ROSHAN Vs. STATE OF UTTARAKHAND
LAWS(UTN)-2012-8-51
HIGH COURT OF UTTARAKHAND
Decided on August 16,2012

ROSHAN Appellant
VERSUS
STATE OF UTTARAKHAND Respondents

JUDGEMENT

Barin Ghosh, J. - (1.) THE death was by strangulation, which took place inside a room situate in a two -storeyed tenement, a part of which, and in particular, the ground floor thereof, comprising of several rooms, was let out to different tenants. At the time when the dead body was discovered, the same was suspended from the ceiling fan inside the said room fastened by a dopatta, allegedly belonging to the deceased. The deceased was the wife of the appellant. Appellant was earning his livelihood by plying, as Driver, auto rickshaw (Maxi Taxi). A number of witnesses, produced by the prosecution, turned hostile. They were, however, not witnesses to the murder. PW2, younger sister of the victim, also residing in the self -same tenement but in a different room along with her family, is the witness to the murder. According to her, she saw that the appellant is strangulating the victim. She shouted, but her cry was not responded by anyone. She, accordingly, rushed to the first floor of the tenement to call the landlord. After having had called the landlord, she came down when she, through the window of the room in which the dead body of the victim was found, noticed that the appellant, with the use of the dopatta of the victim, is hanging the victim from the ceiling fan inside the said room. According to her, no sooner she reached there, appellant accomplished what he was seeking to accomplish, opened the door and pushed PW2 aside and fled. According to PW2, her mother and her maternal Uncle came at around 01:30 p.m. of the same date, but she did not disclose anything to them. According to her, at 5 O' clock of the same date, police came and she disclosed what she deposed in Court to the police. The fact remains that the inquest, in the instant case, was made on 1st June, 2005 at 06:10 p.m. The Post Mortem was conducted on 2nd June, 2005 at 03:30 p.m. In the Post Mortem Report, it was held out that the death took place about 24 -36 hours before the Post Mortem. It was indicated that the death was by strangulation. PW1, the mother of the deceased, lodged the First Information Report on 2nd June, 2005 at 06:30 p.m. PW2 was questioned by the investigation on 3rd June, 2005, when her statements under Section 161 of the Code of Criminal Procedure were recorded. Her depositions in court are identical to those what she had stated under Section 161 of the Code of Criminal Procedure. In the event, as deposed by PW2, she had stated what she had deposed in court to the police at around 05:00 p.m. of 1st June, 2005, there was no just reason for the police to wait for the mother of the victim, namely PW1, to lodge a First Information Report on 2nd June, 2005. In course of evidence, prosecution did not make any attempt to bring on record anything as to why the cry of PW2 was not responded by her neighbours. PW2 did not make any effort to explain why, despite noticing that the appellant is strangulating the victim, she did not reveal the same to her mother and to her maternal Uncle. PW2, when saw from outside the room that the appellant is strangulating the victim, did not do anything to prevent such strangulation or to prevent escape of the appellant. The logical conclusion, therefore, would be that PW2 was invented by the prosecution for the purpose of the present case after it received the Post Mortem Report.
(2.) IN the event, no reliance can be placed on the evidence of PW2, there is hardly any evidence against the appellant suggesting his involvement with the crime in question. However, it is the appellant, who has helped the prosecution in establishing his involvement with the crime. Appellant purported to hold out that he was away from the room at the relevant time. Appellant brought evidence to prove the same, but miserably failed to do so. Somebody, as DW2, came to give evidence holding out that he is the employer of the appellant. He stated that he had to employ the appellant because he has many interests in many fields, but, at the same time, held out that, on the fateful date, he remained attached with the appellant right from the morning and was moving in the Maxi Taxi from one place to the other. No attempt was made by DW2 to establish that he owns any Maxi Taxi or that he had any occasion to engage the appellant as Driver of any Maxi Taxi. It was alleged by DW2, and it was also contended by the appellant while recording statements under Section 313 of the Code of Criminal Procedure; that the appellant was standing with the Maxi Taxi at the Vikas Nagar Taxi Stand from 09:30 a.m. onwards and, at around 01:45 p.m., his brother met him, when his brother was taking the victim to the nearby hospital. Appellant, accordingly, accompanied his brother and others to the hospital and helped the victim being admitted in the hospital. DW1 brought a register of the hospital concerned and, thereby, purported to establish that, at the time of admission of the victim in the hospital, appellant was with her. The aforesaid state of affairs clearly establishes that the appellant miserably failed to establish that he was away in course of his livelihood at about the time when the incident took place and was not at home. The incident took place, according to the evidence given by the doctor, who conducted the Post Mortem, at around 11:30 a.m. That the death took place at around 11:30 a.m. was also the case of the prosecution and not disputed by the defence. Despite the said state of affairs and despite taking a defence of alibi, appellant miserably failed to prove his absence from his residence at 11:30 a.m. of the fateful date. In the circumstances, the conclusion would be that the appellant was at home when the death took place. It is neither the case of the prosecution, nor it is the case of the defence, that, apart from the appellant, there was any other able -bodied person capable of strangulating an able -bodied person, present in the house of the appellant at the relevant time. Undisputedly, as reported by the doctor, the death has taken place by reason of strangulation. In a situation of this nature, if the appellant keeps silence over the matter, the court is competent to take adverse inference against him.
(3.) IN the circumstances, we are not in a position to interfere with the judgment and order under appeals. The appeals fail and the same are dismissed. However, we think that this is such a matter, where exemplary cost must be imposed on the State Government for permitting fabrication of evidence by its officers. At the request of the learned Government Advocate, we have restrained ourselves from doing so.;


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