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2015 DIGILAW 540 (HP)

Parimal Bhurathoki v. State of H. P.

2015-05-15

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT Sureshwar Thakur, Judge The instant appeal is directed against the impugned judgment rendered on 21.7.2012, by the learned Additional Sessions Judge, FTC Kullu, in Sessions trial No. 46 of 2011, whereby, the learned trial Court convicted and sentenced the accused/appellant to undergo rigorous imprisonment for a period of ten years and to pay a fine in a sum of Rs.5,000/- (five thousand) and in default to further undergo Rigorous imprisonment for a period of one year for commission of offence under Section 304 (part II) of Indian Penal Code. 2. On 22.7.2011, a telephonic information was received in the police station, Manali that a lady had been brought to the Mission Hospital Manali in an injured condition, who had succumbed to her injuries. On the basis of above, Rapat No. 10(A) was registered. As per rapat No. 11 (A) ASI Rajeev has recorded the statement of complainant Sarita Thakur under Section 154 Cr.P.C. Complainant Sarita Devi reported in her statement that they had kept accused as servant in their apple orchard and the accused used to reside in the orchard with his wife alongwith his children. On 21.7.2011, at about 8 p.m. another lady came to her and disclosed that accused under the influence of liquor is beating his wife. On this, she went to the room of the accused and saw that he was beating his wife with fist blows. She pacified the accused and rescued deceased Parvati from his clutches. On 22.7.2011 at about 5.30 a.m., she and her sister heard knocking of door from the house of the accused. She left to the room of the accused and found that the room was bolted from outside. On the opening of room, she found that the deceased was lying on the floor and another woman Sita Devi was standing in the room holding a child in her lap and disclosed to her that accused had again beaten the deceased as a result of which she had fallen on floor. Thereafter, the injured was taken to the Mission Hospital Manali, where she was declared brought dead by the Medical Officer. On the basis of statement of complainant, rukka was sent to the police station on the basis of which FIR No. 321 of 2011 was got registered. During the course of investigation, Investigating Officer filled inquest papers. Thereafter, the injured was taken to the Mission Hospital Manali, where she was declared brought dead by the Medical Officer. On the basis of statement of complainant, rukka was sent to the police station on the basis of which FIR No. 321 of 2011 was got registered. During the course of investigation, Investigating Officer filled inquest papers. For Post Mortem Examination on the dead body of the deceased an application was moved before the M.O, CHC, Manali. The team of Doctors in their opinion voiced the fact of demise of deceased being attributable to head injury. Photographs of the place of occurrence and dead body were clicked. During the course of investigation, IO has prepared spot map. On conclusion of the investigation, into the offence, allegedly committed by the accused, final report under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court. 3. The accused/appellant was charged for his having committed offences punishable under Section 302 of Indian Penal Code, by the learned trial Court to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 13 witnesses. On closure of prosecution evidence, the statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded in which he pleaded innocence and claimed false implication. He did not choose to lead evidence in defence. 5. On appraisal of the evidence on record, the learned trial Court, returned findings of conviction against the appellant/accused for his having committed offence punishable under Section 304 Part II of Indian Penal Code. 6. The learned counsel appearing for the appellant has concertedly, and, vigorously contended, that, the findings of conviction, recorded by the learned trial Court, are, not based on a proper appreciation of evidence on record, rather, they are sequelled by gross mis-appreciation of the material on record. Hence, he, contends that the findings of conviction, be, reversed by this Court, in, exercise of its appellate jurisdiction, and, be replaced by findings of acquittal. 7. The learned Additional Advocate General has with considerable force and vigour, contended that the findings of conviction, recorded by the Court below are based on a mature and balanced appreciation of evidence on record and do not necessitate interference, rather merit vindication. 8. 7. The learned Additional Advocate General has with considerable force and vigour, contended that the findings of conviction, recorded by the Court below are based on a mature and balanced appreciation of evidence on record and do not necessitate interference, rather merit vindication. 8. 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. 