Research › Search › Judgment

Himachal Pradesh High Court · body

2015 DIGILAW 237 (HP)

Nasir v. State of H. P.

2015-03-25

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT Sureshwar Thakur, J. This appeal is directed against the judgment, rendered on 25th June, 2010 by the learned Additional Sessions Judge, Sirmaur District at Nahan, H.P., in Sessions Trial No.6-N/7 of 2009, whereby the appellant has been convicted and sentenced to suffer rigorous imprisonment for life and to a pay fine of Rs.20,000/- and in default of payment of fine, to further undergo imprisonment for a period of one year for the commission of offence under Section 302 of the Indian Penal Code (hereinafter referred to as ‘IPC’). 2. The brief facts of the case are that deceased Mehrooba, the elder daughter of complainant Farmula, aged 22 years was married to accused Nasir about four years prior to her death on the intervening night of 11/12/11/2008. After marriage for about a year, the marital relations between the accused and the deceased were cordial but later, parents of accused Nasir turned both of them out of the house. Complainant Farmula gave Rs.30,000/- to Nasir and her daughter Mehrooba for the construction of new house, which after construction was inhabited by both of them, where they lived for about six months. Thereafter, Nasir, under the influence of his parents, started giving beatings to his wife Mehrooba and because of beatings, few months earlier, Mehrooba had sustained injuries on her arm. Nasir used to threat that he would cut off legs and arms of Mehrooba and would go to serve the Jail. Nasir had relations with another girl because of which he used to give beating to Mehrooba and threatened to kill her. On 11.11.2008, in the evening accused Nasir had come to the house of his mother-in-law Farmula where his wife was present and there in presence of Farmula, he slapped Mehrooba and asked why she was sitting there. Farmula told Nasir that since his wife was pregnant he should not beat her. On 12.11.2008 at about 7.00 a.m, PW-11 Khushnsiba, sister of deceased Mehrooba, on hearing the cries of Salman, son of accused Nasir, went to the house of Nasir and found Mehrooba lying under the cot. PW-1 Farmula also went to the house of Nasir and found Mehrooba lying on the cot and her bangles were found broken. She tried to wake up Mehrooba, but of no use. Mehrooba’s tounge was clinched between her teeth. PW-1 Farmula also went to the house of Nasir and found Mehrooba lying on the cot and her bangles were found broken. She tried to wake up Mehrooba, but of no use. Mehrooba’s tounge was clinched between her teeth. On both sides of the neck and on left eye bluish bruises were present and Mehrooba, was found dead. PW-1 Farmula reported the matter to the police and police came to the spot where her statement under Section 154, Cr.P.C. containing the aforesaid facts was recorded, wherein she also stated to the police that accused Nasir often used to beat Mehrooba and threatened to kill her due to his quarrels, Nasir had throttled the neck of Mehrooba and thereby killed her. Sub Inspector Shayam Chand, Incharge, Police Post, Majra investigated the case, got spot of occurrence photographed, took into possession pieces of bangles and sent the body for post mortem examination. In investigation, it was found that accused Nasir often used to quarrel with his wife and whenever the matter was reported to the police, both husband and wife were made to understand and at the intervention of villagers their quarrels/disputes were patched up. Statements of the witnesses were recorded by the Investigating Officer. 3. On completion of the investigation, into the offence, allegedly committed by the accused, report under Section 173 Cr.P.C. was prepared and filed in the Court. 4. The accused was charged for his having committed an offence punishable under Sections 302 and 316 of the IPC by the learned trial Court to which he pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined as many as sixteen witnesses. On closure of the prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure, was recorded in which he pleaded innocence and claimed false implication. 5. On appraisal of the evidence on record, the learned trial Court, returned findings of conviction against the accused/appellant. 6. The appellant/accused is aggrieved by the judgment of conviction, recorded by the learned trial Court. The learned counsel appearing for the appellant/accused has concertedly and vigorously contended that the findings of conviction, recorded by the learned trial Court, are not based on a proper appreciation of the evidence on record, rather, they are sequelled by gross mis-appreciation of the material on record. The learned counsel appearing for the appellant/accused has concertedly and vigorously contended that the findings of conviction, recorded by the learned trial Court, are not based on a proper appreciation of the evidence on record, rather, they are sequelled by gross mis-appreciation of the material on record. Hence, he contends that the findings of conviction be reversed by this Court, in the exercise of its appellate jurisdiction and be replaced by findings of acquittal. 