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2014 DIGILAW 626 (HP)

State of Himachal Pradesh v. Ramesh Chand

2014-05-23

RAJIV SHARMA, SURESHWAR THAKUR

body2014
Judgment Sureshwar Thakur, J. The instant appeal is directed against the judgment of the learned Additional Sessions Judge (I), Kangra at Dharamshala rendered in Sessions trial No. 31/2006, whereby, the learned trial Court acquitted the accused of his having allegedly committed the offence punishable under Section 302 of the Indian Penal Code. 2. FIR Ex. PW14/C, lodged qua the occurrence with police station, Jawali, records in brief the facts relating to the alleged incident. The facts apposite to decide the appeal, are of the accused being married to one Radha Devi. However, the accused under the influence of the liquor belaboured Radha Devi. The above belabouring meted by the accused to Radha Devi constrained her to institute a criminal case against the accused. However, the matter was compromised and Radha Devi commenced to join the matrimonial company of the accused. Nonetheless, the accused continued to belabour Radha Devi which constrained her to again leave her matrimonial home. However, the minor son Amit Kumar, born out of the wedlock interse the accused and Radha Devi, continued to reside with the accused. The accused is alleged to have, under the influence of liquor, belaboured his minor son. However, despite intervention of the neighbours, there was no improvement in the behaviour of the accused. On 15.3.2003, at about 6.30 a.m., the accused was noticed by his brother PW-2 Raj Kumar and his mother PW-5 Biaso Devi, to be carrying his son as well as a ‘jhabal’ from the back side of his house, towards the fields. Both of the above, noticed that the minor son Amit Kumar was having injuries on his face and was dead. On both confronting the accused, he is stated to have commenced abusing them. The matter was reported by PW-2 Raj Kumar to PW-4 Karam Chand. The informant proceeded to record in the FIR, the fact of the accused having thrown the “jhabal” in the fields and his having kept the deceased on the bed in his house. Shri Karam Chand, PW-4, Ex-Vice-President is reported to have reported the matter to the Police Station, Jawali when rapat Ex. PW14/A was registered, hence, the police proceeded to the spot. Shri Karam Chand, PW-4, Ex-Vice-President is reported to have reported the matter to the Police Station, Jawali when rapat Ex. PW14/A was registered, hence, the police proceeded to the spot. On the arrival of the police, at the site of the occurrence, PW-2 Raj Kumar made statement Ex.PW2/A to the police, which was sent to the SHO, Police Station Jawali, who proceeded, on its strength to, lodge FIR Ex.PW14/C. The police, arranged photographer and took photographs Ex.PW3/A and Ex.PW3/B of the dead body of the deceased. The iron rod (jhabal), Ex.P-2 was produced by Raj Kumar, which was sealed by the police with seal ‘T” and was taken into possession vide recovery memo Ex.PW2/C. Separate seal impression Ex.PW18/A was taken on a piece of cloth. Site plan Ex.PW18/B of the house of the accused was prepared by the Investigating Officer. During the course of investigation, the accused made his disclosure statement Ex.PW8/A to the police in the presence of Subhash Chand and Desh Raj and on the basis of his statement, he led the police to his house and got a wooden slate/takhti, Ex.P-1 recovered therefrom. Ex. P-1 was smeared with blood. Ex.P-1 was sealed in a cloth parcel and sealed with seal ‘K’ and was taken into possession vide memo Ex. PW8/B. Its sketch map Ex.PW18/E was prepared on a piece of paper. Seal impression Ex.PW18/F was taken on a piece of cloth and site plan Ex.PW18/G was prepared to this effect. An application Ex.PW1/A was moved by the police, to the Medical Officer, Civil Hospital, Nurpur for conducting the post mortem examination of the deceased. The application was accompanied by inquest papers Ex.18/C. Post mortem report qua the deceased Amit Kumar, is, comprised in Ex.PW1/D. Tatima Ex.PW12/B and Jamabandi Ex.PW12/C qua the house where the incident took place was collected by the Investigating Officer, from the revenue officer concerned. The case property was deposited by the Investigating Officer with MHC, Police Station, Jawali. The wooden slate, Ex. P-1 was sent to FSL, Junga for chemical analysis. FSL, Junga on having analysed Ex.P-1, returned an opinion that it contained blood. 3. On conclusion of the investigation, into the offences, allegedly committed by the accused, report under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court. 4. Accused was charged for having committed an offence under Section 302, IPC by the learned trial Court. 