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2009 DIGILAW 335 (CHH)

RAKESH KUMAR PANDEY @ CHUTU. v. STATE OF C. G.

2009-11-27

R.L.JHANWAR, T.P.SHARMA

body2009
JUDGMENT As per Hon'ble Shri T.P. Sharma, J. :- 1. By this appeal, the appellant has challenged the legality and propriety of the judgment of conviction and order of sentence dated 19.8.2004 passed by the Forth Additional Sessions Judge (F.T.C.), Ambikapur, in Sessions Trial No.4131 2003 whereby & where under learned Forth Additional Sessions Judge after holding the appellant guilty for the offence punishable under Sections 364/34, 365/34, 302/34 and 201/34 of the Indian Penal Code sentenced him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.500/-, rigorous imprisonment for 5 years and to pay a fine of Rs.500/-, imprisonment for life and to pay a fine of Rs.500/- and rigorous imprisonment for 5 years and to pay a fine of Rs.500/-, in default of payment of fine to further undergo rigorous imprisonment for 3 months on each count. 2. Judgment & order are challenged on the ground that without there being any clinching and credible evidence, the Court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality. 3. Case of the prosecution in brief is that Shatambi (PW-2) was pregnant and gave birth to female child on 13.10.2003. The appellant was having illicit relation with Shatambi and as a result of such relation, she conceived and gave birth. After birth of the child, on 14.10.2003 at about 11-12 at night, the appellant took the child from Shatambi and after throttling, committed murder of the child and with intent to conceal the birth and the evidence of criminal case, he thrown dead body inside the well. The appellant was taken into custody. He has made disclosure statement vide Ex.P/13. On the basis of disclosure statement, dead body of the child was taken out from well vide Ex.P/3. Dead body was tied with stone of 2 ½ kg. Dehati Na1ishi was recorded vide Ex.P/22. On the basis of dehati nalishi merg was recorded vide Ex.P/32. After summoning the witnesses vide Ex.P/4, inquest was prepared over the body of the child vide Ex.P/5. Spot map was prepared by investigating officer vide Exs.P/6 and P,/7. Dead body was sent for autopsy vide Ex.P/23 to Community Health Centre, Dhoulpur. Kedar Das father of Shatambi has lodged the F.I.R. vide Ex.P/20. Autopsy was conducted by Dr. After summoning the witnesses vide Ex.P/4, inquest was prepared over the body of the child vide Ex.P/5. Spot map was prepared by investigating officer vide Exs.P/6 and P,/7. Dead body was sent for autopsy vide Ex.P/23 to Community Health Centre, Dhoulpur. Kedar Das father of Shatambi has lodged the F.I.R. vide Ex.P/20. Autopsy was conducted by Dr. Kamlesh Kujur (PW -17) vide Ex.P/22 and opined that cause of death was due to asphyxia as a result ofthrottling and death was homicidal in nature. Cloth was recovered vide Ex.P/11. Shatambi (PW -2) was also examined by Dr. Smt. Snehlata Kujur (PW-12) vide Ex.P/19 and found sign of recent delivery within 7 days. Photographs of the dead body of the child were taken vide Ex.P/28. 4. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') and after completion of investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Ambikapur, who in turn committed the case to the Court of the Sessions Judge, Ambikapur (Surguja) from where Forth Additional Sessions Judge (F.T.C.), Ambikapur (Surguja) received the same on transfer for trial. According to the case of the prosecution, the appellant along with one Parshu Ram @ Pappu have committed the aforesaid offence. 5. In order to prove the guilt of the appellant/accused, the prosecution examined as many as 18 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code where he denied the circumstances appearing against him and claimed innocence and false implication in the crime in question. 6. After affording an opportunity of hearing to the parties, the Forth Additional Sessions Judge (ET.C.) has convicted and sentenced the appellant as aforementioned. 7. We have heard Shri Arun Kumar Shukla, counsel for the appellant and Shri Ravindra Agrawal, Panel lawyer for the State and perused the judgment impugned and record of the Court below. 8. Learned counsel for the appellant vehemently argued that the prosecution has utterly failed to establish any illicit relation of the appellant with Shatambi (PW -2), alleged mother of the deceased child. The prosecution has also failed to adduce any evidence to show that the appellant has caused homicidal death of the deceased child and committed the aforesaid offence. Learned counsel further argued that the appellant has been convicted on the basis of conjecture and surmises. 9. The prosecution has also failed to adduce any evidence to show that the appellant has caused homicidal death of the deceased child and committed the aforesaid offence. Learned counsel further argued that the appellant has been convicted on the basis of conjecture and surmises. 9. On the other hand, learned State counsel supported the judgment impugned and argued that the prosecution has adduced sufficient evidence to prove the commission of offence against the appellant. Learned counsel further argued that the appellant is the main accused who was having illicit relation with Shatambi and has committed murder of newly born child with a view to conceal the evidence of criminal case. He has thrown the dead body in well under water. 