7. On the other hand, the learned Assistant Advocate General appearing for the respondent-State, has, with considerable force and vigour, contended that the findings of conviction, recorded by the Court below, are based on a mature and balanced appreciation of evidence on record and do not necessitate interference, rather merit vindication. 8. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 9. Mehrooba, the deceased wife of the accused was married to the accused about four years prior to the occurrence. For a year marital relations inter-se the accused and the deceased remained cordial, thereafter, marital relations inter-se them developed estrangement. A 2 ½ years male child has been begotten out of said wedlock. The accused is alleged to have committed the offences for which he came to be charged, convicted and sentenced by the learned trial Court. There is no direct evidence comprised in the depositions of the eye witnesses to the occurrence for sustaining the charge against the accused. However, there is indirect and circumstantial evidence on record which as surging forth from the evidence on record has constrained the learned trial Court to return findings of conviction against the accused. Obviously, when the prosecution case is in its entirety harbored upon circumstantial evidence, then each of the links in the chain of circumstances were enjoined to be unflinchingly proved beyond reasonable doubt. 10. The prosecution had strived and concerted to attribute motive, which link of motive in the chain of circumstances acquires enormous and grave significance, in a case as is the one anchored upon circumstantial evidence. The motive attributed to the accused is of his having ill-treated and maltreated his deceased wife comprised in the acts of physical cruelty meted by him to his deceased wife Mehrooba. The motive attributed to the accused is of his having ill-treated and maltreated his deceased wife comprised in the acts of physical cruelty meted by him to his deceased wife Mehrooba. The depositions of PW-1, PW-2 and PW- 11 when read incisively and in unison with each other manifestly, loudly, consistently and palpably convey the factum of the accused having perpetrated physical cruelty upon his deceased wife, one of which incident has come to be reported to Police Post Majra. The testimonies of PW-1, PW-2 and PW-11 besides being consistent with and in harmony with their respective testimonies on oath, they also do not suffer from any intra-se contradiction so as to render their testimonies to be acquiring the vice of incredibility. Rather the factum as deposed by them, of the accused having meted physical cruelty upon the deceased receives corroboration from documentary evidence existing in Ex. PW-6/A which records the factum of a compromise struck inter-se the accused and the deceased in quick succession to the factum of physical cruelty perpetrated by the accused upon the deceased having come to be reported to Police Post Majra. With the accused not denying the factum of recording of compromise Ex. PW-6/A sequels an invincible and apt conclusion that there were wrangles and bickerings inter-se the deceased and the accused which snowballed into the accused taking to perpetrate physical cruelty upon the deceased. With the noticeable fact pronounced by the depositions of PW-1, PW-2 and PW-11 construed in entwinement with the factum of recoding of Ex. PW-6/A prods this Court to conclude that the accused nursed ill will or hatred towards the deceased, as such, he was fostered to perpetrate physical cruelty upon the deceased. Such acts of physical cruelty perpetrated upon the deceased by the accused communicates the existence of bickerings as well as estrangement in the marital relation inter-se the accused and deceased concomitantly its generating a motive in the mind of the accused to commit the offence for which he came to be charged and convicted by the court below. 