3. On conclusion of the investigation, into the offences, allegedly committed by the accused, report under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court. 4. Accused was charged for having committed an offence under Section 302, IPC by the learned trial Court. In proof of the prosecution case, the prosecution examined 18 witnesses. On conclusion of recording of the prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded by the Court, in which the accused claimed false implication. 5. The learned trial Court on appreciation of the evidence on record, returned findings of acquittal in favour of the accused. 6. The State of H.P. is aggrieved by the judgment of acquittal recorded by the learned Trial Court in favour of the accused/respondent, Ramesh Chand. Shri P.M. Negi, learned Deputy Advocate General has concertedly and vigorously contended, that the findings of acquittal recorded by the learned trial Court below are not based on a proper appreciation of the evidence on record, rather, they are sequeled by gross mis-appreciation of the material evidence on record. Hence, he contends that the findings of acquittal be reversed by this Court in the exercise of its appellate jurisdiction and be replaced by findings of conviction and concomitantly an appropriate sentence be imposed upon the accused/respondent. On the other hand, the learned defence counsel has with considerable force and vigour contended that the findings of acquittal recorded by the Court below are based on a mature and balanced appreciation of the evidence on record and do not necessitate interference, rather merit vindication. 7. This Court with the able assistance of the learned counsel on either side, has with studied care and incision, evaluated the entire evidence on record. 8. It is a case of the circumstantial evidence, where an eye witness or an ocular version of the occurrence is unavailable. The potent circumstance, which is canvassed by the prosecution to be unflinchingly and explicitly bespeaking the guilt of the accused, is the fact as recorded, in, the FIR, Ex. 8. It is a case of the circumstantial evidence, where an eye witness or an ocular version of the occurrence is unavailable. The potent circumstance, which is canvassed by the prosecution to be unflinchingly and explicitly bespeaking the guilt of the accused, is the fact as recorded, in, the FIR, Ex. PW14/C, by Raj Kumar, PW-2, brother of the accused, of both he and PW-5 Biaso Devi, his mother, having noticed the accused carrying the dead body of his minor son Amit Kumar alongwith a ‘jhabal’ in his hand and the accused, on being confronted with his surreptitious act of clandestinely proceeding, to, with a ‘jhabal” in his hand, bury the dead body of his deceased son, his taking to unleash vituperative remarks. The conduct aforesaid of the accused is contended to be suspect, in as much as, in case of a natural death, he ought to have informed his close relatives, however, he omitted to do so. Rather his enigmatic conduct, portrayed by his taking to surreptitiously, bury the dead body of his deceased son, manifestly point out towards his palpable guilt. For the above fact, as contended by the prosecution, to be constituting probative evidence of tenacious worth and it to gain momentum, necessitated, its not remaining in the realm, of previous statements of PW-2 Raj Kumar and PW-5 Biaso Devi, to this effect. Rather, it was imperative that both in tandem thereof categorically depose inconsistence thereof in Court, hence, corroborate them. Both, PW-2 Raj Kumar and PW-5 Biaso Devi have resiled from their previous statements. PW-2 Raj Kumar, the informant has in his examination-in-chief, while resiling from his previous statement recorded in writing, unequivocally deposed the fact of the deceased Amit Kumar having received injuries on account of fall. There, is stark denial on his part of his having, on the fateful day noticed along with his mother, the accused carrying the dead body of his son along with ‘jhabal’ for surreptitiously burying it. He even proceeded to deny the fact of there being an ongoing scuffle/quarrel inter-se the accused and his wife. PW-5 Biaso Devi, the mother of the accused and grand mother of the deceased, in her examination-in-chief articulated the fact of hers on the fateful day simultaneously along with, her deceased grand son Amit Kumar, present in the house. She has deposed that her deceased grand son was suffering from fever. PW-5 Biaso Devi, the mother of the accused and grand mother of the deceased, in her examination-in-chief articulated the fact of hers on the fateful day simultaneously