# Nirmal v. State of U.P

- **Citation:** (2022) 12 ILRA 204
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-19
- **Case number:** Criminal Appeal No. 5571 of 2015
- **Bench:** Manoj Misra, Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nirmal-v-state-of-u-p-48001
- **Pages:** 18

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code,1860- Sections 302. 307 &
342-Challenge to -Conviction-neither the
prosecution nor the defence give narration
of any altercation or fight between
husband and wife either on the date of the
incident or on any date immediately
before the incident. The marriage of the
appellant with the informant (PW-1) was
12 All. Nirmal Vs. State of U.P.
205
admittedly over 7 years old and the
appellant had been working for livelihood
in a different State since before his
marriage and was an occasional visitor to
his hometown-no incident triggering the
incident is proved by the prosecution to
serve as a strong motive for the crime- if
the appellant had an intention to finish off
his children as well as the informant,
having inflicted precision knife blows on
two innocent children, he would not have
used the blunt side of knife or some other
non lethal weapon to inflict injury on PW1 to enable her to survive and be a
witness against him, particularly, when he
had a plan to finish them off and take a
plea of alibi- the conduct of the appellant
in taking the wife to the hospital;
arranging for an ambulance to take her to
the district hospital; and getting her
admitted for treatment is suggestive of
the fact that he made all efforts to save
his wife - incident occurred in the secrecy
of
a
closed
room-
The
prosecution
evidence is silent as to how the appellant
managed that secrecy to cause injury to
his two sons and his wife-the prosecution
story and the evidence fails to inspire our
confidence as to uphold the conviction
recorded by the trial court-Thus, the
appellant is entitled to be given benefit of
doubt. (Para 1 to 40)
The appeal is allowed. (E-6)

## Text

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204 INDIAN LAW REPORTS ALLAHABAD SERIES
accused and bring home the offences
beyond any reasonable doubt."

28. In Padala Veera Reddy v. State
of A.P. and Ors., 1989 Supp. (2) SCC
706, it was laid down that in a case of
circumstantial evidence such evidence must
satisfy the following test:-

"(1)
the
circumstances
from
which an inference of guilt is sought to be
drawn, must be cogently and firmly
established;

(2) those circumstances should be
of a definite tendency unerringly pointing
towards guilt of the accused;

(3)
the
circumstances,
taken
cumulatively, should form a chain so
complete that there is no escape from the
conclusion
that
within
all
human
probability the crime was committed by the
accused and none else; and (4) the
circumstantial evidence in order to sustain
conviction must be complete and incapable
of explanation of any other hypothesis than
that of the guilt of the accused and such
evidence should not only be consistent with
the guilt of the accused but should be
inconsistent with his innocence. (See
Gambhir v. State of Maharashtra (1982) 2
SCC 351)."

29. In this case, in the absence of
proving any fact regarding the demand of
additional dowry, motive is not proved. It is
also not proved that at the time of
occurrence appellant Rakesh was inside the
house as he has taken plea that he had gone
to his duty at 9:00 am. In medical evidence
also the time of death is not established.
The chain of circumstances is not complete
against the appellant. We are of the
considered view that prosecution has not
established its case beyond reasonable
doubt against the appellant Rakesh and he
is entitled to be given benefit of doubt and
appeal is liable to be allowed.

30. Appellant-Rakesh is given benefit
of doubt and appeal is allowed accordingly.

31. Conviction and sentence of
appellant Rakesh u/s 302 r/w Section 34
IPC is hereby set aside and he is acquitted
of all the aforesaid charges framed against
him. He be set free forthwith if not wanted
in any other case.

32. Record and proceedings be sent
back to the court below.
---------
(2022) 12 ILRA 204
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.12.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Appeal No. 5571 of 2015

Nirmal ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Krishna Nand Yadav, Sri Dinesh Kumar
Pandey, Sri Manu Sharma

Counsel for the Respondent:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code,1860- Sections 302. 307 &
342-Challenge to -Conviction-neither the
prosecution nor the defence give narration
of any altercation or fight between
husband and wife either on the date of the
incident or on any date immediately
before the incident. The marriage of the
appellant with the informant (PW-1) was
12 All. Nirmal Vs. State of U.P.
205
admittedly over 7 years old and the
appellant had been working for livelihood
in a different State since before his
marriage and was an occasional visitor to
his hometown-no incident triggering the
incident is proved by the prosecution to
serve as a strong motive for the crime- if
the appellant had an intention to finish off
his children as well as the informant,
having inflicted precision knife blows on
two innocent children, he would not have
used the blunt side of knife or some other
non lethal weapon to inflict injury on PW1 to enable her to survive and be a
witness against him, particularly, when he
had a plan to finish them off and take a
plea of alibi- the conduct of the appellant
in taking the wife to the hospital;
arranging for an ambulance to take her to
the district hospital; and getting her
admitted for treatment is suggestive of
the fact that he made all efforts to save
his wife - incident occurred in the secrecy
of
a
closed
room-
The
prosecution
evidence is silent as to how the appellant
managed that secrecy to cause injury to
his two sons and his wife-the prosecution
story and the evidence fails to inspire our
confidence as to uphold the conviction
recorded by the trial court-Thus, the
appellant is entitled to be given benefit of
doubt. (Para 1 to 40)
The appeal is allowed. (E-6)