11. Now, the propellant cause for the accused to nurse ill will towards his wife emerged from or was germinated by the factum of the accused having illicit relations with another girl. PW-1 Farmula has unequivocally deposed that the accused perpetrated beatings on her deceased daughter as he lived with another girl. 11. Now, the propellant cause for the accused to nurse ill will towards his wife emerged from or was germinated by the factum of the accused having illicit relations with another girl. PW-1 Farmula has unequivocally deposed that the accused perpetrated beatings on her deceased daughter as he lived with another girl. She has also proceeded to in her deposition state that her daughter had noticed the accused to be in the company of his girlfriend one month prior to the occurrence. The said fact has been deposed to have been reported by the deceased to the police Station, Paonta Sahib. The defence has not concerted to belie the testimony of this witness qua the factum of her deceased daughter having noticed the accused in the company of his girlfriend which factum was reported to the police Station, Poanta Sahib by eliciting the germane and relevant record qua the said fact from the Police Station concerned. Consequently, for lack of concert and inability on the part of defence to, by adducing the germane record from the police station Paonta Sahib, belie the fact of the deceased daughter of PW-1 having noticed the accused to be in the company of his girlfriend one month prior to the occurrence, constrains an apt conclusion that it was omitted to be concerted to by the defence as on its adduction the deposition of PW-1 qua the fact aforesaid would have remained un-belittled. Consequently, the overwhelming conclusion which ensues is that the deposition of PW-1 of the accused having been noticed by her deceased daughter to be in the company of his girlfriend and the said factum having come to be reported to the Police Station, acquires veracity. In face thereof it has to be firmly and formidably concluded that the prosecution has been able to unveil by adduction of cogent evidence the factum of the accused having illicit relation with a woman of which the deceased wife of the accused acquired knowledge which ultimately led and sequelled the accused to perpetrate one month prior to the occurrence physical trauma/cruelty upon the deceased. Moreover it appears that the said entanglement of the accused with a woman engendered ill will of the accused towards the deceased as also it constituted a driving motive for the accused to commit the murder of his deceased wife. Moreover it appears that the said entanglement of the accused with a woman engendered ill will of the accused towards the deceased as also it constituted a driving motive for the accused to commit the murder of his deceased wife. The prosecution by adducing potent evidence has firmly established the existence of a motive in the mind of the accused, hence has been able to firmly prove a very vital and potent link in the chain of circumstances. 12. Even the factum of the accused having been last seen in the company of the deceased has come to be proved by the deposition of PW 1 and PW 11, both of them have in tandem deposed that the deceased had come to the house of PW-1 on a day prior to the occurrence and asked for her husband Nasir, in the same evening the accused, too arrived at her house at about 8.00 p.m. from the house of his parents. PW-1 deposed that even when the deceased was pregnant the accused took to deliver a blow on the knee of her deceased daughter Mehrooba. However, she, in her previous statement, recorded in writing Ex. PW-1/A has deposed that on the accused arriving at her house had slapped Mahrooba, hence when she in Court in contradiction thereto has deposed that the accused delivered a blow on the knee of his deceased daughter, as such, the learned counsel for the appellant has proceeded to argue that the said contradiction taints and embellishes the prosecution version of physical cruelty prior to the incident having been meted by the accused to the deceased. Nonetheless when the said discrepancy and contradiction is minor as also given the fact that mother of deceased, PW-1 is an illiterate person, as such, given her rusticity and illiteracy she may have with triviality deviated from her previous statement recorded in writing. Nonetheless when the said discrepancy and contradiction is minor as also given the fact that mother of deceased, PW-1 is an illiterate person, as such, given her rusticity and illiteracy she may have with triviality deviated from her previous statement recorded in writing. Consequently, given the aforesaid fact of triviality of contradiction arising from her rusticity as also the factum of the defence having not, when she proceeded to depose in Court qua the factum of the accused on his arriving at the house of PW-1 having delivered a blow on the knee of her deceased daughter Mehrooba whereby she has contradicted from her previous statement recorded in writing, confront this witness with the apposite previous statement, constrains a conclusion that even the defence has acquiesced to the fact that this witness had indulged in a trifling and trivial contradiction. The factum of such acquiescence also conveys the fact that hence the defence concedes to the factum of the accused on a day prior to the occurrence when he arrived at the house of PW-1 where the deceased daughter of PW-1 along with her son had too come, his having perpetrated physical cruelty upon his deceased wife Mehrooba. Even otherwise, when the said act stands corroborated by PW-11, it can be aptly concluded that the accused one day prior to the occurrence meted physical cruelty to the deceased. Besides, when PW-11 also corroborates the testimony of PW-1 qua the factum of both having seen together the deceased and the accused a day prior to the occurrence actuates a tenable inference that even a day prior to the occurrence the accused nursing an ill will as well as motive to commit the offence as alleged. 