9. Deceased Parvati, wife of accused is alleged to have been murdered by the latter. A team of Doctors comprising Dr. Shashi Yapa, Dr. Rakesh Negi and Dr. Dorje Angrup carried out a post mortem examination on the body of the deceased. PW-1 Dr. Shashi Yapa has proved Post Mortem Report Ex. PW-1/D. He in his deposition voiced the fact of the demise of the deceased being attributable to head injury. He has proceeded to depose that the head injury occurring on the body of the deceased is sequelable by fist blows, slaps and in case the victim is banged against the wall or the floor. However, in his cross-examination, he has deposed that the injuries, which sequelled her demise, can also occur in case the victim falls from extreme height. Even, PW-2 Dr. Rakesh Negi, in his deposition has stated that, on his and Dr. Shashi Wapa and Dr. Dorje Angroop having on 17.10.2011 received an application comprised in Ex. PW-2/A from the police, recorded an opinion comprised in Ex. PW-1/D qua the cause of demise of the deceased. They in their opinion comprised in Ex.PW-1/D, have unequivocally voiced therein the factum of the demise of the deceased, being ensuable from the head injury, occurring on the body of the deceased whose occurrence is attributable to the fall of the victim on hard surface from a sufficient height and velocity. A conjoint reading of the depositions of PW-1 and PW-2, who both have proved Ex. PW- 2/B, unravels the factum of the head injuries noticed by each of them on the body of the deceased, to be the cause of the demise of the deceased. A further communication exists in their respective depositions, that the head injury which sequelled the demise of the deceased could be engendered by fall on hard surface from a sufficient height and velocity and by perpetration of fist blows and assault on the person of the victim. 10. The accused was an employee of PW-4. A further communication exists in their respective depositions, that the head injury which sequelled the demise of the deceased could be engendered by fall on hard surface from a sufficient height and velocity and by perpetration of fist blows and assault on the person of the victim. 10. The accused was an employee of PW-4. He alongwith his deceased wife lived together in the accommodation provided to them by PW-4. The accommodation provided to the accused and the deceased, was adjoining the house of PW-4. Both PW-4 and PW- 6 conjointly conveyed in their respective depositions of an occurrence having taken place on 21.7.2011. PW-4 Kumari Sarita Thakur, who had provided accommodation to the accused has conveyed that she received intimation from PW-6 Sita Devi, qua the factum of a squabble/quarrel having erupted inter-se the accused and the deceased at about 6-7 p.m. on 21.7.2011 in the presence of the latter. The time of the occurrence/incident which took place on 21.7.2011 is disclosed by PW-6 to be at about 6-7 p.m. when the accused came home in an intoxicated state and when his deceased wife in her presence questioned his condition, besides protested to the factum of his being in an inebriated state sequelled their inter-se squabbling which culminated in the accused having delivered fist blows on the person of the deceased. However, with the intervention of PW-6 and two other women who had come to the spot, the accused was pacified and was taken to a separate room for sleeping. The deceased was observed by PW-6, in the morning at about 5.30 a.m. of the succeeding day to be lying on the floor with injuries on her eyes. Also PW-4, the employer of the accused, on hearing the sound of knocking of the locked door of the room occupied by the deceased, proceeded to the site of occurrence, where she as previously noticed by PW-6, PW-4 also noticed that the deceased was lying on the floor. However, PW-6 the guest of the accused and the deceased who also occupied the premises alongwith the accused and deceased, was sitting in the room. The accused is deposed by PW-4 to be occupying another room. However, PW-6 the guest of the accused and the deceased who also occupied the premises alongwith the accused and deceased, was sitting in the room. The accused is deposed by PW-4 to be occupying another room. What attracts the immediate attention of this Court is that PW-4 has turned hostile qua the fact of PW-6, the guest of the accused occupying the latter’s premises alongwith the deceased family, having disclosed to PW-4 the fact of the accused having belabored the head of the deceased which belabouring begot her demise. Consequently with PW-4 who lodged the report qua the occurrence having resiled from her previous statement recorded in writing, throws overboard the genesis of the prosecution case. Also the effect of PW-6, the occupant of the premises alongwith the accused and the deceased having turned hostile and having omitted to in her examination-in-chief depose unequivocally the fact that she ocularily saw the accused belaboring the deceased or his having perpetrated an assault on the head of the deceased resulting in hers gaining injuries thereon and which ultimately sequelled her demise, is that it jettisons the prosecution case. 11. PW-4 and PW-6 both are unanimous in their depositions qua the factum of an occurrence having taken place on the day preceding the fateful occurrence, inasmuch, as, in the evening of 21.7.2011, when the accused came home in an intoxicated state which condition of the accused sequelled a squabbling inter-se him and his wife. However, PW-6, who was an occupant of the premises alongwith the accused and the deceased, and, obviously was a natural witness to the occurrence besides which took place at about 6-7 p.m., on the preceding day to the fateful occurrence when she rather at about 5.30 a.m. found her aunt lying on the floor with injures on her eyes, has omitted to disclose the preeminent fact of any assault having been witnessed to have been perpetrated on the person of deceased by her by the accused and which begot her demise. In sequel, omission of a communication, either in the depositions of PW-4 and PW-6 of the accused having in immediate proximity to the occurrence belaboured the deceased, does not beget the sequel or an inference that, given the improximity of the initial occurrence which occurred in the evening of the preceding day and body of the deceased having been found in a room with injures in the morning of the succeeding day and which injuries sequelled her demise, more especially re-enforcingly when PW-6 occupying the premises alongwith the deceased hence was a