(Delivered by Hon'ble Manoj Misra, J.)

1. This appeal is against the judgment
and order dated 19.10.2015/ 27.10.2015
passed by the Additional Sessions Judge,
Court No.2, Maharajganj in S.T. No.111 of
2013, arising out of Case Crime No.133 of
2013, P.S. Thuthibari, District Maharajganj,
whereby the appellant (Nirmal) has been
convicted under Sections 302, 307, 342 IPC
and sentenced as follows:- Imprisonment for
life as well as fine of Rs.25,000/-, coupled
with a default sentence of one year, under
Section 302 IPC; imprisonment for life as
well as fine of Rs.24,000/-, coupled with a
default sentence of one year, under Section
307 IPC; and one year R.I. as well as fine of
Rs.1,000/-, coupled with a default sentence of
two months, under Section 342 IPC. All
sentences to run concurrently.

INTRODUCTORY FACTS

2. On 14.03.2013 at 8.30 hours, a
written report (Ex. Ka-1) thumb marked by
Poonam (PW-1), scribed by Zakir Ahmad
(PW-3), was lodged by Virendra (PW-2),
father of Poonam, giving rise to Case Crime
No.133 of 2013 at P.S. Thuthibari, District
Maharajganj of which GD entry, vide report
No.12 (Ex. Ka-5), and Chik FIR (Ex. Ka-4)
was prepared by Constable Ram Adhar (PW5). In the written report it was alleged that
informant - Poonam (PW-1) was married to
the accused - Nirmal (the appellant) seven
years ago; out of that marriage, she had two
sons, namely, Nilesh (deceased no.1- D-1),
aged about 5 and a half years, and Niwas
(deceased no. 2- D-2), aged about 3 years;
that the accused used to suspect informant's
character and allege that those children were
not his and therefore the informant should go
away with her children or else she as well as
her sons would be killed; that this fact was
communicated by the informant to her
parents but they used to counsel her to have
patience; that on 13.03.2013, the accused
Nirmal killed his children at about 11.10 am
and also inflicted knife blow on informant's
neck and left after shutting the door from
outside; however, later, in the night people
admitted her in the hospital therefore, now
she is lodging the report for appropriate
action.

3. Upon registration of the case,
Bhagwati Singh (the investigating officer -
I.O.) (PW-6) visited the spot and carried out
inquest of the two deceased, namely D-1 and
D-2. The inquest of D-1 was completed by
206 INDIAN LAW REPORTS ALLAHABAD SERIES
10.50 hours on 14.03.2013 of which an
inquest report (Ex. Ka-9) was prepared. One of
the inquest witnesses to the report is Mahendra
(PW-8). Similarly, inquest of D-2 was
completed by 13.30 hours on 14.03.2013 of
which an inquest report (Ex. Ka-15) was
prepared by PW-6. On 14.03.2013 itself, the
I.O. carried out separate inspection; prepared
site plan (Ex. Ka -4); lifted plain earth and
blood stained earth from the spot of which a
seizure memo (Ex. Ka-6) was prepared and
also collected murder weapon (a knife) of
which seizure memo (Ex. Ka-5) was prepared.

4. Autopsy was carried out on
15.03.2013.
Autopsy
report,
dated
15.03.2013, of D-1 (Ex. Ka-2) indicates that
it was completed by 3 pm. The relevant
entries in the autopsy report (Ex. Ka-2) are
as follow:-

External Examination:-

Average built body, aged 5 years;
rigor mortis passed out in all limbs;
abdomen distended; scrotum swollen; skin
peeled off at places; blister present at places;
eyes bulging, mouth open; blood stained
cloth on face present.

Ante Mortem Injuries:-

(i) Incised wound 5.8 cm x 1.5 cm
x bone deep on left side neck obliquely
placed underlying trachea, oesophagus,
carotid vessel on left side cut.

(ii) Contusion traumatic swelling
3.0 cm x 2.5 cm on right side head.

Internal Examination:

Stomach contains pasty material 50
gm. Small intestine empty. Large intestine
full with faecal matter and gases.

