Amar Nath vs State
2009 Latest Caselaw 3174 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Date of Judgment: 13th August, 2009.

+                        CRL.A.70/2001

       AMAR NATH                          ...Appellant
              Through: Ms. Anu Narula, Advocate.

                         Versus

       STATE                                 ...Respondent
                     Through: Mr.Pawan Sharma, APP.


       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be
        allowed to see the judgment?

     2. To be referred to the Reporter or not?       Yes

     3. Whether the judgment should be reported in the
        Digest?                                Yes

PRADEEP NANDRAJOG, J. (ORAL)

1. Vide impugned judgment and order dated 19.1.2001,

the appellant has been convicted for the offence of having

murdered Laxmi Devi, his mother. The offence being

committed in the intervening night of 15th and 16th January,

1996.

2. A perusal of the impugned decision shows that with

reference to the testimony of Omvati PW-1, Kanta Devi PW-

3 and Dinanath PW-5, learned Trial Judge has returned a

finding that the appellant had a motive to kill his mother.

With reference to the testimony of PW-3 and PW-5, it has

been held that the evidence establishes that the appellant

and his deceased mother were the only inhabitants of the

first floor of A-92, Gulabi Bagh, Delhi. PW-5, the brother of

the appellant used to reside on the ground floor thereof.

The appellant and his mother were last seen on the first

floor of house no.A-92, Gulabi Bagh, Delhi and next day the

appellant absconded when the dead body of his mother was

found.

2. With reference to the post mortem report Ex.PW-2/A,

the learned trial judge has returned a finding that the same

evidences an attempt to burn the unfortunate lady.

Kerosene was sprinkled on her and she was set on fire.

3. The post mortem report Ex.PW-2/A records the

following:

"Both lower limbs were separated from the body due to intense heat and charring. Right upper limb was lying separated at the elbow level. Arm bones and forearm bones were charred on the right side. The web skin between fingers showed slight blistering with moist pace. Whole body showed muscle to bone deep burns. Scalp hair were almost completely burnt. There was no evidence of Kerosene oil smell. A piece of cloth was found on the oral cavity. The cloth was partly out of the mouth and was burnt and the inner part showed sliva and blood stains which was removed and preserved.

On internal examination skull bones were charred on the surface. Brain showed roasting. Traches contained sooty streak. Lungs were congested and showed charring on the surface. Abdomen organs showed roasting."

4. It has not been disputed that body of Laxmi Devi was

seen extensively burnt in the morning of 16.1.1996 at

around 6 AM and the place where it was seen was the first

floor of house No.A-92, Gulabi Bagh, Delhi. The only issue

which needs our attention to be drawn in the appeal is,

whether the circumstances of the case unerringly point the

finger of guilt against the appellant. Needless to state,

nobody claims to be an eye witness.

5. Omvati PW-1, resides at A-53, Gulabi Bagh. She

deposed on 31.10.96. She stated that she was the Secretary

of Rashtriya Ekta Manch and the deceased Laxmi Devi was

the member of the said Ekta Manch. She deposed that

Laxmi Devi died about ten months back and two days prior

to her death she had met her in her house. Laxmi Devi told

her that her son Amar Nath i.e. the accused was demanding

papers of the house in which she and Amar Nath used to

live. Laxmi Devi told her that Amar Nath was a dead

drunker and was of bad character and for said reason

Laxmi Devi was fearing that he may misuse the papers of

the house. Laxmi Devi also told her that Amar Nath had

even threatened to kill her if she had not handed over the

papers of the house to him. She deposed that Laxmi Devi

had not lodged a report with the police. She did not do so

because Amar Nath was her son. When she learnt that

Laxmi Devi had died due to burns, she went to her house

and saw her lying dead in the burnt condition in the

verandah of the first floor of her house.

6. Kanta Devi PW-3 is the sister of Amar Nath. She

deposed that she had four brothers. Dinanath PW-5 was the

youngest and was residing in house No.A-92, Gulabi Bagh

at the time of incident. Accused Amar Nath also used to

reside in the said house; that Amar Nath and her mother

Laxmi Devi used to live on the first floor and Dinanath used

to live on the ground floor. Dinanath used to bear the

expenses of her mother. She met her mother on the night

of 15.1.1996 and a quarrel had taken place in the house.

