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Himachal Pradesh High Court · body

2014 DIGILAW 1528 (HP)

Sunil Kumar v. State of H. P.

2014-10-29

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT : Rajiv Sharma, J. This appeal is instituted against the judgment dated 30.10.2010 and consequent order dated 3.11.2010, of the learned Addl. Sessions Judge, Fast Track Court, Una, H.P., rendered in Sessions Trial No. 8 of 2010, whereby the appellant-accused (hereinafter referred to as the accused), who was charged with and tried for offence under Section 302 IPC, has been convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000/- and in default of payment of fine, the accused was ordered to undergo simple imprisonment for three months. 2. The case of the prosecution, in a nut shell, is that on 15.2.2010 at about 5:00 PM, at village Badwana the accused inflicted serious injuries on Usha Devi, his mother with a Guava stick, as a result of which Usha Devi succumbed to injuries. The accused also inflicted injuries on Usha Devi with kick blows. The accused was demanding money from Usha Devi and when she could not provide money to him, the accused got enraged and inflicted grievous injuries on her head. Smt. Usha Devi died on the spot and the accused threw the stick used by him in the commission of offence on the spot. He ran away from the spot. PW-1 Jyoti Devi on hearing cries of Usha Devi reached on the spot and saw accused person on the spot. She informed the police on telephone regarding the incident. The police visited the spot. The statement of Jyoti Devi under Section 154 Cr.P.C. was recorded. The accused was arrested by the police. The blood stained stick was taken into possession. The police prepared the sketch of the stick on the cloth vide Ext. PW-1/C. The I.O. took photographs on the spot. The blood stained shawl and shirt were also taken into possession by the I.O. which were worn by Smt. Usha Devi, deceased. The post mortem was got conducted. The statements of the witnesses under Section 161 Cr.P.C. were recorded. The investigation was completed and charge-sheet was filed after completing all the codal formalities. 3. The prosecution has examined as many as 14 witnesses. The statement of the accused under Section 313 Cr.P.C. was recorded. The accused has pleaded innocence. The learned Trial Court convicted and sentenced the accused, as stated hereinabove. 4. Mr. The investigation was completed and charge-sheet was filed after completing all the codal formalities. 3. The prosecution has examined as many as 14 witnesses. The statement of the accused under Section 313 Cr.P.C. was recorded. The accused has pleaded innocence. The learned Trial Court convicted and sentenced the accused, as stated hereinabove. 4. Mr. Hamender Chandel, Advocate for the accused, has vehemently argued that the prosecution has failed to prove its case against the accused. He has also argued that there are material contradictions in the statements of the material witnesses. On the other hand, Mr. M.A.Khan Addl. Advocate General, has supported the judgment of the learned trial Court, dated 30.10.2010 and consequent order dated 3.11.2010. 5. We have heard learned counsel for both the sides and gone through the judgment and material available on record very carefully. 6. PW-1, Jyoti Devi deposed that her elder brother-in-law died last year. The name of his wife was Usha Devi. Her sister-in-law had three sons. The accused was one of the sons of Usha Devi. On 15.2.2010 at about 4:00 PM, her Jethani had gone to give fodder (bread) to the cow in the nearby house. She returned and went to her house, where she used to live with her three sons. She heard noise of quarrel from the house of the accused. She rushed to the spot. She saw the accused Sunil Kumar inflicting injuries on his mother Usha Devi with Guava stick. The accused inflicted injuries with the help of said stick on the head of Usha Devi. The accused also inflicted kick blows on Usha Devi. The accused was demanding money from Usha Devi. Usha Devi fell down near the gate of her house. Thereafter, the accused threw the stick on the spot and ran away from the spot. She informed the police on telephone. The police visited the spot and recorded her statement under Section 154 Cr.P.C. vide Ext. PW-1/A. Her mother-in-law also visited the spot after some time on hearing the noise of cries from the spot. The brothers of accused, namely, Suresh and Rakesh also came on the spot. She touched the body of Usha Devi. She was motionless. The police took into possession the blood stained stick vide memo Ext. PW- 1/B. The police also took into possession blood stained soil from the spot. The brothers of accused, namely, Suresh and Rakesh also came on the spot. She touched the body of Usha Devi. She was motionless. The police took into possession the blood stained stick vide memo Ext. PW- 1/B. The police also took into possession blood stained soil from the spot. The police also prepared the sketch of stick on a piece of