Opinion:- Death due to shock and
haemorrhage as a result of ante-mortem
injuries.

Duration since death:- About two
days.

5. Autopsy report of D-2 (Ex. Ka-3),
dated 15.03.2013, reflects that it was
completed by 3.45 pm. The relevant entries in
the autopsy report (Ex. Ka-3) are as follows:-

External Examination:-

Average built body, aged 4 years;
rigor mortis passed out in all limbs; eyes
bulging, mouth half open, blisters at places;
abdomen distended; skin peeled off at places.

Ante Mortem Injuries:-

Incised wound 4.8 cm x 1.2 cm x
bone deep on front and left side neck
obliquely, underlying trachea, oesophagus
and carotid vessel on left side cut.

Internal Examination:

Stomach contained pasty material 50
gm. Small intestine empty. Large intestine
full wth faecal matter and gases.

Opinion:- Death due to shock and
haemorrhage as a result of ante-mortem
injuries.

Duration since death:- About two
days.

6. After completing the investigation,
PW-6 prepared and submitted charge sheet
(Ex. Ka-7) against the appellant on
24.04.2013. After taking cognizance on the
charge sheet, the matter was committed to
the court of session. The court of session
12 All. Nirmal Vs. State of U.P.
207
charged the appellant as follows:- for the
murder of D-1 and D-2, under Section 302
IPC;
for
attempting
murder
of
the
informant Poonam (PW-1), under Section
307 IPC; and for wrongful confinement of
PW-1, under Section 342 IPC. The
appellant pleaded not guilty and claimed
trial.

PROSECUTION EVIDENCE

7. During the course of trial, the
prosecution examined as many as 10
witnesses. Their testimony, in brief, is as
follows:-

8. PW-1- Poonam- the informant -
the wife of the appellant and the person
injured. She stated that she was married to
the appellant about seven years before the
incident. Out of that marriage she had two
sons, namely, Ram Niwas and Nilesh.
Nilesh was aged 5 and a half years,
whereas Ram Niwas was aged about 4
years at the time of the incident. She stated
that the appellant used to work as a
tailor/weaver in Gujarat. During Diwali the
appellant had come to the village from
Gujarat. She stated that she used to live in
village Gadaura where her husband had his
house
and
agricultural
holding.
Her
husband is one amongst four brothers each
having separate mess though they had
common fields etc. She stated that her
husband used to level allegations that she is
having a bad character and the two
children, namely, Ram Niwas and Nilesh,
were not from him. PW-1 stated that the
appellant also used to threaten her to take
her children and go away or she and her
children will be killed. PW-1 stated that she
gave information of the aforesaid threat to
her father (Virendra - PW-2). Her father
came and counseled her and her husband.
On several occasions, her father had
counseled the appellant but to no effect. On
the date of the incident, at about 11 am,
while she was in her room hanging clothes
and her two children were playing on the
wooden cot, her husband (the appellant)
came and struck Ram Niwas with a knife,
when she intervened, the appellant caught
her by her neck with his hand and struck
Nilesh on the neck with the knife. Both
children started struggling to breathe.
Thereafter, she was also inflicted knife
blow by her husband. Both her children
died and she fell unconscious. Thinking
that she is dead, her husband locked the
door from outside and ran away. As she had
injury on her neck, she could not raise an
alarm. In the night her husband came with
his brother Sarwan and when they found
that the informant was alive, Sarwan
advised informant's husband Nirmal to take
her to the hospital and make a false report
that informant has killed her own children
and inflicted injuries on herself. On the
above suggestion of Sarwan, Nirmal (the
appellant) stated that it would be better that
he escapes to Nepal, upon which Sarwan
told Nirmal that if he escapes now, he
would be trapped, therefore it would be
better that she (PW-1) is taken to the
hospital.
PW-1
stated
that
thereafter
Sarwan and Nirmal took her to the hospital
and got her admitted in District Hospital,
Maharajganj. After she was admitted,
information was given to her father. Her
father arrived in the morning. Along with
her father, Zakir Ahmad had also come. She
narrated the incident to her father by
gestures. Zakir scribed the report and read
out the report. She approved the report by
her gestures and put thumb impression on
it. The report was shown to her; she
identified it and the same was marked Ex.
Ka-1. At this stage, the witness showed to
the court the mark of injury on her neck
and claimed that she is being threatened by
208 INDIAN LAW REPORTS ALLAHABAD SERIES
unknown persons not to give statement
against Nirmal otherwise she would be
killed. PW-1 added that since then she has
been staying with her father and has come
to give her statement along with her father.
When the photograph of the body of the
deceased was shown to her she identified
the deceased. She clarified that when the
first information report was lodged she was
not in a position to speak but she could
gesticulate and the report was prepared on
the basis of gesticulation. She stated that
she remained in the hospital for 6-7 days
and thereafter under went treatment for few
months and in her treatment about 60-70
thousand rupees of her father were spent.

