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Himachal Pradesh High Court · body

2014 DIGILAW 771 (HP)

Pawan Kumar v. State of H. P.

2014-06-20

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT Per Rajiv Sharma, Judge. This appeal is instituted against the judgment dated 19.2.2009 rendered by learned Sessions Judge, Chamba, in sessions trial No. 24 of 2008, whereby the appellant/accused (hereafter referred to as the “accused) for the sake of convenience), who was charged with and tried for offences punishable under Sections 302 and 324 of the Indian Penal Code, was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.20,000/- and in default of payment of fine, to further undergo rigorous imprisonment for one year under Section 302 of the Indian Penal Code and to undergo rigorous imprisonment for one year and to pay a fine of Rs.5000/- and in default of payment of fine, to undergo simple imprisonment for three months under Section 324 of the Indian Penal Code. Both sentences were ordered to run concurrently. 2. The case of the prosecution, in a nutshell, is that PW1 Uma Devi was married to the accused. On 30.4.2008, at 2.00 A.M., labour pains started to PW1 Uma Devi. The accused called PW2 Ratto Devi, midwife, to his house to help his wife. PW1 Uma Devi gave birth to a male child in the morning at 7.30 A.M.. The accused took a ‘darat’ and tried to kill the child. PW2 Ratto Devi intervened and the accused inflicted injuries on her hand. Thereafter, the accused snatched the child from PW1 Uma Devi and crushed the child under his foot and killed him. The accused took dead body of the child and kept the same in the adjoining cowshed. Karam Chand, father of PW1 Uma Devi informed the police telephonically that the accused after consuming liquor tried to kill PW1 Uma Devi and her child. PW11 ASI Rajinder Singh, Police Station Chowari, along with other police officials visited the house of the accused at Village Dadar. He recorded statement of PW1 Uma Devi under Section 154 Cr.P.C, Ext.PA. In sequel to the statement, Ext.PA, an FIR was registered against the accused. The dead body of the child was sent for post mortem examination to Rural Hospital Chowari. PW2 Ratto Devi was also got medically examined. The investigation was completed and the challan was put up in the trial court after completing all the codal formalities. 3. The prosecution examined as many as twelve witnesses in support of its case. The accused was examined under Section 313 Cr.P.C.. PW2 Ratto Devi was also got medically examined. The investigation was completed and the challan was put up in the trial court after completing all the codal formalities. 3. The prosecution examined as many as twelve witnesses in support of its case. The accused was examined under Section 313 Cr.P.C.. He denied the case of the prosecution and claimed innocence. Learned trial court convicted and sentenced the accused under Sections 302 and 324 of the Indian Penal Code vide judgment dated 19.2.2009, as stated hereinabove above. Hence, this appeal. 4. Mr. Ajay Sharma, learned Advocate, has vehemently argued that the prosecution has failed to prove its case against the accused. 5. Mr. M.A.Khan, learned Addl. Advocate General, has supported the impugned judgment dated 19.2.2009. 6. I have heard learned counsel for the parties and have also gone through the impugned judgment and record carefully. 7. PW1, Uma Devi, testified that she delivered a male child in her house on 30.4.2008 at 7.30 A.M.. The accused came there in a drunkard condition. He was carrying a ‘darat’. He openly proclaimed that he would kill her and child. The accused lifted the ‘darat’ and tried to inflict ‘darat’ blow to her as well as newly born child. However, he was prevented to do so by midwife, Ratto Devi. The darat blow was landed on the hand of midwife Ratto Devi. Thereafter, Ratto Devi left the place. She along with her mother-in-law and accused was present in the room. The accused snatched the child from her and threw him on the ground. He crushed the child under his foot. Thereafter, the accused lifted the child and kept him under the cow dung in a cowshed. The accused again came back to the house and asked her to leave the house and also threw her dowry articles. She was saved by brother of the accused. The accused was suspecting her fidelity. The police recorded her statement Ext. PA. In cross-examination, she deposed that her marriage with the accused was arranged one. She used to reside along with her husband and children in one room. The accused had gone to call midwife at about 6.45 A.M.. According to her, since she was suffering from labour pains, she could not tell the exact time of arrival of midwife. She volunteered that she delivered the child after five minutes of her