Nirmal vs State Of U.P.
2022 Latest Caselaw 21591 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
AFR
 
Court No. - 29
 

 
Case :- CRIMINAL APPEAL No. - 5571 of 2015 
 

 
Appellant :- Nirmal
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Krishna Nand Yadav, Dinesh Kumar Pandey
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Manoj Misra,J.

Hon'ble Syed Aftab Husain Rizvi,J.

(Delivered by Manoj Misra, J.)

1. This appeal is against the judgment and order dated 19.10.2015/ 27.10.2015 passed by the Additional Sessions Judge, Court No.2, Maharajganj in S.T. No.111 of 2013, arising out of Case Crime No.133 of 2013, P.S. Thuthibari, District Maharajganj, whereby the appellant (Nirmal) has been convicted under Sections 302, 307, 342 IPC and sentenced as follows:- Imprisonment for life as well as fine of Rs.25,000/-, coupled with a default sentence of one year, under Section 302 IPC; imprisonment for life as well as fine of Rs.24,000/-, coupled with a default sentence of one year, under Section 307 IPC; and one year R.I. as well as fine of Rs.1,000/-, coupled with a default sentence of two months, under Section 342 IPC. All sentences to run concurrently.

INTRODUCTORY FACTS

2. On 14.03.2013 at 8.30 hours, a written report (Ex. Ka-1) thumb marked by Poonam (PW-1), scribed by Zakir Ahmad (PW-3), was lodged by Virendra (PW-2), father of Poonam, giving rise to Case Crime No.133 of 2013 at P.S. Thuthibari, District Maharajganj of which GD entry, vide report No.12 (Ex. Ka-5), and Chik FIR (Ex. Ka-4) was prepared by Constable Ram Adhar (PW-5). In the written report it was alleged that informant - Poonam (PW-1) was married to the accused - Nirmal (the appellant) seven years ago; out of that marriage, she had two sons, namely, Nilesh (deceased no.1- D-1), aged about 5 and a half years, and Niwas (deceased no. 2- D-2), aged about 3 years; that the accused used to suspect informant's character and allege that those children were not his and therefore the informant should go away with her children or else she as well as her sons would be killed; that this fact was communicated by the informant to her parents but they used to counsel her to have patience; that on 13.03.2013, the accused Nirmal killed his children at about 11.10 am and also inflicted knife blow on informant's neck and left after shutting the door from outside; however, later, in the night people admitted her in the hospital therefore, now she is lodging the report for appropriate action.

3. Upon registration of the case, Bhagwati Singh (the investigating officer - I.O.) (PW-6) visited the spot and carried out inquest of the two deceased, namely D-1 and D-2. The inquest of D-1 was completed by 10.50 hours on 14.03.2013 of which an inquest report (Ex. Ka-9) was prepared. One of the inquest witnesses to the report is Mahendra (PW-8). Similarly, inquest of D-2 was completed by 13.30 hours on 14.03.2013 of which an inquest report (Ex. Ka-15) was prepared by PW-6. On 14.03.2013 itself, the I.O. carried out separate inspection; prepared site plan (Ex. Ka -4); lifted plain earth and blood stained earth from the spot of which a seizure memo (Ex. Ka-6) was prepared and also collected murder weapon (a knife) of which seizure memo (Ex. Ka-5) was prepared.

4. Autopsy was carried out on 15.03.2013. Autopsy report, dated 15.03.2013, of D-1 (Ex. Ka-2) indicates that it was completed by 3 pm. The relevant entries in the autopsy report (Ex. Ka-2) are as follow:-

External Examination:-

Average built body, aged 5 years; rigor mortis passed out in all limbs; abdomen distended; scrotum swollen; skin peeled off at places; blister present at places; eyes bulging, mouth open; blood stained cloth on face present.

Ante Mortem Injuries:-

(i) Incised wound 5.8 cm x 1.5 cm x bone deep on left side neck obliquely placed underlying trachea, oesophagus, carotid vessel on left side cut.

(ii) Contusion traumatic swelling 3.0 cm x 2.5 cm on right side head.

Internal Examination:

Stomach contains pasty material 50 gm. Small intestine empty. Large intestine full with faecal matter and gases.

Opinion:- Death due to shock and haemorrhage as a result of ante-mortem injuries.

Duration since death:- About two days.

5. Autopsy report of D-2 (Ex. Ka-3), dated 15.03.2013, reflects that it was completed by 3.45 pm. The relevant entries in the autopsy report (Ex. Ka-3) are as follows:-

External Examination:-

Average built body, aged 4 years; rigor mortis passed out in all limbs; eyes bulging, mouth half open, blisters at places; abdomen distended; skin peeled off at places.

Ante Mortem Injuries:-

Incised wound 4.8 cm x 1.2 cm x bone deep on front and left side neck obliquely, underlying trachea, oesophagus and carotid vessel on left side cut.

Internal Examination:

Stomach contained pasty material 50 gm. Small intestine empty. Large intestine full wth faecal matter and gases.

Opinion:- Death due to shock and haemorrhage as a result of ante-mortem injuries.

Duration since death:- About two days.

6. After completing the investigation, PW-6 prepared and submitted charge sheet (Ex. Ka-7) against the appellant on 24.04.2013. After taking cognizance on the charge sheet, the matter was committed to the court of session. The court of session charged the appellant as follows:- for the murder of D-1 and D-2, under Section 302 IPC; for attempting murder of the informant Poonam (PW-1), under Section 307 IPC; and for wrongful confinement of PW-1, under Section 342 IPC. The appellant pleaded not guilty and claimed trial.