During cross examination, she
admitted that her husband had been
working out of station since before her
marriage. Sometimes he used to return
within six months and sometimes after a
year. She stated that her husband is one
amongst four brothers. All of them have
separate mess. For one or two years or may
be three years, after Gauna, there used to be
a common mess but since thereafter they all
had separate mess. In respect of description
of the house where she resided at the time
of the incident, PW-1 stated that the house
has four rooms; each brother has a room to
himself; all rooms, having separate doors,
open in a common gallery. The room of
Sarwan (one of the brothers of her
husband) is in front of the room of the
informant. On the day of the incident,
Sarwan, Sarwan's wife and Sarwan's
mother and father including children were
there and Nirmal (accused-appellant) was
also there. Nirmal had arrived on the day of
Diwali. She stated that so long Nirmal
stayed in the village he used to only loiter
around. He used to leave the house between
10-11 am, normally after having meals, but
where he used to go, she did not know.
Sometimes he used to leave even without
food. She stated that in her house, food
used to be cooked early morning as the
elder son used to go to the school. On the
day of the incident, food was cooked
between 7 and 8 am. Her son after having
meal had gone to the school. On the date of
the incident, Nirmal had his meals at
around 11-30 am. The elder son had had his
meals but the younger one did not have his
meals, he had only milk. She also had not
taken her meals. She could not remember
as to when Nirmal left the house but then
she stated that he left the house after having
meals at around 11 am. She stated that after
receiving injury she turned unconscious
and she does not know for how long she
remained unconscious. She stated that she
regained consciousness when Sarwan and
Nirmal were trying to stir her up. She was
given water to drink and after having water
she gained consciousness but then again
she became unconscious. She stated that
when she was given water she was partially
conscious. She could hear the conversation
between Sarwan and Nirmal. She could not
tell as to when the police had come to
record her statement and she also could not
tell as to where she regained consciousness.
She, however, stated that when her father
had arrived in the morning, she had
regained consciousness. She could not tell
as to how many persons had come to the
hospital to visit her. At this stage, PW-1
stated "मैं निममल से तंग आ गयी थी। वह मुझे
बहुत मारते थे।"

She denied the suggestion that
she killed her children and tried to kill
herself as she was frustrated. She also
denied the suggestion that at the time of the
incident Nirmal was not in the house but
was away. She also denied the suggestion
that no such incident had occurred.

9. PW-2 - Virendra - father of the
informant. PW-2 stated that her daughter
12 All. Nirmal Vs. State of U.P.
209
Poonam was married to the appellant about
7 years ago and out of the marriage D-1
and D-2 were born. PW-2 stated that her
daughter used to inform him that her
husband Nirmal used to level allegations of
bad character on her and used to allege that
her children were not his. PW-2 stated that
he used to counsel her to have patience. In
respect of the incident, PW-2 stated that at
about 2 am in the night he received a phone
call that his daughter Poonam has been
inflicted knife blow on the neck and that
Nirmal has killed both his children. He was
also told that Poonam has been admitted in
the government hospital. He stated that he
arrived at the hospital at about 5 am where
he was informed by his daughter about the
incident. After getting full information
about the incident from his daughter, he got
the report scribed from Zakir Ahmad and
after getting the thumb impression of his
daughter, the report was lodged.

During cross examination, PW-2
stated that his daughter's Gauna had been 8-9
years ago. Gauna was in the fifth year after
marriage. Since before marriage, his son-inlaw Nirmal used to work in Gujarat. He
stated that he cannot say whether Nirmal had
relations with any lady in Gujarat. He stated
that the relations between his daughter and
his son-in-law got sour about a year and half
before the incident and prior to that, their
relations used to be cordial. PW-2 stated that
his daughter was anguished by the conduct of
her husband and used to remain under severe
stress. She used to say that her life is not good
and therefore it is better that she dies. He also
stated that his daughter on one or two
occasions had attempted suicide but she was
counseled by him. PW-2 could not tell with
certainty as to who informed him in the night
about the incident but he reiterated that he
arrived at the hospital in the morning at 5 am.
He left his own house at 3 am to go to the
hospital. He stated that at the hospital Nirmal
was seen handcuffed by the police. When he
had arrived at the hospital, his daughter was
unconscious. She regained consciousness
after about half an hour. He had no
conversation with Nirmal. Nirmal did not
inform him about the incident. He stated that
his daughter had told him to lodge report. He
reiterated that his daughter remained in the
hospital for 6-7 days. He stated that he had
lodged the report at the police station at about
10 am. He stated that he did not visit Nirmal's
house. He, however, admitted that his
daughter used to suspect that her husband
Nirmal has kept another woman in Gujarat
and therefore he used to assault her. He also
admitted that his daughter was frustrated
living with Nirmal (the appellant) but he
denied the suggestion that his daughter out of
frustration that her husband Nirmal has kept
another lady, killed her own children and
attempted to kill herself. He also denied the
suggestion that Nirmal had informed PW-2
about the incident. He denied the suggestion
that he has lodged a false report only to save
his daughter as she had killed her own
children and had attempted suicide. He also
denied the suggestion that he is telling lies
only to save his daughter.

