearing thereafter.