PROSECUTION EVIDENCE

7. During the course of trial, the prosecution examined as many as 10 witnesses. Their testimony, in brief, is as follows:-

8. PW-1- Poonam- the informant - the wife of the appellant and the person injured. She stated that she was married to the appellant about seven years before the incident. Out of that marriage she had two sons, namely, Ram Niwas and Nilesh. Nilesh was aged 5 and a half years, whereas Ram Niwas was aged about 4 years at the time of the incident. She stated that the appellant used to work as a tailor/weaver in Gujarat. During Diwali the appellant had come to the village from Gujarat. She stated that she used to live in village Gadaura where her husband had his house and agricultural holding. Her husband is one amongst four brothers each having separate mess though they had common fields etc. She stated that her husband used to level allegations that she is having a bad character and the two children, namely, Ram Niwas and Nilesh, were not from him. PW-1 stated that the appellant also used to threaten her to take her children and go away or she and her children will be killed. PW-1 stated that she gave information of the aforesaid threat to her father (Virendra - PW-2). Her father came and counseled her and her husband. On several occasions, her father had counseled the appellant but to no effect. On the date of the incident, at about 11 am, while she was in her room hanging clothes and her two children were playing on the wooden cot, her husband (the appellant) came and struck Ram Niwas with a knife, when she intervened, the appellant caught her by her neck with his hand and struck Nilesh on the neck with the knife. Both children started struggling to breathe. Thereafter, she was also inflicted knife blow by her husband. Both her children died and she fell unconscious. Thinking that she is dead, her husband locked the door from outside and ran away. As she had injury on her neck, she could not raise an alarm. In the night her husband came with his brother Sarwan and when they found that the informant was alive, Sarwan advised informant's husband Nirmal to take her to the hospital and make a false report that informant has killed her own children and inflicted injuries on herself. On the above suggestion of Sarwan, Nirmal (the appellant) stated that it would be better that he escapes to Nepal, upon which Sarwan told Nirmal that if he escapes now, he would be trapped, therefore it would be better that she (PW-1) is taken to the hospital. PW-1 stated that thereafter Sarwan and Nirmal took her to the hospital and got her admitted in District Hospital, Maharajganj. After she was admitted, information was given to her father. Her father arrived in the morning. Along with her father, Zakir Ahmad had also come. She narrated the incident to her father by gestures. Zakir scribed the report and read out the report. She approved the report by her gestures and put thumb impression on it. The report was shown to her; she identified it and the same was marked Ex. Ka-1. At this stage, the witness showed to the court the mark of injury on her neck and claimed that she is being threatened by unknown persons not to give statement against Nirmal otherwise she would be killed. PW-1 added that since then she has been staying with her father and has come to give her statement along with her father. When the photograph of the body of the deceased was shown to her she identified the deceased. She clarified that when the first information report was lodged she was not in a position to speak but she could gesticulate and the report was prepared on the basis of gesticulation. She stated that she remained in the hospital for 6-7 days and thereafter under went treatment for few months and in her treatment about 60-70 thousand rupees of her father were spent.

During cross examination, she admitted that her husband had been working out of station since before her marriage. Sometimes he used to return within six months and sometimes after a year. She stated that her husband is one amongst four brothers. All of them have separate mess. For one or two years or may be three years, after Gauna, there used to be a common mess but since thereafter they all had separate mess. In respect of description of the house where she resided at the time of the incident, PW-1 stated that the house has four rooms; each brother has a room to himself; all rooms, having separate doors, open in a common gallery. The room of Sarwan (one of the brothers of her husband) is in front of the room of the informant. On the day of the incident, Sarwan, Sarwan's wife and Sarwan's mother and father including children were there and Nirmal (accused-appellant) was also there. Nirmal had arrived on the day of Diwali. She stated that so long Nirmal stayed in the village he used to only loiter around. He used to leave the house between 10-11 am, normally after having meals, but where he used to go, she did not know. Sometimes he used to leave even without food. She stated that in her house, food used to be cooked early morning as the elder son used to go to the school. On the day of the incident, food was cooked between 7 and 8 am. Her son after having meal had gone to the school. On the date of the incident, Nirmal had his meals at around 11-30 am. The elder son had had his meals but the younger one did not have his meals, he had only milk. She also had not taken her meals. She could not remember as to when Nirmal left the house but then she stated that he left the house after having meals at around 11 am. She stated that after receiving injury she turned unconscious and she does not know for how long she remained unconscious. She stated that she regained consciousness when Sarwan and Nirmal were trying to stir her up. She was given water to drink and after having water she gained consciousness but then again she became unconscious. She stated that when she was given water she was partially conscious. She could hear the conversation between Sarwan and Nirmal. She could not tell as to when the police had come to record her statement and she also could not tell as to where she regained consciousness. She, however, stated that when her father had arrived in the morning, she had regained consciousness. She could not tell as to how many persons had come to the hospital to visit her. At this stage, PW-1 stated "मैं निर्मल से तंग आ गयी थी। वह मुझे बहुत मारते थे।"

She denied the suggestion that she killed her children and tried to kill herself as she was frustrated. She also denied the suggestion that at the time of the incident Nirmal was not in the house but was away. She also denied the suggestion that no such incident had occurred.