10. PW-3 - Zakir Ahmad. He stated
that the report (Ex. Ka-1) was scribed by
him on the instructions of Poonam Devi
and it was read over to her. He stated that
Poonam had put her thumb impression on
the report. Immediately thereafter he stated
that he had scribed the report at Kotwali
and had handed it over at P.S. Thuthibari
because
Poonam
was
admitted
for
treatment at that time.

During cross examination, PW3 stated that Poonam's father Virendra met
him in the government hospital where
Poonam was admitted. He again stated that
210 INDIAN LAW REPORTS ALLAHABAD SERIES
at the time of writing the report at Kotwali
Sadar there were number of persons
present. He, however, could not tell as to
who they were. He, however, denied the
suggestion that he made a false report to
give colour to the case.

11. PW-4 - Navnath Prasad -
Autopsy Surgeon. He proved the autopsy
reports of D-1 and D-2 already noticed
above. He stated that the ante mortem
injuries noticed were sufficient to cause
death in ordinary course.

During cross examination, he
stated that the injuries noticed were of
similar kind and could be from a small
sharp edged weapon. He stated that he
could not disclose as to what material was
found in the stomach as they were fully
digested.

12. PW-5 - Constable Ram Adhar.
He proved the registration of the first
information report and preparation of the
Chik FIR (Ex. Ka-4) and the GD entry
thereof (Ex. Ka-5). He stated that at the
time of lodging the report only Virendra
(father of PW-1) had come with a written
report.

During cross examination, he
again reiterated that PW-1's father, namely,
Virendra, alone had come to lodge the
written report and he had brought a written
report with him. He denied the suggestion
that
the
report
has
been
registered
according to his thoughts. He also denied
the suggestion that information of the
incident was given by Nirmal to Poonam's
father. He also denied the suggestion that
Poonam committed the crime.

13. PW-6 - Bhagwati Singh -
Investigating Officer. He proved various
stages of investigation such as inquest
proceeding; visiting the spot; preparing the
site plan; lifting the blood stained earth and
plain earth; and recording the statements of
witnesses. Apart from that, he stated that
during spot inspection it appeared to him
that the room where the bodies were lying
had been locked from inside as the latch of
the door had broken and was lying inside
the
room.
He
stated
that
during
investigation he had recorded the statement
of doctor who had medically examined
Poonam and it was found that Poonam was
brought to the doctor by Nirmal at about
10.30 pm on 13.03.2013. He also stated
that he had arrested Nirmal on 15.03.2013
and after completing the investigation he
had prepared charge sheet (Ex. Ka-7) on
24.04.2013. He produced various articles
which were recovered during the course of
investigation as material exhibits including
the knife (the weapon of assault).

During cross examination, PW-6
stated that on 14.03.2013 when he had
inspected
the
spot,
informant's
father
Virendra and other villagers were present. He
stated that informant's father had not
informed him as to who gave information on
telephone about the incident. He stated that
when he had visited the spot the room of the
informant was found open but on inspection
he could sense that the door had to be broke
open because the latch of the door had
separated from the wooden part and was
lying on the floor. He, however, clarified that
he had not prepared any seizure memo of
either the wooden part of the door or the latch
but photographs of that room were taken and
plain earth and blood stained earth including
weapon of assault were lifted from the spot.
He stated that when he had visited the
hospital to record the statement of the
informant, the accused Nirmal was not
present but he could ascertain that Nirmal had
12 All. Nirmal Vs. State of U.P.
211
got the informant admitted in the hospital. He
stated that he recorded the statement of
doctor Jamin Ali during investigation who
also confirmed that Nirmal had brought the
informant for treatment in the night of
13.3.2013 at 10.30 pm. He also stated that the
doctor informed him that at that time the
informant was not in a position to speak. The
doctor also informed him that Nirmal had
called for the ambulance to take her to district
hospital at Maharajganj. PW-6 stated that
Poonam had not informed him that Nirmal
had kept a second wife in Gujarat but she had
told him that Nirmal had been working in
Gujarat and had come after one year. PW-6
stated that he did not notice any finger prints
on the weapon of assault and therefore did
not send the weapon to finger print expert
though weapon was sent to ascertain the
presence of human blood on it. He denied the
suggestion that the accused Nirmal was
present in the hospital. In respect of
information gathered from the doctor with
regard to duration of injury found on the
body of Poonam, PW-6 stated that according
to the information provided by the doctor the
injuries were fresh as noticed on 14.03.2013
at 2.05 am. He stated that, during the course
of investigation, from the villagers he could
gather that the time of the incident was
between 6 pm and 9 pm. He denied the
suggestion that he got the report scribed and
got it lodged under his instructions. He also
denied the suggestion that the investigation
was completed sitting at home and, on the
basis of cursory investigation, charge sheet
was submitted.

