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2009 DIGILAW 62 (JK)

Ram Paul v. State Of J. &K.

2009-02-16

MOHAMMAD YAQOOB MIR, NIRMAL SINGH

body2009
Mohammad Yaqoob Mir, J. 1. Impugned is the judgment dated 08.09.2005 passed by the learned Sessions Judge, Kathua whereunder appellant has been convicted and sentenced for having committed offences punishable under Sections 302, 458, 307, 325, 324 and 323 RPC has been awarded life imprisonment for commission of offence under Section 302 RPC and fine of Rs. 5000/-, in default to undergo six months imprisonment. For commission of offence punishable under Section 458 RPC has been awarded rigorous imprisonment of ten years and fine of Rs. 5000/-, in default has to undergo one years rigorous imprisonment. For commission of offence punishable under Section 307 RPC has been awarded ten years rigorous imprisonment and fine of Rs. 3000/-, in default has to undergo rigorous imprisonment of four months. For commission of offence punishable under section 325 RPC has been awarded rigorous imprisonment of three years and fine of Rs.1000/-, in default has to undergo rigorous imprisonment of two months. For commission of offence punishable under Section 324 RPC has been awarded rigorous imprisonment of two years and fine of Rs. 1000/-, in default has to undergo rigorous imprisonment of two months. For commission of offence punishable under Section 323 RPC has been awarded rigorous imprisonment of one year and fine of Rs. 1000/-, in default has to undergo rigorous imprisonment of two months. All the sentences to run concurrently. 2. The factual background of the case is that the Police has swung into action on the report lodged by Yashpal, son of the deceased to the effect that in the intervening night of 21/22.09.1998 at about 2.30 AM, wife of Tarseem Kumar (hereinafter referred as victim) raised alarm whereupon he, his wife (Kamla Devi) accompanied by Smt. Nirmal Kumari, sister, Shano Devi, mother and Faquir Chand, father rushed to the room of the victim. Shano Devi first entered the room, accused Ram Paul caught hold of Shano Devi then and there strangulated her to death, he (Yashpaul) and others tried to rescue Shano Devi but accused attacked them with `drat with intent to kill them, inflicted injuries upon them and ran away. Thereafter victim narrated to them that accused Ram Paul entered her room with `drat forcibly and had sexual intercourse with her against her will. 3. Thereafter victim narrated to them that accused Ram Paul entered her room with `drat forcibly and had sexual intercourse with her against her will. 3. The registration of the case as Crime No. 117/1998 Police Station, Hira Nagar culminated in presenting the charge-sheet (challan) to the effect that the accused during investigation is established to have committed offences punishable under Sections 458, 376, 302, 307, 326 and 325 RPC. Trial of the case ended in conviction and sentences detailed hereinabove. 4. Learned appearing counsel for the appellant contended that the theory of the rape has been rejected by the trial court to that extent testimony of the victim has been disbelieved whereas her testimony regarding murder of Shano Devi caused by the accused has been accepted when her testimony as a whole should have been rejected. For appreciating this submission, it is quite relevant to notice the features of the case as emerge from the perusal of the whole record, 5. The victim was living separately with her husband. On the date of occurrence, in connection with the duties her husband was not present in his home. The accused had come during night at 2.30 a.m. entered into the room of the victim, door was not bolted had intercourse with the victim. It is in the process deceased (mother-in-law of the victim) entered the room; accused was on the body of the victim stood up and strangulated her to death. At that time alongwith victim her three children, eldest being only seven years old, namely Surjeet Singh were present. Surjeet Singh woke up witnessed the intercourse between his mother (victim) and the accused and also the entry of the deceased and then her strangulation by the accused. It is only after that the other family members such as Yashpaul, his wife (Kamla Devi), Sister (Nirmal Kumar) and his father (Faquir Chand) reached the room, accused while coming out attacked them with `drat and injured them all. 6. The learned trial court while appreciating the evidence and also various letters as written by the victim to the accused concluded that the intercourse was with consent. 