9. PW-2 - Virendra - father of the informant. PW-2 stated that her daughter Poonam was married to the appellant about 7 years ago and out of the marriage D-1 and D-2 were born. PW-2 stated that her daughter used to inform him that her husband Nirmal used to level allegations of bad character on her and used to allege that her children were not his. PW-2 stated that he used to counsel her to have patience. In respect of the incident, PW-2 stated that at about 2 am in the night he received a phone call that his daughter Poonam has been inflicted knife blow on the neck and that Nirmal has killed both his children. He was also told that Poonam has been admitted in the government hospital. He stated that he arrived at the hospital at about 5 am where he was informed by his daughter about the incident. After getting full information about the incident from his daughter, he got the report scribed from Zakir Ahmad and after getting the thumb impression of his daughter, the report was lodged.

During cross examination, PW-2 stated that his daughter's Gauna had been 8-9 years ago. Gauna was in the fifth year after marriage. Since before marriage, his son-in-law Nirmal used to work in Gujarat. He stated that he cannot say whether Nirmal had relations with any lady in Gujarat. He stated that the relations between his daughter and his son-in-law got sour about a year and half before the incident and prior to that, their relations used to be cordial. PW-2 stated that his daughter was anguished by the conduct of her husband and used to remain under severe stress. She used to say that her life is not good and therefore it is better that she dies. He also stated that his daughter on one or two occasions had attempted suicide but she was counseled by him. PW-2 could not tell with certainty as to who informed him in the night about the incident but he reiterated that he arrived at the hospital in the morning at 5 am. He left his own house at 3 am to go to the hospital. He stated that at the hospital Nirmal was seen handcuffed by the police. When he had arrived at the hospital, his daughter was unconscious. She regained consciousness after about half an hour. He had no conversation with Nirmal. Nirmal did not inform him about the incident. He stated that his daughter had told him to lodge report. He reiterated that his daughter remained in the hospital for 6-7 days. He stated that he had lodged the report at the police station at about 10 am. He stated that he did not visit Nirmal's house. He, however, admitted that his daughter used to suspect that her husband Nirmal has kept another woman in Gujarat and therefore he used to assault her. He also admitted that his daughter was frustrated living with Nirmal (the appellant) but he denied the suggestion that his daughter out of frustration that her husband Nirmal has kept another lady, killed her own children and attempted to kill herself. He also denied the suggestion that Nirmal had informed PW-2 about the incident. He denied the suggestion that he has lodged a false report only to save his daughter as she had killed her own children and had attempted suicide. He also denied the suggestion that he is telling lies only to save his daughter.

10. PW-3 - Zakir Ahmad. He stated that the report (Ex. Ka-1) was scribed by him on the instructions of Poonam Devi and it was read over to her. He stated that Poonam had put her thumb impression on the report. Immediately thereafter he stated that he had scribed the report at Kotwali and had handed it over at P.S. Thuthibari because Poonam was admitted for treatment at that time.

During cross examination, PW-3 stated that Poonam's father Virendra met him in the government hospital where Poonam was admitted. He again stated that at the time of writing the report at Kotwali Sadar there were number of persons present. He, however, could not tell as to who they were. He, however, denied the suggestion that he made a false report to give colour to the case.

11. PW-4 - Navnath Prasad - Autopsy Surgeon. He proved the autopsy reports of D-1 and D-2 already noticed above. He stated that the ante mortem injuries noticed were sufficient to cause death in ordinary course.

During cross examination, he stated that the injuries noticed were of similar kind and could be from a small sharp edged weapon. He stated that he could not disclose as to what material was found in the stomach as they were fully digested.

12. PW-5 - Constable Ram Adhar. He proved the registration of the first information report and preparation of the Chik FIR (Ex. Ka-4) and the GD entry thereof (Ex. Ka-5). He stated that at the time of lodging the report only Virendra (father of PW-1) had come with a written report.

During cross examination, he again reiterated that PW-1's father, namely, Virendra, alone had come to lodge the written report and he had brought a written report with him. He denied the suggestion that the report has been registered according to his thoughts. He also denied the suggestion that information of the incident was given by Nirmal to Poonam's father. He also denied the suggestion that Poonam committed the crime.

13. PW-6 - Bhagwati Singh - Investigating Officer. He proved various stages of investigation such as inquest proceeding; visiting the spot; preparing the site plan; lifting the blood stained earth and plain earth; and recording the statements of witnesses. Apart from that, he stated that during spot inspection it appeared to him that the room where the bodies were lying had been locked from inside as the latch of the door had broken and was lying inside the room. He stated that during investigation he had recorded the statement of doctor who had medically examined Poonam and it was found that Poonam was brought to the doctor by Nirmal at about 10.30 pm on 13.03.2013. He also stated that he had arrested Nirmal on 15.03.2013 and after completing the investigation he had prepared charge sheet (Ex. Ka-7) on 24.04.2013. He produced various articles which were recovered during the course of investigation as material exhibits including the knife (the weapon of assault).

