SUSHIL VISWAS ALIAS SUSHIL SEAL Vs. STATE OF UTTARAKHAND
LAWS(UTN)-2013-3-51
HIGH COURT OF UTTARAKHAND
Decided on March 07,2013

Sri Sushil Viswas alias Sushil Seal Appellant
VERSUS
STATE OF UTTARAKHAND Respondents

JUDGEMENT

Barin Ghosh, C.J. - (1.) IN this, case, Sunil Haldhar (PW4) was the scribe of the First Information Report, upon which, Bhim Sen Saini (PW1) had put his thumb impression in order to show that he is the lodger of the First Information Report. PW1 was the brother -in -law of the victim, i.e. the husband of the sister of the victim. In course of tendering evidence before the court below, PW1 stated that he does not know the contents of the First Information Report, as the same was not read over to him by PW4. PW1 was, accordingly, declared hostile. In the First Information Report, it was stated that the appellant and the victim were husband and wife and both of them had gone to the forest, when the appellant was having an axe and, later, on the next day, the dead body of the victim was recovered with injuries and an axe was also recovered from the vicinity of the dead body. The axe, a few clothes and the bloodstained as well as plain soil were taken into custody and the same were sent for chemical examination to the Forensic Science Laboratory. The Forensic Science Laboratory reported that the axe contained human blood. Upon completion of the investigation, appellant faced trial having been accused of murdering his wife. Ms. Reena Viswas (PW2) deposed before the court and held out that she is the eldest child of the appellant and the victim. She held out that the appellant and the victim used to quarrel regularly and that the appellant, having an axe, and the victim, around 10:00 a.m. of 12th October, 2005, left the house for going to forest for the purpose of collecting wood and, on the next date, the dead body of the victim was found. She also stated that the victim was thrown out from the house by the appellant, but later, when the appellant had gone to fetch somebody as his wife from Bangladesh, the victim returned to her matrimonial home. PW2, thus, stated in support of the First Information Report to the effect that the appellant and the victim left their house around 10:00 a.m. of 12th October, 2005 for the purpose of going to the forest to collect wood, when the appellant was having an axe with him and that the dead body of the victim was found on the next day inside the forest along with an axe. Dr. Nilambar Bhatt (PW6) conducted post mortem of the dead body of the victim and reported that the victim died of ante mortem injuries. In course of tendering evidence, he held out that those injuries could be inflicted by axe. Principally, upon consideration of these evidence on record, the court below has convicted the appellant.
(2.) IN the Appeal, the learned Amicus Curiae has submitted that the most important circumstance, that the appellant and the victim left at 10:00 a.m. of 12th October, 2005 together when the appellant was having an axe for the purpose of going to the forest to collect wood, was not put to the appellant when questions were asked under Section 313 of the Code of Criminal Procedure. The learned Amicus Curiae further submitted that, although an axe was produced as material evidence before the court below, but PW2, who had seen the appellant leaving the home with the victim with an axe, did not identify the produced axe as the axe, which was with the appellant when he was leaving the house along with the victim. The learned Amicus Curiae also submitted that Prakash Haldhar (PW5), though had also stated that the appellant was having an axe when he left his home along with the victim, but he too did not say that the axe produced in court was the same axe, which the appellant was having when he left his house. In the circumstances, he submitted that the prosecution has not made any attempt even to link the appellant with the axe, which was, according to the prosecution, the weapon used for inflicting the injuries upon the victim. He submitted that, in those circumstances, the prosecution has miserably failed to establish, beyond reasonable doubt, that it was the appellant, who has committed the crime alleged. There is some substance in the submissions, thus, made. It is true that a reading of the evidence on record would show that the prosecution did not even make an attempt to link the appellant with the axe, which was produced in court as a material evidence and which was, according to the prosecution, used to commit the crime. We are, however, unable to accept the contention of the learned Amicus Curiae that the principal circumstance brought on record by the prosecution, to the effect that the lady was outside her matrimonial home for a night and her dead body was discovered on the next day morning, was not put to the appellant when he was asked questions under Section 313 of the Criminal Procedure Code. The fact remains that the appellant was the husband of the victim. The fact also remains that the victim remained outside her matrimonial home for a night and her dead body was discovered on the next day. They are not in dispute. These relevant facts and the contemporaneous conduct of the appellant in relation thereto have great relevancy in the instant case. The fact remains that, despite getting an opportunity to speak up when the appellant was asked questions under Section 313 of the Code of Criminal Procedure, he did not say that, in relation to the murder of his wife, which is not in dispute, he took any step. Despite the circumstance that the wife was outside the home during the night and, on the next day, her dead body was recovered, being put to the appellant, he said nothing. Weighing these conducts on the part of the appellant, which are relevant, and comparing the shortcomings on the part of the court to frame appropriate questions under Section 313 of the Code of Criminal Procedure, we have not been able to convince ourselves that the court below committed any error in accepting the prosecution case that it was the appellant, who alone, in the circumstances, was responsible for the incident leading to the death of the victim. Further, on record, it has come that the appellant remained absconder until 18th December, 2005, when he was arrested. This is borne out from the records. Merely because this fact was not put to the appellant under Section 313, the court cannot shut its eyes to the same. The previous conduct of the appellant vis   -vis the victim as established by PW2, own daughter of the appellant, his subsequent conducts, as highlighted above, have not convinced us to give any benefit to the appellant.
(3.) THE Appeal fails and the same is dismissed. Let a copy of this judgment along with the lower court records be sent to the court below.;


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