Reserved
Court No. - 4
Case :- CRIMINAL APPEAL No. - 2136 of 2017 Appellant :- Doctor Gautam Kumar Agarwal Respondent :- State Of U.P.
Counsel for Appellant :- Dileep Kumar,Ashwini Kumar Awasthi,Manish Tiwary,Rajrshi Gupta Counsel for Respondent :- G.A.,Brijesh Sahai,Rahul Sahai
In Re :- Criminal Misc. Bail Application No. 135447 of 2017
Hon'ble Bala Krishna Narayana,J. Hon'ble Prakash Padia,J.
Per Hon'ble B. K. Narayana, J.
Heard Sri Dileep Kumar and Sri Manish Tiwary, Senior Advocates assisted by Sri Pradeep Kumar Rai and Sri Atharv Dixit, learned counsel for the appellant, Sri Brijesh Sahai, Senior Advocate assisted by Sri Rahul Sahai and Sri Bhavya Sahai, learned counsel for the informant and Smt. Manju Thakur, learned A.G.A.-I assisted by Sri Awadhesh Kumar Shukla, learned brief holder for the State.
The applicant/appellant Dr. Gautam Kumar Agarwal who has filed this appeal against the judgement and order dated 30.03.2017/31.03.2017 passed by Additional Session Judge, Court No. 1, Kanpur Nagar, in Session Trial No. 82 of 1983, State of U.P. through C.B.C.I.D. Vs. Dr. Gautam Kumar Agarwal, arising out of Case Crime No. 318/1982, P.S.- Kakadeo, District- Kanpur Nagar, by which he has been convicted and sentenced to imprisonment for life and a fine of Rs. 1,00,000/- and in case of default in payment of fine, six months additional imprisonment u/s 302 I.P.C., seven years imprisonment and a fine of Rs. 10,000/- and in case of default in payment of fine, one month additional imprisonment u/s 201 I.P.C., is seeking enlargement on bail during the pendency of this appeal before this Court.
Facts of the case may be briefly stated as hereunder :-
Applicant/appellant Dr. Gautam Kumar Agarwal was married to Smt. Usha Agarwal, daughter of Pyare Lal Gupta, resident of Dhampur, U.P. in the year 1978. On 19.10.1982 at 18:20 hours, Munish Kumar, father of the applicant/appellant, gave a written complaint at P.S.- Kakadeo, District- Kanpur Nagar stating therein that on 19.10.1982 at about 5:30 p.m., when he returned to his house from his office, he came to know that his daughter-in-law, Smt. Usha Agarwal was not in the house and everyone was searching for her. His son, applicant/appellant Dr. Gautam Kumar Agarwal went to the rooftop of his house in search of Smt. Usha Agarwal. He saw her lying in the vacant plot adjacent to his house. Upon the hue and cry of the applicant/appellant, he and his other family members came out of their house and saw her lying dead in the adjacent plot in an injured condition and it appeared that either she had committed suicide or someone had murdered her.
On the basis of the written report, Case Crime No. 318/1982 u/s 302 & 201 I.P.C. was registered by P.W.6 Head Constable Dhani Ram Dixit at P.S.- Kakadeo, District- Kanpur Nagar who also prepared the check F.I.R. (Ext.Ka.4) and entered the particulars of the case in the G.D. at serial no. 48 at 18:20 hours on 19.10.1982 (Ext.Ka.6).
After the registration of the case, its investigation was taken up by Ganga Singh Tomar, S.O. of P.S.- Kakadeo who proceeded to the place of incident along with P.W.7 S.I. Netrapal Singh. They inspected the spot where the dead body was lying and the house of the applicant/appellant.
