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2012 DIGILAW 28 (UTT)

TEJ GIRI v. STATE

2012-01-06

SERVESH KUMAR GUPTA

body2012
JUDGMENT Hon’ble Servesh Kumar Gupta, J.: Heard Sri Pramod Tewari, Advocate, holding brief of Sri S.S. Adhikari, Advocate for the appellant and Sri Shivanand Bhatt, Brief Holder for the State and also perused the entire material available on record. 2. This appeal emanates from the judgment and order dated 28.7.1999 passed by learned Sessions Judge, Pithoragarh in S.T. No.23 of 1994, State Vs. Tej Giri. Learned Sessions Judge tried the accused for the offence of Sections 302/201 IPC, but instead of said offences, he found the accused guilty for the offence of Section 307 IPC and passed a sentence of R.I. for a period of seven years. 3. The prosecution facts, emerging out from the record before this Court, are that accused was a military personnel; posted somewhere in Assam Rifles and he was enjoying the leaves along with his family in village Chamdungra, Tehsil Gangolihat, District Pithoragarh. Almost a week prior to the incident of 14.7.1992, in a marriage party of his niece, the accused noticed that his wife Smt. Saraswati @ Saru Devi was having the funny interactions with the members of marriage party. He felt annoyed and raised a quarrel with his wife upon this issue. The same was escalated and he hurled the filthy abuses to his wife, which drove her to leave the matrimonial home for her parents’ house which was not far away. Smt. Saraswati Devi left the house of her husband along with the elder brother of her husband, namely, Bahadur Giri, and boarded in a bus, going to Pithoragarh. They had to disembark their journey at some place from the bus in order to reach the village Aali, Tehsil Champawat, District Pithoragarh (the parents’ house of Smt. Saraswati Devi). 4. In the same bus, the accused Tej Giri along with three minor daughters, also boarded. Eventually, both Sri Tej Giri and Smt. Saraswati Devi were sitting on the same seat in the bus, so latter strived to take custody of all three daughters with her, but in vain. This way, Smt. Saraswati Devi reached to her parents’ house along with Bahadur Giri. 5. The accused, having performed a little more journey, also got down from the bus at some lonely place and walked towards a fast flowing ‘SARYU’ river. The river was having a very strong stream with abundance of water due to the rainy season at its peak. 5. The accused, having performed a little more journey, also got down from the bus at some lonely place and walked towards a fast flowing ‘SARYU’ river. The river was having a very strong stream with abundance of water due to the rainy season at its peak. The accused, in a fit of anger, threw all the three daughters, namely, Km. Rekha aged about 6 years, Km. Raju aged about 4 years and Km. Kavita aged about 1 year and 4 months, in the strong current of fast flowing river ‘Saryu’ and they could not be traced since then. 6. Thereafter, the accused Tej Giri returned to his house back. When asked by his father and other family members as to the whereabouts of three daughters, he feigned that all the three have gone along with their mother to the house of maternal grandfather. The accused, since had committed this evil courageous task, so ghastly, he became abnormal in his routine working and even got himself admitted in the Military Hospital, Pithoragarh on the pretext of being mentally upset. 7. When Sri Bahadur Giri returned to the house, after leaving Smt. Saraswati Devi at her parents’ house, he spilled the beans and lodged an FIR on 18.7.1992 with the above facts. After investigation, the chargesheet (Ex.Ka-11) was submitted by the police for the offence of Sections 302/201 IPC against the appellant/accused. The charge was levelled against the accused by learned Sessions Judge and the prosecution witnesses were examined. 8. It is pertinent to mention that when the fit of anger was over after a lapse of considerable time, then the accused fetched his wife from her parents’ house and commenced to enjoy the espoused life de novo. Further, one baby girl and a male child were begotten out of the wedlock again and they were living peacefully. But since the chargesheet had been submitted by the police, so he had to face the trial in the court. 9. PW1 is Smt. Saru Devi, wife of accused Tej Giri, who was examined on 30.8.1996, i.e. almost more than five years after the occurrence. She has deposed that accused was her husband and out of the wedlock, three daughters, Rekha, Raju and Kavita were begotten. 9. PW1 is Smt. Saru Devi, wife of accused Tej Giri, who was examined on 30.8.1996, i.e. almost more than five years after the occurrence. She has deposed that accused was her husband and out of the wedlock, three daughters, Rekha, Raju and Kavita were begotten. Almost five years ago, when her husband was enjoying his service leaves in the house, he took all the three girls from the house for a pleasure walk but returned without them. On being asked regarding the whereabouts of the girls, he did disclose nothing. The girls Rekha, Raju and Kavita were 5 years, 3 years and 1½ years respectively at that time. She has further reiterated that the accused returned in the house alone. 