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2014 DIGILAW 858 (RAJ)

Kedar v. State of Rajasthan

2014-04-04

ATUL KUMAR JAIN, GOVIND MATHUR

body2014
JUDGMENT : This appeal has been filed by accused-appellant Kedar s/o Chhagan Lal Jat against the judgment dated 8.3.2006 which was passed in Sessions Case No. 66/2005, relating to FIR No. 70/2004 of Police Station, Phuliya Kala by Addl. Sessions Judge No.2, Bhilwara camp Shahpura District Bhilwara. The accused-appellant was charged for the offence of murder of his eight months-infant son Abhishek by injecting him with poison in his left hip causing his death within eight hours of injection. It has been alleged that the accused-appellant was having relations with another lady Ms. Vimla, who was also living with his first wife Ms. Dharma under the same roof and the accused wanted to get rid of his first wife Ms. Dharma, so he allegedly killed his son born out of wedlock with Ms. Dharma, so that Ms. Dharma could leave the house of the accused-appellant and then he could live happily in exclusive matrimonial life with second wife Ms. Vimla. Accused-appellant was convicted and sentenced under Section 302 Indian Penal Code by the trial court with life imprisonment along with a fine of Rs.5000/- and in default of payment of fine, he was ordered to undergo three months-additional rigorous imprisonment. 2. In appeal, it has been argued that the trial court has ignored the law and facts of the case. It has also been argued that there was no direct evidence against the accused-appellant for the murder of his child Abhishek. Most of the prosecution witnesses were hostile but still the trial court has blindly relied upon the statement of the mother of the child. It has further been argued that the post-mortem report mentions the cause of death as asphyxia, while FSL report Ex.P.22 mentions positive tests for the presence of organo-phosphorous insecticide in the viscera of the child. It has been argued that the doctor has not confirmed the cause of death as effect of aforementioned poison and when cause of death is not verified then the benefit of doubt should have been given to the accused-appellant. It has also been argued that syringe, containers of insecticide etc. were allegedly recovered in presence of police officers only and independent motbirs were not named in the Fard Jabti, so recovery is fake and suspicious. It has also been argued that syringe, containers of insecticide etc. were allegedly recovered in presence of police officers only and independent motbirs were not named in the Fard Jabti, so recovery is fake and suspicious. It has further been argued that there is no cogent and probable evidence that the seized articles remained ' seal intact from the place of recovery to the FSL. It has further been argued that PW-1 Ms. Dharma and PW-4 Ms. Sunita were interested and inimical witnesses and only on the basis of those statements, conviction could not have been made in the case. It has further been argued that there are major contradictions and inconsistencies in the statements of the prosecution witnesses and so the accused-appellant could not have been convicted on the basis of those statements. 3. On the other hand, the learned Public Prosecutor has argued that the prosecution has proved its case beyond reasonable doubt in the trial court. A strong motive is there against the accused-appellant. It has also been argued that the accused-appellant has neither any defence nor he has mentioned any defence story in his statement under Section 313 Code of Criminal Procedure. In the circumstances of the case, it has been argued by the learned Public Prosecutor that there is not even an iota of doubt in the prosecution story and so the conviction and sentence passed by the trial court should be upheld and the appeal of the accused-appellant should be dismissed. 4. In the light of the aforementioned arguments, if we look into the evidence in the case, then following facts come to our notice. 5. Post-mortem report is Ex.P.21 (two other documents have also been erroneously marked as Ex.P.21 by the trial court). This report was prepared by a Medical Board of three doctors who had conducted the post-mortem of child soon after his death and this report mentions that ' in the opinion of the Board, Abhishek’s mode of death was asphyxia. The cause of death will be given after receiving FSL report.' 6. FSL report is Ex.P.22. This report was prepared by a Medical Board of three doctors who had conducted the post-mortem of child soon after his death and this report mentions that ' in the opinion of the Board, Abhishek’s mode of death was asphyxia. The cause of death will be given after receiving FSL report.' 6. FSL report is Ex.P.22. This report states that five sealed packets marked as 1,2,3,X and E sealed in tied at mouth with white cotton cloth cover, properly sealed bearing impression which tallied with specimen seal forwarded, the seals were intact, were containing following items: (1) stomach with contents, (2) piece of liver, (3) piece of spleen, (4) piece of kidney, (5) piece of lung (6) piece of skin with subcutaneous tissue, (7) gastric lavage of deceased, (8) one syringe of plastic with needle. 