arrival. She used to reside along with her husband and children in one room. The accused had gone to call midwife at about 6.45 A.M.. According to her, since she was suffering from labour pains, she could not tell the exact time of arrival of midwife. She volunteered that she delivered the child after five minutes of her arrival. When the accused crushed the child, midwife was not present there. Her mother-in-law Sharda Devi was present in the room. She denied the suggestion that she delivered a premature child on that day. 8. PW2, Ratto Devi, deposed that the accused came to her house at about 5.00/6.00 A.M. and disclosed that his wife was suffering from labour pains. When she reached the house of the accused, Uma Devi wife of accused had already delivered the child. She checked the child. The child started weeping. The accused came there with a ‘darati’ (sickle) in his hand and proclaimed that he would kill his wife. He also stated that the child did not belong to him and he would kill him. He tried to give a blow on his wife, but she intervened. The blow landed on her left hand and she received injuries on three fingers. She identified ‘Drati’ Ext.P1. In cross-examination, she testified that she is not a trained midwife. She had got delivered about 200 children. She had not got delivered any dead child. The child was not premature. After the delivery, the child started weeping. Thereafter, she received the injuries and left the house. She did not raise noise when accused gave darat blow as she had caught hold the darat. 9. PW3, Dr. Harmit Kaur, testified that she was posted as Medical Officer in FRU Chowari. On 9.5.2008, on the request of police, vide Ext.PW3/A, she medically examined Uma Devi, who was brought by Lady Constable at 1.15 P.M.. She reported that her new born child was killed by her husband on 30.4.2008. According to her opinion, Uma Devi had delivered a child and duration of delivery was approximately less than two weeks. She proved her report, Ext. PW3/B. 10. PW4, Dr. Samir Jamwal, Medical Officer, testified that on 30.4.2008 on the request of the police, vide Ext.PW4/A, he conducted post mortem examination on the body of child of Uma Devi. According to her opinion, Uma Devi had delivered a child and duration of delivery was approximately less than two weeks. She proved her report, Ext. PW3/B. 10. PW4, Dr. Samir Jamwal, Medical Officer, testified that on 30.4.2008 on the request of the police, vide Ext.PW4/A, he conducted post mortem examination on the body of child of Uma Devi. He issued port mortem report Ext.PW4/B. According to his opinion, the child died due to asphyxia as a result of severe compression of the chest wall leading to respiratory insufficiency. The probable duration between injury and death was less than 15 minutes and between death and post mortem was less than 12 hours. In cross-examination, he testified that he had noticed that the child was a full term baby. 11. PW5, Beli Ram, PW6 Lakhbir Singh, PW8 HHC Jagdish Chand and PW10 LC Kailash Walia are formal witnesses. 12. PW7, HC Paras Ram deposed that he was posted as Investigating Officer in the Police Station Chowari. He received a telephonic call on 30.4.2008 from Karam Chand, who disclosed that the accused had tried to kill his wife and new born child. He along with Constable Rishikesh No.236 visited the place where wife of the accused disclosed him that the accused had killed new born child. Thereafter, he informed the MHC, Police Station Chowari. 13. PW9, LC Rama Kumari, disclosed that at about 11.45 A.M./12.00 noon, she along with ASI Rajinder Kumar left Police Station, Chowari, for Dadhar on 30.4.2008, where Uma Devi made a statement under Section 154 Cr.P.C.. Thereafter, ASI Rajinder Kumar made his endorsement and handed over Ruqua, Ext.PA, to her for being taken to Police Station Chowari. She took the same to Police Station Chowari. 14. PW11, ASI Rajinder Singh, deposed that on 30.4.2008, at about 11.00 A.M., MHC informed him telephonically about the fact that HC Paras Ram telephonically informed him that the accused had killed his new born child in village Hunera, which is also known as Dadhar. Thereafter, he along with LC Rama and other staff visited village Dadhar at 12.30 P.M. He found Uma Devi, accused, his mother Sharda Devi, midwife Ratto Devi, Kishore Kumar brother of the accused and other persons on the spot. He recorded statement of Uma Devi under Section 154 Cr.P.C., Ext.PA. The FIR, Ext.PW11/B was registered. Thereafter, he along with LC Rama and other staff visited village Dadhar at 12.30 P.M. He found Uma Devi, accused, his mother Sharda Devi, midwife Ratto Devi, Kishore Kumar brother of the accused and other persons on the spot. He recorded statement of Uma Devi under Section 154 Cr.P.C., Ext.PA. The FIR, Ext.PW11/B was registered. He prepared the site plan at the instance of Uma Devi vide Ext.PW11/D. He recovered the dead body of the child from the cowshed, which was partially buried under cow dung. Thereafter, he filled in inquest papers, Ext.PW11/E. He took into possession the blood stained pants of the accused and ‘darat’ vide memo Ext.PW11/F and Ext.PW11/G respectively. In cross-examination, he deposed that ‘darat’, Ext.P1, was handed over to him by Sharda Devi, mother of the accused. 