10. This statement of Smt. Saru Devi is not unusual because she was living for last five years along with her husband, resuming her matrimonial life again. Had she deposed the story revealed by Bahadur Singh in the FIR, then it was not possible for her to reside in that house. However, she has deposed this much that all the three daughters were taken away. So, there is clear cut evidence that these three minor girls were taken away by the accused from the house and he did not bring them back. 11. PW2 Bahadur Giri, who was also examined more than five years after the occurrence, has corroborated almost all material facts, as stated by him in the FIR as well as deposed by PW1 Smt. Saru Devi. He has ratified the fact that preceding two days of the incident, there was a quarrel persisted in the house between Smt. Saru Devi and the accused. 12. PW3 is Kailash Girl, who is the real uncle of the accused. He has also deposed that accused was the father of three minor daughters, namely, Rekha, Raju and Kavita and he had heard that the accused had taken away all these three minor daughters from the house for the purpose of outing, when his wife had gone to her parents house. He has proved that when the accused was asked about the whereabouts of three daughters, then he could reply nothing. Kailash Giri is the witness, who met the accused on the road immediately after the occurrence of throwing the minor girls into the river. He has proved that when the accused was asked about the whereabouts of three daughters, then he could reply nothing. Kailash Giri is the witness, who met the accused on the road immediately after the occurrence of throwing the minor girls into the river. At that very time, when enquired about the whereabouts of the girls, the accused replied in a round about way for 5-10 minutes and then answered that girls had left along with their mother. 13. PW4 is Bhagwan Giri, Pradhan of the village at the relevant time and he has proved only this much of fact that Bahadur Giri came to his house and disclosed that whereabouts of all three daughters of Tej Giri were not known. 14. PW5 Ganesh Giri is the father of accused. He has only accepted the absence of all three girls from the house. 15. PW6 Govind Giri is the resident of same village. He has proved that the accused had three minor daughters and they have not been heard or seen from last 5-6 years. 16. PW7 Jeet Nath is the father of Smt. Saraswati Devi. He has accepted this much of fact that Bahadur Giri brought his daughter Smt. Saraswati to his house and she was not accompanied by any of three daughters at that time. 17. The genuineness of all the formal prosecution documents have been admitted by the learned counsel for the defence, so they all have been marked as exhibits in the original file. 18. Having gone through the entire evidence, as discussed above, it appears that the accused Tej Giri left his house in a fit of anger along with his all the three minor/infant daughters at about 12 PM of the noon. Those were the days when the rainy season was at its extreme and the nearby river ‘Saryu’ was in the prime of its flow, with the abundance of the water having a very strong current. The accused returned without his three minor daughters in the house. On being asked by the family members, he feigned that the children had gone along with Smt. Saraswati Devi, whereas the fact was otherwise. The above facts have been proved, not only by the real brother of the accused Bahadur Giri, but also by father of Smt. Saru Devi, namely, Jeet Nath. On being asked by the family members, he feigned that the children had gone along with Smt. Saraswati Devi, whereas the fact was otherwise. The above facts have been proved, not only by the real brother of the accused Bahadur Giri, but also by father of Smt. Saru Devi, namely, Jeet Nath. The accused Tej Giri, pretended himself to be in the mental illness and got himself admitted in the military hospital soon after the return to his house. The accused concealed the fact about the missing of his daughters and did not lodge any report to the police in this regard. So, the learned Sessions Judge has rightly found him guilty for the offence of Section 307 IPC instead of Sections 302/201 IPC. This Court do concur with the view taken by learned Sessions Judge. 19. For the reasons as explicated above, the appeal is bereft of merit and liable to be dismissed on merits. But at the same time, learned counsel appearing on behalf of the appellant, has entreated that now the appellant and his wife are living amicably and one son and daughter have also begotten further as a result of their espoused life. So, having regard to the above circumstances, the quantum of punishment may kindly be reduced. 20. The Court, having circumspection of the events and the present state of affairs, hereby reduces the sentence of seven years’ R.I., as awarded by the trial court, to four years’ R.1. with fine of Rs.5,000/-. In default of payment of fine, the accused shall undergo imprisonment for a period of six months. 21. The period, which has already been under incarceration, ever since the date of his arrest, up till now, will be adjusted from the term, which now, has been modified by this Court. 22. The appeal is, accordingly, partly allowed. Let a copy of the judgment along with the lower court record be remitted to the court below for compliance.