During cross examination, PW-6 stated that on 14.03.2013 when he had inspected the spot, informant's father Virendra and other villagers were present. He stated that informant's father had not informed him as to who gave information on telephone about the incident. He stated that when he had visited the spot the room of the informant was found open but on inspection he could sense that the door had to be broke open because the latch of the door had separated from the wooden part and was lying on the floor. He, however, clarified that he had not prepared any seizure memo of either the wooden part of the door or the latch but photographs of that room were taken and plain earth and blood stained earth including weapon of assault were lifted from the spot. He stated that when he had visited the hospital to record the statement of the informant, the accused Nirmal was not present but he could ascertain that Nirmal had got the informant admitted in the hospital. He stated that he recorded the statement of doctor Jamin Ali during investigation who also confirmed that Nirmal had brought the informant for treatment in the night of 13.3.2013 at 10.30 pm. He also stated that the doctor informed him that at that time the informant was not in a position to speak. The doctor also informed him that Nirmal had called for the ambulance to take her to district hospital at Maharajganj. PW-6 stated that Poonam had not informed him that Nirmal had kept a second wife in Gujarat but she had told him that Nirmal had been working in Gujarat and had come after one year. PW-6 stated that he did not notice any finger prints on the weapon of assault and therefore did not send the weapon to finger print expert though weapon was sent to ascertain the presence of human blood on it. He denied the suggestion that the accused Nirmal was present in the hospital. In respect of information gathered from the doctor with regard to duration of injury found on the body of Poonam, PW-6 stated that according to the information provided by the doctor the injuries were fresh as noticed on 14.03.2013 at 2.05 am. He stated that, during the course of investigation, from the villagers he could gather that the time of the incident was between 6 pm and 9 pm. He denied the suggestion that he got the report scribed and got it lodged under his instructions. He also denied the suggestion that the investigation was completed sitting at home and, on the basis of cursory investigation, charge sheet was submitted.

This witness was recalled by order dated 21.05.2015 to prove the inquest reports; the papers prepared in connection with autopsy; and the photographs of the site. The said documents were exhibited and the photographs were also made material exhibits 11, 12, 13 and 14.

During cross examination, after PW-6 was recalled, PW-6 stated that photographs were taken at the time of inquest which was conducted between 9.30 am and 10.50 am. He stated that in photograph 103 Kha/31 a lit lantern is noticed and in photograph 103 Kha/32 (note it might be 10Kha/ 32) the broken latch is noticed.

14. PW-7- Dr. Ranjan Kumar Mishra. He is the doctor who examined Poonam on 14.03.2013 at 2.05 am. He proved the medical examination report/injury report of Poonam which was marked as Ex. Ka-8. The injuries mentioned by him in the injury report, proved by him, are noticed below:-

(i) A L.W. size about 0.5 cm x 0.5 cm into muscle deep in neck region just 2 cm above from thyroid cartilage. Bleeding present. Advise: refer to ENT surgeon for expert opinion.

(ii) Multiple abrasions (maximum size 1 cm x 0.2 cm and minimum size about 0.5 cm x 0.2 cm) in neck region just above the thyroid cartilage.

Duration:- fresh. Opinion:- Injury no.1 kept under observation. Injury no.2 simple in nature. Injury no.1 caused by blunt object and injury no.2 caused by sharp edges.

PW-7 proved the above injury report (Ex. Ka-8) and stated that he examined the injured, who was brought by her husband, at 2.05 am.

During cross examination, PW-7 admitted that at the time when Poonam was brought for medical examination it was only her husband who was present and there was no police personnel. In respect of injury no.2, PW-7 stated specifically as follows:- "चोट नं. 2 धार दार हथियार से स्क्रेच था और वह चोट मजरुब अपने हाथ से भी बना सकता है।"

In respect of the duration of injury as fresh, PW-7 stated that "6 घंटे की अंदर की चोट फ्रेश होती है।"

In respect of the nature of injury, PW-7 stated that "चोट नं. 1 साधारण प्रकृति की नहीं थी। चोट नं. 2 साधारण प्रकृति की थी। चोट नं. 1 ब्लन्ट ऑब्जेक्ट से आना सम्भव था।"

PW-7 denied the suggestion that he did not properly examine the injured and prepared the injury report without due examination.

15. PW-8 - Mahendra- inquest witness. He proved his signatures on the inquest reports and stated that at the spot there was a knife lying which had dried blood stains on it and the police had recovered the same. He proved the signature on the recovery memo.

During cross examination, he stated that he had arrived at the house of Nirmal between 8-8.30 am. When he had arrived the police was already there. He did not see the body from a close distance. He cannot tell as to who was the other panch witnesses.

16. PW-9 - Purnavashi. He stated that on the date of the incident he was vending groundnuts in the village. In the morning he did notice Nirmal moving hurriedly and in a nervous manner. Later, he came to know that Nirmal had killed his two sons and he had been escaping from the spot.

During cross examination, the witness stated that the incident was of night and he cannot exactly tell the time and he had gone to the spot just because there was crowd. He could not tell whether he had disclosed to the I.O. that Nirmal was noticed by him escaping from the spot in a nervous manner.

17. PW-10 - Anil Kumar. He is another witness of the inquest report. He proved his signature on the inquest reports.

During cross examination, PW-10 stated that he could not go inside the room where the bodies were, as there was a large crowd. Then he stated that he had seen the body of the children but at that time Nirmal's father and mother were there but Nirmal was not there.

STATEMENT UNDER SECTION 313 CrPC

18. The incriminating circumstances appearing in the prosecution evidence were put to the accused-appellant for recording his statement under Section 313 CrPC. He denied the incriminating circumstances appearing against him and claimed that he has been falsely implicated and that his wife Poonam used to suspect him of having a second wife as a result whereof she used to quarrel with the appellant and threatened the appellant that she would kill both her children and commit suicide and would implicate the accused appellant. The entire incident is an outcome of that. Poonam had killed her own children and she attempted suicide. When the incident occurred, he was not there.