natural witness qua perpetration of belabourings by the accused on the body of the deceased, has omitted to depose hers having seen the accused belabour the deceased which begot the condition in which the deceased was found in morning of the succeeding day, that the accused belaboured the head of the deceased hence begot her demise or that any incriminatory act in the death of his wife is attributable to the accused. PW-6 was the best witness to the occurrence, if any, which occurred subsequent to 21.7.2011. In addition, when on culmination of the occurrence which took place on 21.7.2011 at about 6-7 p.m. , both the accused and the deceased with the intervention of PW-6 as well as of two other women, proceeded to sleep in separate rooms. Moreover, when the accused then uncontrovertedly was in an inebriated condition, besides on a peaceful and amicable termination of the squabble which erupted inter-se the accused and the deceased, having been begotten, by the intervention of PW-6 and two other women, they proceeded to sleep in their respective rooms, obviously then, when the accused was in an inebriated condition and when his blood sample was not collected for analyzing the quantum of alcohol consumed by him for fathoming that given the minimal intake of alcohol, he could awaken from his slumber, as such, it has to be concluded that given his inebriated condition in which he was made to sleep in a room other than the one occupied by the deceased, he remained un-awakened from his sleep. Moreover, in case he awoke from his sleep the said fact would have been noticed by PW-6 occupying the premises alongwith the deceased and accused whereas there is omission of communication thereof in the deposition of PW-6. Moreover, in case he awoke from his sleep the said fact would have been noticed by PW-6 occupying the premises alongwith the deceased and accused whereas there is omission of communication thereof in the deposition of PW-6. Concomitantly it has to be held that the accused was taken to deep slumber in his room other than the room occupied by the deceased. Consequently, it cannot be held that he proceeded to the room occupied by the deceased to perpetrate an assault upon her or to inflict injuries on her head which ultimately begot her demise. The depositions of PW-1 and PW-2, who both have proved Ex. PW-1/D underscoring the factum of the demise of the deceased sequelable by head injuries emanating from fall on hard surface from a sufficient height and velocity, does hence, when PW-6 the occupant of the premises alongwith the deceased and the accused has omitted to render a vivid ocular version qua the factum of the accused having belaboured the deceased or perpetrated an assault on her head he while being awakened from his slumber his having proceeded to the other room occupied by his deceased wife, that the deceased sustained the injuries by fall on a hard surface. The learned trial Court has imputed unnecessary leverage to and ascribed unwarranted significance to the factum of an occurrence inter-se the accused and the deceased having proved to have occurred at about 6-7 p.m. on the preceding day. However, the occurrence, if any, which took place on the preceding day was not construable to be tantamounting to an inference as un-tenably drawn by the learned trial Court that the accused eliminated the deceased, especially when the body of the deceased was noticed at about 5.30 a.m on the succeeding day by PW-6 in another room than the accused, besides hers being reticent qua any assault having come to be perpetrated by the accused on the person of the deceased or any head injury during the course of assault having come to be delivered on the body of the deceased. In the learned trial Court having remained oblivious to, in the absence of an apt and an apposite communication in the testimony of PW-6, the occupant of the premises alongwith the accused and the deceased, who rather was the best witness to the occurrence, if any, which occurred on the day succeeding to the occurrence of 21.7.2011 at about 6-7 p.m. qua any assault having perpetrated on the head of the deceased by the accused, rather its having imputed significance to the occurrence on the preceding day, whereas it has no nexus or link with the occurrence of the succeeding day, has committed gross misappreciation of evidence on record. It has also omitted to appreciate the prosecution evidence in a wholesome manner. Preponderantly, the conduct of the accused, too has been lightly thrown overboard especially when as pronounced by the deposition of PWs aforesaid he remained present in the room alongwith the deceased, besides he carried the body of the deceased for affording treatment to her to the nearest hospital. When the aforesaid conduct of the accused subsequent to the fateful incident is consistent with his innocence and inconsistent with his guilt, it was necessarily ordained to be ascribed leverage by the learned trial Court. It having omitted to ascribe leverage to the aforesaid conduct of the accused which demonstrated his innocence, has committed gross mis-carriage of justice. Consequently reinforcingly, it can be formidably concluded, that, the findings of learned trial Court merit interference. 12. In view of above discussion, the appeal is allowed and the impugned judgment of 21.7.2012, rendered by the learned Additional Sessions Judge, FTC Kullu, is set aside. The appellant/accused is acquitted of the offences charged. The fine amount, if any, deposited by the accused is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case. 13. The registry is directed to prepare the release warrant of the accused and send it to the Superintendent of the jail concerned, in conformity with this judgment forthwith. Records be sent down forthwith.