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Himachal Pradesh High Court · body

2015 DIGILAW 780 (HP)

Birbal v. State of H. P.

2015-06-29

P.S.RANA, SANJAY KAROL

body2015
JUDGMENT Sanjay Karol, Judge Appellant-convict Birbal, hereinafter referred to as the accused, has assailed the judgment dated 27.7.2010/4.8.2010, passed by Additional Sessions Judge, Fast Track Court, Una, District Una, Himachal Pradesh, in Sessions Case No.1/2010 (Sessions Trial No.1/2010), titled as State v. Birbal, whereby he stands convicted and sentenced as under: Offence Sentence 302 IPC Imprisonment for life and to pay fine of Rs.10,000/- and in default of payment thereof to further undergo simple imprisonment for a period of six months. 364 IPC Rigorous imprisonment for a period of five years to pay fine of Rs.5,000/- and in default of payment thereof to further undergo simple imprisonment for a period of three months. 201 IPC Imprisonment for a period of one year and to pay fine of Rs.1,000/- and in default of payment thereof to further undergo simple imprisonment for a period of one month. 2. In relation to FIR No.286, dated 5.8.2009 (Ex.PW-24/A), registered, under the provisions of Section 364 of the Indian Penal Code, at Police Station, Sadar (Una), accused was charged to face trial for having committed offences, punishable under the provisions of Sections 364, 302 & 201 of the Indian Penal Code. 3. Undisputedly, defence taken by the accused, in his statement, under the provisions of Section 313 of the Code of Criminal Procedure, reads as under: “I am innocent. I have not done anything. I have been implicated in this case as Parvesh Kumar was suspicious about paternity of girls-daughters and was also suspicious that his wife Ritu had illicit relations with me. Due to this reason I have been implicated in this case falsely.” 4. Finding the testimonies of the prosecution witnesses to be reliable and their version to be clear, cogent and consistent, trial Court found the prosecution to have proved on record the chain of circumstances, beyond reasonable doubt, leading to the only hypothesis of the guilt of the accused,. Correctness of the findings and the judgment is the subject matter of the present appeal. 5. Prosecution relies upon the following circumstances in order to establish the guilt of the accused: I) Recovery of dead bodies of the deceased from the canal, who died of drowning. II) Accused would often visit the house of the deceased. III) On the date of occurrence of incident, under the influence of alcohol, accused took away the deceased with himself. Prosecution relies upon the following circumstances in order to establish the guilt of the accused: I) Recovery of dead bodies of the deceased from the canal, who died of drowning. II) Accused would often visit the house of the deceased. III) On the date of occurrence of incident, under the influence of alcohol, accused took away the deceased with himself. IV) Immediately prior to the occurrence of crime, deceased were lastly seen in the company of the accused, V) Accused having confessed of having committed the crime, which led to the identification of spot of crime and recovery of Chappals (slippers) of the deceased. 6. In brief, it is the case of prosecution that Parvesh Kumar (PW-1) and Ritu (PW-4) were staying at Mehatpur. They had two daughters Tamanna & Rajju (both deceased) and son Kishan. Accused claimed himself to be the putative father of Kishan. On 3.8.2009, at about 7.30 p.m., in the absence of Parvesh Kumar, accused took away the girls. Finding his daughters to be missing, Parvesh Kumar brought the matter to the notice of the police and on the basis of his statement, so recorded, under the provisions of Section 154 of the Code of Criminal Procedure, FIR (Ex. PW-24/A) was recorded at Police Station, Sadar (Una). Investigation revealed that the accused first took the girls to the shop of Sanjeev Kumar (PW-2), where he purchased toffees and thereafter boarded a bus towards Nangal. Lateron he threw the decessed in the water canal, as a result of which they died. On 7.8.2009, police found the dead bodies at the Gate of Ganguwal Power House, which were recovered vide Memo (Ex.PW-1/D). Parents identified the dead bodies. Accused, who was arrested on 7.8.2009, made a disclosure statement (Ex.PW-10/A), not only admitting his guilt but voluntarily got the spot, from where he had thrown the girls in the canal, identified. This was so done in the presence of HHC Mohinder Kumar (PW- 10) and independent witness Harish Chander (PW-20). Pursuant thereto, accused identified the spot from where police also recovered a pair of Chappals (Ex. P-1 & P-2), belonging to the deceased, vide Memo (Ex.PW- 1/B). This was in the presence of independent witness Rajiv Thakur (PW-9) and HC Pawan Kumar (PW-11). Recovered articles were also identified by the parents. Postmortem was conducted by Dr. P.S. Rana (PW-19), who issued postmortem reports (Ex. PW-19/D & 19/E). P-1 & P-2), belonging to the deceased, vide Memo (Ex.PW- 1/B). This was in the presence of independent witness Rajiv Thakur (PW-9) and HC Pawan Kumar (PW-11). Recovered articles were also identified by the parents. Postmortem was conducted by Dr. P.S. Rana (PW-19), who issued postmortem reports (Ex. PW-19/D & 19/E). He opined the deceased to have died on account of asphyxia following aspiration of water due to antemortem drowning. Circumstance No.II 7. In Court, Ritu, mother of the deceased, has deposed that the accused claimed himself to be the putative father of her son Kishan. Unrebuttedly, accused was known to the witness from before and was on