HIRDESH KUMAR Vs. STATE OF U.P.

JUDGEMENT

(1.) Criminal Appeal No. 1840 of 1980 has been filed under Sec. 374, Cr.P.C. by accused/appellant Hirdesh Kumar challenging the correctness of judgment and order dated 25.8.1980 passed by Shri M. Wahaj Uddin, Sessions Judge, Agra in S.T. No. 223 of 1979, State v/s. Hirdesh Kumar and others, under Ss. 302, 120 -B, IPC, P.S. New Agra whereby he was convicted and sentenced to imprisonment for life under Sec. 302, IPC and further convicted under Sec. 328, IPC and sentenced to eight years rigorous imprisonment with a direction that both the sentences would run concurrently. Government Appeal No. 2429 of 1980, State v/s. Hirdesh Kumar has been filed on behalf of State of U.P. seeking enhancement of sentence of imprisonment for life to death sentence passed by the Sessions Judge in the said sessions trial, vide judgment and order dated 25.8.1980. Criminal Revision No. 1550 of 1980 has been preferred by the first informant with a similar prayer as has been made in the Government Appeal. Since these three cases arise out of the same sessions trial assailing the validity of the same impugned judgment and order, we propose to dispose of all the three cases by a common judgment. Briefly stated the prosecution story is that on 14.7.1977 at 8.30 a.m. at P.S. New Agra, Ganga Ram gave a written report stating therein that his daughter Bimla Devi was married to Hirdesh Kumar 2 -1/2 years earlier. For dowry and domestic dispute his son -in -law Hirdesh Kumar, his father Om Prakash and his mother used to ill treat his daughter and abuse her. They used to talk about second marriage (of Hirdesh Kumar). Three months prior to the incident Hirdesh Kumar had called him to his house and said that his daughter could not be adjusted in his house. He should take her with him. For one month he had kept his daughter in his house, thereafter, they called her. He used to receive news from his daughter that her harassment continued as before. That day at 6.30 a.m. he received telephonic message from Hirdesh Kumar informing him that condition of Bimla was very serious. When he reached there, her condition was serious. She was attended by Dr. N.N. Khanna on his call. At about 9.00 a.m. she expired. He was sure that his daughter was murdered. He requested legal action against the guilty persons.

(2.) On this report chik FIR was scribed. Case crime No. 241 of 1977 under Sec. 302, IPC was registered and investigation started. Inquest proceedings were held, search of the premises was made. Sample of vomitus inside the room of Hirdesh Kumar along with DDT powder weighing 1/2 kg. kept in a wax paper was taken into possession. Recovery memos were prepared. From the dead body of Smt. Bimla ornaments golden as well as silver were taken off and given in custody of Hirdesh Kumar. From the room of Om Prakash Agarwal, father of Hirdesh Kumar five types of medicines were taken into possession and recovery memo was prepared. On the same day at 2.50 p.m. autopsy on the dead body of Smt. Bimla was conducted. Cause of death could not be ascertained and parts of internal organs were preserved. Viscera was preserved and along with petticoat bearing stool stain sample of vomit were sent for forensic examination. Witnesses were examined. Report of chemical analyst was obtained wherein it was opined that in all the aforementioned items Zinc Phosphide poison was found. Medicines taken from the room of Om Prakash Agarwal were found branded and un -branded medicines. In the sample of DDT Powder no Zinc Phosphide was found. The Investigating Officer prepared the site plan, examined the witnesses, completed the investigation and submitted the charge -sheet against Hirdesh Kumar, Om Prakash and Angoori Devi.

(3.) Charges under Ss. 302, 328, 120 -B, IPC were framed against the accused persons. They pleaded not guilty. The prosecution in support of the charges has examined 16 witnesses. Statements of the accused persons were recorded under Sec. 313, Cr.P.C. Hirdesh Kumar admitted that he was married to deceased Bimla and lived with her along with his mother and father, however, he denied that he was dissatisfied with the dowry given by Ganga Ram. He also denied that for this reason he and his parents used to harass and torture the deceased. He admitted that on 10.4.1977 he called Ganga Ram to his house, but denied that he had made complaint against the behaviour of Smt. Bimla. He pleaded ignorance about whether Ganga Ram wanted to sent Bimla for further studies. According to him, Bimla came back to her sasural on her own accord. He admitted that on 14.7.1977 he had a telephonic conversation with Ganga Ram, but when Ganga Ram came to his house he was not present there. He had gone to fetch the doctor and when he came alongwith the doctor, Bimla had died. He admitted that autopsy was conducted on the dead body of Bimla and viscera was sent to the Chemical Examiner, but he did not say anything about the findings of the Chemical Examiner that viscera and parts of internal organs, vomitus and petticoat of Bimla contained Zinc Phosphide or she had died due to administration of Zinc Phosphide. He also pleaded ignorance that Zinc Phosphide is used for elimination of rodents and it was available in the chemist shop. He pleaded ignorance that after consumption of Zinc Phosphide the person would start feeling its bad effects and die within eight hours. He pleaded ignorance that Dr. Dhameja and Dr. Arjun Dev were practising medicine in his colony. He denied that 3 -4 months after the incident he and his father admitted their mistake to Lakhan Lal. He also denied that he had ever purchased Zinc Phosphide. According to him, he was falsely implicated. According to him, witnesses were deposing against him after taking money. According to him, he is 30 years old. He has further stated that Bimla was well educated and she used to purchase household articles from the market. The other accused Angoori Devi and Om Prakash, who were acquitted by the Sessions Judge, also made almost similar statements.