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Uttarakhand High Court · body

2014 DIGILAW 4 (UTT)

Nitin Parmar v. State of Uttarakhand

2014-01-02

BARIN GHOSH, SERVESH KUMAR GUPTA

body2014
JUDGMENT BARIN GHOSH, J. These two appeals are by Nitin Parmar, A1, and Km. Koshi, A2, who have been convicted for offences punishable under Section 302 read with Section 34 of I.P.C. and Section 201 read with Section 34 of I.P.C. by the District & Sessions Judge, Nainital in connection with murder of Alpana Chauhan. 2. A2 applied for bail, which she could not secure. A1 applied for bail, when it appeared that having regard to the nature of submissions that were being advanced on behalf of A1 in support of the bail application, it will be convenient to have the appeals decided, accordingly, consent of the counsel for A2 was sought for. Such consent was given. We heard the appeals without preparation of the formal paper book, but on the basis of papers, documents and oral testimony, which were tendered in evidence as available on the original record and to which reference was made by the learned counsel for the parties. 3. The victim, in the instant case, was the wife of A1. She died of injuries, which were pointed out in the post-mortem report. Her partially burnt body was found in the veranda. A gas burner was found inside the bed room. According to Ramshree (PW2), she along with A1 entered the room, when the victim was burning by reason of the burning gas emanating through the pipe attached to the gas cylinder and she stopped the fire by turning off the regulator of the gas cylinder. Unconscious body of A2 was lying inside the room. 4. In the examination-in-chief, PW2 held out that she saw fire coming out from the house of A1; as a result she rushed towards the house of A1, when she saw that A1 was standing outside the house of A1 with his infant on his lap. In cross-examination, which was conducted after obtaining an adjournment by the defence, PW2 stated that when she was going to the house of A1, he came by a Car and then both of them entered the house. 5. As it appears there is no dispute that it was A1, who called for Ambulance and the Ambulance picked up A2 in unconscious state and took her to the Hospital. The victim was not taken, as she had already died. 6. 5. As it appears there is no dispute that it was A1, who called for Ambulance and the Ambulance picked up A2 in unconscious state and took her to the Hospital. The victim was not taken, as she had already died. 6. In view of the judgment of the Hon’ble Supreme Court rendered in Akil alias Javed v. State (NCT of Delhi), reported in (2013) 7 SCC 125 : (AIR 2013 SC (Cri) 355), the version of PW2, as given in the cross-examination, may not be accepted by us. However, assuming that the statement of PW2 to the effect that A1 came to his house in a Car at the time when PW2 came to the said house can be taken note of, but, unless corroborated, that part of the evidence that A1 came from outside in a Car is not binding on us. 7. In order to show that A1 was away from his house at the time of the incident, two defence witnesses were called. The first defence witness, namely, Saurabh Sinha (DW1) produced a C.D. and positive prints of certain photographs without their negatives. The purpose of production of those was to show that at about the time of the incident, A1 was away from his house. The C.D. as well as the positive prints of the photographs suggested the time when the photographs were taken. It was suggested that at the time when those photographs were taken, as will appear therefrom A1 was present at a place away from the place of incident. Since negatives of those positive prints were not produced, and at the same time there was no assertion by DW1 that those were compared, those positive prints could not even be treated as secondary evidence. Furthermore, DW1 did not make any effort to prove the C.D. and the positive prints under Section 65B of the Evidence Act or even otherwise. While tendering the C.D. and the positive prints, DW1 even did not make an attempt to pinpoint any part of the C.D. or any of the positive prints that any of them contains the picture of A1. The court below could not locate A1 in any of them. Our effort also failed. While tendering the C.D. and the positive prints, DW1 even did not make an attempt to pinpoint any part of the C.D. or any of the positive prints that any of them contains the picture of A1. The court below could not locate A1 in any of them. Our effort also failed. According to DW2, he is the subordinate of A1 working in the same office, and that, he received a call from somebody at his office as regards burning of the house of A1 when A1 was not present and, accordingly, he informed A1 through his mobile phone. DW2 did not disclose the identity of the person from whom he received the call. The alleged caller did not disclose himself. If the alleged caller was so concerned about A1 and, accordingly, had telephoned his office to reach the information, he was a well-wisher of A1. Such a well-wisher of A1, however, was not seen in the vicinity of the place of incident at about the time of the incident or even subsequent thereto. No attempt was made by A1 to establish that he had a Car or on the date of the incident he had the facility of a Car, and that, with the help of a Car on that date he reached his house. 8. The net result of the analysis, as above, would show that the victim was lying dead inside the bedroom of A1 in consequence of injuries suffered by her and an attempt was being made to burn her body and for that matter the gas cylinder with the pipe and its regulator had been brought inside the bedroom and that gas was emanating from the rubber tube was lit up to burn the dead body of the victim; when A2 was also lying unconscious inside the self-same bedroom; and A1 was present in the house. A1 and PW2 entered the bedroom, when PW2 turned off the regulator and, thereby, stopped the fire. For the reasons already indicated above, A1 has failed to establish that he was away from his house at the relevant time. The inference is that A1 was present even before PW2 had arrived. A1, though, had a duty to speak as to what he was doing immediately before PW2 had arrived but utterly failed to do so. This duty to speak is cast by Section 106 of the Evidence Act. The inference is that A1 was present even before PW2 had arrived. A1, though, had a duty to speak as to what he was doing immediately before PW2 had arrived but utterly failed to do so. This duty to speak is cast by Section 106 of the Evidence Act. Failure of discharging such duty entails adverse inference to be drawn. 