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PETITIONER: DR. V. K. SAXENA

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH AND VICE VERSA

DATE OF JUDGMENT29/08/1983

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) SEN, AMARENDRA NATH (J) MISRA RANGNATH

CITATION:  1983 SCR  (3) 758        1983 SCC  (4) 519  1983 SCALE  (2)266

ACT:      Supreme Court  Rules, 1966-order  XXI Rule 6, read with Article 136  of the  Constitution-Special  Leave  to  appeal cannot be  granted against  the conviction and sentence, (i) when the  circumstantial evidence on record prove the motive and connect the accused to the crime and concealment thereof and (ii)  when the  High Court reduced the death sentence to one of  life imprisonment for the reason that the two judges differed on the question of the guilt of the accused.

HEADNOTE:      Dismissing the  petition of  the accused and the States petitions against  the acquittal  of the  co-accused and for enhancement of the sentence to death sentence, the Court, ^      HELD: (i)  In the instant case, the three petitions for special leave  to appeal  do not warrant interference by the Court. [761 D]      2:1  The  circumstantial  evidence  on  record  clearly connect the  accused with the crime and concealment thereof. Regarding motive, there is the clearest evidence in that Dr. Saxena had  an illicit  affair with  the co-accused, a nurse due to  which he  used to  harass, pressurise,  threaten and assualt the  deceased Sudha  his  wife.  Her  murder  was  a Consummation which  the nurse must have devoutly wished for. [760 H; 761 E]      2:2 Further the conduct of the accused, in buying a box packing the  dead body of his wife into that box, travelling with that box from Hardoi (the venue of crime) to Lucknow by the Sialdah  Express, taking  another train  from Lucknow to Kanpur, throwing  the box  on way into the Ganges and little realising that  the Ganges  had refused  to accept  the  box which contained  tell-tale evidence  of the dastardly murder of a  defenceless  woman,  informing  his  own  parents  and parents-in-law that the deceased ran away from the house and finally lodging  a false  and misleading reports to the same effect  with   the  police   cannot  favour  the  theory  of commission of suicide by her.                                           [760 G-H; 761 A-B]      In the  presence  of  Dr.  Saxena  in  the  house,  the deceased could  not have hung herself by a rope in that very

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house that  too with  a two  year child  near her. Neither a rope was  found nor  the medical  evidence did show that the death was due to hanging. [760 G-H] 759      (3)  Faced  with  such  a  situation  where  the  death sentence so  justifiable imposed  by  the  learned  Sessions Judge is  reduced to  life imprisonment  by the  High  Court under Sections  392 and  370 Crl.  P.C., for the reason that the two  learned Judges  differed on  the question as to the guilt of  the accused,  the Supreme  Court cannot  interfere under order XXI against the sentence.                                                    [761 C-D]

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: Special leave Petition Nos. 3372 of 1980 And 581-82 of 1981.      From the  judgment and  order dated  the 30th  October, 1980 of the High Court of Allahabad in Capital Reference No. 1 of 1980 in Crl. Appeals Nos. 43 & 70 of 1980 & 62 of 1980.      R.K. Garg,  V.J. Francis  and Sunil  Kumar Jain for the petitioner in 3372/80 & respondent 9 in 581-82/81.      K.C. Bhagat  Addl. Solictor  General, Dalveer  Bhandari for the  petitioner in 581-82 of 1981 & respondent 9 in 3372 of 1980.      The order of the Court was delivered by      CHANDRACHUD, C.  J. These three Special Leave Petitions arise out  of a prosecution in which one Dr. V.K. Saxena and a Nurse,  Bhagwati Singh  were charged,  inter alia, for the murder of  Sudha,  the  wife  of  Dr.  Saxena.  The  learned Sessions Judge,  Hardoi convicted  Dr. Saxena under sections 120-B, 302  and 201  of  the  penal  Code  and  awarded  the sentence of death for the offence of murder. Bhagwati  Singh was convicted  under section 120-B and was sentenced to life imprisonment.      The  appeals   filed  by   the  two   accused  and  the confirmation  proceedings   came  up   for  hearing  in  the Allahabad High  Court before  Hari  Swarup  and  M.  Murtaza Husain, JJ. Hari Swarup, J. agreed that the box in which the dead body  of Sudha was packed was thrown by the accused Dr. V.K. Saxena from a running train between Lucknow and Kanpur. However, according to the learned Judge, that was not enough to sustain  the charges  because, the possibility that Sudha died as  a result  of suicidal hanging could not be excluded and if  a person  destroys evidence  of suicide committed by another, he  commits no offence. Murtaza Husain, J. differed from Hari  Swarup, J. and held that Dr. Saxena had committed the murder of 760 his wife  put her dead body in a box and threw that box from a  running   train.  Unfortunately   for  Dr.   Saxena   aud fortunately for  the  cause  of  justice,  the  massive  and menciful pillars  of the  bridge over the Ganges intercepted the box  as a  result of  which the  box fell on the railway track and  not into  the Ganges. By reason of the difference of views  between the  two learned  Judges, the  proceedings were placed  before S.  Malik, J.,  who agreed  with Murtaza Husain, J.  By an  order dated  October 30,  1980, the  High Court  upheld  the  conviction  of  Dr.  V.K.  Saxena  under sections 302  and 201  of the  Penal Code  but  reduced  the sentence of death to life imprisonment. The Nurse,  Bhagwati Singh, was  acquitted by  the High  Court of  the charge  of conspiracy.      Dr. Saxena has filed Special Leave Petition No. 3372 of