cloth vide memo Ext. PW-1/C. She signed the same. The stick was sealed in a sealed parcel =T'. The police took photographs on the spot. She identified the stick Ext. P-1. She also identified shawl and kurti Ext. P-3 and pant of the accused Ext. P-4. In her cross-examination, she admitted that the house of the deceased Usha Devi was on the higher side and her house is situated on the lower level. She denied the suggestion that the cow shed in which Usha Devi had gone to serve bread/fodder to the cow is not visible from her house. The accused was un-employed. Volunteered that, he used to demand money from his mother. She denied the suggestion that the accused was mentally ill. The accused behaved with the children as if he was mentally ill person. Due to the abnormal behavior of the accused, nobody employed him as a labourer. She denied the suggestion that the accused did not know what he was doing. She admitted that when she reached on the spot, Usha Devi was lying on the ground. She touched the body of Usha Devi but she was dead. The accused told her that he wanted money from his mother and due to that reason he had beaten up his mother. The people of the nearby houses also assembled on the spot and they made a noise upon which she rushed to the spot. She could not name those persons being elders. However, one of them was Pappi's father, father of Kallu and one Langru etc. 7. PW-2 Ishia Devi, deposed that the accused was her grand son. On 15.2.2010, at about 4:00 PM, she heard the noise from the house of Usha Devi. Her daughter-in-law Jyoti Devi and she herself heard the noise of cries. Her daughter-in-law went ahead of her towards the house of Usha Devi. She also followed her. When she rushed in the residence of Usha Devi, she saw Usha Devi lying near the gate of her house. Her daughter-in-law Jyoti Devi and she herself heard the noise of cries. Her daughter-in-law went ahead of her towards the house of Usha Devi. She also followed her. When she rushed in the residence of Usha Devi, she saw Usha Devi lying near the gate of her house. Jyoti Devi told her that accused had inflicted injuries on the head of Usha Devi with a stick which resulted in serious injuries on her person. The people of the locality had gathered there. The police also reached the spot. She identified the stick Ext. P-1. She denied the suggestion in her cross-examination that when she reached at the spot, the stick Ext. P-1 was with the police. 8. PW-3 Subhash Chand deposed that on 15.2.2010, he had gone to attend his duties as Beldar at Village Ghangret. At about 5:30 PM, he received a telephonic message on his mobile that Smt. Usha Devi, his sister-in-law (Bhabhi) was killed by accused Sunil with a stick. He reached on the spot at about 5:45 PM and saw that Usha Devi was lying near the gate of her house. The police reached the spot. His wife Jyoti Devi handed over a stick stained with blood to the police. The police recorded his statement under Section 161 Cr.P.C. The police also prepared sketch of the stick vide memo Ext. PW-1/C. He signed the same. The stick was also taken into possession by the police. It was sealed with seal impression =T'. He signed the recovery memo Ext. PW- 1/B. He denied the suggestion in his cross-examination that the police had already prepared the documents before his arrival at the spot. According to him, the stick was already lying nearby the body of Usha Devi. The stick was handed over by his wife to the police in his presence. 9. PW-4 Naresh Kumar deposed that he and his younger brother had gone to Chintpurni on 15.2.2010 to work. Accused and his mother were at the home. He received a call on his mobile from his house that quarrel had taken place in the house. He came back to Nari at about 6:00 PM where he came to know that a quarrel had taken place with her mother. He saw that his mother was lying dead near the gate of the house. The blood was lying on the earth. The police had also reached there. He came back to Nari at about 6:00 PM where he came to know that a quarrel had taken place with her mother. He saw that his mother was lying dead near the gate of the house. The blood was lying on the earth. The police had also reached there. The people of the locality also assembled there. Jyoti Devi told him that accused Sunil Kumar had killed his mother with a stick. The police had taken into possession the earth stained with blood from the spot in a box sealed with seal =S' vide memo Ext. PW-4/A. He signed the same. He denied the suggestion in his cross-examination that the accused was suffering from mental ailment. 