13. Moreover, the deposition of PW-1 and PW-11 also connotes the evident fact of the accused being last seen in the company of the deceased. The death of Mehrooba was not natural but it was homicidal. PW-3 has proved the post mortem report Ex.PW3/B, which records the demise of the deceased having occurred owing to asphyxia (throttling). Dr. K.L. Bhagat, PW-3 has observed the following injuries on the person of the deceased:- “External appearance Body lying supine well preserved, rigour mortis appeared.; Wearing green shirt, white Baniyan, orange coloured salwar with open syes. Tounge was protruding out, froth was coming right side of the mouth, also from the nostril. Dr. K.L. Bhagat, PW-3 has observed the following injuries on the person of the deceased:- “External appearance Body lying supine well preserved, rigour mortis appeared.; Wearing green shirt, white Baniyan, orange coloured salwar with open syes. Tounge was protruding out, froth was coming right side of the mouth, also from the nostril. Face and eyes had petechial hemorrhages Wounds bruises position:- (1) There were contusions with abrasions on the left side of the neck 5x2 CM in dimensions, brownish black in colour. (2) Small contusions on the right side of the neck 1x1 cm in dimensions. Brownish black in colour, just below the angle of the mandible. On disecesion of the neck extra bastion of blood in the sub cutanous tissue. The horn of the hyoid bone on the right side was broken. Larynx and trachea Filled with forth and clotted blood. Mouth Harynx and Oesophagus This was filled with forth and oesophagus was empty. There was partially digested food present in the stomach. Organs of generation external and internal. The utrus was opened and a dead baby (female child) age 32-34 week, wt. 2.1 Kg., no maceration, liqure clear, no visible anomaly, fresh intra utrine death occurred. Muscles Bones Joints. Fracture of the right horn of hyoid bone occurred.” The opinion reported by PW-3 in Ex.PW3/B was a tentative opinion awaiting the receipt of opinion rendered by the FSL. On receipt of the report of FSL, which portrayed the factum of no traces of poison in the viscera, led PW-3 to finally opine that the cause of the demise of the deceased was asphyxia. Asphyxia was begotten by antemortem injuries conveyed by the existence of bluish marks on both sides of her neck. The hyoid bone of the neck of the deceased was broken which was sequelled by throttling and use of force as referred to hereinabove. The factum of throttling of the deceased at the instance of the accused is apparent from the evident fact of bluish marks having been communicated in Ex.PW3/B to be existing on both sides of the neck of the deceased. The factum of throttling of the deceased at the instance of the accused is apparent from the evident fact of bluish marks having been communicated in Ex.PW3/B to be existing on both sides of the neck of the deceased. The opinion, referred to hereinabove, given by PW-3 does plain speakingly convey the factum of the cause of the demise of the deceased being asphyxia begotten by throttling of the neck of the deceased at the instance of the accused, he being the person last seen by PW-1 and PW-11 in the company of the deceased, who for the reasons adverted to hereinabove while engendering a motive towards the deceased, took to, hence, consummate it by resorting to the inculpatory act. PW-3 in his cross-examination concedes to the factum that when a person takes to throttle, his victim shrieks, cries and eliminates. However, he proceeded to depose that when force is used by the person while throttling his victim, the abortive act of the victim is baulked owing to blockage of air bases. Consequently, given the force used by the accused or applied by the accused on the neck of the deceased connoted by the factum of existence of ante mortem injuries conveyed by the existence of bluish marks on both sides of the neck, the quantum of force being immense, obviously constrain the victim to take to scream or shriek so as to invite the attention of the neighbours living in the neighbourhood of the accused. Consequently, even if, the abortive act of the deceased was benumbed so as to preclude her from screaming or shrieking for inviting the attention of the neighbourhood, as such, the lack of omission of screaming or shrieking by the deceased cannot invite an inference that the accused did not throttle the deceased or that it did not beget asphyxia. More so, the above conclusion also does get mobilization in the face of the death of the deceased being portrayed by PW-3 to be not suicidal rather homicidal. Consequently, the latter attribution by PW-3 of the deceased having not raised cries or screams though arouseable by the accused concerting to throttle her, stands in the realm of a valid explanation. 