P.W.7 S.I. Netrapal Singh appointed panchas, one of them was the applicant/appellant and the other was his brother Vikram Kumar. He then started the inquest proceedings. He found that the head of the deceased was towards east and the legs were towards west, straight and 45 degree apart from each other. Deceased's face was slightly turned towards right side and left hand was turned at 90 degree angle towards head. Right hand was turned and kept on right waist. Fingers of both hands were straight. Blood spots were present on the face. White froth was oozing out of nostrils and mouth. Eyes were closed and mouth was almost closed. The dead body was lying upside down. Two incised wounds were found, one on front and other on left side of neck, both blood stained. No other apparent injury was found on dead body of the deceased. Saree was blood-stained. One ring apparently of gold in middle finger of left hand, tops apparently of gold in both ears and one pair of toe ring in toes of both feet were also found. He prepared panchayatnama (Ext.Ka.7) and other necessary documents (police papers) (Exts.Ka.8 to Ka.13). S.O. Ganga Singh Tomar, Investigating Officer collected grass, plain and blood- stained earth from near the dead body and prepared its recovery memo (Ext.Ka.14). He also recovered a container of Baygon near the head of the deceased's body and prepared its recovery memo (Ext.Ka.15). He also recovered a blood-stained steel glass and a knife from the courtyard of house of applicant/appellant opposite the kitchen and near the water tank and prepared its recovery memo (Ext.Ka.16). One pair of lady's slippers and a pair of gent's slippers and a bag were recovered from the bedroom of the applicant/appellant and the deceased and its recovery memo (Ext.Ka.17) was prepared by S.O. Ganga Singh Tomar. He went to the rooftop and collected pieces of blood-stained bricks from parapet and floor from south-west corner of the roof and prepared its recovery memo (Ext.Ka.18). The Investigating Officer also prepared the site plan of the place of occurrence (Ext.Ka.19). One Vikas Srivastava clicked photographs of the spot where the dead body was lying from various angles including that of the dead body.
P.W.7 S.I. Netrapal Singh sent the dead body for postmortem. P.W.4 Dr. N. P. Agarwal conducted postmortem on the dead body of Smt. Usha Agarwal on 20.10.1982 at 3:30 p.m. and prepared the postmortem report (Ext.Ka.3). He noted following ante-mortem injuries on her person :-
(1) Contusions 5 cm x 3 cm over right side of forehead just above the right eyebrow.
(2) Contusion 5 cm x 8 cm over middle of forehead.
(3) Incised wound 4 cm x 1.5 cm x tracheal deep on the front part of the neck, middle part, running horizontally, margins clean cut and gaping present, underlying muscles congested.
(4) Incised wound 2 cm x 1 cm x muscle deep on left side of the neck 8 cm below the chin with underline vessels cut and 5 cm above right suprasternal notch, margin of wounds clean cut gaping present.
(5) Contusion 8 cm x 4 cm over left side of abdomen about 14 cm below the left nipple at 3 o' clock position.
External Examination :
Average built, body pale rigor mortis present in lower extremity partially in upper extremities, nails cyanosed, eye partially open, frothy discharge coming out from nostrils and mouth, p.m. staining present on back.
Internal Examination :
Trachea cut under injury no. 3. Left and right lungs congested. Heart empty, weight 180 grams, vessels cut in neck mentioned in injury no. 4. Oesophagus congested. Stomach and its contents- congested. Semi-digested fluid present (contents preserved with stomach). Intestine congested. Gall bladder congested, half full, preserved. Spleen congested, part preserved. Kidneys congested, one preserved. Bladder empty, NAD. Generation organs- NAD. Viscera preserved as organs are congested.
According to P.W.4 Dr. N. P. Agarwal, the cause of death of Smt. Usha Agarwal was shock and haemorrhage as a result of ante-mortem injuries.
The police conducted the investigation accordingly and arrested the applicant/appellant Dr. Gautam Kumar Agarwal on 21.10.1982. The paternal family members of the deceased were not satisfied with the progress of investigation by police and, therefore, Mahendra Kumar, brother of the deceased moved an application for transfer of investigation.
On his application, the investigation was transferred and entrusted to Crime Branch, Crime Investigation Department, hereinafter referred to as the “C.B. C.I.D.”, Lucknow on 06.11.1982. Shabbir Khan, the Investigating Officer of C.B. C.I.D. conducted further investigation. The case property was sent to Forensic Science Laboratory (FSL) vide G.D. No. 57, dated 26.11.1982 (Ext.Ka.5). He also obtained expert opinion of Dr. K.K. Singhal regarding the nature of death whether it was suicidal or homicidal. He also sent viscera for chemical examination to FSL.
After completing the investigation, Shabbir Khan, the Investigating Officer, C.B. C.I.D. filed charge-sheet (Ext.Ka.25) against the applicant/appellant Dr. Gautam Kumr Agarwal and his parents i.e. Munish Kumar and Smt. Sharda Devi for the offences u/s 302, 201, 193 and 120- B I.P.C. for murder of Smt. Usha Agarwal and other related offences.