10. PW-5 Constable Rajesh Kumar deposed that he was posted as Constable at Police Station Chintpurni. He visited the spot of occurrence alongwith ASI Kaur Chand and took photographs of the spot with government Camera. The I.O. took into possession the blood stained soil. It was contained in a plastic container Ext. P-5. It was sealed with seal impression =S'. The seizure memo Ext. PW-4/A was prepared. The police also took into possession stick Ext. P-1. It was produced by Jyoti Devi. The stick was packed in a cloth parcel with seal impression =T'. It was taken into possession vide seizure memo Ext. PW- 1/B. 11. PW-6 Dr. Umesh Gautam, has conducted the post mortem on the dead body of the deceased. He issued Post mortem report Ext. PW-6/A. According to his opinion, the death occurred as a result of head injury with multiple fracture of skull bone and legs leading to hypovolemia and asphyxia. The danda was produced before him, which was sealed with FSL seal. The seals were intact. He opened the seals and after seeing the danda, he opined to the police that the injuries present on the body of Usha Devi were possible with danda Ext. P1. 12. PW-7 Roshan Lal deposed that in his presence, the accused had identified the place from where he has taken the danda with which he had given blow to his mother. The accused has also identified the place where he had thrown the danda. Regarding this, memo Ext. PW- 7/A was prepared. 13. PW-8 Jeewan Rana has developed the photographs. 14. PW-9 Ram Pal Patwari has prepared =Aks Latha' Ext. PW- 9/A and =Fard Jamabandi' Ext. PW-9/B on 6.3.2010. 15. The accused has also identified the place where he had thrown the danda. Regarding this, memo Ext. PW- 7/A was prepared. 13. PW-8 Jeewan Rana has developed the photographs. 14. PW-9 Ram Pal Patwari has prepared =Aks Latha' Ext. PW- 9/A and =Fard Jamabandi' Ext. PW-9/B on 6.3.2010. 15. PW-10 Inspector Negi Ram, is a formal witness. 16. PW-11 HC Parveen Kumar deposed that on 15.2.2010 at 5:55 PM, Smt. Jyoti Devi informed him telephonically to the Police Station Chintpurni that Smt. Usha Devi deceased has been murdered by her son Sunil Kumar. Regarding this fact, rapat No. 29 was recorded in the Rapat Rojnamcha. The police visited the spot at 7:40 PM. Constable Rajesh Kumar brought =ruka'/statement Ext. PW-1/A of Smt. Jyoti Devi, on the basis of which, FIR Ext. PW-11/B was registered at Police Station Chintpurni. A.S.I Kaur Chand handed over to him two parcels containing danda Ext. P-1 and blood stained soil Ext. P-5. The danda was sealed with seal impression =T' with five seals and soil parcel was sealed with seal =S' of three in number alongwith sample seals, which were deposited by him in the Malkhana of Police Station Chintpurni. On 16.2.2010, ASI Kaur Chand also deposited three parcels which were sealed with Una mortuary seal containing clothes of the deceased, blood sample of the deceased and the sample containing Pant/Paijama of the accused. He deposited the same in the Malkhana. He sent these parcels alongwith the copy of the FIR and other documents through Constable Rajinder Singh vide RC No. 25 of 2010 dated 18.2.2010 for chemical test to FSL Junga. He did not allow anybody to tamper with the same. The case property was collected from FSL Junga and the same was deposited with him on 27.4.2010. He handed over the parcel of stick to ASI Kaur Chand on 28.4.2010 for opinion from the doctor and he deposited the same with him with seal impression of Una Mortuary. 17. PW-12 Constable Rajinder Singh deposed that on 18.2.2010 he was deputed by MHC Parveen Kumar for depositing the four parcels in FSL Junga alongwith one vial. One parcel containing stick sealed with seal impression =T' second parcel sealed with seal =S' third and fourth sealed with seal Una Mortuary/envelope and seal samples were handed over to him by MHC Parveen Kumar vide RC No. 25/10 dated 18.2.2010 for depositing the same in FSL Junga. One parcel containing stick sealed with seal impression =T' second parcel sealed with seal =S' third and fourth sealed with seal Una Mortuary/envelope and seal samples were handed over to him by MHC Parveen Kumar vide RC No. 25/10 dated 18.2.2010 for depositing the same in FSL Junga. On 19.2.2010, he deposited the same in the office of FSL Junga. 18. PW-13 ASI Kaur Chand deposed that he was posted as I.O. in Police Station Chintpurni since 2009. Smt. Jyoti, the complainant informed the Police Station telephonically that accused has beaten his mother Usha Devi. He entered the rapat vide memo Ext. PW-11/A. He alongwith other police personnel went to the spot. Jyoti Devi made a statement under Section 154 Cr.P.C. vide Ext. PW-1/A. FIR Ext. PW- 11/B was registered. Photographs of the spot were taken. On examination of body of deceased, injury marks on her left ear and left knee were found. He prepared the inquest report in triplicate which is Ext. PW-4/B. He prepared the site plan Ext. PW-13/A. Jyoti Devi produced before the police stick Ext. P-1 stained with blood. It was measured. Memo was prepared. The blood stained soil was also taken into possession and accused was apprehended by the police party on the same day, at about 10:30 PM from nearby jungle. The post mortem of Usha Devi deceased was got conducted at Zonal Hospital, Una. The post mortem report is Ext. PW-6/A. The Medical Officer preserved the pant stained with blood of the accused. It was sealed by the Medical Officer. The sealed parcel was handed over to