6. The learned trial court while appreciating the evidence and also various letters as written by the victim to the accused concluded that the intercourse was with consent. Same is offence of adultery not the rape rightly so, the only inference which can be drawn in the facts and circumstances narrated is that the victim had relation with the accused otherwise would not have kept the door of the room open at 2.30 A.M and the position in which he was would not have been noticed. What in fact has happened is that the accused while having intercourse with the victim was spotted by the deceased and the accused apprehending to be exposed strangulated the deceased. Same was witnessed by the victim and her son. The victim PW-5 while giving cover to her consented intercourse and for protecting herself from getting exposed has stated that the accused had forcibly entered the room and raped her. She has truly stated that the deceased entered the room and the accused strangulated her to death. She (victim) has given the actual account as to how the deceased was killed by the accused. While doing so stated the accused did put the lungi around the neck of her mother-in-law brought her down on the ground. The accused also gave fist blow and kicks on chest and the neck of her mother-in-law and did put the dead body underneath the bed. 7. The learned trial court has correctly appreciated her -testimony, the story of rape has been rightly rejected and the offence of adultery has been correctly opined, therefore, under such circumstances question of rejecting testimony of the victim as to the causing of death of the deceased by the accused is to be accepted. Further more, Surjeet Singh, a young boy of 14 years of age has corroborated the version of the victim. 8. The death of the deceased on the intervening night of 21/22.09.1998 in the room of the victim and then presence of the accused in the said room also tends to show that the deceased has been strangulated to death by the accused, no explanation whatsoever, on the part of the accused is forth coming regarding the death of the deceased except that he has pleaded to be innocent, Accused while examined under Section 342 Cr. PC has not set up any defence so as to prove his non-complicity in the commission of the crime. 9. Learned counsel next contended that testimony of the witnesses is in conflict with the medical evidence. The death of the deceased is said to have been caused by putting lungi around the neck of the deceased. Same is stated by PW-5 (victim) as well as by Surieet Singh, son of the victim. As per PW-18, Dr. Som Nath, the death is caused by Asphyxia. No ligature mark was seen on the neck. Further more, strangulation can not be said to have occurred with a Ladys Dupta (Chunni). The marks found on the neck of the deceased during post-mortem examination could not be caused by fastening and pulling a `Chunni around the neck, otherwise impression mark would not have been only on the interior but would have been found around the neck. The learned counsel would contend that had lungi been put around the neck and pulled with force, then ligature mark would have been on the neck, therefore, accused is entitled to benefit of doubt supporting this contention placed reliance on the judgment of Apex Court (Sri Niwas v. Ram Bharosey and others) AIR 1994 SC 1539. This contention is rejected, because of the direct evidence of PW-5 (victim) and her son, Surjeet Singh who are the most natural witnesses. They have given true account of the occurrence, when it is so medical evidence has to be read in tandem even though a bit inconsistent, but compatible. PW - 18 has given the detail of injury found on the dead body as under:- "No external injury, impression mark over neck discussed below: Face: The whole face is cyanosed, bluish red appearance of the face more so at upper face; cheek & around eyes, forehead. Hemorrhage is sub-conjunctival in both eyes. Anus: Defacotion had occurred. Neck: Impression mark is radish in duration extending from retroaurcular which is 1.25 cm x 7.5 cm extending upto submentum." Radish duration 2 cm x 5 cm present at both supura-clavicular region extending upto mid nick. Opinion: Death is caused by asphyxia. 10. In the cross examination of the defence counsel has added the possibility of strangulation could be with both hands. 11. Opinion: Death is caused by asphyxia. 10. In the cross examination of the defence counsel has added the possibility of strangulation could be with both hands. 11. Oral testimony in any manner in the given position of the case cannot be termed to be in conflict irreconcilably when there is compatibility between oral and medical evidence though there may be a little conflict in between the two, no benefit can be extended to the accused. For extending benefit of doubt there shall be a reasonable doubt, conflict between oral testimony and medical evidence must be incompatible. In totality, the death of the deceased has been caused by strangulation that is only inference which can be drawn. In the reported judgment, benefit of doubt has been given only when oral testimony was found irreconcilably in conflict with the medical evidence, so is not of any help to the appellant. 12. Learned counsel next contended that the use of `Lungi for strangulation has not been put to the accused during examination under Section 342 Cr. PC, this contention is only to be rejected because it has been put to the accused that he has strangulated the deceased to death. In reply he has stated that he neither entered into the room of the victim nor had killed the deceased, that apart one more question put about the disclosure and recovery of various items including `Lungi has been put, to which he" has replied that he has not made any disclosure nor made any statement. It was open for the accused to tender the plausible explanation instead he has chosen to reply all questions in routine by saying that he has not committed any offence and witnesses have deposed wrongly. 