visiting terms. Also the deceased used to consider and call the accused as their “Mama” (uncle). This witness further states that on 3.8.2009, at about 6.30 p.m., accused, who was under the influence of liquor, came to her house and desired that the daughters be given to the husband and that she elope with him carrying Kishan, whom he claimed to be the putative father. She objected to the same. Also, accused quarrelled with her. The deceased, who were playing in the Gali (street), were taken away by the accused. Only when they did not return at about 8.30 p.m., she started searching for them and also informed her husband. Though the witness does state that she had actually not seen the accused take away the deceased, but has explained that children were playing in the adjoining Gali and accused took them away. 8. Version of this witness stands corroborated by her husband Parvesh Kumar (PW-1), who has further deposed that Sanjeev Kumar, a shop-keeper, had also informed him of the accused having purchased toffees, at the time when deceased were with him. 9. What is important in the testimony of both these witnesses is that the children were not taken away by the accused with the consent of parents. He, under the influence of alcohol, took away the deceased after quarrelling with Ritu. In our considered view, nothing has emerged from the cross-examination part of testimony of these witnesses, which would impeach the credence or credibility, of the witnesses, rendering their version, in any manner, to be lacking in confidence. Thus, prosecution has been able to establish this link in the chain. Circumstance No. IV 10. In our considered view, nothing has emerged from the cross-examination part of testimony of these witnesses, which would impeach the credence or credibility, of the witnesses, rendering their version, in any manner, to be lacking in confidence. Thus, prosecution has been able to establish this link in the chain. Circumstance No. IV 10. Sanjeev Kumar (PW-2) has testified that on 3.8.2009, at about 7.30 p.m., accused came to his shop with the daughters (deceased) of Parvesh and purchased toffees. Evidently, he knew both the accused and the children from before, as his shop is situated in the Gali near the house of Parvesh. 11. We find that even Chander Shekhar (PW-3) noticed the accused with the deceased. This was same day at about 8 p.m. 12. Presence of the accused at Mehatpur, on the date of occurrence of the incident, also stands recorded through the testimony of Pardeep Kumar (PW- 8). 13. Sham Lal (PW-6), who is an auto-rickshaw driver, has also testified to the fact that same day, at about 8 p.m., he saw the accused board a bus towards Nangal. At that time, daughters of Parvesh were with him. The witness does not remember whether the bus was private or Government owned, but then this fact would not render his testimony to be doubtful. His version that accused was holding one of the girls with hand and the other on his lap, is not so recorded in his previous statement, with which he was confronted. Even this fact, in our considered view, would not shatter his testimony, for the reason that on material facts, there is neither any improvement, nor any exaggeration/embellishment. Thus, prosecution has been able to prove the circumstance of the deceased lastly seen in the company of the accused. Circumstance No. III 14. Through the testimony of Kamal Singh (PW- 7), prosecution has been able to establish that on 3.8.2009, accused had consumed alcohol in the Ahata owned by this witness. This was at about 5 p.m. Accused was a regular visitor to the Ahata and was personally known to this witness. He has categorically denied the suggestion of any quarrel having taken place between him and the accused. Circumstance No. I 15. Dead bodies of Tamanna and Rajju, so recovered by the police on 7.8.2009, vide Memo (Ex.PW-1/D) were identified by Parvesh Kumar. Thereafter, Investigating Officer Sewa Singh (PW-24) got conducted postmortem from Dr. He has categorically denied the suggestion of any quarrel having taken place between him and the accused. Circumstance No. I 15. Dead bodies of Tamanna and Rajju, so recovered by the police on 7.8.2009, vide Memo (Ex.PW-1/D) were identified by Parvesh Kumar. Thereafter, Investigating Officer Sewa Singh (PW-24) got conducted postmortem from Dr. P.S. Rana (PW-19), who issued postmortem reports (Ex. PW-19/D and 19/E). The doctor has explained that two doctors, simultaneously, conducted the postmortem, whereafter reports were prepared by him. The deceased died on account of asphyxia following aspiration of water due to ante-mortem drowning. 16. Tara Singh (PW-12), who was posted at BBMB Power House, Ganguwal, has also deposed about the recovery of dead bodies. Thus, the prosecution has proved recovery of dead body from the canal and the deceased having died due to drowning. Circumstance No. V 17. In his testimony IO Sewa Singh has testified that during investigation, accused, who was in custody, in the presence of Mohinder Kumar (PW-10) and Harish Chander (PW-20) made a disclosure statement (Ex. PW- 10/A). Immediately, Dy. S.P. Raman Sharma (PW-25) was informed of such fact. On this count, Mohinder Singh, in his unrebutted testimony, has also corroborated such version. It also stands corroborated by Harish Chander, who is an independent witness and member of Municipal Council, Mehatpur. He has explained the circumstances under which he was present at the Police Post. Dy.S.P. Raman Sharma, in Court, has corroborated the version of Harish Chander. We do not find the version of these witnesses to be doubtful or their credence to be impaired or shattered in any manner. Their version with regard to disclosure statement is clear and testimonies consistent and unimpeachable. 