This witness was recalled by
order dated 21.05.2015 to prove the inquest
reports; the papers prepared in connection
with autopsy; and the photographs of the
site. The said documents were exhibited
and the photographs were also made
material exhibits 11, 12, 13 and 14.

During cross examination, after
PW-6 was recalled, PW-6 stated that
photographs were taken at the time of
inquest which was conducted between 9.30
am and 10.50 am. He stated that in
photograph 103 Kha/31 a lit lantern is
noticed and in photograph 103 Kha/32
(note it might be 10Kha/ 32) the broken
latch is noticed.

14. PW-7- Dr. Ranjan Kumar
Mishra. He is the doctor who examined
Poonam on 14.03.2013 at 2.05 am. He
proved
the
medical
examination
report/injury report of Poonam which was
marked
as
Ex.
Ka-8.
The
injuries
mentioned by him in the injury report,
proved by him, are noticed below:-

(i) A L.W. size about 0.5 cm x 0.5
cm into muscle deep in neck region just 2
cm above from thyroid cartilage. Bleeding
present. Advise: refer to ENT surgeon for
expert opinion.

(ii) Multiple abrasions (maximum
size 1 cm x 0.2 cm and minimum size
about 0.5 cm x 0.2 cm) in neck region just
above the thyroid cartilage.

Duration:-
fresh.
Opinion:-
Injury no.1 kept under observation. Injury
no.2 simple in nature. Injury no.1 caused
by blunt object and injury no.2 caused by
sharp edges.

PW-7 proved the above injury
report (Ex. Ka-8) and stated that he
examined the injured, who was brought by
her husband, at 2.05 am.

During cross examination, PW7 admitted that at the time when Poonam
was brought for medical examination it was
only her husband who was present and
there was no police personnel. In respect of
injury no.2, PW-7 stated specifically as
follows:- "चोट िं. 2 धार दार हनथयार से स्क्रेच
212 INDIAN LAW REPORTS ALLAHABAD SERIES
था और वह चोट मजरुब अपिे हाथ से भी बिा
सकता है।"

In respect of the duration of
injury as fresh, PW-7 stated that "6 घंटे की
अंदर की चोट फ्रेश होती है।"

In respect of the nature of
injury, PW-7 stated that "चोट िं. 1 साधारण
प्रकृनत की िहीं थी। चोट िं. 2 साधारण प्रकृनत
की थी। चोट िं. 1 ब्लन्ट ऑब्जेक्ट से आिा
सम्भव था।"

PW-7 denied the suggestion that
he did not properly examine the injured
and prepared the injury report without
due examination.

15. PW-8 - Mahendra- inquest
witness. He proved his signatures on the
inquest reports and stated that at the spot
there was a knife lying which had dried
blood stains on it and the police had
recovered the same. He proved the
signature on the recovery memo.

During cross examination, he
stated that he had arrived at the house of
Nirmal between 8-8.30 am. When he had
arrived the police was already there. He
did not see the body from a close
distance. He cannot tell as to who was the
other panch witnesses.

16. PW-9 - Purnavashi. He stated
that on the date of the incident he was
vending groundnuts in the village. In the
morning he did notice Nirmal moving
hurriedly and in a nervous manner. Later,
he came to know that Nirmal had killed
his two sons and he had been escaping
from the spot.

During cross examination, the
witness stated that the incident was of
night and he cannot exactly tell the time
and he had gone to the spot just because
there was crowd. He could not tell
whether he had disclosed to the I.O. that
Nirmal was noticed by him escaping from
the spot in a nervous manner.

17. PW-10 - Anil Kumar. He is
another witness of the inquest report. He
proved his signature on the inquest reports.

During cross examination, PW10 stated that he could not go inside the
room where the bodies were, as there was a
large crowd. Then he stated that he had
seen the body of the children but at that
time Nirmal's father and mother were there
but Nirmal was not there.

