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2015 DIGILAW 304 (UTT)

GIRISH CHANDRA JOSHI v. STATE OF UTTARAKHAND

2015-06-17

SERVESH KUMAR GUPTA, SUDHANSHU DHULIA

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JUDGMENT (Per : Sudhanshu Dhulia, J. (Oral) This appeal is against the judgment of the Trial Court dated 15.5.2013, whereby the appellant Girish Chandra Joshi has been convicted of an offence punishable under Section 302 IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/. He has also been convicted for the offence under Section 201 IPC and sentenced to undergo seven years’ rigorous imprisonment and to pay a fine of Rs. 10,000/-. Trial Court has directed that both the sentences shall run concurrently. 2. Prosecution story, in brief, is that PW1 Smt. Champa Devi, who is none else but the wife of the accused appellant, lodged a First Information Report on 10.4.2012 with the averments that her husband is a habitual drunkard and he had been continuously harassing her for money in order to procure liquor. He has also sold all her jewellaries, due to the above addiction. Complainant further states that at 8 o’clock in the evening of 8.4.2012, her husband (convict) demanded money from her for purchasing liquor. When she did not give the money, as she had none, he threatened to kill their 11 month old daughter “Riya”. The accused, thereafter, picked Riya in his arms and went away. After some time, when her husband did not return along with Riya, she informed her neighbours and relatives belonging to her maternal side. She made a massive search for her husband and daughter Riya, but in vain. Her husband, thereafter, returned alone at about 10 o’clock that night; Riya was not with him. When the complainant asked about Riya, the accused did not give any satisfactory reply; rather he gave evasive and conflicting answers such as that she is in a neighbour’s house, etc. Thereafter on 10.4.2012, the complainant, her brother Trilok Chandra Pandey and uncle Devi Datt Pande again asked the accused about Riya, when the accused Girish Chandra Joshi made an extra judicial confession before them that he has actually killed Riya and then thrown her in a “Ganda Nala”. Upon this confession of the accused, his wife (PW1) lodged the report that very day with the police. 3. The FIR was investigated. The police arrested the accused on 10.4.2012. Upon this confession of the accused, his wife (PW1) lodged the report that very day with the police. 3. The FIR was investigated. The police arrested the accused on 10.4.2012. On his interrogation after his arrest, the accused, as per the prosecution, confessed that he actually killed Riya and threw her dead body in the “Ganda Nala” situated near Century Paper Mill, Lalkuan. On the pointing out of the accused appellant, the body was recovered from the “Ganda Nala” near the Century Paper Mill. The body of the deceased was in a decomposed condition. 4. The post-mortem examination, conducted by PW5 Dr. Dinesh Kumar Saxena at 4.40 PM on 10.4.2012, revealed following injuries on the body of the deceased: (i) Abrasion 3” x 2” over right eye. (ii) Contused haematoma present over right parietal and frontal region of scalp. Subdural haematoma over fronto-parietal region. 5. The investigation culminated into submission of chargesheet against the accused before the Court of Magistrate, who, in turn, committed the case to the Court of Sessions. Charges were framed and the appellant was tried for the offences punishable under Section 302 and 201 IPC. 6. In all, the prosecution examined seven witnesses to prove its case, besides submitting other documents. The accused produced three witnesses in defence. 7. PW1 Smt. Champa Devi is the mother of the deceased. In her examination-in-chief, she has categorically stated that her husband (accused appellant) is a habitual drunkard and continuously demands money for the purchase the liquor, to which he is addicted. He has been neglecting her and their children. It is for this reason that her elder son “Anuj” is residing in her maternal home, where he is also studying. The appellant never cared for them. She states that at 8 o’clock on the fateful night of 8.4.2012, the accused demanded money from her. When she said that she does not have money, the accused threatened to kill her and to her daughter as well. He then picked their daughter Riya and went outside the house. When the accused did not return, she informed her neighbours and the members of her maternal house. All searched for the accused and the girl, but they could not be found. Thereafter at 10 o’clock the same night, the accused returned alone. Riya was not with her. On being asked about Riya, the accused gave evasive and conflicting answers. When the accused did not return, she informed her neighbours and the members of her maternal house. All searched for the accused and the girl, but they could not be found. Thereafter at 10 o’clock the same night, the accused returned alone. Riya was not with her. On being asked about Riya, the accused gave evasive and conflicting answers. Thereafter on 10.4.2012, taking the accused in confidence, when this witness politely asked him again about Riya, then he confessed in front of her, her brother Trilochan Pandey (PW2) and uncle Devi Dutt Pandey that he killed Riya and threw her dead body in the “Ganda Nala”. On this, she lodged the report of this incident on 10.04.2012 at 8 o’clock in the morning in the Police Station Lalkuan. This witness was subjected to heavy cross-examination, but nothing has come out which may create any doubt in the prosecution story. 