along with, her deceased grand son Amit Kumar, present in the house. She has deposed that her deceased grand son was suffering from fever. She deposed that at about 5 P.M., she administered medicine and thereafter proceeded towards the fields. On her returning home, she had seen her grand son Amit to be lying on the floor beneath the stairs. Hence, this witness has denied the fact as previously stated by her, of hers alongwith Raj Kumar having simultaneously seen the accused carrying the dead body of Amit Kumar alongwith a ‘jhabal’ in his hand, with the obvious intention to, with it excavate the earth, for burying his son. The effect of both PW-2 Raj Kumar and PW-5 Biaso Devi, having so deposed, especially when both previous to their recorded deposition in Court unflinchingly stated the potent inculpatory fact of theirs to have last seen, the accused carrying the dead body of his son Amit Kumar along with ‘jhabal, palpably to exhume the dead body of the deceased, sequels, the following inferences (a) the bedrock of the prosecution story of PW-2 Raj Kumar and PW-5 Biaso Devi having last seen the accused in an inculpatory manner, as discussed above is jettisoned (b) it erodes the effect and sinew of the argument of the learned Deputy Advocate General that, hence, it rendered suspicious the conduct of the accused. Consequently, the evidence of the accused being surreptitiously last seen on getting eroded, the effect thereof, is, that the initial potent and purported overwhelming link or even the genesis of the prosecution version, connecting the accused in the commission of the offence, gets benumbed. 9. Consequently, the evidence of the accused being surreptitiously last seen on getting eroded, the effect thereof, is, that the initial potent and purported overwhelming link or even the genesis of the prosecution version, connecting the accused in the commission of the offence, gets benumbed. 9. The factum of recoveries of ‘jhabal’, Ex.P-2 vide Ex.PW2/C, recovered in presence of PW-4 Karam Chand and PW-6 Harvinder Singh, Vice-President of the Gram Panchayat and ‘takhti’ Ex.P-2 vide memo Ex.PW8/B in presence of witnesses PW-8 Subhash Chand, PW-4 Karam Chand and Desh Raj, to the considered mind of this Court fades, for the following reasons, into the realm of irrelevance; (a) inference as formed on a circumspect study of the testimonies of PW-2 Raj Kumar and PW-5 Biaso Devi, of the genesis and the potent link in the chain of the circumstance, getting belied as well as broken or when the person who saw the ‘jhabal’ being carried by the accused, at the relevant time, denying the fact of it being carried by the accused. Consequently, the purported efficacious recovery, if any, of the ‘jhabal’, Ex. P-2 and ‘takhti’, Ex. P-1, is, rendered nugatory, in the face of the initial link in the subsequent chain, of its recovery, getting severed. (b) even the recovery of ‘takhti’ Ex. P-1 assumes no significance. PW-1 Dr. Ashutosh Joshi, who conducted the post mortem examination of the deceased, found the following injuries on his body. Such injuries led to his demise: “External appearance:- Length of the body 2 feet 11 inches. Rigor mortis present. Postmortem staining on the back and limbs present. Multiple contusions and abrasions all over the body of different shapes and sizes. Lacerated wound 5 cm x 4 cm on the right cheek and had deformed with fracture of maxillary and parietal bones. Blood clots present in both nostrils and mouth. Five linears 15 to 20 cm long on the back. II Cranum and spinal Cord: Both parietal bones fractured by lateral sub-dural bleeding present and both the cereberal hemispheres injured intra-cereberal bleeding present.” Though, he has deposed that the injuries as noticed on the body of the deceased can possibly be caused by ‘takhti’ Ex. P-1, yet, his deposition qua user of ‘takhti’ Ex. II Cranum and spinal Cord: Both parietal bones fractured by lateral sub-dural bleeding present and both the cereberal hemispheres injured intra-cereberal bleeding present.” Though, he has deposed that the injuries as noticed on the body of the deceased can possibly be caused by ‘takhti’ Ex. P-1, yet, his deposition qua user of ‘takhti’ Ex. P-1, by the accused in dispensing with the life of his son, does not firmly connect the accused in the commission of the offence of murder of his deceased son by the accused, with the user of ‘takhti’ Ex.P-1, in as much as (a) when the further reading of the cross-examination of PW-1 Dr. Ashuthosh by the learned defence counsel unravels, the fact that the injuries noticed on the person of the deceased can possibly be caused by fall from the staircase. Now when the said fact receives corroboration from the depositions of PW-2 Raj Kumar and PW-5 Biaso Devi, the star/material witnesses qua the occurrence, the obvious conclusion which ought to ensue, is that recoveries, if any, of ‘jhabal’ Ex. P-2 and ‘takhti’ Ex. P-1, respectively, omit to connect the accused in the commission of the offence alleged. Rather, the death of the deceased is to be construed not to be homicidal but accidental. 