7. Out of these items, item nos. 1 to 6 were the portion of viscera of deceased Abhishek. The FSL report states that the result of analysis is follows:- 'On chemical examination, portions of viscera, gastric lavage and washings of syringe and needle gave positive tests for the presence of organo-phosphorous insecticide.' 8. The doctors conducting the post-mortem have been examined as PW-18 Dr. B.D. Sharma, PW-19 Dr. Dinesh Gupta and PW-20 Dr. Amrit Lal Pandya. All the three doctors have supported the prosecution story and have stated that the death of the child was because of the effect of organo-phosphorous insecticide at 4.40 a.m. He was admitted to the hospital in the night at 1.15 a.m. There is no contradiction in the statements of these three doctors and the documents Ex.P.21 and Ex.P.22. 9. PW-24 Dr. Suman Mathur has stated that she was posted at M.G. Hospital, Bhilwara on 8.5.2004 and she was called to visit the child for treatment who was in a serious condition. She has stated that she reached the hospital in the children ward where the child Abhishek was in semi-conscious stage and his breathing was troubled. She states that there were symptoms of poisoning by injection in his left hip and there was swelling with redness on the left side of hip. Nothing important has been asked in her cross-examination by the defence counsel. 10. Thus, the statements of four doctors have duly proved that an innocent child of eight months was killed by administering a poisonous injection. Asphyxia may have been caused by the effect of poison also. Nothing important has been asked in her cross-examination by the defence counsel. 10. Thus, the statements of four doctors have duly proved that an innocent child of eight months was killed by administering a poisonous injection. Asphyxia may have been caused by the effect of poison also. 11. In this background, if we go through the statement of mother of the infant then we come to know that she states that in that night she was in her room along with her infant while second wife of her husband, namely, Ms. Vimla was in another room of the house and at about 9.30 p.m. that night, she was awake by her husband Kedar, who snatched the child from her lap in the garb of taking him to his grand-mother but actually the child was taken to the room of Ms. Vimla, where he was killed by administering a poisonous injection in his hip. She states that when she heard the cries of her child, then she came out of her room and found the child weeping and crying in the lap of her husband Kedar. Her child was smelling badly with the smell of some insecticide and the child was getting irritation in his left hip. She further states that because of fear of some mishappening, she cried loudly, then Kedar ran away from the spot and then her mother-in-law, sister-in-law, sister, brother-in-law, uncle-in-law and father-in-law had come to her room. The child kept on crying continuously. She further states that in the first instance, her child was taken to hospital at Shahpura and then he was referred to Government Hospital, Bhilwara. He succumbed due to the effect of poison at 4.45 a.m. in the early morning. She states that in the night at 2.30 a.m., she had reported the matter to the police and she also states that she is sure that her child was killed by poisonous injection by her husband Kedar because he wanted to get rid of her and so her child was killed so as to make it easy for her to go for nata marriage. She was cross-examined at length by the counsel of the accused- appellant but she has not been shattered in her cross-examination at all. 12. PW-2 Ms. Phula is mother of accused Kedar. She was cross-examined at length by the counsel of the accused- appellant but she has not been shattered in her cross-examination at all. 12. PW-2 Ms. Phula is mother of accused Kedar. She states that Kedar was living separately in the same house with her but he was living with two wives at a time and so she was not having any relation with her son. She states that Abhishek expired because of poisonous effect of some insecticide that night but she states that she did not see her son injecting Abhishek with any insecticide. Thus she may be called a witness who has no sympathy with her son Kedar but simultaneously she does not want that her son Kedar should be convicted on the charge of murder of Abhishek, perhaps a mother has no other option in the circumstances of the case. 13. PW-3 Sheela is sister of accused-appellant. She states that her brother was having two wives and so the family members of Kedar were not happy with Kedar. She states that in that night her Bhabhi Ms. Dharma was crying that Kedar has injected her child with poison. PW-4 Sunita is a child of eleven years. She is sister of Ms. Dharma. She also states that in that night, Abhishek was administered some insecticide. She further states that she had seen the insecticide in the possession of her sister’s husband Kedar. 