BRIJ RAJ SWAROOP GUPTA Vs. STATE OF UTTARANCHAL
LAWS(UTN)-2012-7-65
HIGH COURT OF UTTARAKHAND
Decided on July 27,2012

Brij Raj Swaroop Gupta Appellant
VERSUS
STATE OF UTTARANCHAL Respondents

JUDGEMENT

U.C. Dhyani, J. - (1.) BY the judgment under appeal, appellant has been convicted for having had committed murder of his wife and, accordingly, has been sentenced to life imprisonment under Section 302 of the Indian Penal Code (hereinafter referred to as 'IPC'), along with a fine of Rs.10,000/ -, in default of payment of which, to undergo two more years' rigorous imprisonment. It was the case of the prosecution that the appellant used to reside at a different place and his wife used to reside at another place, but the appellant used to visit the house of the victim to take lunch with her. It was also the case of the prosecution that, on the fateful date, appellant went to the house of the victim, cooked kadhi and, while cooking kadhi, mixed poison with kadhi, fed the same to the victim, but did not take the same himself on the plea that he was having loose motions.
(2.) IN order to prove that the appellant was with the victim at lunch on the fateful date, prosecution produced Ranjeet Singh (PW2) and no other witness. PW2 deposed that he was in search of a job and, accordingly, approached the appellant, who was the then Director of ONGC, for that purpose. PW2 stated that, on the fateful date, during the lunch time or soon before, he went to the house of the victim, when the victim ushered him and permitted him to go to the kitchen of her house on the plea that the appellant was then in the kitchen cooking lunch. PW2 further stated that when he went to the kitchen of the victim, he found the appellant cooking and he took out some white coloured powder from a small purse and poured the same in the food, which he was then cooking. The evidence of PW2 has not been accepted by the court below for good reasons. We have not been persuaded by the Deputy Advocate General, who argued the case on behalf of the respondent State, to take a contrary view, principally for the reason that PW2 did hot hold out that he knew the victim, he had occasion to visit the house of the victim on any earlier occasion, and that PW2, a job seeker and, at the same time, unknown to the victim, would be ushered in by the victim and permitted to enter her kitchen, was such piece of evidence, which could not be swallowed. Furthermore, if the appellant was mixing poison in the food while in the kitchen, it is unimaginable that the appellant will do the same in presence of a job seeker. There is, therefore, no evidence on record, which would suggest that the appellant was present at the house of the victim on the date and time, as insinuated by the prosecution.
(3.) VIRENDRA Kumar Bhola (PW1), a jeweler, was also a job seeker. He, too, went to the house of the victim on the fateful date. But PW1 did not state that he saw the appellant inside the house of the victim at the time when he allegedly visited the house of the victim. The evidence of PW1 was not accepted by the court below for the same reason, as has been given in respect of PW2. Even if what PW1 has stated is accepted, the same would not show presence of the appellant in the house of the victim at the time and on the date as was insinuated by the prosecution, inasmuch as, the presence of the appellant, as conveyed by PW1, is based on information allegedly received by him from the victim, which evidence is nothing, but hearsay.;


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