13. Learned counsel next contended that there are contradictions which have not been appreciated, as per the story of the prosecution when the victim had raised alarm, PW Yashpaul, Kamla Devi, Nirmala Kumari, Shano Devi and Faquir Chand rushed to her room, Shano Devi entered first was strangulated while others when intervened were attacked and injured. When according to PW-5 (victim) and her son Surjeet Singh, accused had sexual intercourse with the victim, deceased entered, accused stood up and strangulated her to death. When according to PW-5 (victim) and her son Surjeet Singh, accused had sexual intercourse with the victim, deceased entered, accused stood up and strangulated her to death. The discrepancy and contradiction is not, such which will shake basic edifice of the prosecution case, when the death of the deceased in the room of occurrence and presence of accused is fully proved. 14. Learned counsel next contended that the Investigating Officer of the case has not been examined which has caused prejudice to the accused. In support relied on the judgment Behari Prashad and others v. State of Bihar (1996) 2 SCC 317, same is of no help to him as the facts are all together different. Non-examination of the investigating Officer per se does not vitiate the trial. In the instant case, non examination of the Investigating Officer has not caused any prejudice as the testimony of the two natural witnesses to the occurrence has remained to be impeached. Those two statements are enough for recording the conviction as has been rightly done by the trial court. The deposition made by these two witnesses requires no elucidation. 15. Learned counsel finally submitted that in case the afore-submissions will not prevail still offence committed will fall within the ambit of Section 304 part (II) RPC. The accused has already under gone 10 years of imprisonment. The question as to whether culpable homicide committed will amount to murder or not. The submission as made though attractive but on scrutiny is found devoid of merit. The re-action of the accused while spotted having intercourse with the victim is beyond proportions. It is true that the accused had never gone to the house of the victim with the object of the committing murder of the deceased; he had gone to have intercourse with the victim, that too with the consent of the victim. Re-action of the accused is spontaneous in the process intentional murder has been committed. 16. Morally degraded accused with the object of screening the illicit relation with so called victim, developed the intention, at the spur of the moment to kill the deceased. Strangulation until death and then pulling the dead body and throwing it underneath the bed/cot, itself shows as to how gruesome act of the accused has silenced the innocent lady (deceased) for ever. Strangulation until death and then pulling the dead body and throwing it underneath the bed/cot, itself shows as to how gruesome act of the accused has silenced the innocent lady (deceased) for ever. According to PW - 5 (victim) the accused laid `lungi around the neck of the deceased and brought her down on the ground, gave fist and kick blows, consequent thereto deceased (her mother-in-law) passed urine there, and after killing placed her dead body under the bed. The deposition of this witness supported by Surjeet Singh clearly indicates as to how gruesome murder has been committed. PW- Surjeet Singh, though figured in the list of witnesses was not prudence, but the Learned Trial Court while examining the record has rightly inconsonance with law, exercised the power under Section 540 Cr. PC, thereafter, recorded his statement which has advanced the cause of justice. 17. The learned counsel rightly referred to the judgment reported in AIR 2008 SC 1823 (Daya Nand v. State of Harayana) wherein distinction between Section 299 and Section 300 RPC has been clearly explained while applying the same, act of the accused falls within the ambit of culpable homicide amounting to murder. 18. The only safe result inferable beyond doubt and also as is proved is that the accused got exposed while committing intercourse with the so called victim, made deceased to breath the last, did put the dead body beneath the cot, least knowing that the other family member (PWs) named above will reach the room of occurrence, but while finding them attacked and injured them all. Learned trial court has evaluated and has reached to a reasonable and correct conclusion which does not call for interference. Hence conviction recorded sentence awarded against the accused are maintained. Sentence of life imprisonment judgment and record of Trial Court be send back for further follow up action.