DEFENCE EVIDENCE

19. The defence examined two defence witnesses. Their testimony, in brief, are as follows:-

20. DW-1 - Nripendra Vikram Singh. He stated that on 13.03.2013 he was in Nepal with Munna Gupta, Mahendra Chauhan and the accused Nirmal. They all had gone for a pleasure trip. On the date of the incident, they had been in Nepal since 9.30 am till late evening. They returned back at about 10.30 pm. Nirmal returned to his house and next day DW-1 came to know that Nirmal's wife killed her own children and also attempted suicide.

During cross examination by the prosecution, DW-1 stated that he is Ex-District President of Hindu Yuva Vahini. Nirmal used to work out of station and used to come to his home on festivals. On the date of the incident, Nirmal came to him at 9 am and he stayed with him throughout the day and they all went to Nepal from where they returned in the evening at 10.30 pm. He denied the suggestion that he is a politician and to secure his vote bank he has made a false statement.

21. DW-2 - Munna Ram. He stated that on 13.03.2013 he had visited Nepal with Nirmal. Between 9.30 am till late evening they were together in Nepal. Next day, he came to know that Nirmal's wife had killed her children and had self inflicted a knife injury.

During cross examination by the prosecution, DW-2 stated that he did not know Nirmal from before. He met Nirmal Singh at Nripendra Singh's house and from there he got acquainted with him. He denied the suggestion that Nirmal and he are of the same political ideology and therefore to support Nirmal Singh he has given a false statement.

TRIAL COURT FINDINGS

22. The trial court accepted the ocular account rendered by PW-1 as reliable and trustworthy, which was corroborated by medical evidence, therefore, convicted and sentenced the appellant as above.

23. We have heard Sri Manu Sharma and Dinesh Kumar Pandey for the appellant; Sri Rajiv Lochan Dwivedi, Brief Holder, and Sri Pankaj Saxena, learned AGA, for the State; and have perused the record.

SUBMISSIONS ON BEHALF OF THE APPELLANT

24. The learned counsel for the appellant submitted that the prosecution has failed to prove the motive for the crime. According to the prosecution, the motive for the crime was appellant's suspicion about his wife having an affair and the children not born out of the wedlock. There is no disclosure in the entire prosecution evidence as to who was that person with whom affair of PW-1 was suspected by the accused-appellant. Interestingly, the appellant used to work away from home and had been working as such since before the Gauna and, after marriage, used to visit his village /hometown once a year or may be once in six months. This had frustrated his wife (PW-1) and this frustration is admitted not only by PW-1 but also by her father (PW-2) therefore, there existed motive for PW-1 to act in the manner suggested by the defence just to falsely implicate the appellant. Otherwise also, from the statement of PW-2 it is clear that the relationship between the husband and wife got sour since last one and half year. The children were aged 5 years and 4 years, respectively, therefore, there was no reason for the appellant to suspect that those children were not his. In these circumstances, since it is a case of murder of one's own children, there had to be a strong motive proved for the crime, which the prosecution has failed to prove. The conduct of the appellant in getting the informant admitted in the hospital is reflective of the fact that the appellant held no guilty mind. If the appellant had killed his own children and had attempted murder of his own wife there was no occasion for the appellant to get his wife admitted in the hospital and leave her as witness against him. The appellant could have easily finished off his wife and disclosed that she was killed while he was away.

25. He contended that PW-1's testimony is not reliable for the following reasons:-

(a) She was an interested witness because if she had not implicated her own husband, she was alone in the company of her children which would have caused suspicion against her and therefore once she survived she had no option but to falsely implicate her husband for her own survival;

(b) Her statement is to the effect that her children were killed on or about 11 am and that when she intervened she was inflicted injury on the neck on or about the same time whereafter she fell unconscious and her husband left the house. In so far as the death of the children are concerned, they were found dead two days before their autopsy which was conducted on 15.03.2013 at around 3 pm, whereas the injury report of PW-1 would reflect that she was medically examined at 2.05 am on 14.03.2013 and her injuries were found fresh. PW-7, who examined PW-1 and who proved the injury report (Ex. Ka-8), disclosed that the duration of injuries noticed by him were fresh, which means that it could have been caused six hours before. This would mean that the incident occurred sometimes around 3 pm or later and not at 11 am as disclosed by PW-1.

(c) According to PW-1, she was inflicted knife wound on the neck. The injuries found on her neck was a lacerated wound and the other were multiple abrasions which, according to the doctor, could be self inflicted. If the injury had been caused by knife, the wound would not have been lacerated therefore the testimony of PW-1 does not find corroboration in the medical evidence whereas the defence testimony clearly discloses that the appellant had visited Nepal with his friends and throughout the day he was with them and returned in the evening. PW-1 also admits that since day time her husband had been busy roaming here and there and he used to leave the house in the morning to visit various places. All of this would suggest that the appellant was not present in the house but elsewhere when the incident occurred.

26. In addition to above, it was submitted that the investigating officer had noticed that the door of the room wherein bodies were found had to be broke open as the latch of the door was found detached from the wooden part and lying on the floor which means that PW-1 had bolted the door from inside; inflicted injuries on her children and thereafter attempted suicide. It was also contended that the site plan of the house would suggest that there were four rooms opening in a common gallery. These four rooms were of four brothers including the appellant. It is admitted that one brother's family, that is of Sarwan, was living right in front of the room of the appellant therefore, the possibility of infliction of injury by the appellant and thereafter escaping from the spot was not possible unless and until the door was closed from inside. All of this would clearly suggest that the door was shut from inside; the children were killed by PW-1 and thereafter she attempted a suicide and when the appellant returned after his tour, upon noticing PW-1 in an injured stage, took her to the hospital.