15. PW12, Dr. Neelam Pathania, deposed that on 30.4.2008 on the request of the police, medically examined Ratto Devi and issued MLC, Ext.PW12/A. According to her, nature of injuries was simple with sharp edged weapon. Probable duration of the injuries was within 6 to 12 hours. He had seen ‘darat’ Ext.P1. The injuries on the person of Ratto Devi were possible with ‘darat’. 16. What emerges from the statement of PW1, Uma Devi is that she delivered a male child in her house on 30.4.2008 at 7.30 A.M.. The accused came in the house in a drunkard condition. He was carrying a ‘darat’. He threatened to kill her and child. When the accused tried to inflict ‘darat’ blow to her as well as newly born child, he was prevented to do so by PW2 Ratto Devi. In the process, PW2 Ratto Devi received injuries. The accused snatched the child from her and threw him on the ground. He crushed the child under his foot. Thereafter, he buried the child under the cow dung in a cowshed. PW2, Ratto Devi, has fully corroborated version of PW1 Uma Devi. According to her, she was called by the accused when labour pains started to PW1 Uma Devi. When she visited the house, Uma Devi had already delivered the child. She checked the child and he started weeping. The accused came there carrying ‘darat’ in his hand and proclaimed that he would kill his wife and newly born child because the child did not belong to him. When he tried to give a blow on his wife, she intervened. She checked the child and he started weeping. The accused came there carrying ‘darat’ in his hand and proclaimed that he would kill his wife and newly born child because the child did not belong to him. When he tried to give a blow on his wife, she intervened. The blow landed on her left hand and she received injuries on three fingers. She also identified ‘Darat’ Ext.P1. PW3, Dr. Harmit Kaur, deposed she issued report, Ext. PW3/B. According to her opinion, PW1 Uma Devi had delivered a child and duration of delivery was approximately less than two weeks. PW4, Dr. Samit Jamwal, Medical Officer, conducted post mortem examination on the body of child of PW1 Uma Devi vide post mortem report Ext.PW4/B. According to his opinion, the child died due to asphyxia as a result of severe compression of the chest wall leading to respiratory insufficiency. In cross-examination, he categorically testified that he had noticed that the child was a full term baby. 17. The case has been investigated by PW11 ASI Rajinder Singh. According to him, he visited the spot and recorded statement of PW1 Uma Devi under Section 154 Cr.P.C. vide Ext. PA. Darat, Ext.P1 was handed over to him by mother of accused, Sharda Devi. He prepared the site plan, Ext.PW11/D. 18. The prosecution has duly proved on the basis of statements of PW1 Uma Devi and PW2 Ratto Devi that the accused had killed his new born child and also caused injuries to PW2 Ratto Devi. There is no occasion for PW1 Uma Devi, who is legally wedded wife of the accused, to implicate him in a false case. The child died due to asphyxia as a result of severe compression of the chest wall leading to respiratory insufficiency since the child was thrown on the ground and was crushed under the foot by the accused. PW4 Dr. Samit Jamwal, Medical Officer, has also testified that the child was full term and was not premature. The prosecution has also proved that the accused had inflicted darat blow on the hand of PW2 Ratto Devi. It has come in the statement of PW12, Dr. Neelam Pathania that the injuries received by PW2 Ratto Devi were possible with ‘darat’. Learned Sessions Judge has rightly convicted and sentenced the accused for the offences punishable under Sections 302 and 324 of the Indian Penal Code. It has come in the statement of PW12, Dr. Neelam Pathania that the injuries received by PW2 Ratto Devi were possible with ‘darat’. Learned Sessions Judge has rightly convicted and sentenced the accused for the offences punishable under Sections 302 and 324 of the Indian Penal Code. We find no reason to interfere with the well-reasoned judgment rendered by the learned Sessions Judge. 19. Accordingly, in view of the observations and analysis, made hereinabove, there is no merit in the appeal and the same is dismissed. Pending application(s), if any, also stands disposed of. No costs.