Nageshwar Shah vs State
1995 Latest Caselaw 19 Del

JUDGMENT

S.D. Pandit, J.

1. Nageshwar Shah of Village Pamay, Paur, Bihar is convicted by the Additional Sessions judge, Delhi in Session's case No. 50/86 on 20th March, 1989 for the offence punishable under S. 302 of Indian Penal Code and S. 27 of Arms Act and sentenced to suffer imprisonment for life and to pay a fine of Rs. 1,000/- and in default to suffer SI for four months under Section 302 of Indian Penal Code and to suffer-RI for two years under Section 27 of Arms Act.

2. Deceased Meena was married to the present appellant about one year prior to the date of incident which took place on 14th April, 1986. Deceased Meena was aged about 14-15 years at the time of the incident and the appellant was aged about 30-32 years. it seems that due to the difference of age Meena did not want to live with her husband Nageshwar and there were frequent quarrels between the two and they used to fight physically also. On 6th April, 1986 first informant Indla wife of Jagdish had gone to the house of the present appellant. There she came to know from Meena as, well as from her neighbours that there used to be quarrels between them and they also used to fight physically. Meena had also told Indla that her husband was always threatening to kill her. The neighbours of Meena also advised Indla to take her with her in the interest of Meena. Therefore, Indla thought that if Meena was taken with her and if she was properly convinced there would be a proper union between the two after some time. Therefore on 6th April, 1986 she brought Meena to her house in Harijan Basti, Peepal Thala, Delhi. On the next day of her coming with Indla her husband, present appellant Nageshwar had come to the house of first informant Indla. There he told both Indla as well as Jagdish that they should send Meena with him but he was told by Jagdish that Meena would live with them for some days and after passage of time everything would be alright and thus they refused to send Meena with present appellant Nageshwar. At that time Nageshwar had threatened them of dire consequences of refusal to send Meena and he went away.

3. On 14th April, 1986 appellant Nageshwar came to the house of first informant Indla at about 10.00 a.m. At that time only India and Meena were present in the house and Indla's husband P.W. 3 Jagdish had gone to market as he was a vegetable vendor. After reaching the house of Indla he asked Meena to accompany him to his house but Meena refused to go with him. Thereupon accused took out a knife and he started giving blows of the said knife on Meena at random on her neck, stomach, back and other parts of the body. On seeing the same P.W. 2 Indla went out of the room and raised hue and cry and thereby attracted her neighbours. She had raised cry that the girl was being assaulted by a knife. Thereupon P.W. 4 Duli Chand and P.W. 5 Nannu Ram rushed to the house of Indla. At that time they found that Meena was lying on the ground with injuries on her person in varandha of the house. On seeing them Negeshwar the present appellant told P.W. 5 Nannu Ram that he was not going to run away. He went inside the house of Indla and then he started giving blows of knife on his neck, stomach and other parts of his body. On seeing the same Nanu Ram rushed ahead and thereupon appellant threw away the knife and felt down. Thereafter P.W. 2 Indla ran to the vegetable market in order to inform her husband of the said incident. When she was away from her house the police van happened to come there. There they found that Meena had succumbed to the injuries sustained by her and appellant was alive. Therefore, they lifted him and rushed him to hospital. After he was lifted and rushed to the hospital. P.W. 2 Indla returned to her house Along with her husband Jagdish. By that time SHO of Adarsh Nagar Police Station came there. He there recorded the first information report of Indla which was registered as FIR No. 112/86. Thereafter he proceeded with the investigation of the offence. He seized the knife which was lying there. He also prepared a panchanama of the scene of the offence. At that time he had collected blood stained earth and simple earth. He also lifted blood stained pillow and one gunny bag. He then recorded the statements of P.W. 4 Duli Chand. P.W. 5 Nannu Ram and then he arranged to send the dead body of Meena to the hospital for post mortem. Accordingly P.W. 13 Dr. L. T. Ramani had carried out the post mortem on the said dead body. He had also forwarded the attached articles seized in the house of the first informant on the day of the incident to the Central Forensic Science Laboratory and on the completion of the investigation he sent up charge sheet against the present appellant.

4. The charge was framed against the present appellant on 12th November, 1986 for the offence punishable under Section 302 of the Indian Penal Code and Section 27 of the Arms Act. Accused has pleaded not guilty of the charge. His defense is of total denial and false implication.