27. The learned counsel for the appellant also submitted that from the statement of PW-2 it is clear that when he had visited the hospital he had noticed the appellant handcuffed by the police meaning thereby that the appellant was arrested even before the first information report was lodged therefore, the statement of the investigating officer that the appellant was arrested on 15th is not acceptable. If the appellant was arrested in the morning itself, there was no occasion for the appellant to lodge a report in respect of the incident, more so, because the incident did not occur when the appellant was present in the house and he must have been perplexed as to what were the circumstances in which the deceased had received injuries and her children were killed. It has been submitted that this is such a case where the court had to be circumspect in accepting the testimony of PW-1 even though she was an injured person and the testimony of PW-1 should have been tested before acceptance. The trial court failed to test the testimony of the prosecution witnesses and accepted the same without analysing it against the weight of probabilities. It has been argued that this is a strange case where the knife i.e. the weapon of assault was not sent for finding out the finger prints on it. The finger prints on the knife would have confirmed whether the appellant had killed or not but surprisingly finger prints were not lifted from the knife. Otherwise also, the nature of the incident noticed would have caused spillage of blood and would have surely stained the clothes of the appellant if he had committed the crime but, interestingly, no blood stained clothes of the appellant were recovered to confirm the presence of the appellant.

28. The learned counsel for the appellant also placed the photographs of the bodies of the deceased. He submitted that material exhibit 11 which is a photograph of the two bodies of the deceased taken at the time of inquest would suggest that the elder of the two sons had a cotton bandage around the neck which is suggestive of the fact that after the injury was caused to the children there was an attempt to stop the blood flow. In the prosecution evidence, there is no statement that this attempt was made by the appellant. According to PW-1, when she had intervened after injuries were inflicted on her son, she was caught hold by the appellant and the appellant thereafter inflicted a knife blow on his other son and thereafter he inflicted knife blow on the neck of PW-1 whereafter PW-1 became unconscious. It was argued that if this statement is accepted where was the occasion of bandage appearing on the neck. This would suggest that after PW-1 had inflicted knife blow, she developed remorse and tried to stop the bleeding. All of this would suggest that it was not the appellant who caused the injury.

29. In a nutshell, the submission of the learned counsel for the appellant is that when the entire prosecution evidence, the conduct of the appellant and the facts and circumstances of the cases are taken as a whole, the prosecution story does not at all inspire confidence and therefore it is a fit case where the appellant is to be extended the benefit of doubt. It is urged that the trial court has not tested the prosecution evidence against the weight of probabilities and has accepted the statement of PW-1 as gospel truth to record conviction.

SUBMISSIONS ON BEHALF OF THE STATE

30. Per contra, on behalf of the State it was submitted that this is a case where the mother of two sons is making an allegation that her sons have been killed by their father. It is very difficult for a mother to kill her own children just to implicate her husband. Howsoever strong frustration she might carry it is difficult to accept that a mother would kill her own child. In so far as the motive for the murder is concerned, firstly, the case is based on ocular evidence. If the ocular evidence is found truthful and reliable, absence of motive is not a ground to disbelieve the prosecution case. Moreover, here the motive for the crime has been disclosed by the prosecution as suspicion of the appellant about his wife's involvement with someone else and the children being not born out of the wedlock. Admittedly, the appellant had been employed in a different State and was an annual/ six monthly visitor. In such circumstances, the possibility of him carrying suspicion with regard to his wife's involvement with someone else cannot be disbelieved. In so far as the conflict between the medical evidence and the ocular account of PW-1 with regard to the timing of the injuries is concerned, the doctor, no doubt, had stated that the injuries found on PW-1 was found fresh when he made the examination at 2.05 am on 14.03.2013 but on what basis those injuries were found fresh has not been brought on record. It could perhaps be that those injuries were found bleeding and therefore considered fresh. But bleeding would depend on the healing capacity of the person. If the person has poor healing capacity or is diabetic, bleeding may continue for a long duration and therefore if the injury is ascertained as fresh only on the basis of bleeding, that by itself would not be a ground to disbelieve the prosecution evidence.

31. It was urged that non recovery of blood stained clothes is an investigational lapse. It is well settled that where the prosecution case is based on an eye witness account and the eye witness account is truthful and reliable, an investigational lapse, by itself, is not a ground to disbelieve the same. In so far as the presence of broken latch in the room is concerned, that is not a ground to hold that the room was locked from inside because no witness has been examined by the defence to state that the room was bolted from inside and it had to be broke open. Admittedly, the I.O. had arrived when the room was already open. If the motive of the appellant was to hoodwink the police and for that very purpose the injured was admitted in the hospital to contrive a story that she killed her own children and thereafter attempted a suicide, as was overheard by PW-1, the accused could have well managed to window dress the scene of crime. In such circumstances, the testimony of investigating officer that he noticed a broken latch of the door lying on the floor is not a clinching circumstance on the basis of which the prosecution story be doubted.

32. In so far as the lacerated wound on the neck is concerned, it was submitted on behalf of the State that a lacerated wound may be caused by use of the blunt side of the knife. It is quite probable that if the blunt side of the knife is used it would cause a lacerated wound. Otherwise also, there is no other weapon recovered from the spot which may reflect that there was any other weapon used to inflict injury either by PW-1 or by the accused therefore, mere presence of a lacerated wound is not sufficient to doubt the ocular account rendered by PW-1. It has been submitted that plea of alibi raised by the defence is not convincing and not supported by any documentary evidence. It could very well be possible that the appellant after committing the offence had gone to visit Nepal with his friends just to create a false plea of alibi. In such circumstances, the trial court was justified in placing reliance on the testimony of PW-1 and discarding the defence story. It was, therefore, urged that the appeal be dismissed and the judgment and order of the trial court be confirmed.