Since the offences mentioned in the charge-sheet were triable exclusively by the Court of Sessions, the accused were committed for trial to the Court of Sessions Judge where Case Crime No. 318 of 1982 was registered as Session Trial No. 82 of 1983, State of U.P. through C.B.
C.I.D. Vs. Dr. Gautam Kumar Agarwal, and made over for trial from there to the Court of Additional Session Judge, Court No. 1, Kanpur Nagar who framed charge against the applicant/appellant u/s 302 & 201 I.P.C. while Munish Kumar, informant/father of the applicant/appellant was charge- sheeted u/s 201 & 203 I.P.C. Co-accused Smt. Sharda Devi was discharged by order dated 31.07.1984 which has attained finality. Both the accused, Dr. Gautam Kumar Agarwal and Munish Kumar abjured the charges and claimed trial.
Accused Munish Kumar preferred Criminal Revision No. 1618 of 1984, Munish Kumar Vs. State against the impugned order whereby charge was framed by the learned trial court against him and vide order dated 10.08.1984, the proceedings of the trial were stayed by the Hon'ble High Court. The State also filed Criminal Revision No. 2452 of 1984 before this Court against the order dated 31.07.1984 by which co-accused Smt. Sharda Devi was discharged. The revision preferred by Munish Kumar was dismissed on 23.10.1997. The trial of the accused commenced only after the record of the case was reconstructed. Criminal Revision No. 2452 of 1984 preferred by the State was dismissed by this Court by order dated 11.07.2013.
The prosecution in order to prove its case examined as many as 11 witnesses namely P.W.1 Surendra Kumar, brother of deceased Smt. Usha Agarwal, P.W.2 Smt. Sarita Tyagi, alleged employee of Smt. Sharda Devi, P.W.3 Swaroop Narain Tiwari, then Director of Forensic Science Laboratory (FSL), Agra, P.W.4 Dr. N. P. Agarwal, who conducted postmortem on the body of deceased, P.W.5 J. B. Srivastava, Photographer who had shot photographs of the spot at the time of inspection by a team of FSL, P.W.6 Head Constable Dhani Ram Dixit who had prepared the check F.I.R. (Ext.Ka.2), G.D. Entry No. 57 (Ext.Ka.5) and received report of Pyare Lal (Ext.Ka.1), P.W.7 S.I. Netrapal Singh who prepared panchayatnama and other documents, P.W.8 Dr. O.P. Taneja, then Assistant Director of FSL who examined blood-stains on various items sent to him, P.W.9 Dr. Sheetal Prasad Harchalani, then Assistant Director of FSL Agra who examined viscera of deceased Smt. Usha Agarwal and P.W.10 Dr. Nagendra Nath Srivastava, then Assistant of Sri Krishna Kumar Singhal who proved his expert opinion reports (Ext.Ka.23 and Ka.24) and P.W.11 Constable Mahendra Pratap Singh proved the signatures of Shabbir Khan, the Investigating Officer (Ext.Ka.25).
The accused in their examination u/s 313 Cr.P.C. denied the prosecution case and alleged that his wife was mentally unsound and the allegations of demand of dowry were totally wrong. His wife was suffering from OCD (Obsessive Compulsive Disorder) and she had tried to commit suicide prior to the incident in the house of her brother. She was being treated by Dr. Harjeet Singh. The treatment of his son was also going on and he was administered medicines for fever, food poisoning and loose motions. Dr. Mahendra Kumar was at Delhi, therefore, his regular treatment was conducted by Child Specialist. Allegations of illicit relations were also wrong. He had himself extended financial help to the informant and his family members and had himself gone to the police station to lodge the F.I.R. Police detained him at police station and he was taken for inquest and last rites of his wife. The accused examined Dr. Har Jeet Singh, Dr. Puneet Mahesh Chandra Awasthi, Ravi Krishna Nigam, Amar Nath Katiyar, Vinay Kumar Goyal and Balbir Singh Bhatia as D.W.1, D.W.2, D.W.3, D.W.4, D.W.5 and D.W.6 respectively. Documentary evidence was also adduced which comprised of letters written by P.W.1 Surendra Kumar, Pyare Lal and Munish Kumar which have been referred to and dealt with in the impugned judgement and order.
Learned Additional Session Judge, Court No. 1, Kanpur Nagar after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the evidence on record, convicted the appellants and awarded aforesaid sentences to them. Accused Munish Kumar had died during the pendency of the trial. As such the trial against him stood abated.
