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2002 DIGILAW 1516 (ALL)

GAURI SHANKER v. STATE OF U P

2002-10-11

M.C.JAIN, Y.R.TRIPATHI

body2002
Y. R. TRIPATHI, J. This appeal has been directed against the judgment and order dated 18-6-1992 passed by Sri F. A. Khan, the then Special Judge/additional Sessions Judge, Jaunpur in Sessions Trial No. 59 of 1991, whereby he having held the appellant, guilty of the charge under Sections 302 IPC and 201 IPC has convicted him of the same and sentenced him to undergo life imprisonment and three years rigorous imprisonment, respectively with a direction that both the sentences of the appellant shall run concurrently. 2. The necessary facts leading to this appeal are that the appellant who is resident of village Gahali Police Station Barsathi district Jaunpur is married to Smt. Lalti Devi of village Chandan Sarai Police Station Machhli Shahar of his district. He had three issues, one male and two female from Lalti Devi at the time of occurrence. The appellant suspected the fidelity of his wife. It is said that a few days prior to the incident there had been some quarrel between the appellant and his wife whereupon his wife Smt. Lalti Devi had gone to her maika with her brother Kheladi. Displeased over his desertion by his wife the appellant used to curse his life saying that his wife had left him nowhere and had rendered his life and the life of his children meaningless. It is further alleged that rushed over the conduct of his wife, the appellant on 1-11-1990 at about 11. 00 a. m. hacked his son Ashish Kumar aged about nine years to death by means of a gandasa and concealed his dead-body in the eastern room of his house. On the evening of that day when Munai Devi P. W. 5, the mother of the accused came to learn about the incident, she raised a hue and cry attracting thereby Shitla Prasad Dubey P. W. 1, Vikaramajeet Saroj P. W. 2, Vikaramajeet Dubey P. W. 3 and others at the house of the appellant, whereupon the appellant ran away from his house alongwith a blood stained gandasa. These witnesses found the dead-body of Ashish Kumar in the house of the appellant. Shital Prasad Dubey P. W. 1 thereupon prepared a written report Ext. These witnesses found the dead-body of Ashish Kumar in the house of the appellant. Shital Prasad Dubey P. W. 1 thereupon prepared a written report Ext. Ka-1 and proceeded to the Police Station Barsathi, where he made over the said report to the head constable Phool Chand (not produced) then posted at P. S. Barsathi, who on the basis of the written report Ext. Ka-1 drew the chick report Ext. Ka-5 and registered a case at Crime No. 171 of 1990 at 8. 40 p. m. under Sections 302 IPC and 201 IPC vide G. D. Ext. Ka-6. Sub- Inspector Ram Bahadur Yadav P. W. 6, who was then posted as Station Officer at P. S. Barsathi took up the investigation in his hands. He recorded the statement of Shitla Prasad Dubey P. W. 1 at the Police Station itself and thereafter proceeded in the company of the informant to the spot. By the time he reached at the spot it had become quite late. In the night, he made enquiries about the incident and on the following morning prepared the inquest report Ext. Ka-2, photo nash, challan nash, Form No. 33, letter for post-mortem etc. Exts. Ka-2 to Exts. Ka-12 and after sealing the dead-body of the deceased handed it over to constables Rudal Prasad (not produced) and Ram Nagina Yadav P. W. 7 for being taken to the mortuary for its post-mortem examination. He also inspected the spot and prepared a site plan Ext. Ka.-13. He took blood soiled and ordinary earth through a memo from the place wherefrom the dead-body of the deceased was recovered and recorded the statements of Munai Devi P. W.-5 and others. On the basis of the information received, he on 4-11-1990 arrested the accused from the bank of Varuna river situate to the south of village Gahali, and on his pointing recovered Gandasa, the weapon used in the commission of the offence and prepared a memo Ext. Ka-4 in respect thereof. 3. As it appears the two Constables Rudra Prasad (not produced) and Ram Nagina Yadav P. W. 7 who were entrusted with the dead-body for its being taken to mortuary produced the dead-body of Ashish Kumar before Dr. D. Mandal P. W. 9 who was then posted as Senior Medical Officer at Jaunpur. Dr. D. Mandal conducted autopsy on the dead-body on 2-11-1990 at 3. D. Mandal P. W. 9 who was then posted as Senior Medical Officer at Jaunpur. Dr. D. Mandal conducted autopsy on the dead-body on 2-11-1990 at 3. 00 p. m. According to him the victim was aged about 9 years and had died a day before. He was of average built. His eyes and mouth were closed. Rigor mortis was found present on the lower limbs and had passed away on the upper limbs and decomposition had set in Dr. Mandal found the following ante-mortem injuries on the dead-body : (i) Incised wound 11 cm. x 1. 5 cm. x cut through of cervical vertebra the left side of the neck and cutting of all the organs vessels of neck left side and spinal card also. (ii) Incised wound 7 cm x 1 cm. x cutting of bone of skull on the right side of head, 5 cm. above from right ear. (iii) Incised wound 5 cm x 3 cm on the posterior aspect of right shoulder joint. 4. According to Dr. Mandal the deceased had died due to shock and haemorrhage as a result of his ante- mortem injuries. 