ANALYSIS

33. Upon noticing the rival submissions and on perusal of the entire evidence on record, what is striking is that neither the prosecution nor the defence give narration of any altercation or fight between husband and wife either on the date of the incident or on any date immediately before the incident. The marriage of the appellant with the informant (PW-1) was admittedly over 7 years old and the appellant had been working for livelihood in a different State since before his marriage and was an occasional visitor to his hometown. The evidence that has come on record would indicate that the appellant used to visit the village once a year or once in every 6 months. The incident is of 14.03.2013 and as per the prosecution evidence the appellant had come to his hometown during Diwali period. This would suggest that the appellant had been there in his hometown for at least 3-4 months or may be more. From the statement of PW-1 made during cross examination on 24.09.2015 it is clear that the appellant had returned home on Diwali day. What had been happening since Diwali upto the date of the incident is not clear from the prosecution evidence. Any particular incident which might have triggered the kind of response either from the appellant or from the informant is not disclosed in the prosecution evidence or even in the evidence led by the defence. It therefore appears to be a case where the relationship between the husband and wife had got strained over a period of time and the frustration in that relationship had been building. To what extent that frustration would lead to such kind of an incident is for anybody to guess. But what is important here is that PW-1 during the course of cross examination had stated in categorical terms as follows:- "मैं निर्मल से तंग आ गयी थी। वह मुझे बहुत मारते थे।" On this statement of PW-1 made during the course of cross examination a suggestion was given to PW-1 that she took the decision to end her life on account of this frustration and therefore she killed her own children and attempted suicide. No doubt, PW-1 refuted the above suggestion but whether it was a case of extreme reaction out of frustration or not we would have to examine on the basis of other evidences on record. Notably, PW-2 in his statement made during the course of cross examination on 06.02.2014 had admitted that the differences between his daughter and his son-in-law had started about one year or so before the incident and prior to that their relations were cordial. After stating as above, PW-2 stated as follows:- "मेरे लडकी मेरे दामाद से काफी तंग व परेशान एवं काफी तनाव में रहती थी। मेरी लड़की मुझसे कहती थी कि अब मेरा जीना ठीक नहीं है मेरा मर जाना ही अच्छा है। मेरी लड़की उसके दो एक बार पहले मरने की खुद कोशिश की थी लेकिन मैंने उस समझा दिया था।" This statement of PW-2 is clear and categorical of the fact that PW-1 (informant) was in a highly frustrated environment which was not only stressful for her but she had also attempted suicide in the past.

34. Once we have noticed the above position, the question that arises foremost in our mind is that if the appellant had a desire to kill his children and his wife why would he not ensure that she is dead. The injury that we notice on the neck of PW-1 is a lacerated wound, which means that either the sharp side of the knife was not used or enough force was not applied. Interestingly, there are abrasions also around the neck which, according to the opinion of the doctor (PW-7), could be self inflicted by sharp edged weapon. Noticeably, the two children were killed by extreme precision by causing injury on their neck that ruptured underlying trachea, oesophagus and carotid vessel. If that precision is used on two innocent children, what was the reason not to use the same weapon with the same conviction and precision on PW-1 with whom there was much greater animosity. This creates a doubt in our mind and renders the prosecution story and evidence failing to inspire our confidence, leading us to test the prosecution evidence on other parameters as well.

35. Bearing in mind the circumstances analysed above, we would have to test the prosecution evidence coming through PW-1 as one coming through an interested witness more so, because, if she had not implicated her husband fingers might have pointed at her. In such circumstances, all the tests that are applicable to test the testimony of an interested witness would have to be applied to test the testimony of PW-1. When we examine the prosecution evidence threadbare, we notice that the lodging of the first information report at the instance of PW-1 is rendered doubtful. The reason for that is that it has come in the testimony of PW-1 as well as PW-2 that, firstly, PW-1 was unconscious and, secondly, she could not speak and could only gesticulate. According to PW-1 and PW-2, Zakir Ahmad (PW-3) had scribed the first information report on the basis of information provided by PW-1 through gesticulation. After the information was provided the report was scribed and her thumb impression was taken to lodge the report. PW-5 (the Chik maker) stated that it was PW-2 who had come alone to lodge the report. PW-3 Zakir Ahmad i.e. the scribe in his testimony admits that the report was scribed by him but he stated that "प्रदर्श क-1 को मैंने कोतवाली में लिखा था और दिया गया था ठूठीबारी थाना में।" Interestingly, at the time when the report was lodged, PW-1 was admitted in the hospital. If the report was scribed at Kotwali and not at the hospital then a serious doubt arises whether the information contained in the report was the information provided by PW-1 or it was provided by someone else, or whatever written there in the report was on legal advise to save PW-1 from the sticky situation in which she was found. The probability of the information scribed in the report being at the instance of PW-1 is for sure very low. The reason being that from her own statement it appears that she was passing from the stage of consciousness to unconsciousness and from unconsciousness to consciousness and was not in a position to speak and could only gesticulate. In such circumstances, the prosecution story set up in the first information report requires to be thoroughly tested before acceptance. In fact, it would have to be tested on all parameters against the weight of probabilities generated from the surrounding circumstances.