10. In order to appreciate the contentions of the parties, we have examined the evidence available on record. In the present case, the appellant has not substantially disputed homicidal death of the child, on the other hand, it is established by Dr. Kamlesh Kumar (PW-17) and autopsy report (Ex.P/20). Dr. Kamlesh Kumar (PW -17) has deposed that on 18.10.2003 he has examined dead body of newly born child and found compression mark over her neck and presence of blood beneath such mark. Fracture of 4th and 5th cervical vertebra and fracture of trachea ring were found. Cause of death was due to asphyxia as a result of throttling and death was homicidal in nature. In para 16 of his cross-examination, he has admitted that injuries found over the dead body of newly born child may be compression of neck or as a result of throwing alive child in Well For causing death of newly born child by compressing the neck or causing death of newly born child by throwing it in a well is a death homicidal in nature. 11. In order to establish the complicity of the appellant in the crime in question, we have examined the evidence adduced on behalf of the prosecution. Shatambi (PW-2) has deposed that she was pregnant and gave birth of female child on 13.10.2003. Panchayat was convened. She has deposed that at the time of incident at night, female child was sleeping with her but when she woke up at 5 am at morning female child was missing, she was not present there. They searched and again convened panchayat. Child was sleeping in one piece of cloth (lungi). Panchayat was convened. She has deposed that at the time of incident at night, female child was sleeping with her but when she woke up at 5 am at morning female child was missing, she was not present there. They searched and again convened panchayat. Child was sleeping in one piece of cloth (lungi). In her detail cross-examination, she has denied that she was pregnant through the appellant. Dr.Smt. Snehlata Kujur (PW -12) has deposed that she has examined Ku.Shatambi on 18.10.2003 vide Ex.P/19 and found sign of recent delivery within 7 days. 12. This fact remained undisputed that Shatambi gave birth to the female child on 13.10.2003. On 14.10.2003 she was sleeping with the child and child was missing with one piece of cloth (lungi). Kedar Das (PW-1) father of Shatambi has deposed that his wife informed him that abdomen of Shatambi was enlarged. His wife asked Shatambi about abdomen but she did not say anything. At the time of delivery, she gave birth of female child at night. Panchayat was convened where Shatambi did not say about any person but member of the panchayat searched about the appellant. The appellant was not present in his house, then they postponed the panchayat. Shatambi was sleeping in her house along with newly born child. His wife was sleeping in another room. When they woke up at about 5 am at morning, they found that newly born child was missing. Again panchayat was convened. They searched newly born child but did not find, then Kedar Das, father ofShatan1bi lodged the report vide Ex.P/20. The prosecution has declared him hostile. Bhagmaniya (PW -3) mother of Shatambi has also corroborated the version of Kedar Das. Dhaneshwari Bai (PW-4) Sarpanch of the village, Mayadas (PW-5), Chowkidar (Kotwar), Naresh Prasad Gupta (PW -6) Up-Sarpanch of the village and Ramprasad (PW -7) have deposed in their evidence that when Shatambi gave birth to one female child, then they were called by father of Shatambi. They asked Shatambi about the father of newly born child, then she told them that the appellant is the father of the child. They again asked whether the appellant will admit the fact that he is father of the child, then Shatambi told them that he will admit the fact. They asked Shatambi about the father of newly born child, then she told them that the appellant is the father of the child. They again asked whether the appellant will admit the fact that he is father of the child, then Shatambi told them that he will admit the fact. They have also deposed that on second day, child was missing, then they again asked Shatambi that who had taken the child then she answered that the person who gave had taken the child, then they sent Kotwar and father of Shatambi to the police Station. Police came to the village and conducted investigation. 13. Naresh Prasad Gupta (PW -6), Up-sarpanch of the village has deposed that police came to the village and search about the child, but did not find the child. Thereafter, the police asked the appellant about the child. The appellant made disclosure statement that he had put the child in well and he took the police near well situated beside Bhandar of So mesh war Pratap Singh. The police recorded disclosure statement of the appellant vide Ex.P/13. The police has arranged Jhagar (instrument for taking out the things tram well). They inserted Jhagar in well under the water and with the help of Jhagar, they took out dead body of the child tied with cloth and one stone. Same was recovered vide Ex.P/3. He has also supported the seizure of other articles. Disclosure statement and recovery at the instance of the appellant has also been supported by another witness Ramprasad (PW -7) who has corroborated the evidence of Naresh Prasad Gupta (PW-6). I. Tirki (PW -18) Sub Inspector has also supported disclosure statement made by the appellant and recovery of dead body along with cloth and stone from well vide Ex.P/3. Ramprasad (PW-7) has deposed that he has recorded merg intimation after recovery of the dead body and also supported the investigation of the crime. The defence has cross-examined Ramprasad (PW - 7) at length. In para 15, he has admitted that previously he was salesman in the society and he was removed on the complaint of the villagers. He has also admitted that main complainant was Devdutt Singh, but he has denied the suggestion that with a view to implicate the appellant, he has prepared the plan. In para 15, he has admitted that previously he was salesman in the society and he was removed on the complaint of the villagers. He has also admitted that main complainant was Devdutt Singh, but he has denied the suggestion that with a view to implicate the appellant, he has prepared the plan. In his detail cross-examination, the defence has not been able to elicit anything to discard his testimony relating to disclosure statement made by the appellant and recovery of the dead body from well inside the water at the instance of the appellant. 