him by the Medical Officer. He deposited the same with MHC, Police Station Chintpurni. The accused was taken to the spot for spot verification. He also prepared the site plan Ext. PW-13/F. He also got the revenue documents prepared. He also obtained the opinion of Dr. Umesh Kumar. In his cross-examination, he deposed that he reached the spot at 6:15 PM. There were two houses adjoining to the place of occurrence. The house of Des Raj was on the back side of the house of the accused. The house of Jyoti Devi was about 40-50 meters away from the house of the accused. He also admitted in his cross-examination that the house of Jyoti Devi was not visible from the place of occurrence. He did not examine father of Pappi, father of Kalu and one Langru. The house of Jyoti Devi was about 40-50 meters away from the house of the accused. He also admitted in his cross-examination that the house of Jyoti Devi was not visible from the place of occurrence. He did not examine father of Pappi, father of Kalu and one Langru. Volunteered that, they were not present on the spot. He denied the suggestion that Smt. Jyoti Devi told him that these persons raised noise at the time of occurrence and that they were present when she visited the spot on hearing noise. 19. PW-14 Dr. Parveen Kumar, has examined the accused. He issued MLC Ext. PW-14/A. There were stains of blood on his pant. The pant of the accused was wrapped in the sealed parcel and handed over to the police. 20. According to PW-1 Jyoti Devi, she heard the noise on 15.2.2010. She immediately reached the spot. She saw the accused inflicting injuries on his mother with stick. The accused also gave kick blows to his mother. He was demanding money from his mother. Mr. Hamender Chandel, Advocate, appearing for the accused has vehemently argued on the basis of the statement made by PW-1 Jyoti Devi in her cross-examination that when she reached the spot Smt. Usha Devi was lying on the ground. The statement of PW-1 Jyoti Devi has to be read in totality. 21. The statement of PW-1 Jyoti Devi has been corroborated by PW-2 Smt. Ishia Devi. According to her, she heard the noise emanating from the house of the deceased. PW-1 Jyoti Devi went ahead of her and reached at the spot. She also followed her. When she reached the house of Usha Devi, she saw Usha Devi was lying near the gate of her house. She was bleeding. PW-1 Jyoti Devi has told her that accused had inflicted injuries on the head of Usha Devi. PW-1 Jyoti Devi and PW-2 Ishia Devi have identified the stick Ext. P-1. PW-3 Subhash Chand and PW-4 Naresh Kumar deposed that they were informed telephonically about the murder of Usha Devi. Both of them have reached the spot and seen Usha Devi lying dead. In the presence of PW-4 Naresh Kumar, blood stained stick was taken into possession. 22. PW-6 Dr. Umesh Gautam has conducted the post mortem on the dead body and issued post mortem report Ext. Both of them have reached the spot and seen Usha Devi lying dead. In the presence of PW-4 Naresh Kumar, blood stained stick was taken into possession. 22. PW-6 Dr. Umesh Gautam has conducted the post mortem on the dead body and issued post mortem report Ext. PW-6/A. According to him, the death occurred as a result of head injury with multiple fractures of skull bones and legs leading to hupovolemia and asphyxia. The probable time between injury and death was upto few minutes and between death and post mortem was within 24 hours. According to Mr. Hamender Chandel, Advocate, PW-6 Dr. Umesh Gautam gave the opinion that the injuries have led to hypovolemia and asphyxia. However, no suggestion was put to PW-6 Dr. Umesh Gautam in his cross-examination to this aspect. 23. Mr. Hamender Chandel, Advocate, has also argued that in Ext. PW-1/A =ruka' the timing given is 5:00 PM but when PW-1 Jyoti Devi and PW-2 Ishia Devi appeared, they have deposed that the incident had taken place at about 4:00 PM. These are the minor contradictions. PW- 1 Jyoti Devi and PW-2 Ishia Devi are villagers and there was bound to be some variation in the timings given by PW-1 Jyoti Devi while recording statement Ext. PW-1/A and while appearing before the Court after about five months time. There is no variance in Ext. PW-1/A, statement of PW- 1 Jyoti Devi recorded under Section 154 Cr.P.C and statement recorded before the Court when she appeared as PW-1. The stick Ext. P-1 has been taken into possession strictly in accordance with law. PW-6 Dr. Umesh Gautam has opined that injuries on the deceased could be inflicted with Ext. P-1. Human blood was found as per Ext. PW-1/D on Ext. P-1 danda-stick. The blood was also found on the shirt and shawl of deceased Usha Devi. The blood was also present on Ext. P-6, Pant of the accused. 24. Thus, the prosecution has proved the case against the accused in view of the analysis of the statements made, hereinabove. There is no reason for us to disagree with the well reasoned judgment of the learned trial Court. 25. Accordingly, there is no merit in this appeal and the same is dismissed.