8. PW2 Trilochan Pandey has corroborated the statement of PW1. He has stated that about 8 o’clock in the night of 08.04.2012, his sister Champa (PW1) telephoned him and informed that her husband, after quarrelling with her for money, has gone from the house taking Riya, their 11 months daughter, along with him and both have not returned as yet. On this information, this witness came to the house of his sister. He states that the accused came alone at about 10 o’clock in that night. When he was asked about Riya, he did not give any clear answer. He has further stated that in the morning of 10.04.2012, the accused, on being asked again about Riya, made extra judicial confession that after killing Riya, he threw her dead body in the “Ganda Nala”. Thereafter, the report was lodged by his sister. Accused was arrested by the police at about 11-12 o’clock on 10.04.2012 itself. When the police interrogated the accused, then he confessed that he has killed and threw her dead body in the “Ganda Nala” near Century Paper Mills. Thereafter, while crossing through the field of one Moti Singh, the accused took the police personnel towards the “Ganda Nala” and showed them the place where he had thrown the dead body. On the pointing out of the accused, the dead body of the deceased was recovered in decomposed condition at about 2 o’clock in the day on 10.04.2012 itself. Despite searching lengthy cross-examination, this witness could not be shaken. On the pointing out of the accused, the dead body of the deceased was recovered in decomposed condition at about 2 o’clock in the day on 10.04.2012 itself. Despite searching lengthy cross-examination, this witness could not be shaken. 9. PW3 Bachchi Pandey is the witness of recovery of the dead body and of the inquest also. In his statement, he has proved the same. PW4 Rajendra Upreti is also the witness of inquest. 10. PW5 Dr. Dinesh Kumar Saxena states that he had conducted the post-mortem of the dead body of the deceased at 4:40 PM on 10.04.2012 in Soban Singh Jeena Base Hospital, Haldwani. The dead body was in decomposed condition and was swollen. Eyes and tongue were protruding out. Marks of drowning in water were present on the body. Skin had peeled off at many places of the body. Bad smell was coming from the body. He has proved the ante-mortem injuries and cause of death, as mentioned hereinabove. This witness has categorically stated that looking to the decomposition of the body, it is quite possible that the deceased died some time after 8 o’clock in the night of 08.04.2012. The injuries were brain deep and in the skull of the deceased, who was only 11 months old. The witness, in his cross-examination, categorically states that the above mentioned injuries caused the death of the child. The injuries had also resulted in clotting i.e. haematoma in the subdural region of the brain, which shows that the injuries were fatal. 11. PW6 is Sub Inspector Bachchi Singh Bisht. He states that the FIR was lodged at 8:30 AM on 10.04.2012. He has proved the Chick FIR as Ex. Ka-5. He further states that after the arrest, when the accused was interrogated, he confessed his guilt and thereafter on the pointing out of the accused, the dead body of the deceased was recovered from “Ganda Nala” near Century Paper Mills at 2:20 PM on 10.04.2012. Pursuant to this recovery, all necessary proceedings were drawn. He has proved the recovery memo Ex. Ka-2. 12. The admissible evidence, however, would only be the recovery of the deceased on the pointing out of the accused, but no reliance can be placed on the alleged “confession” of the appellant before PW6. 13. PW7 Inspector Vipin Chandra Pant is the Investigation Officer of the case. In his statement, he has elaborated the various police proceedings. Ka-2. 12. The admissible evidence, however, would only be the recovery of the deceased on the pointing out of the accused, but no reliance can be placed on the alleged “confession” of the appellant before PW6. 13. PW7 Inspector Vipin Chandra Pant is the Investigation Officer of the case. In his statement, he has elaborated the various police proceedings. He has submitted that after completing the investigation and collecting the evidence against the accused, he submitted the chargesheet Ex. Ka-23 against the accused for the murder of his daughter. Nothing has come out in the cross-examination of this witness which may create any doubt in the prosecution version. 