14. The case of the prosecution is substantially based on disclosure statement and recovery of the fact made by the appellant under Section 27 of the Evidence Act. 15. While dealing with the condition necess my for brining the section into operation, Sir John Beaumont in the matter of Pulukuri Kottaya and others Vs. Emperor-1 observed that Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessmy to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of infom1ation given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. 1. AIR (34) 1947 Privy Council 67 16. While dealing with the same question, the Apex Court in the matter of Earabhadrappa Vs. State of Karnataka-2 has held that for the applicability of S.27 two conditions are pre-requisite, namely (1) the information must be such as has caused discovery of the fact; and (2) the information must 'relate distinctly' to the fact discovered. Under S. 27 only so much of the information as distinctly relates to the facts really thereby discovered is admissible. State of Karnataka-2 has held that for the applicability of S.27 two conditions are pre-requisite, namely (1) the information must be such as has caused discovery of the fact; and (2) the information must 'relate distinctly' to the fact discovered. Under S. 27 only so much of the information as distinctly relates to the facts really thereby discovered is admissible. The word 'fact' means some concrete or material fact to which the information directly relates. 2. AIR 1983 SC 446 17. In the present case, dehati nalishi was recorded after recording of disclosure statement of the appellant, at that time the police has not made the appellant formally as accused. While dealing with the question of a person accused of any offence, the Apex Court in the matter of State of Uttar Pradash Vs. Deoman Upadhyaya-3 has held that provisions of Section 28 of the Evidence Act does not predicate a formal accusation against him at the time of making the statement sought to be proved, as a condition of its applicability. 3. AIR 1960 SC 1125 18. In the present case, the evidence of Naresh Kumar Gupta (PW -6), Ramprasad (PW-7) and Investigating Officer I. Tirki (PW -18) reveal that the accused has made disclosure statement of the fact that dead body of newly born child was thrown inside the well and the same was recovered from well which the appellant had identified. The part of disclosure statement relating to disclosure of the fact i.e. dead body of newly born child found in the well is admissible in the evidence under Section 27 of the Evidence Act. 19. The present appellant has not offered any explanation that how he knows dead body of the child which was found in the well under the water and not visible, within 3 days of delivery of such newly born child. The prosecution has also proved the fact that Shatambi gave birth of the child on 13.10.2003. These circumstances show that he was having knowledge of the fact that dead body of newly born child was inside the well under the water or he has seen some person throwing dead body in the well or he is the person who has thrown dead body of newly born child in the well under the water. Shatambi has not supported the case of the prosecution and the prosecution has declared her hostile. 20. Shatambi has not supported the case of the prosecution and the prosecution has declared her hostile. 20. The evidence of Sarpanch Dhaneshwari Bai (PW-4), Mayadas (PW-5), Up-sarpanch Naresh Kumar Gupta (PW -6) and Ramprasad (PW -7) reveal that the present appellant is closely connected with the incident and he was having illicit relation with Shatambi. They are independent witnesses having no enmity and were responsible authorities of the village. They are panch and sarpanch and their statements can be used for the purpose of corroboration. In absence of any explanation of the knowledge of dead body inside well under the water by the appellant, it can be safely presumed that the appellant is the person who has thrown dead body inside well under water after roping the body with the stone, either alive or after causing death. Throwing of newly born child in a well itself is a act of causing death of newly born child. 21. According to the case of the prosecution, the appellant has kidnapped the child in order to murder and finally he murdered the child, but the appellant has not abducted the child with intent to confine a person secretly and wrongfully. The appellant had not offered any explanation that in sharing of common intention, he has committed the aforesaid offences. In other words, the evidence adduced on behalf of the prosecution is based on credible and clinching evidence and sustainable under the law sufficient for drawing an inference that the appellant has kidnapped newly born child and committed her homicidal death anl0unting to murder and concealed the evidence of criminal case which are punishable under Sections 364, 302 and 201 of the Indian Penal Code. I 22. For the foregoing reasons, the judgment impugned requires partial and technical modification. Consequently, judgment impugned is partly modified. The appellant is acquitted of the charge of Section 365/34 of the Indian Penal Code and instead of conviction under Sections 364/34, 302/34 and 201/34, he is convicted under Sections 364,302 and 201 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.500/-, imprisonment for life and to pay a fine of Rs.500/- and rigorous imprisonment for 5 years, in default of payment of fine he shall further undergo rigorous imprisonment for 3 months on each count. Appeal Dismissed.