5. In order to prove its case, against the present appellant prosecution had examined in all 20 witnesses including P.W. 2 Indla, P.W. 4 Duli Chand and P.W. 5 Nannu Ram as the direct witnesses to the incident in question. The trial Court found that the evidence of all the three direct witnesses was corroborated by the medical evidence as well as the other circumstantial evidence on record. He, therefore, accepted their evidence and held the appellant guilty of the offence with which he was charged and sentenced him as stated earlier.

6. Being felt aggrieved by the said decision the accused has come in appeal before us. The learned Advocate for the appellant, Ms. Grover vehemently urged before us that the prosecution story is not at all probable, believable and acceptable. According to her there is no motive for the appellant to kill the deceased Meena and it is not at all probable that he would all of a sudden try to finish his wife as claimed by the prosecution. She also urged before us that the evidence led by the prosecution is of the interested witnesses and there is no evidence of independent witnesses to support the prosecution case. Therefore, in the circumstances, the prosecution case could not be said to have been proved beyond reasonable doubt and therefore, the appellant should be given benefit of doubt.

7. The prosecution case rests on the evidence of the three witnesses namely, P.W. 2 Indla, P.W. 4 Duli Chand and P.W. 5. Nannu Ram. P.W. 2 Indla has deposed that deceased Meena was her niece as she was the daughter of Jagdish's sister. At the time of the incident Meena was hardly 14-15 years of age whereas appellant was 30-32 years of age. Because of the difference of age Meena was not liking to live with her husband, appellant Nageshwar. Due to the same there used to be fight and quarrel between the two and on learning the same she had gone to the house of Meena on 6th April, 1986. At that time Meena had told her that appellant Negeshwar had physically assaulted her and had also threatened to kill her and she was feeling danger to her life. Evidence of Indla further shows that she made inquiries with neighbours of Meena and thereafter she came to the conclusion that it was in the interest of both of them to take Meena for some days in order to calm her and to see that there was proper union between the two and therefore, she brought Meena with her on 6th April, 1986. On the next day Negeshwar had come to her house and had asked her to send Meena with him. At that time Meena was not ready to go with him and Jagdish told Nageshwar that he would not send Meena on that day but he would send her after some days and that she should stay with him for some days in order to pacify her. At that time Nageshwar had threatened them that it was not proper on their part to keep her with them and that it would have dire consequences, this version of Indla gets support and corroboration from the testimony of P.W. 3 Jagdish as well as her first information report.

8. P.W. 2 Indla has further deposed that on the day of incident i.e. on 14th April, 1986 appellant Nageshwar had come to their house at about 10.00 a.m. in the morning and then he asked Meena to accompany him to his house but Meena refused to go with him. Thereupon she was attacked by the appellant by the knife in his hand. When he started giving blows of knife on her body she ran out of the house and raised hue and cry in order to attract the neighbours and thereupon her neighbours rushed to her house and P.W. 5 Nannu Ram came ahead and he tried to control the present appellant who after finishing Meena, was trying to kill himself by giving blows of the knife on his own body. This version of P.W. 2 Indla is corroborated and supported by the testimony of P.W. 4 Duli Chand and P.W. 5 Nannu Ram. Both of them have deposed that they heard cries of Indla that girl was being killed and they rushed to the house of Indla. At that time they found Meena lying in varandha in the pool of blood with injuries on her person and the accused with knife in his hand giving blows of the said knife on his own body. There is further corroboration to the testimony of P.W. 2 Indla as well as other two witnesses Duli Chand and Nannu Ram by the medical evidence on record, P.W. 1 Dr. N. K. Singhal has deposed that he had found nine incised wounds on the person of the present appellant whose name was not known to him at the time of the admission in the hospital. P.W. 10 Dr. O. P. Thakur has also deposed that he had carried out emergency operation on the person of appellant in order to save his life in view of the injuries on his person. P.W. 13 Dr. L. T. Ramani had carried out the post mortem on the dead body of Meena and he had found in all 17 incised wounds on the person of Meena. He had deposed that all those 17 injuries were ante mortem and they could be sustained by a sharp edged weapon like knife which was found in the house of P.W. 2 Indla at the time of incident in question. He further deposed that those incised wounds in the ordinary course of nature were sufficient to cause the death of Meena. The evidence of P.W. 13 Dr. L. T. Ramani has gone unchallenged.