14. Three witnesses have been examined by the defence. DW1 Kailash Chandra Joshi is the elder brother of the accused. This witness has admitted that the accused is an alcoholic. On the date of incident, he was also under the influence of alcohol. Though this witness states that the recovery of the dead body of the deceased was not made on the pointing out of the accused, but at the same time, he has admitted that the said recovery was made on the stated date, time and place as per the prosecution. This witness retracts from his 161 Cr.P.C. statement, which he had given to the police during the course of investigation. DW2 Km. Priyanka is the girl of 12 years. She is the real niece (Bhanji) of the accused. She states that on the date of incident, she was in the house of the accused. She further states that on the date of the incident, the accused had taken Riya along with him and thereafter they returned together and then she went back to her house. DW3 Manoj Lohani is the real brother-in-law (Jija) of the accused. Nothing much has come in his statement. 15. On perusal of statements of all the three defence witnesses, we find that their evidence is not believable or reliable and their testimony does not inspire any confidence. 16. In the statement under Section 313 Cr.P.C., the accused has admitted that on the alleged date and time, his daughter was with him. However, he further states 7 that he left “Riya” near the water tank and then went to answer the call of nature, but when he returned, he could not found his daughter. 16. In the statement under Section 313 Cr.P.C., the accused has admitted that on the alleged date and time, his daughter was with him. However, he further states 7 that he left “Riya” near the water tank and then went to answer the call of nature, but when he returned, he could not found his daughter. In his statement, the accused could not explain his signature on the recovery memo Ex. Ka-2. 17. Having perused the entire evidence on record, we are of the opinion that the prosecution has produced overwhelming evidence in support of its case and has proved its case that the accused is a habitual drunkard and in the night of 08.04.2012, he took away his daughter Riya with him and thereafter returned late in the night at about 10 PM, but Riya was not with him. 18. Undisputedly, the deceased Riya, just 11 months’ old child, who went missing while she was in the custody of her father (accused). Her dead body was recovered after two days from the “Ganda Nala” on the pointing out of the accused. Thus, as far as these facts are concerned, there is nothing to disbelieve the prosecution story. However, it is again a fact that the entire case is based on circumstantial evidence. The deceased was the 11 months’ old daughter of the accused/appellant himself, who had absolutely no motive to kill his own daughter, apart from the fact that the accused was a habitual drunkard, nothing could be established for convicting the accused under Section 302 IPC. Therefore, considering these facts and circumstances, we alter the finding of the Trial Court as far as the conviction under Section 302 IPC is concerned and we convert the same to one under Section 304 Part II IPC, meaning thereby that the offence committed was culpable homicide not amounting to murder where the death was caused by an act of the accused with full knowledge that such an act was likely to cause death, but without any “intention” to cause death, or to cause such bodily injury as was likely to cause death. As regards the conviction under Section 201 IPC, we affirm the same. 19. Heard on the quantum of sentence. As regards the conviction under Section 201 IPC, we affirm the same. 19. Heard on the quantum of sentence. Considering the circumstances that at the time of commission of crime, the accused appellant was 27 years’ old; he is in jail since 10.4.2012; he has a minor son Anuj; which are mitigating circumstances, this Court is of the opinion that five years’ rigorous imprisonment would serve the ends of justice. The appellant is sentenced accordingly for the offence under Section 304 Part II IPC. Sentence for the offence under Section 201 IPC is reduced to two years R.I. along with fine of rupees two thousand. In default of payment of fine, the convict shall suffer imprisonment for a period of three months. Both the sentences shall run concurrently. Let a copy of this order be sent to the appellant free of cost. The period already spent in jail during pre-trial, trial and pendency of this appeal shall be adjusted in this sentence. 20. Let a copy of this judgment and order be sent to the court below for compliance. Trial court record be sent back.