36. When we test the prosecution story against the weight of probabilities generated from the surrounding circumstances, the following features appear in favour of the accused:- (i) no incident triggering the incident is proved by the prosecution to serve as a strong motive for the crime; (ii) if the appellant had an intention to finish off his children as well as the informant, having inflicted precision knife blows on two innocent children, he would not have used the blunt side of knife or some other non lethal weapon to inflict injury on PW-1 to enable her to survive and be a witness against him, particularly, when he had a plan to finish them off and take a plea of alibi; (iii) the conduct of the appellant in taking the wife to the hospital; arranging for an ambulance to take her to the district hospital; and getting her admitted for treatment is suggestive of the fact that he made all efforts to save his wife; (iv) the duration of the injury of PW-1 being found fresh when she was examined at 2.05 am on 14.03.2013 would suggest that those injuries were caused sometimes in the evening of 13.03.2013 which is against the testimony of PW-1, inasmuch as, according to her the injuries were caused early morning at around 11 am. Notably, the investigating officer had also stated that during the course of investigation he came to learn that the incident had occurred in the evening of 13.03.2013; (v) the multiple abrasions found on the neck of PW-1 were simple in nature and they could be self inflicted as is the statement of PW-7 whereas, according to PW-1, she was caught hold by the neck by the accused-appellant and thereafter the accused-appellant caused knife blow on her other son and thereafter he inflicted injuries on her. The abrasions found on the neck were varying in size and were caused by sharp weapon meaning thereby that those abrasions could not be a consequence of holding PW-1 by the neck. Rather, it appears to be a case where multiple attempts were made to inflict injury but those attempts failed perhaps due to lack of courage or may be for any other reason. There is no occasion for the appellant to take those multiple attempts on the neck to cause multiple abrasions without inflicting a blow carrying the desired effect. In such circumstances, this creates a serious doubt in our mind whether the incident occurred in the manner alleged by PW-1.

37. Having noticed the features in the prosecution case that appear in favour of the appellant, we shall now examine whether any adverse inference need be drawn against the appellant for not having lodged a prompt report when he had found his wife in an injured condition lying in the house. In this regard, we may notice that, admittedly, the appellant used to leave his house early morning to visit various places. Notably, the appellant in his statement under Section 313 CrPC had stated that he was not in the house when the incident occurred. The two defence witnesses who were examined have also stated that the appellant was with them from about 9.30 am till late evening as they had visited a village in Nepal. In such circumstances, if the appellant was not aware in what circumstances his wife was lying injured and his two children killed, upon noticing his wife alive, his natural reaction would have been to take her to the hospital for medical attention. He did just the same. Consequently, if there was no prompt first information report on the part of the appellant, the very fact that he took his wife to the hospital and rushed her on an ambulance to the district hospital would suggest that he did whatever best he could. In the meantime, information was also provided may be not by the appellant but by someone else to the father of PW-1 regarding the incident. Interestingly, the father made a statement that he noticed his son-in-law in the hospital handcuffed by the police. It therefore appears to us that the police had already taken a decision to implicate the appellant thereby giving no opportunity to the appellant to lodge a report.

38. For all the reasons above, the prosecution story does not inspire our confidence. No doubt, it is very difficult for a mother to kill her own children just to implicate her husband but it is equally difficult to accept that a father would kill his own children. No doubt, a story has been developed that the father used to suspect his wife of bearing children from someone else but this story did not go any further than mere allegation and no evidence was led to demonstrate that he suspected his wife having an affair with any particular person or that any time in the past he had seen his wife in the company of any other person. Interestingly, the father of PW-1 had made a statement that the relations between the appellant and his wife got sour since a year and a half before the incident, whereas the two children were aged over 5 years and 4 years, respectively. Therefore, it is difficult for us to believe that the appellant thought the two children not to be his own. In these circumstances, if we find it difficult that a mother would kill her children we find it equally difficult that the father would kill his own children.

39. In addition to above, the place of occurrence also assumes importance. The site plan of the house reflects that it has four rooms which open in a common gallery. There were four brothers including the appellant. Each had one room to himself. From the testimony of PW-1, one of the brothers of the appellant, namely, Sarwan, had his wife, parents i.e. the grand parents of the two deceased, and children there in his room at the time of the incident. It is very difficult to believe that any person would be able to kill his own children in the presence of his other relatives, particularly, the grand parents of the children. This position stands explained by the testimony of the investigating officer who disclosed that from the spot inspection that he carried it appeared that the door had to be broke open as the latch was found lying on the floor detached from the wooden plank. All of this would suggest that the incident occurred in the secrecy of a closed room. The prosecution evidence is silent as to how the appellant managed that secrecy to cause injury to his two sons and his wife. This is also a feature which creates doubt in our mind as regards the reliability and truthfulness of the prosecution evidence.

40. For all the reasons above, the prosecution story and the evidence fails to inspire our confidence as to uphold the conviction recorded by the trial court. We therefore have no hesitation in extending the benefit of doubt to the accused-appellant. The appeal is consequently, allowed. The judgment and order of conviction and sentence recorded by the trial court is set aside. The appellant is acquitted of all the charges for which he has been tried and convicted. He is reported to be in jail. He shall be released forthwith from jail, unless wanted in any other case, subject to compliance of the provisions of Section 437-A CrPC to the satisfaction of the trial court.

41. Let a copy of this order be certified to the court below along with the record for information and compliance.

Order Date :- 19.12.2022

AKShukla/-