In support of his prayer for enlarging the applicant/appellant on bail during the pendency of the trial, it has been contended by Sri Dileep Kumar, learned Senior counsel appearing for the applicant/appellant that the instant case is based upon circumstantial evidence and admittedly no one has seen the accused committing the murder of the deceased and since admittedly at the time when the body of the deceased was discovered by the applicant/appellant lying in the plot adjacent to the applicant's house, apart from the appellant, several other persons were present in the house and the case of co-accused Smt. Sharda Devi which stood on the identical fact as that of the applicant/appellant having been discharged, the learned trial Judge fell into error in recording the conviction of the applicant/appellant by illegally invoking Section 106 of the Indian Evidence Act. He next contended that the prosecution failed to discharge its initial and primary burden of establishing by leading any cogent evidence that the applicant/appellant was present in the house when the occurrence had taken place and hence, it could not be presumed that the facts and circumstances relating to the death of the deceased were within the special knowledge of the applicant/appellant. He also contended that the prosecution having come up with a definite motive for the appellant to commit the murder of the deceased i.e. the unfulfilled demand of dowry, the trial court having held that the prosecution had failed to prove that there was any demand of dowry, the motive, which assumes considerable significance in a case based upon circumstantial evidence, disappeared and hence, neither the recorded conviction of the appellant nor the sentences awarded to him, can be sustained. He further contended that the applicant/appellant is presently aged about 70 years and was on bail during the trial. There is no instance of abuse of liberty of bail by him and since there is no likelihood of this appeal being heard in near future, the appellant is entitled to be enlarged on bail during the pendency of this appeal.
Per contra Sri Brijesh Sahai, learned Senior counsel appearing for the informant argued that incriminating material was recovered during the investigation pointing out at the complicity of the appellant in committing the murder of the deceased. The theory of OCD (obsessive compulsive disorder) with which the defence has come forward by placing reliance upon certain prescriptions (Exts.Kha.12 to Kha.15) allegedly issued by D.W.1 Dr. Har Jeet Singh describing himself as a doctor employed in Psychiatry Department of King George's Medical University (KGMU), Lucknow for establishing that the deceased was a person of unsound mind, having tendency of committing suicide and that she had actually committed suicide, was rightly discarded by the trial court on the ground that the material upon which the applicant/appellant relied for substantiating the aforesaid plea, was fabricated on account of fact that all the prescriptions allegedly relating to the treatment of the deceased by D.W.1 Dr. Har Jeet Singh pertained to the period 46 days before Dr. Har Jeet Singh had secured employment in the Psychiatry Department of King George's Medical College on 04.12.1982 and hence, proceedings u/s 340 Cr.P.C. were directed to be instituted against him. He next submitted that the two incised wounds found by P.W.4 Dr. N.P. Agarwal who had conducted the postmortem on the body of the deceased clearly indicate that it was not a case of suicide inasmuch as it was humanly impossible for the deceased, considering the nature of the two incised wounds found on her dead body to have caused the second incised injury on the left side of her neck after inflicting the first incised wound on the front part of her neck or vice-versa. This application lacks merit and is liable to be rejected.
Smt. Manju Thakur, learned A.G.A.-I appearing for the State apart from adopting the submissions made by Sri Brijesh Sahai, learned counsel for the informant further submitted that it is proved from the recitals contained in the F.I.R. itself that the applicant/appellant Dr. Gautam Kumar Agarwal was present in his house when the search for the deceased was being made and hence, the submission made by the learned counsel for the appellant that the prosecution failed to adduce any evidence proving the presence of the applicant/appellant in his house at the time of the discovery of the dead body, is wholly misconceived and liable to be rejected.
Having heard the learned counsel for the parties and perused the material brought on record, we are not inclined to enlarge the applicant/appellant on bail during the pendency of this appeal.
The prayer for enlarging the applicant/appellant on bail is refused.
However, considering the fact that the applicant/appellant Dr. Gautam Kumar Agarwal is 70 years old, office is directed to get the paper books of this appeal prepared within six weeks. After the paper books are prepared, learned counsel for the parties shall be provided with the same within a further period of two weeks.
This appeal shall be listed for final hearing before the appropriate Court in the week commencing 14th October, 2019.
Subject to the aforesaid direction, this bail application stands finally disposed of.
Order Date :- 22.08.2019 KS