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1980 challenging  the  order  of  conviction  and  sentence. Special Leave Petition No. 581 of 1981 is filed by the State of U  P., contending  that Dr.  Saxena must  be sentenced to death. Special  Leave Petition  No. 582  of 1981 is filed by the State  of U.P., against the order of acquittal passed by the High Court in favour of Bhagwati Singh.      There is  no merit  whatsoever  in  the  Special  Leave Petition filed  by Dr.  Sexena. We have heard Shri R.K. Garg for over an hour but we are unable to see even the semblance of point  in favour  of his  client. With  respect,  we  are somewhat surprised  that having  held that  Dr.  Saxena  had thrown the box containing the body of his deceased wife from a running  train, Hari  Swarup, J.,  should  have  persuaded himself to  take the  view that  Sudha  may  have  committed suicide by  hanging herself.  It is  plain logic that if she had commit  ted suicide, there was no reason for her husband to pack  her dead  body in  a box  and throw that box from a running train  into a  river. Dr. Saxena travelled with that box from  Hardoi to  Lucknow by  the  Sialdah  Express  took another train  from Lucknow  to Kanpur  and threw the box on way. It  is also  impossible to  understand  how,  when  Dr. Saxena was  himself present  in the  house, Sudha could hang herself by  a rope  in that  very House, with a two year old child near  her. No  rope was  found in  the house  and  the medical evidence  does not  show that  Sudha hanged herself. The conduct  of Dr. Saxena in buying u box, packing the dead body of  his wife  into that  box and  throwing  it  from  a running train, leaves no doubt that he committed her murder. There is  the clearest  evidence of  motive on the record of the case.  Dr. Saxena  had an  illicit affair with the Nurse due to  which he  used to  harass, pressurise,  threaten and assault Sudha, 761 Not only  did he  tell Sudha’s  father and  his  own  father falsely that  Sudha had  run away  but he  lodged false  and misleading reports  that she  had run  away. Little  did  he realise that the Ganges had refused to accept the box, which contained tell-tale  evidence of  the dastardly  murder of a defenceless woman.  Special Leave  Petition No. 3372 of 1980 must therefore be dismissed.      In so  far as Special Leave Petition No. 581 of 1981 is concerned, if  only  Hari  Swarup,  J.,  had  taken  a  mere pragmatic view  of the  facts, he  would not  have persuaded himself to  the view  that Sudha might have committed sucide by  hanging  herself.  Presumably,  the  death  sentence  so justifiably imposed  by the  learned Sessions  Judge on  Dr. Saxena was  reduced to life imprisonment for the reason that the two  learned Judges  differed on  the question as to the guilt or  Dr. Saxena.  If the  High Court were to uphold the sentence of  death, we  would not  have interfered with that sentence. But  we are  faced with  a situation  in which the High Court has reduced the sentence of death to imprisonment for life. We do not feel called upon to restore the sentence of death.      In so  far as Special Leave Petition No. 582 of 1981 is concerned, there  is not  the slightest  doubt that Bhagwati Singh is  the root cause of the murder of Sudha, wife of her paramour Dr.  Saxena. We  have also  no doubt  that  Sudha’s murder was  a consummation  which Bhagwati  Singh must  have devoutly wished  for.  But  there  is  neither  evidence  of conspiracy between  her and  Dr. Saxena to commit the murder of Sudha  nor any  evidence that she was present at or about the time  of Sudha’s  murder.  We,  therefore,  dismiss  the special leave  petition though  not without  expressing  our severe resentment  against the  overall conduct  of Bhagwati

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Singh.  She,   like  Dr.   Saxena,  has  disgraced  a  noble profession. Together, they are responsible for the murder of an innocent woman-one morally and the other legally. S.R.                                     Petition dismissed. 762