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2014 DIGILAW 41 (UTT)

KHUSHAL SINGH v. STATE OF UTTARAKHAND

2014-02-17

B.S.VERMA, SERVESH KUMAR GUPTA

body2014
JUDGMENT Per : Servesh Kumar Gupta, J. (Oral) The impregnability of judgment and order of conviction dated 27.5.2011, rendered by Additional Sessions Judge/Ist F.T.C., Nainital in Sessions Trial No. 126/2010, State v. Khushal Singh, is in question through this jail appeal. Initially, the convict Khushal Singh was tried for the offences under Section 302, 201, 498 IPC. However, the trial culminated into finding of guilt for the offences under Section 302, 201 IPC only. Accused appellant has been sentenced appropriately for the same. The said trial pertains to FIR No. 56/2010 lodged in Police Station Lalkuan, District Nainital on 11.6.2010 at 00.10 hours. 2. The facts, as emerging out from the FIR lodged by Pooran Singh Kanwal (real brother of the deceased), are that his sister Smt. Bhagwati Devi was in the matrimony with accused Khushal Singh Garia for the last 13 years. The marriage was solemnized after offering ample dowry, but his sister was always subjected to traumatic torture alleging dearth of dowry in the said marriage. In the fateful night of 8/9th June 2010, Smt. Bhagwati was given severe beating by her husband (appellant) with the result that she breathed her last at the spot itself. The dead body of Smt. Bhagwati was thrown in the nearby sugarcane field in order to cause disappearance of evidence. On the next day, i.e. on 9.6.2010, Khushal Singh took both his children Master Pankaj and Pawan, who were in their adolescence, and came to Bageshwar to attend the marriage of real sister of the informant and the deceased. At about 8 PM on 9.6.2010, Pooran Singh Kanwal got telephonic information that his sister Smt. Bhagwati has been murdered. He enquired from Khushal Singh, who was present there in the company of informant at Bageshwar. Khushal Singh admitted that last night Smt. Bhagwati was little bit beaten at his hands, but he expressed his astonishment on the news of her death and then absconded from the spot leaving both his children Master Pankaj and Master Pawan in the company of informant. It has further been stated in the FIR that prior to the said incident, the accused was in the habit of beating his wife Smt. Bhagwati Devi and he was also a habitual drinker. Master Pankaj and Pawan, sons of the deceased, were named in the report as eyewitnesses of the incident. The report is Ex. Ka-1. It has further been stated in the FIR that prior to the said incident, the accused was in the habit of beating his wife Smt. Bhagwati Devi and he was also a habitual drinker. Master Pankaj and Pawan, sons of the deceased, were named in the report as eyewitnesses of the incident. The report is Ex. Ka-1. Chick report thereof is Ex. Ka-2. 3. Inquest was prepared on 9.6.2010 after 8 PM in the presence of a number of villagers and the police personnel. It continued up to 10.15 PM of the same night. The inquest report is Ex. Ka-4. The members of the inquest recommended for post-mortem to know the real cause of death. So, the autopsy was conducted by Dr. R.S. Kunwar (PW8) on the next day (10.6.2010) at 10.30 AM in the Government Hospital, Haldwani. Post-mortem report is Ex. Ka-6. Following ante-mortem injures were noticed by the doctor on the dead body of the deceased: (1) Abraded contusion over right parieto occipital region, 2 x 2 cm with subcutaneous haemotoma. (2) Frothing from nose and mouth with tongue bite at margins of lip and inner surface of lower lip. One upper incisor broken. Trachea was congested. Hyoid bone intact. (3) Abrasion over neck just below right ear 2 x 1 cm. (4) Face congested and swollen. (5) Multiple abrasions over knee, elbow and right arm. (6) Mild depression over right side chest. On exploration there was fracture of 4th to 10th ribs right side and lung lacerated 2 x 3 cm with ½ litre of blood in cavity. Pleura lacerated 3 x 1 cm. (7) Lungs congested. In the opinion of the doctor, the death occurred one and half day prior to the date and time of conducting the post-mortem. So, it matches with the date and time of the alleged occurrence. The doctor also opined that the cause of death was asphyxia due to smothering. 4. Accused was arrested on 11.6.2010 at 6.10 PM. Arrest memo is Ex. Ka-13. The investigation culminated into submission of chargesheet (Ex. Ka-14) for the offences under Section 302, 201, 498 IPC. The charges were levelled accordingly. Accused abjured the guilt and claimed trial. 