9. Evidence on record shows that appellant was found in injured condition on that morning in the house of P.W. 2 Indla and at that time Meena was found lying with injuries on her person. That part of prosecution evidence has not been all disputed and denied. The finding of appellant and Meena in injured condition in house of first informant Indla also corroborated evidence of three witnessees.

10. Therefore, in view of the above discussed material on record the trial Court was quite justified in accepting the testimony of all the three witnesses and to hold that the present appellant had caused injuries to Meena and had caused her homicidal death.

11. No doubt Ms. Grover has urged before us that the prosecution witnesses are interested witnesses. But it must be remembered that out of three eye witnesses to the incident only P.W. 2 Indla is related to deceased Meena. The other two eye witnesses P.W. 4 Duli Chand and P.W. 5 Nannu Ram are no way related to Meena and it must be further mentioned that all the three witnesses P.W. 2 Indla, P.W. 4 Duli Chand and P.W. 5 Nannu Ram are natural witnesses to the incident in question. Even if the statement of the accused under Section 313 is taken into consideration then it would be quite clear that he admits his presence at the time of the incident in the house of Indla. He also admits having sustained injuries in the said house and from there he was lifted and taken to the hospital. No doubt he is trying to explain the injuries by saying that they were caused by P.W. 3 Jagdish. But during the cross examination of neither P.W. 2 Indla, nor P.W. 4 Duli Chand nor P.W. 5 Nannu Ram there were any suggestion to them that the injuries on the person of present appellant were caused by P.W. 3 Jagdish. As a matter of fact P.W. 3 Jagdish was not in his house when appellant sustained injuries and was lifted from his house in order to take him to hospital. If the cross examination of P.W. 3 Jagdish is seen then it would be quite clear that in the cross examination of Jagdish it has been brought out that he was not even invited in the marriage of Meena. Thus the material brought out in the cross examination of Jagdish indicates that there were no good relations between Jagdish and Meena's parental family. It seems that when P.W. 2 Indla found from the talk of Meena as well as from the inquiries made by her with the neighbours that there was danger to her life she had brought Meena to her house only because she happened to be the daughter of her husband's sister. Therefore, it could not be said that Indla was a witness who was completely interested in Meena. As regards the claim of the appellant in his statement under S. 313 regarding his animosity towards Jagdish there is no suggestion to that effect during the cross examination of either P.W. 2 Indla or P.W. 3 Jagdish. There is no material no record to support his claim that said Jagdish had an affair with a lady and he had opposed Jagdish for the said affair and because of the same Jagdish had animosity towards the present appellant.

12. The prosecution witnesses are quite consistent in their version. They are natural witnesses to the incident in question. It could not be said that the prosecution had suppressed independent witnesses in this case. It could not be also said that the prosecution witnesses have got any animosity or illwill towards the present appellant. Therefore, in these circumstances we do not find any reason to disagree with the finding of the trial Court regarding accepting evidence of the three prosecution witnesses and to hold the appellant responsible for the homicidal death of deceased Meena.

13. No doubt the learned counsel for the appellant has urged before us there is no motive for killing Meena by the present appellant. It must be remembered that when there is a direct evidence of the eye witnesses to the killing the proof of motive by the prosecution has no significance. Merely because the proesecution has failed to prove the motive it could not be said that the prosecution case must be thrown out. Many time the assailant himself alone knows the reasons of killing and the failure of the prosecution to prove the motive could not be taken into consideration for holding that the prosecution has failed to prove its case against the accused. In the instant case it seems that the conduct and behavior of Meena must have motivated the present appellant to take such a drastic step for finishing her. It has come in evidence of Indla that Meena and her husband used to quarrel and they were also fighting physically. He evidence further shows that on 7th April, 1986, the present appellant Nageshwar had gone to the house of Indla and he had requested Meena to return her but she had refused to go with him. Then again on the day of incident he had gone to the house of Indla and he had requested Meena to return to him but she had refused to go with him. It seems that consistent refusal by Meena to return to him might have motivated the appellant to take such a drastic step. Thus the conduct of Meena in raising quarrels with him on account of difference of age and refusing to return to him might have motivated the appellant to take such a drastic step and that could be said to be the motivation for the appellant to commit the offence in question.

14. Thus we hold that the present appeal deserves to be dismissed. The order and conviction passed by the trial Court will have to be maintained. We thus dismiss the appeal. The order of conviction and sentence by the trial Court is maintained. The appellant who is in jail be intimated about the decision of this appeal.

15. Appeal dismissed.