10. Moreover, for ‘takhti’ Ex. P-1, to be concluded to be firmly and unambiguously connect the accused to the commission of the offence, in as much as, he having used it to deliver blows on the face of the deceased, it is imperative that the report of the FSL, ought to have articulated a firm opinion, qua the blood borne on the ‘takhti’ being, on an apposite comparison relatable to the blood group of the deceased. However, a reading of the report of the FSL, on an analysis of the blood smears on ‘takhti’ Ex. P-1 omits, to, unravel the fact that the blood borne on the ‘takhti’ Ex.P-1, on, comparison with the blood group of the deceased, was found to be similar. Consequently, the existence of blood on ‘takhti’ Ex. P-1 without there having been any comparison with the blood group borne on the ‘takhti’ with blood group of the deceased, no firm conclusion can be drawn, that the ‘takhti’ Ex. P-1 was used by the accused, in causing injuries which led to the death of his minor son Amit Kumar. 11. Consequently, the existence of blood on ‘takhti’ Ex. P-1 without there having been any comparison with the blood group borne on the ‘takhti’ with blood group of the deceased, no firm conclusion can be drawn, that the ‘takhti’ Ex. P-1 was used by the accused, in causing injuries which led to the death of his minor son Amit Kumar. 11. Motive though, not essential to be proved, in a case of murder, yet when it is a case of circumstantial evidence, it, in case proved may acquire significance, while read in tandem with other material evidence on record. Even though the discussion aforesaid, may not warrant or necessitate proof of the purported motive of the deceased, to do away with the life of his son, nonetheless, since, it has been pressed into service by the learned Deputy Advocate General, its probative strength ought to be analysed as well as rationalized. The projected motive of the accused having done away or dispensed with the life of his minor son, for heaping trauma upon his estranged wife, who then reeling under the strain of trauma would die, hence, pave way for the accused remarrying, is seemingly ultra imaginative and far fetched. The above, purported motive as projected by the State holds no force for the obvious reason, that in case, as projected by the State, that the accused used to belabour his minor son, in, the event of such beatings meted to the deceased Amit Kumar, the minor son of the accused, there ought to have been a whisper, in, Court thereto by both PW-2 Raj Kumar, the brother of the accused and PW-5 Biaso Devi, the mother of the accused and grand mother of the deceased, , both living in immediate vicinity of the deceased. However, both remained uncommunicative qua the above fact. Therefore, it cannot be concluded that the accused, as projected by the prosecution belaboured his minor child or even when assuming that he delivered corrective beatings upon his minor child, the further fact of PW-13 Radha Devi, his estranged wife having permitted the accused to keep the custody of her minor son, though, such acts ought to have reared an effort at the earliest, in her mind to, retrieve the custody of her minor son from the accused, for saving him from the belabourings of the accused. However, there is no evidence on record that at any stage the estranged wife of the accused concerted to retrieve her minor son from the custody of the accused to save him from his purported brutalization. Hence, rather it is to be concluded that she conceded to permit the accused to keep the custody of the minor child, as she had no occasion to have any grouse qua the manner in which he was keeping him. Consequently, it is to be concluded that, the deceased son was being well nursed by the accused. As a natural corollary, the version as projected by the prosecution of their being no love and affection interse the accused and his deceased son and, he, to in the garb of dispensing with his life intending to traumatize his estranged wife so as to make her reel under it and ultimately die, with the motive to re-marry, is wholly imaginative and unworthy of credence. 12. In view of the above, we find no merit in this appeal which is accordingly dismissed. Record of the learned trial Court be sent back forthwith.