14. PW-5 Bhag Chand is a witness of Panchnama of dead body, though he has been declared hostile. PW-7 Sanvata is a formal witness of site plan. PW-8 Maina is sister of accused-appellant Kedar. She has been declared hostile. She denies her police statement Ex.P.6. PW-9 is a hostile witness and does not support the prosecution story. PW-10 Bhanwar Lal, though has been declared hostile, but admits that he is uncle of accused-appellant Kedar. He states that in the said night, he had taken the sick child for treatment to Shahpura Hospital at the request of grand-father of the child. He says that later on he came to know that the child was taken to Bhilwara same night and then he expired. He admits that Ms. Vimla is second wife of his nephew Kedar. He says that Ms. Vimla used to tell her in-laws that she may do anything in revenge. This witness has been contradicted from his police statement Ex.Pl7. He admits that Ms. Vimla is second wife of his nephew Kedar. He says that Ms. Vimla used to tell her in-laws that she may do anything in revenge. This witness has been contradicted from his police statement Ex.Pl7. PW-11 Rameshwar is elder brother of accused-appellant Kedar. He has also been declared hostile and he has also been contradicted from his police statement Ex.P.8. Apparently, because of his relation with accused-appellant he wants to save the accused-appellant. 15. PW-12 Jamna Lal, Constable is a witness in whose presence, a broken plastic syringe was recovered at the instance of accused-appellant. He states that a container of insecticide was also recovered from the possession of the accused-appellant. He verifies the contents of Ex.P.15 (fard jabti of container of insecticide). PW-14 Mahaveer Prasad is also a police constable and he also testifies that a bottle of aluminium containing some medicine was recovered from the possession of accused-appellant. He states that two containers were also recovered from the accused-appellant. One glass bottle and broken disposal syringe were also recovered in his presence at the instance of accused-appellant. He states that at the instance of the accused-appellant, the police went to Dangi Medical Store, opposite Shahpura Hospital where a Bill Ex.P.19 in the name of Ms. Vimla was seized. By this Bill dated 20.4.2004, two syringes with three medicines had been purchased in the name of Ms. Vimla. Photo stat copy of the Bill has been exhibited as Ex.P.18. This witness has not been cross-examined at all. 16. PW-16 Shatrushal Singh is a hostile witness and he says that on 20.4.2004 he had not sold any syringe or medicines in the name of Ms. Vimla. In his cross-examination he has not been found to be a reliable witness. 17. PW-17 Arjun Singh, Head Constable and PW-22 Abhay Singh are carriers of seized articles to FSL .PW-13 Durga Prasad, the then S.H.O. of Police Station Phuliya was the Investigating Officer. In his examination-in-chief, he has fully supported the prosecution story. He has been asked so many questions regarding the recovery of syringe and containers etc. but even after a detailed cross-examination, this witness has not been found damaging the strong prosecution story which is otherwise also fully proved beyond doubt by other material witnesses. Minor lacuna in investigation cannot be given undue importance in the circumstances of the present case. He has been asked so many questions regarding the recovery of syringe and containers etc. but even after a detailed cross-examination, this witness has not been found damaging the strong prosecution story which is otherwise also fully proved beyond doubt by other material witnesses. Minor lacuna in investigation cannot be given undue importance in the circumstances of the present case. The trial court has also relied upon the prosecution story and we are also of the view that the prosecution has proved its case beyond doubt that is is only the accused-appellant Kedar who has committed murder of his eight months old child. No doubt, it would have been better if Ms. Vimla, second wife of the accused-appellant Kedar would have also been examined as a witness but even in absence of her examination, the prosecution story does not become doubtful. 18. The medical evidence supported by ocular evidence, particularly, in the light of strong motive against the accused-appellant has proved the prosecution story beyond reasonable doubt and the charge of murder is well proved against the accused-appellant. An innocent child of eight months has been murdered by his father in this case. The conviction of accused-appellant under Section 302 Indian Penal Code by the trial court does not deserve any interference in this appeal. The sentence passed by the trial court against the accused-appellant is also quite proportionate to his guilt and hence this appeal deserves dismissal, which is hereby dismissed and the impugned judgment dated 8.3.2006 passed by the Addl. Sessions Judge No.2, Bhilwara camp Shahpura, District Bhilwara in Sessions Case No. 65/2005 is hereby upheld. The accused-appellant is in jail since 9.5.2004 in this case. 19. A copy of this judgment should be sent to Superintendent, Central Jail, Udaipur as well as to the accused-appellant through Superintendent, Central Jail, Udaipur. The record of the lower court be sent back to the trial court with a copy of this judgment. Appeal dismissed.