14. Consequently, the latter attribution by PW-3 of the deceased having not raised cries or screams though arouseable by the accused concerting to throttle her, stands in the realm of a valid explanation. 14. Moreover, PW-1 has deposed that the bangles of the deceased were found in a broken state as also her silver clip was found behind her back on the ground, besides her hair were also found broken and lying at a small distance from the place of occurrence. PW-11 has corroborated the deposition of PW-1. Even IO PW-16 has corroborated the deposition of PW-1 qua the factum of the aforesaid items having been found at the site of occurrence. The said items have been deposed by PW-2 to have been taken into possession vide memo Ex.PW2/A. The recovery of the aforesaid items conveys that there was scuffle preceding the throttling of the deceased by the accused. However, even if, there was a scuffle inter se the accused and the deceased prior to the occurrence, does not constrain this Court to accept the contention of the learned counsel appearing for the appellant that, hence, omission on the part of the deceased to raise hues and cries for inviting the presence of the neighbours living in the immediate vicinity of the site of occurrence, as a natural corollary leads to a concomitant inference that, hence, the entire incident is a concoction or an invention, especially when PW-3 in his deposition has deposed that throttling was by severe pressure as is evident from the presence of bluish marks on either side of the neck, which marks are also visible in photographs of the dead body of the deceased, Ex.PW5/A-2, Ex.PW5/A-7, Ex.PW5/A-9, Ex.PW5/A-12 and Ex.PW5/A-13,, hence, when such immensity of pressure applied by the accused on the neck of the victim/deceased to beget throttling and consequent asphyxia precluded the deceased to scream or shriek. Naturally then, the omission on the part of the victim to raise shrieks or screams at the culminating stage of the scuffle and even at the stage of the accused taking to throttle her does not at all fillip or boost any inference that the incident was concocted or manipulated or that the death of the deceased was suicidal and not homicidal. 15. 15. The defence as comprised in the testimonies of DW-1, DW-2 and DW-3 conveying the factum of inimicality borne by Iqbal, Dilbag and Nasim with the family of the accused owing to which they killed the wife of the accused in the night accompanied by the fact that the site of occurrence has no doors or windows, hence, facilitated their entry therein, eliminates the effect of the inculpatory role as attributed by the aforesaid discussion to the accused. Nonetheless, the testimonies of the defence witnesses to prove the inimicality of the aforesaid towards the family of the accused, hence, theirs being driven to eliminate the deceased wanes and looses its vibrancy in the face of the defence counsel having omitted to during the course of cross-examination of the prosecution witnesses put apposite suggestion to them of the murder of the deceased having not been committed by the accused rather by the aforesaid. Omission on the part of the learned defence counsel to during the cross-examination of the prosecution witnesses portray an inculpatory role to the aforesaid especially when it preceded the recording of the statement of the accused under Section 313, Cr.P.C., leads to the sequeling conclusion that it does not obviously forbid an inference that the said defence is in its entirety a concoction and an invention. In aftermath, it does not garner or mobilize any tenacity or strength in eroding the prosecution version which for the reasons hereinabove has been concluded to be credible as well as truthful. Moreover, when the motive has come to be proved, by the prosecution by adducing invincible evidence, the effect, if any, of the defence version is emasculated. 16. On appreciation of the evidence, it is imminent and reinforcingly clear that the accused, is, guilty of the offence and that the learned trial Court in coming to appreciate the evidence on record had neither mis-appreciated the prosecution evidence nor had omitted to appreciate the relevant and apposite material on record. Obviously, the impugned judgment of conviction and sentence does not warrant interference. As a result, the appeal is dismissed and the judgment of the learned trial Court is affirmed and maintained. Records be sent back forthwith.