STATEMENT UNDER SECTION
313 CrPC

18. The incriminating circumstances
appearing in the prosecution evidence were
put to the accused-appellant for recording
his statement under Section 313 CrPC. He
denied the incriminating circumstances
appearing against him and claimed that he
has been falsely implicated and that his
wife Poonam used to suspect him of having
a second wife as a result whereof she used
to quarrel with the appellant and threatened
the appellant that she would kill both her
children and commit suicide and would
implicate the accused appellant. The entire
incident is an outcome of that. Poonam had
killed her own children and she attempted
suicide. When the incident occurred, he
was not there.

DEFENCE EVIDENCE

19. The defence examined two
defence witnesses. Their testimony, in
brief, are as follows:-
12 All. Nirmal Vs. State of U.P.
213

20. DW-1 - Nripendra Vikram
Singh. He stated that on 13.03.2013 he was
in Nepal with Munna Gupta, Mahendra
Chauhan and the accused Nirmal. They all
had gone for a pleasure trip. On the date of
the incident, they had been in Nepal since
9.30 am till late evening. They returned
back at about 10.30 pm. Nirmal returned to
his house and next day DW-1 came to
know that Nirmal's wife killed her own
children and also attempted suicide.

During cross examination by
the prosecution, DW-1 stated that he is
Ex-District President of Hindu Yuva
Vahini. Nirmal used to work out of station
and used to come to his home on festivals.
On the date of the incident, Nirmal came to
him at 9 am and he stayed with him
throughout the day and they all went to
Nepal from where they returned in the
evening at 10.30 pm. He denied the
suggestion that he is a politician and to
secure his vote bank he has made a false
statement.

21. DW-2 - Munna Ram. He stated
that on 13.03.2013 he had visited Nepal
with Nirmal. Between 9.30 am till late
evening they were together in Nepal. Next
day, he came to know that Nirmal's wife
had killed her children and had self
inflicted a knife injury.

During cross examination by
the prosecution, DW-2 stated that he did
not know Nirmal from before. He met
Nirmal Singh at Nripendra Singh's house
and from there he got acquainted with him.
He denied the suggestion that Nirmal and
he are of the same political ideology and
therefore to support Nirmal Singh he has
given a false statement.

TRIAL COURT FINDINGS

22. The trial court accepted the ocular
account rendered by PW-1 as reliable and
trustworthy, which was corroborated by
medical evidence, therefore, convicted and
sentenced the appellant as above.

23. We have heard Sri Manu Sharma
and Dinesh
Kumar
Pandey
for
the
appellant; Sri Rajiv Lochan Dwivedi, Brief
Holder, and Sri Pankaj Saxena, learned
AGA, for the State; and have perused the
record.

SUBMISSIONS ON BEHALF OF
THE APPELLANT

24. The learned counsel for the
appellant submitted that the prosecution has
failed to prove the motive for the crime.
According to the prosecution, the motive
for the crime was appellant's suspicion
about his wife having an affair and the
children not born out of the wedlock. There
is no disclosure in the entire prosecution
evidence as to who was that person with
whom affair of PW-1 was suspected by the
accused-appellant.
Interestingly,
the
appellant used to work away from home
and had been working as such since before
the Gauna and, after marriage, used to visit
his village /hometown once a year or may
be once in six months. This had frustrated
his wife (PW-1) and this frustration is
admitted not only by PW-1 but also by her
father (PW-2) therefore, there existed
motive for PW-1 to act in the manner
suggested by the defence just to falsely
implicate the appellant. Otherwise also,
from the statement of PW-2 it is clear that
the relationship between the husband and
wife got sour since last one and half year.
The children were aged 5 years and 4 years,
respectively, therefore, there was no reason
for the appellant to suspect that those
children
were
not
his.
In
these
214 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstances, since it is a case of murder
of one's own children, there had to be a
strong motive proved for the crime, which
the prosecution has failed to prove. The
conduct of the appellant in getting the
informant admitted in the hospital is
reflective of the fact that the appellant held
no guilty mind. If the appellant had killed
his own children and had attempted murder
of his own wife there was no occasion for
the appellant to get his wife admitted in the
hospital and leave her as witness against
him. The appellant could have easily
finished off his wife and disclosed that she
was killed while he was away.

