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2013 DIGILAW 252 (CHH)

RAM SARKAR KASHYAP v. STATE OF C. G.

2013-08-29

RADHE SHYAM SHARMA, SATISH K.AGNIHOTRI

body2013
ORAL JUDGMENT 1. This appeal is directed against the judgment dated 06.12.2007 passed by the Sessions Judge, Janjgir-Champa in Sessions Trial No. 156/2007. By the impugned judgment, accused/appellant Ram Sarkar has been convicted under Sections 364 and 302 IPC and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.500/-, in default of payment of fine, to further undergo rigorous imprisonment for three months; imprisonment for life and to pay fine of Rs.500/-, in default of payment of fine, to further undergo rigorous imprisonment for three months respectively with a direction to run the sentences concurrently. 2. Case of the prosecution, in brief, is as under : Deceased Mahendra Kumar, aged about two years, was son of Gyanlal (PW-1) and Asmat Bai (PW-3). On 12.6.2007, in the night, Gyanlal (PW-1) and Asmat Bai (PW-3) were sleeping in their house along with their son. At about 1.30 am (midnight), the accused/appellant entered their house, lifted up the child and fled from there. The incident was witnessed by both Gyanlal (PW1) and Asmat Bai (PW-3). They chased the appellant, but the appellant hid himself in the darkness. Having heard the shout of Gyanlal (PW -1) and Asmat Bai (PW-3), the villagers gathered there and searched the child, but they could not trace the appellant as well as the child. On the next morning, dead body of the child was found in a pool of water (dabari) near the rice mill. Thereafter, Gyanlal (PW-1) lodged merg intimation (Ex-P/1) in Police Station, Pamgarh. On the basis of merg intimation (Ex-P/1), First Information Report (Ex-P/9) was registered. An offence punishable under Section 302 IPC was registered against the appellant. The Investigating Officer reached the place of occurrence, gave notice (Ex-P/2) to Panchas and prepared inquest (Ex-P/7) on the dead body of the deceased. The dead body of the deceased was sent to Primary Health Centre, Pamgarh for postmortem examination vide Ex. P/4. The postmortem examination was conducted by Dr. KK Dahire (PW-2). He gave his report (Ex-P/5), finding bleeding and froth over the nostrils and teeth bite on the upper lip, reddish in colour. He opined that the death was caused by asphyxia may be due to suffocation or drowning in the water. In further investigation, spot map (Ex-P/6) was prepared by Patwari SK Kathe (PW-4). Another spot map was prepared by the Investigating Officer vide Ex-P/3. He opined that the death was caused by asphyxia may be due to suffocation or drowning in the water. In further investigation, spot map (Ex-P/6) was prepared by Patwari SK Kathe (PW-4). Another spot map was prepared by the Investigating Officer vide Ex-P/3. Extra judicial confession made by the appellant before the Panchas was recorded vide Ex-P/8. Visra, femur and sternum bone of the deceased were seized vide Ex-P/11. The appellant was arrested vide Ex-P/17. The seized articles were sent to Forensic Science Laboratory, Raipur for serological analysis vide Ex-P/18 and P/19. After completion of the investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Janjgir (Link Court Pamgarh), who, in turn, committed the case to the Court of Session, Jangir, from where it was received on transfer by the Sessions Judge, Janjgir-Champa, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Mr. Afroz Khan, learned counsel for the appellant argued that finding of guilt was recorded on the basis of the evidence of Gyanlal (PW -1) and Asmat Bai (PW-3). The appellant has been falsely implicated in the case. Identification of the appellant is highly suspicious. The incident took place in the night, therefore, it was not possible to identity the appellant. Gyanlal (PW1) specifically deposed that he did not see the appellant. The doctor who conducted the postmortem of the deceased opined that the nature of death could be accidental, therefore, the prosecution could not prove the case against the appellant beyond reasonable doubt. Hence, the appellant is entitled for acquittal. 4. Mr. Neeraj Mehta, learned Panel Lawyer for the State, supporting the impugned judgment, submitted that the conviction and sentence awarded to the appellant by the learned Sessions Judge, do not warrant any interference by this Court. 5. We have heard learned counsel for the parties at length and have also perused the record of Sessions Trial No. 156/07. 6. This case is based on eye witnesses as well as circumstantial evidence. The conviction of the appellant is based on the evidence of Gyanlal (PW-l) and Asmat Bai (PW-3). 7. Gyanlal (PW-l) and Asmat Bai (PW-3) deposed that deceased Mahendra Kumar was their son and he was aged about 2½ years on the date of incident. 6. This case is based on eye witnesses as well as circumstantial evidence. The conviction of the appellant is based on the evidence of Gyanlal (PW-l) and Asmat Bai (PW-3). 7. Gyanlal (PW-l) and Asmat Bai (PW-3) deposed that deceased Mahendra Kumar was their son and he was aged about 2½ years on the date of incident. They further deposed that on the date of incident, at about 1.30 am (midnight), they were sleeping in their house. Deceased Mahendra Kumar was sleeping with his mother Asmat Bai (PW-3) and Asmati Bai (PW-3) was feeding him. At that time, the appellant entered their room, snatched her son from her and fled from there. Both Gyanlal (PW-l) and Asmat Bai (PW-3) chased the appellant, but the appellant hid himself in the darkness. Having heard the shouting of Gyanlal (PW-1) and Asmat Bai (PW-3), the villagers gathered there and they all searched for the appellant, but they could not trace him. 8. Gyanlal (PW-1) deposed that at about 6.00 am on the next morning, while he was going to Police Station for lodging a report, Godu Kashyap met him and informed him that dead body of his son was lying in the tank (dabari). He further deposed that he went towards the tank along with Godu, Ramrati and Bahoran and saw the dead body of his son (deceased Mahendra Kumar) floating on the water of the tank. Asmat Bai (PW -3) also deposed in similar fashion. 