5. It appears that Sub-Inspector Ram Bahadur Yadav P. W. 6 during the course of investigation interrogated other witnesses of the incident including Vikaramajeet Saroj P. W. 2 Vikaramajeet Dubey P. W. 3 and Raghubir Prasad P. W. 4 and on completion of the investigation presented a charge-sheet Ext. Ka-15 against the appellant accused under Sections 302 and 201 IPC, which resulted in his trial. 6. The prosecution in support of its case produced as many as nine witnesses. They include Shitala Prasad Dubey P. W. 1, the informant, Vikaramajeet Saroj, P. W. 2, Vikaramajeet Dubey, P. W. 3 Raghubir, P. W. 4, Smt. Munai Devi P. W. 5, the mother of the appellant, all witnesses of one or the other facts, Ram Bahadur Yadav P. W. 6, the Investigating Officer, Ram Nagina Yadav P. W. 7, who had taken the dead- body of the deceased to the mortuary and on whose identification the autopsy on the dead-body was carried out by Dr. D. Mandal P. W. 9 and Dr. R. P. Tiwari, P. W. 8, who had examined the appellant on 5- 11-1990 at 7. D. Mandal P. W. 9 and Dr. R. P. Tiwari, P. W. 8, who had examined the appellant on 5- 11-1990 at 7. 30 a. m. and had found an incised wound of the size of 3 cm x 1/2 cm x muscle deep on the dorsal of left thumb on distal phalanx 8 cm below left wrist joint. He had found the injury transversely placed. 7. The case of the appellant was that of denial and false implication. In his statement under Section 313 Cr. P. C. the appellant stated that it was evening time on the day of the incident when a person wanted to have sex with his wife and when the deceased raised a cry, that person dealt him blows and when he reached there he too was assaulted by that person. The appellant did not lead any evidence in defence. 8. On the conclusion of the trial, the learned trial Court finding the prosecution case proved under Sections 302 and 201 IPC against the appellant, convicted and sentenced him as aforesaid, dissatisfied from which the appellant has come up in this appeal. 9. We have heard learned Counsel for the parties at length and have gone through the materials on record. 10. Learned Counsel for the appellant assailed the conclusions of the learned trial Court mainly on the ground that the prosecution has failed to being home the guilt against the appellant and that the circumstances proved in this case do not justify the inference drawn by the learned trial Court. 11. It is true that there is no direct evidence about the complicity of the appellant in the incident, nevertheless the circumstances found proved are conclusive of the fact that noneelse but the appellant committed the murder of Ashish Kumar, his son. 12. The unnatural death of Ashish Kumar in this case is not disputed. It is also not disputed that Ashish Kumar had received ante-mortem injuries and died of shock and haemorrhage as a result of those injuries, as has been deposed by Dr. D. Mandal, who happened to conduct the autopsy on the dead- body. The accused too admits that Ashish Kumar had been dealt blows in his presence by a person who wanted to have sex with his wife. Thus the fact that Ashish Kumar had received ante-mortem injuries and he died of those injuries is fully established. D. Mandal, who happened to conduct the autopsy on the dead- body. The accused too admits that Ashish Kumar had been dealt blows in his presence by a person who wanted to have sex with his wife. Thus the fact that Ashish Kumar had received ante-mortem injuries and he died of those injuries is fully established. The only question that remains to be seen is whether it was the appellant, who was responsible for inflicting those ante-mortem injuries found on the body of the victim or the victim received those ante-mortem injuries in some other manner. 13. It would be found that the prosecution in this case has produced five witnesses namely Shitla Prasad P. W. 1, Vikaramajeet Saroj P. W. 2, Vikaramajeet Dubey P. W. 3, Raghubir Prasad P. W. 4 and Munai Devi P. W. 5. The prosecution case rests totally on circumstantial evidence. 14. In most of the crimes there is some motive. This case is also not an exception to this general rule. The motive is the state of mind which impels the criminal to commit the crime. It is said that the appellant suspected the fidelity of his wife and was very much perturbed and used to curse his life and say that his wife had rendered his life and life of his children meaningless. It is further alleged that a few days prior to the incident there had been some quarrel between the appellant and his wife in which brother-in-law of the appellant had assaulted the appellant and the wife of the appellant after that incident had gone to her maika alongwith her brother Khelari. Shitla Prasad Dubey P. W. 1, Vikaramajeet Saroj P. W. 2, Vikaramajeet Dubey P. W. 3 and Raghubir Prasad P. W. 4, have deposed about that incident and we find nothing in their evidence to dis-believe them on that point. The suspicion of fidelity of ones wife naturally is sufficient to poison his mind and it was not unlikely that the appellant might have doubted the paternity of his child Ashish Kumar also. It would further be found that the aforesaid witnesses have also stated that during the course of Panchayat, Khelari, the brother- in-law of the appellant, had assaulted the appellant which must have worked as rubbing salt to his injury, adding to his agony and aggravating his hatred and disliking towards his wife and children. It would further be found that the aforesaid witnesses have also stated that during the course of Panchayat, Khelari, the brother- in-law of the appellant, had assaulted the appellant which must have