25. He contended that PW-1's
testimony is not reliable for the following
reasons:-

(a) She was an interested witness
because if she had not implicated her own
husband, she was alone in the company of
her children which would have caused
suspicion against her and therefore once
she survived she had no option but to
falsely implicate her husband for her own
survival;

(b) Her statement is to the effect
that her children were killed on or about 11
am and that when she intervened she was
inflicted injury on the neck on or about the
same time whereafter she fell unconscious
and her husband left the house. In so far as
the death of the children are concerned,
they were found dead two days before their
autopsy
which
was
conducted
on
15.03.2013 at around 3 pm, whereas the
injury report of PW-1 would reflect that she
was medically examined at 2.05 am on
14.03.2013 and her injuries were found
fresh. PW-7, who examined PW-1 and who
proved the injury report (Ex. Ka-8),
disclosed that the duration of injuries
noticed by him were fresh, which means
that it could have been caused six hours
before. This would mean that the incident
occurred sometimes around 3 pm or later
and not at 11 am as disclosed by PW-1.

(c) According to PW-1, she was
inflicted knife wound on the neck. The
injuries found on her neck was a lacerated
wound and the other were multiple
abrasions which, according to the doctor,
could be self inflicted. If the injury had
been caused by knife, the wound would not
have been lacerated therefore the testimony
of PW-1 does not find corroboration in the
medical evidence whereas the defence
testimony
clearly
discloses
that
the
appellant had visited Nepal with his friends
and throughout the day he was with them
and returned in the evening. PW-1 also
admits that since day time her husband had
been busy roaming here and there and he
used to leave the house in the morning to
visit various places. All of this would
suggest that the appellant was not present
in the house but elsewhere when the
incident occurred.

26. In addition to above, it was
submitted that the investigating officer had
noticed that the door of the room wherein
bodies were found had to be broke open as
the latch of the door was found detached
from the wooden part and lying on the floor
which means that PW-1 had bolted the door
from inside; inflicted injuries on her
children and thereafter attempted suicide. It
was also contended that the site plan of the
house would suggest that there were four
rooms opening in a common gallery. These
four rooms were of four brothers including
the appellant. It is admitted that one
brother's family, that is of Sarwan, was
living right in front of the room of the
appellant therefore, the possibility of
infliction of injury by the appellant and
thereafter escaping from the spot was not
12 All. Nirmal Vs. State of U.P.
215
possible unless and until the door was
closed from inside. All of this would
clearly suggest that the door was shut from
inside; the children were killed by PW-1
and thereafter she attempted a suicide and
when the appellant returned after his tour,
upon noticing PW-1 in an injured stage,
took her to the hospital.

27. The learned counsel for the
appellant also submitted that from the
statement of PW-2 it is clear that when he
had visited the hospital he had noticed the
appellant handcuffed by the police meaning
thereby that the appellant was arrested even
before the first information report was
lodged therefore, the statement of the
investigating officer that the appellant was
arrested on 15th is not acceptable. If the
appellant was arrested in the morning itself,
there was no occasion for the appellant to
lodge a report in respect of the incident,
more so, because the incident did not occur
when the appellant was present in the house
and he must have been perplexed as to
what were the circumstances in which the
deceased had received injuries and her
children were killed. It has been submitted
that this is such a case where the court had
to
be
circumspect
in
accepting
the
testimony of PW-1 even though she was an
injured person and the testimony of PW-1
should have been tested before acceptance.
The trial court failed to test the testimony
of the prosecution witnesses and accepted
the same without analysing it against the
weight of probabilities. It has been argued
that this is a strange case where the knife
i.e. the weapon of assault was not sent for
finding out the finger prints on it. The
finger prints on the knife would have
confirmed whether the appellant had killed
or not but surprisingly finger prints were
not lifted from the knife. Otherwise also,
the nature of the incident noticed would
have caused spillage of blood and would
have surely stained the clothes of the
appellant if he had committed the crime
but, interestingly, no blood stained clothes
of the appellant were recovered to confirm
the presence of the appellant.

28. The learned counsel for the
appellant also placed the photographs of
the bodies of the deceased. He submitted
that material exhibit 11 which is a
photograph of the two bodies of the
deceased taken at the time of inquest would
suggest that the elder of the two sons had a
cotton bandage around the neck which is
suggestive of the fact that after the injury
was caused to the children there was an
attempt to stop the blood flow. In the
prosecution evidence, there is no statement
that this attempt was made by the appellant.
According to PW-1, when she had
intervened after injuries were inflicted on
her son, she was caught hold by the
appellant and the appellant thereafter
inflicted a knife blow on his other son and
thereafter he inflicted knife blow on the
neck of PW-1 whereafter PW-1 became
unconscious. It was argued that if this
statement is accepted where was the
occasion of bandage appearing on the neck.
This would suggest that after PW-1 had
inflicted knife blow, she developed remorse
and tried to stop the bleeding. All of this
would suggest that it was not the appellant
who caused the injury.

29.