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2012 DIGILAW 431 (UTT)

BRIJ RAJ SWAROOP GUPTA v. STATE OF UTTARANCHAL

2012-07-27

BARIN GHOSH, U.C.DHYANI

body2012
JUDGMENT Per: U.C. Dhyani, J. By the judgment under appeal, appellant has been convicted for having had committed murder of his wife and, accordingly, has been sentenced to life imprisonment under Section 302 of the Indian Penal Code (hereinafter referred to as ‘IPC’), along with a fine of ` 10,000/-, in default of payment of which, to undergo two more years’ rigorous imprisonment. 2. It was the case of the prosecution that the appellant used to reside at a different place and his wife used to reside at another place, but the appellant used to visit the house of the victim to take lunch with her. It was also the case of the prosecution that, on the fateful date, appellant went to the house of the victim, cooked kadhi and, while cooking kadhi, mixed poison with kadhi, fed the same to the victim, but did not take the same himself on the plea that he was having loose motions. 3. In order to prove that the appellant was with the victim at lunch on the fateful date, prosecution produced Ranjeet Singh (PW2) and no other witness. PW2 deposed that he was in search of a job and, accordingly, approached the appellant, who was the then Director of ONGC, for that purpose. PW2 stated that, on the fateful date, during the lunch time or soon before, he went to the house of the victim, when the victim ushered him and permitted him to go to the kitchen of her house on the plea that the appellant was then in the kitchen cooking lunch. PW2 further stated that when he went to the kitchen of the victim, he found the appellant cooking and he took out some white coloured powder from a small purse and poured the same in the food, which he was then cooking. The evidence of PW2 has not been accepted by the court below for good reasons. PW2 further stated that when he went to the kitchen of the victim, he found the appellant cooking and he took out some white coloured powder from a small purse and poured the same in the food, which he was then cooking. The evidence of PW2 has not been accepted by the court below for good reasons. We have not been persuaded by the Deputy Advocate General, who argued the case on behalf of the respondent State, to take a contrary view, principally for the reason that PW2 did not hold out that he knew the victim, he had occasion to visit the house of the victim on any earlier occasion, and that PW2, a job seeker and, at the same time, unknown to the victim, would be ushered in by the victim and permitted to enter her kitchen, was such piece of evidence, which could not be swallowed. Furthermore, if the appellant was mixing poison in the food while in the kitchen, it is unimaginable that the appellant will do the same in presence of a job seeker. 4. There is, therefore, no evidence on record, which would suggest that the appellant was present at the house of the victim on the date and time, as insinuated by the prosecution. 5. Virendra Kumar Bhola (PW1), a jeweller, was also a job seeker. He, too, went to the house of the victim on the fateful date. But PW1 did not state that he saw the appellant inside the house of the victim at the time when he allegedly visited the house of the victim. The evidence of PW1 was not accepted by the court below for the same reason, as has been given in respect of PW2. Even if what PW1 has stated is accepted, the same would not show presence of the appellant in the house of the victim at the time and on the date as was insinuated by the prosecution, inasmuch as, the presence of the appellant, as conveyed by PW1, is based on information allegedly received by him from the victim, which evidence is nothing, but hearsay. 6. The other important evidence is of Sarla Puri (PW7). 6. The other important evidence is of Sarla Puri (PW7). She stated that, on being informed by the appellant over phone that the victim is unwell, she went to the house of the victim, when she was ushered in by the maid servant of the victim, not produced in evidence, who told PW7 that an unknown person visited the victim and that person informed the appellant that the victim is unwell. She further stated that, when she saw the victim, she found that the victim was lying on the floor in unconscious state. This piece of evidence also does not establish presence of the appellant, in course of lunch time, at the residence of the victim on the date of occurrence. 7. It is the case of the prosecution that the appellant had mixed organo-cloro insecticide with kadhi. Kadhi was taken by the victim. Police seized left over kadhi and left over rice. Those were sent for chemical examination, whereupon, it was reported that the rice did not contain any harmful substance, whereas kadhi contained organo-cloro insecticide. The doctor, who conducted post-mortem, did not record the reason for the death. He, however, preserved viscera for chemical examination. In course of giving evidence, the doctor held out that the death was occasioned by reason of administration of organo-cloro insecticide. Assuming that the evidence, thus given by the doctor, is acceptable, it only suggests that the cause of the death was consumption of organo-cloro insecticide by the victim. Whether the consumption was voluntary or involuntary, there is no evidence. Prosecution has failed to bring on record any evidence suggesting what would be the quantum of organo-cloro insecticide to cause death of a normal human being. It has also not brought on evidence anything to suggest whether such quantity, which is capable of causing death of a normal human being, if mixed with food, will or will not spoil the food or make the food emit such additional smell, which is quite different from the smell of the food with which the same has been mixed. In other words, the prosecution has not brought on record any evidence suggesting that food mixed with organo-cloro insecticide can be consumed by a human being without knowing that the food is so mixed. In other words, the prosecution has not brought on record any evidence suggesting that food mixed with organo-cloro insecticide can be consumed by a human being without knowing that the food is so mixed. In the absence of evidence to that effect, even if it is accepted that the cause of death was having organo-cloro insecticide along with the food taken by the victim, it cannot be held that such consumption was not voluntary on the part of the victim or that the same was involuntary, particularly when there is no evidence that the appellant was present at the time when the food in question was prepared. If consumption of organo-cloro insecticide was voluntary, then the appellant cannot be held guilty for murder, for, in order to constitute murder, the basic requirement is culpable homicide, i.e. a death which has been inflicted. In the event, the death has not been inflicted, then there is no culpable homicide and, if there is no culpable homicide, there is no murder. 8. In the circumstances of the case as discussed above, the accused-appellant is liable to be given benefit of doubt, as the prosecution has not been able to prove charge against him for the offence punishable under Section 302 IPC to the hilt. It is accordingly held that the prosecution has not been able to prove its case against the accused/appellant Brij Raj Swaroop Gupta beyond reasonable doubt. 9. For the reasons as discussed above, the appeal of the appellant Brij Raj Swaroop Gupta is allowed. The judgment/order dated 6.10.2003/7.10.2003 passed by Additional Sessions Judge/IV Fast Track Court, Dehradun in Session Trial No. 80 of 1993 State vs. Brij Raj Swaroop Gupta is hereby set aside. The conviction recorded in respect thereof and sentence thus awarded to him are also set aside. Appellant Brij Raj Swaroop Gupta is on bail. His bail bonds are cancelled and sureties are discharged. He need not surrender. Let lower court records be sent back.