Her mother told her that Amar Nath should be either given

his share in the property or money in lieu thereof. She left

her mother's house at 8 PM or 8.15 PM and learnt on the

next morning that her mother had been burnt. On being

cross-examined, Kanta Devi stated that in the night when

she was in the house of her mother, she saw Amar Nath in a

drunken state and that in the past also there used to be

quarrels between the family members regarding the

detention of property. We may note that Kanta Devi has

tried to give a slight twist to the matter by stating that the

wife of her brother Kailash used to initiate the quarrel and

that Amar Nath never used to participate in the quarrel.

7. Dinanath PW-5 deposed that he used to reside on the

ground floor of house No.A-92, Gulabi Bagh and the

accused along with his mother used to reside on the first

floor thereof. The house was purchased by funds provided

by him and purchase was by virtue of an agreement and a

power of attorney. The agreement to sell was in the name

of his mother. The power of attorney was in favour of the

appellant. Since he i.e. Dinanath was in government

service it was not possible for him to visit various municipal

authorities in connection with the affairs of the house and

for said reason it was decided that the power of attorney be

taken in the name of the appellant. He deposed that the

appellant used to repeatedly demand from his mother that

the papers pertaining to the property be handed over to

him. She refused to do so. On 15.1.1996, when he

returned from his office at 8 PM, as per his usual practice,

he went to the first floor to see his mother. The appellant

was present and was demanding papers of the property.

He took the matter in routine. He went up again to first

floor at 11 PM and saw the appellant and his mother on the

first floor. He returned. His mother bolted the door from

inside. He went down stairs and slept. The following

morning at 6 AM, as per his usual practice he went to the

first floor and saw his mother in a burnt condition and he

raised an alarm. People gathered. Police arrived and he

took the body of his mother to the mortuary.

8. As against the testimony of Kanta Devi pertaining to

the presence of the appellant in the house where the crime

was committed remaining unchallenged, Dinanath was

challenged with respect to his testimony and the appellant

being seen by him in the house. On being cross examined,

Dinanath stated as under:

"Whenever Amar Nath used to come to our house, my mother used to cook his food also. Amar Nath was residing separately. It is correct that I stated on 7.8.98 that accused was residing with my mother on the first floor of our house. By this statement I meant to convey that

as and when accused came to the said house he lived with my mother. I do not know Uttam Nagar's address of accused Amar Nath. Accused Amar Nath sometimes used to come to our house twice a week and sometimes he never came for full one week."

9. Omvati PW-1 has no axe to grind in the matter. We

see no reason as to why Omvati would depose falsely.

Similarly, PW-3 who is the sister of the appellant would

have no motive to depose falsely.

10. PW-3 has categorically deposed that the appellant was

present in the first floor of the house in the night of

15.1.1996. She has categorically deposed that the

appellant and his mother used to live on the first floor of

the house. She has categorically deposed that her brother

Dinanath used to live on the ground floor. She has

categorically deposed that a quarrel had taken place in the

house. No doubt, on being cross-examined, she has slightly

dented by stating that the wife of her brother Kailash was

one who used to demand share in the property. The same is

inconsequential for the reason, PW-3 has not deposed that

when she was present in house of her mother either Kailash

or the wife of Kailash were present. It is apparent that

while speaking the truth, out of some residual love for her

brother PW-3 has attempted to provide an escape route to

him. But, what is clinching is her testimony that the

appellant used to live with the deceased on the first floor.

Only they were the two residents of the first floor and none

else. Her testimony also clinches the issue that the

appellant was on the first floor of the house and was dead

drunk, in the night when her mother was killed.

11. It is apparent that the twin circumstances of a motive

and the appellant and the deceased last seen in the

company of each other on the first floor of the house stand

fully established.

12. There is no evidence of any outsider entering the

house and committing the crime.

13. The last seen theory requires the appellant to explain

the circumstances under which his mother died or else he

should own the guilt.

14. On the evidence on record, we are satisfied with the

finding returned by the learned Trial Judge.

15. There is no merit in the appeal. The appeal is

dismissed. The appellant has been released on bail. His

bail bond and surety bond are canceled.

(PRADEEP NANDRAJOG) JUDGE

(INDERMEET KAUR) JUDGE

August 13, 2009 rb