4 5. The prosecution examined as many as nine witnesses. PW1 Master Pawan Singh and PW2 Master Pankaj are the minor children of accused and the deceased. They are also the eyewitnesses of the incident. Ka-14) for the offences under Section 302, 201, 498 IPC. The charges were levelled accordingly. Accused abjured the guilt and claimed trial. 4 5. The prosecution examined as many as nine witnesses. PW1 Master Pawan Singh and PW2 Master Pankaj are the minor children of accused and the deceased. They are also the eyewitnesses of the incident. PW3 Pooran Singh, real brother of the deceased, is the complainant. PW4 Ravi Mangla and PW6 Kitar Singh (father-in-law of deceased) are also the eyewitnesses of occurrence. PW5 Head Constable Narendra Singh is a formal witness. PW7 Gokul Singh Rana and PW9 S.I. Satish Chandra Kapri are the witnesses of inquest. PW8 is Dr. R.S. Kunwar, who has conducted the autopsy. 6. Thereafter statement of the accused under Section 313 CrPC was recorded. He admitted his visit to Bageshwar on the next day of the incident for attending the marriage, but expressed his unawareness regarding the recovery of the dead body of his wife from the sugarcane field. 7. We have considered the submissions of learned Amicus Curiae on behalf of the appellant and the learned Deputy Advocate General for the State. 8. Having perused the evidence, we find that PW1 Master Pawan Singh and PW2 Master Pankaj, running in their early twenties, are the adolescents and the eyewitnesses of the incident. Though they are the child witnesses, but after the preliminary questions put forth to them, learned Trial Judge assessed their comprehensive power and understanding up to the mark and found them capable of answering the questions with good understanding of their nature. So, the reliance has been placed upon their evidence. Besides them, PW4 Ravi Mangla and PW6 Kitar Singh (father of the accused appellant) are also the eyewitnesses. 9. PW1 Master Pawan Singh has deposed that his father was under the inebriated state at the time of incident. He (PW1) was sleeping along with his brother on the same cot. His father came sozzled and began kicking the door of the room making it unbolted. Smt. Bhagwati woke up on hearing the voice and commotion, and came in the room of her children. Accused soon began to beat Smt. Bhagwati bitterly and dragged her to the courtyard. As a result, she fell down. His father came sozzled and began kicking the door of the room making it unbolted. Smt. Bhagwati woke up on hearing the voice and commotion, and came in the room of her children. Accused soon began to beat Smt. Bhagwati bitterly and dragged her to the courtyard. As a result, she fell down. PW1 and PW2 strived to rescue their mother, but their efforts went in vain as the accused gave a tight slap on the cheek of PW2 Master Pankaj, and the brethren duo feeling scared went back in their room. PW6 Kitar Singh, their grandfather, also endeavoured to save his daughter-in-law from the cruel hands of the appellant, but due to fearsome repelling by the appellant, he too became frightened and took to his heels. Next day morning, appellant awakened both his children and took them to Bageshwar in order to attend the marriage of their mother’s sister. Appellant could not forget to warn both his children not to disclose the incident to anyone. After the solemnization of marriage at Bageshwar and departure of the marriage party, the informant (maternal uncle of PW1 and PW2) received the telephonic information. So, he further got the details from his nephews (PW1 & PW2) and came to 6 the Police Station Lalkuan on the next day. The report thus could be lodged on 11.6.2010 at 12.10 AM. 10. PW2 Master Pankaj has also corroborated the evidence deposed by PW1 in the perfect tenor. He has ratified the act of slapping by his father when he along with his brother (PW1) made efforts to save their mother. He has stated that their efforts to rescue their mother went in vain because after having been slapped, his father made them confined to the room. Later, he saw from the window that his mother was grounded in the courtyard and his father, sitting on the bosom of his mother, was shaking her body. These activities of the father were enough to understand that his mother had become unconscious. This witness has further ratified that at the time of beating his mother by the appellant, a neighbouring boy, namely Ravi (PW4), had come at the spot, but he also returned back because the appellant went few steps ahead in order to beat him. Both the brothers (PW1 and PW2), being terrorized, fell asleep in their room. This witness has further ratified that at the time of beating his mother by the appellant, a neighbouring boy, namely Ravi (PW4), had come at the spot, but he also returned back because the appellant went few steps ahead in order to beat him. Both the brothers (PW1 and PW2), being terrorized, fell asleep in their room. Next day, their father (accused) awakened them and brought them to Bageshwar for participating in the marriage. Thus, we find that PW2 has corroborated the version of PW1 to the words. 