9. Harprasad Sahu (PW-7) deposed that Gyanlal (PW-1).came to him and told him that the appellant took away his son (deceased Mahendra Kumar). Thereafter, he along with Gyanlal (PW -1) searched for the deceased and the appellant. He further deposed that at about 5.00 am, dead body of the deceased was found in the dabari under the peepal tree. 10. Gyanlal (PW-1) deposed that he lodged merg intimation (Ex-P/1) in Police Station Pamgarh. Sub Inspector SR Parihar (PW -8) deposed that on 12.6.07 he was posted as Officer-incharge of Police Station Pamgarh. On that day, Gyanlal Kashyap (PW-1) lodged merg intimation (Ex-P/1) in Police Station Pamgarh. He further deposed that he sent Head Constable 293 for investigation. 11. Gyanlal (PW-1) deposed that his wife Asmat Bai (PW-3) told him that the appellant took away their son (deceased) and fled from there. He immediately chased the appellant. On that day, Gyanlal Kashyap (PW-1) lodged merg intimation (Ex-P/1) in Police Station Pamgarh. He further deposed that he sent Head Constable 293 for investigation. 11. Gyanlal (PW-1) deposed that his wife Asmat Bai (PW-3) told him that the appellant took away their son (deceased) and fled from there. He immediately chased the appellant. Asmat Bai (PW-3) specifically deposed that she saw the appellant when he snatched her son (deceased) from her. In her cross-examination, she specifically deposed that light was on in her room when the incident took place. 12. Looking to the evidence of Gyanlal (PW -1) and Asmat Bai (PW3), it appears that at the time of the incident there was light in their house and Asmat Bai (PW-3) had sufficient opportunity to identify the appellant. Gyanlal (PW -1) and the appellant belong to a same caste and the appellant is uncle of Gyanlal (PW -1). The appellant is well known to Gyanlal (PW -1) and Asmat Bai (PW-3). 13. Gyanlal (PW-1) and Asmat Bai (PW-3) specifically deposed that the appellant entered their house and snatched their son (deceased) at about 1.30 am (midnight). Dead body of the deceased was found on the next morning at about 5-6 am. The dead body was found within five hours of the incident. It appears that the appellant took away the deceased from the house of Gyanlal (PW -1) and thereafter dead body of the deceased was recovered from the tank. 14. Dr. K.K. Dahire (PW-2), who conducted the autopsy of the deceased, deposed that the death of the deceased was due to asphyxia and there were signs of struggle on the dead body of the deceased. Dr. K.K. Dahire (PW2) specifically deposed that cause of death of the deceased was due to asphyxia. On the date of incident, the age of the deceased was 2½ years and the time of incident was at about 1.30 am (midnight). It is not possible that a child (deceased), who was aged about 2½ years, would have suo moto gone near the tank and accidentally fallen into the tank. Had the deceased accidentally fallen into the tank, some water would have entered into his lungs and abdomen and some water would have been found in his lungs and abdomen while autopsy. But, according to the medical evidence and postmortem report, no water was found in the abdomen and lungs of the child (deceased). Had the deceased accidentally fallen into the tank, some water would have entered into his lungs and abdomen and some water would have been found in his lungs and abdomen while autopsy. But, according to the medical evidence and postmortem report, no water was found in the abdomen and lungs of the child (deceased). Therefore, it is not acceptable that the deceased died due to accident. 15. Analysis of the above evidence, so far, clearly shows that the prosecution has succeeded in establishing that the appellant entered the house of Gyanlal (PW -1), snatched the deceased and thereafter dead body of the deceased was found in the tank. 16. The prosecution has adduced evidence of extra judicial confession of the appellant vide Ex-P/8. Santram (PW-6) deposed that the appellant admitted to him that he killed the deceased by throttling and threw him into the tank. Harprasad Sahu (PW-7) also deposed in similar fashion. Santram (PW-6) and Harprasad Sahu (PW - 7) deposed that the appellant admitted his guilt before the police officer, therefore, the so called extra judicial confession made by the appellant before the Police, vide Ex-P/8, is not admissible in evidence. 17. Gyanlal (PW -1) and Asmat Bai (PW -3) specifically deposed that the appellant entered their house and snatched their son (deceased) and Asmat Bai (PW-3) specifically deposed that she identified the appellant. Looking to the evidence of Gyanlal (PW-1) and Asmat Bai (PW-3), it appears that the appellant entered the house of Gyanlal (PW -1) and snatched the deceased and thereafter, at about 5-6 am, i.e., within five hours of the incident, dead body of the deceased was recovered from the tank. 18. In the light of above discussion, we hold that the prosecution has established its case by cogent and acceptable evidence. The evidence led by the prosecution is conclusive in nature and it leads to conclusion that it was the appellant/accused who kidnapped and committed murder of deceased Mahendra Kumar. We are satisfied that the trial Court has rightly accepted the prosecution case. 19. Therefore, the impugned judgment of conviction and sentence passed by the learned Sessions Judge, based on the above evidence, does not call for any interference by this Court. 20. For the foregoing reasons, we do not find any substance in this appeal, which deserves to be and is hereby dismissed. Appeal Dismissed.