9. In the First Information Report, which was lodged by Anurag Chauhan, brother of the deceased (PW3), it was alleged that A2 and A1 had some relationship. A2 wanted to marry A1, and that was the reason, for which A1 and A2, after murdering the victim, tried to burn her dead body. The fact, that A2 was present at the time when the incident had taken place, has not been disputed even by A2. According to her, in answer to questions under Section 313 of the Code of Criminal Procedure, she was a friend of the victim. On the fateful day, she was asked by the victim to visit her and for that matter she came to the house of A1 and found that the victim was lying dead and the infant was crying in the outside room and blood was scattered all around there. Therefore, according to her, A2 entered the house of A1 after the death of the victim and before PW2 entered the house of A1. There is no dispute that A2 became unconscious and she was taken to Hospital by the Ambulance from the place of occurrence in unconscious state. What made A2 become unconscious? A2 did not say the same. A2 had marks of injuries on her body. Those were on the front part of the throat. She stated that she fell down in the morning and as a result got those injuries. She fell down in the morning and got those injuries were though asserted but not attempted to be proved. From the place of incident, two mobile phones were taken into custody by the Police. Those were produced in the Court. A2 accepted one of them to be her. According to her, she was called by the victim over her mobile phone. No Landline telephone was found in the house. The inference will be that the other mobile phone was of the victim, which, however, was not proved by any positive evidence. Those were produced in the Court. A2 accepted one of them to be her. According to her, she was called by the victim over her mobile phone. No Landline telephone was found in the house. The inference will be that the other mobile phone was of the victim, which, however, was not proved by any positive evidence. In the absence of a positive statement given by A2, it is unbelievable that looking at the dead body of the victim she became unconscious, and that, she was carrying the mobile phone in her hands and that slipped from her hands. In other words, it became obligatory on her part to state when and why she parted her mobile phone in the house of A1, which she failed to do. From the fist of the deceased, a bunch of hair was found. Those were compared with the hair of A2 and they matched. It was contended that according to the post-mortem report, that side of the deceased got burnt and, accordingly, there could not be even a string of hair in the fist of the deceased. The fact remains that before even the inquest was made of the dead body, the victim was shifted out from the place of incident through an Ambulance. Who would collect a string of hair of A2 for being planted in the fist of the deceased? It was not suggested to the doctor, who proved the autopsy report that the nature of burning was such that there could be no existence of a string of hair inside the fist of the victim. The clothes of the deceased were taken into possession. Similarly, clothes of A2 were taken into possession. Those contained blood marks. They were sent to the Forensic Science Laboratory and the Forensic Science Laboratory reported that the clothes of the victim contained human blood and the clothes of A2 contained human blood of Group “B. A2 did not explain how that blood mark came to her clothes. She did not hold out that her blood is also Group “B. A metallic knife was discovered at the instance of A1. The same contained human blood of group “B. While finger print on the said knife was not taken, the blood group of the victim was also not determined, but, however, PW3 clearly stated that the victim had “B group blood. The same contained human blood of group “B. While finger print on the said knife was not taken, the blood group of the victim was also not determined, but, however, PW3 clearly stated that the victim had “B group blood. No suggestion was given to PW3 that the same is not correct. When this aspect of the matter was brought to the notice of A1, in answer to questions under Section 313 of the Code, he ignored his knowledge about the blood group of his wife who had, by that time, already become mother of a child. It was contended that the recovery, at the instance of A1, should not be accepted, inasmuch as, the same was made from the tomato field of one Shanker Pandey about 15 steps away from the house of A1, and that, the recovery witnesses gave opposite views about the recovery. The fact remains that the recovery was made within a very short period of time. The recovery memo was signed by A1. The recovery was witnessed by PW3. The other public witness to the recovery, namely, Padeep was not called to give evidence. In answer to questions put under Section 313 of the Code, A1 did not assert that the signature on the recovery memo is not his or that the said signature was obtained from him by coercion. Dr. Kumud Pant (PW8), who had examined A2, held out that the injuries which A2 had received may be caused when a person takes defence to save himself/herself, and that, those injuries were received by A2 at around the time when the incident took place. Because the other mobile was not investigated, it was submitted on behalf of A1 that A2, who wanted to marry A1, had company, but A1 did not say in answer to questions put under Section 313 of the Code that the victim had no mobile. 10. Having regard to the nature of evidence, thus brought on record, the court below has taken the view, as expressed in the judgment under appeals convicting both the appellants for the crime in question. We have not been able to persuade ourselves to take a different view. The appeals fail and the same are dismissed. 11. Let lower court records be sent back to the court below along with a copy of this judgment. Appeals dismissed.