11. PW3 Pooran Singh Kanwal is the informant (real brother of the deceased). He has ratified the facts in his deposition as have been averred by him in the FIR. All prosecution evidence as to how he got the telephonic information and verified the facts from PW1 and PW2, whereupon he came to Police Station Lalkuan on the next day and lodged the report has been proved by him systematically. 12. PW4 Ravi Mangla, aged about 17 years, belongs to the same village of accused. He is also an eyewitness of the incident and has ratified the deposition of PW1 and PW2. So, he is an independent witness and his testimony has significant credence. 13. PW5 Narendra Singh is a formal witness. He has reduced the FIR into writing and has proved the same. 14. PW6 is Kitar Singh, father of the culprit. He has also corroborated the version of PW1 and PW2 regarding the happening of the incident. We feel that PW6, a septuagenarian witness, would have no reason to depose against his own son, had the accused not committed the crime in the manner as alleged by the prosecution. There was no reason for him to tell anything otherwise than the real happening, which took place at the place of occurrence. So, his testimony is worthy of placing reliance and we value it accordingly. 15. PW7 Gokul Singh Rana is simply the witness of inquest. He is resident of the same village where the incident occurred. This way, his testimony is also of some worth to testify the prosecution version. 16. PW8 is Dr. R.S. Kunwar, who conducted the autopsy and has proved the ante mortem injuries found on the body of the deceased, as mentioned hereinabove. 17. PW9 Satish Chandra Kapri is Sub-Inspector of Police. This way, his testimony is also of some worth to testify the prosecution version. 16. PW8 is Dr. R.S. Kunwar, who conducted the autopsy and has proved the ante mortem injuries found on the body of the deceased, as mentioned hereinabove. 17. PW9 Satish Chandra Kapri is Sub-Inspector of Police. He is the witness of inquest and has also proved the submission of chargesheet Ex. Ka-14 by the S.H.O. Chandan Singh Jaraut, who had become incapable to stand and depose in the witness box on account of his ailing health. 18. Thus, in view of the evidence discussed above, we find that there is no merit in this appeal. There are as many as four eyewitnesses of the incident. Two of them are the sons of the accused and one happens to be his father. All four eyewitnesses have corroborated the prosecution story. Medical evidence also lends profound support to the prosecution case. The autopsy report reveals that 4th to 10th right side ribs of the deceased were found fractured and the right lung was also found ruptured. Thus, it verifies the factum of extensive beating of the deceased after sitting on her bosom. Tongue bite injury at the margins, tip and the inner surface was also found. It shows that how brutally and cynically the accused bate his wife. Thus, on balance, we find that the case against the accused is conclusively proved. Learned Amicus Curiae on behalf of the appellant pointed out some minor discrepancies here and there in the statements of fact witnesses, which are not so significant and the same provide no support to the accused appellant as it is settled principle of law, laid down by the Hon’ble Apex Court in so many cases, that such minor discrepancies in evidence may rather render credential to the depositions. Parrot like statements are disfavoured by the Courts. Perfect congruity or consistency in the depositions is not the sole test of truth. 19. In the result, the appeal being bereft of merit is hereby dismissed. We uphold the finding of conviction and sentence awarded to the accused appellant by the Court below. Impugned judgment and order is thus affirmed. Convict appellant, who is in jail, shall serve out the remaining period of sentence. Let the result of this appeal be communicated to the appellant in jail. We uphold the finding of conviction and sentence awarded to the accused appellant by the Court below. Impugned judgment and order is thus affirmed. Convict appellant, who is in jail, shall serve out the remaining period of sentence. Let the result of this appeal be communicated to the appellant in jail. Copy of this judgment, along with LCR, be sent back to the Court below.