worked as rubbing salt to his injury, adding to his agony and aggravating his hatred and disliking towards his wife and children. All the aforesaid prosecution witnesses have further stated that in the evening of 1-11-1990 they had been attracted at the house of the appellant on hearing the cry of Munai Devi P. W. 5, mother of the appellant, and had seen the dead-body of Ashish Kumar in the house of the appellant. Though Munai Devi P. W. 5 has not supported the prosecution case but one can visualise the situation in which she was placed. She had already lost her grand-son and by supporting the prosecution case she was also likely to lose her own son. Under such a circumstance it was not unlikely that she decided to dis-own the prosecution case in its entirety. The fact, however, remains that Shitla Prasad P. W. 1, Vikaramajeet Saroj P. W. 2 and Vikaramajeet Dubey P. W. 3 have deposed that on the fateful date of the incident in the evening they were attracted at the house of the appellant on the cry raised by his mother and had seen the dead- body of Ashish Kumar inside the house. They have also stated to have seen the appellant running away from his house alongwith a blood stained gandasa. A futile attempt has been made to show that Vikaramajeet Saroj and Vikaramajeet Dubey bear animosity against the appellant, as he had voted against them in the election of Pradhanship, but this suggestion does not appear to carry weight as the voting in an election is done secretly and it is not made public. The evidence of the aforesaid witnesses, therefore, appears credible and goes to prove that the appellant on their arrival at his house had run away. This conduct of the appellant speaks of his guilty mind and when considered alongwith other proved facts gives strength to the conclusion arrived at by the learned trial Court about his guilt. Then there is evidence of one Raghubir Prasad P. W. 4 on the point of recovery of gandasa, the weapon of the assault, from the mandai of the appellant. Then there is evidence of one Raghubir Prasad P. W. 4 on the point of recovery of gandasa, the weapon of the assault, from the mandai of the appellant. The factum of the recovery of gandasa at the instance of the appellant goes to show his knowledge about the place where it had been concealed. The report of the serologist shows that he had found human blood on it. 15. Besides the aforesaid circumstances, there is one more strong circumstance against the appellant to prove his complicity in the incident. It would be found that on the fateful date of the incident, the appellant, his mother and the deceased only were present at the house. It is not disputed that the body of the deceased was found in the house of the appellant. The appellant in his statement under Section 313 Cr. P. C. has stated that a person wanted to sexually assault his wife and when the deceased raised a cry that person assaulted him and when the appellant reached there, he too was assaulted by that person. This incident was in the exclusive knowledge of the appellant. Surprisingly enough the appellant completely remained passive and did not even make a report. Instead, he simply ran away from the spot. Such unnatural conduct of the appellant voluminously speaks against him, actually pointing towards his guilt neither did make any report of that incident nor did adduce any evidence to prove that his son was done to death in the manner as alleged by him. 16. Not only this, the varying suggestions thrown by the defence to the prosecution witnesses and the statement of the appellant recorded under Section 313 Cr. P. C. also show the hollowness of the defence case. From the suggestion made to the prosecution witnesses it appears that the deceased having seen his mother in compromising position had raised the alarm whereupon the lover of his mother assaulted him whereas the appellant in his statement has stated only about a sexual assault having been made on his wife by some one. In any away if such an incident at all had taken place, it would have been but natural for the appellant to have taken some legal recourse to bring the assailant to book instead of keeping mum and allowing him to go scot free. 17. In any away if such an incident at all had taken place, it would have been but natural for the appellant to have taken some legal recourse to bring the assailant to book instead of keeping mum and allowing him to go scot free. 17. Thus on consideration of the entire evidence on record we find that the facts and circumstances proved in this case run counter to all reasonable hypothesis of innocence of the appellant and unerringly point towards his guilt. Learned trial Court in our view has, thus, rightly concluded about the complicity of the appellant in the incident and we find no ground to interfere with its conclusion. Ante-mortem injuries found on the person of the deceased were sufficient to cause the death of the victim and therefore, the only intention of the appellant in causing those injuries could have been to cause the death of his son. The appellant is thus found to have rightly been convicted and sentenced for the offences under Section 302 IPC and 201 IPC and we see no infirmity whatsoever in it. 18. The appeal thus being devoid of any merit is hereby dismissed. 19. The C. J. M. Jaunpur shall cause the appellant arrested and sent to jail to serve out the sentence awarded to him. He shall also submit compliance report within two months. Appeal dismissed.