18. It has come on record that after the disclosure statement, investigation was taken over by Dy.S.P. Raman Sharma, who has further deposed that pursuant to the disclosure statement (Ex. PW-10/A), accused led the police to the spot, from where he had thrown the deceased in the water canal. The spot was identified, from where two Chappals (Ex. P-1 & P-2) were recovered, which were identified by Parvesh to be that of the deceased. The same were taken into possession in the presence of independent witness Rajeev Thakur (PW-9) and HC Pawan Kumar (PW-11), vide Memo (Ex. PW-1/B). The spot was identified, from where two Chappals (Ex. P-1 & P-2) were recovered, which were identified by Parvesh to be that of the deceased. The same were taken into possession in the presence of independent witness Rajeev Thakur (PW-9) and HC Pawan Kumar (PW-11), vide Memo (Ex. PW-1/B). It is only after recovery of Chappals that the police started looking for the bodies of the missing girls, which were recovered from the gate of the Ganguwal Power House. The photographs (Ex.PW-15/1 to 15/9) were also taken on the spot by HC Ashok Kumar (PW-15). Rajeev Thakur, though initially supported the prosecution on the question of identification of the spot, from where the accused had thrown the deceased into the canal, but however, on the question of recovery of the Chappals, resiled from his previous statement and was declared hostile. However, when cross-examined by the Public Prosecutor, admitted having signed the recovery memo (Ex.PW-1/B), upon which the accused had put his thumb impression. Significantly, on the issue of identification of the spot, his version goes unrebutted. Also, Pawan Kumar (PW-11) has corroborated the version of Dy.S.P. Raman Sharma. Thus, factum of identification of spot and recovery of Chappals, belonging to the deceased, stands materially proved on record by the prosecution. 19. We find no discrepancy, contradiction or inconsistency in the testimony of the witnesses, which would render the prosecution case to be doubtful, in any manner. Prosecution has been clearly able to establish, beyond reasonable doubt, the fact that the accused, who was on visiting terms, came to the house of Parvesh and after quarrelling with Ritu, without consent, took away the children (deceased) and threw them in the water canal, as a result of which they died. Motive stands explained by the mother. 20. Accused made a disclosure statement, which further led to the identification of the spot, from where deceased were thrown, which further led to recovery of their dead bodies at the gates of the Power House. Also, Chappals (slippers) belonging to the deceased were recovered by the police. 21. Evidence produced on record is clear, cogent, convincing and the unbroken chain of circumstances only establishes the prosecution case of the accused having intentionally kidnapped the deceased with an intent of committing murder, which actually was so done. Innocently, children went with the accused, whom they called their Mama. 21. Evidence produced on record is clear, cogent, convincing and the unbroken chain of circumstances only establishes the prosecution case of the accused having intentionally kidnapped the deceased with an intent of committing murder, which actually was so done. Innocently, children went with the accused, whom they called their Mama. They were not in the know of any quarrel, which took place between the accused and their mother. To allure the children, accused bought them toffees from a nearby shop. Significantly, at that time, they were playing in the Gali and not in the courtyard of their house. The occasion, cause and effect in relation to the fact in issue, so also motive, preparation, previous and subsequent conduct of the accused, stand established on record. 22. From the material placed on record, it stands established by the prosecution witnesses that the accused is guilty of having committed the offence charged for. There is sufficient, convincing, cogent and reliable evidence on record to this effect. The circumstances stand conclusively proved by unbroken chain of unimpeachable testimony of the prosecution witnesses. The guilt of the accused stands proved beyond reasonable doubt to the hilt. The chain of events stand conclusively established and lead only to one conclusion, i.e. guilt of the accused. Circumstances when cumulatively considered fully establish completion of chain of events, indicating the guilt of the accused and no other hypothesis other than the same. It cannot be said that accused is innocent or not guilty or that he has been falsely implicated or that his defence is probable or that the evidence led by the prosecution is inconsistent, unreliable, untrustworthy and unbelievable. It cannot be said that the version narrated by the witnesses in Court is in a parrot-like manner and hence is to be disbelieved. 23. In our considered view, prosecution has been able to establish the guilt of the accused, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence. 24. For all the aforesaid reasons, we find no reason to interfere with the judgment passed by the trial Court. The Court has fully appreciated the evidence placed on record by the parties. There is no illegality, irregularity, perversity in correct and/or in complete appreciation of the material so placed on record by the parties. Hence, the appeal is dismissed. Appeal stands disposed of, so also pending application(s), if any.