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2024 DIGILAW 548 (UTT)

Kirti Singh v. State of Uttarakhand

2024-08-14

MANOJ KUMAR TIWARI, PANKAJ PUROHIT

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JUDGMENT : Pankaj Purohit, J. This appeal is preferred by the appellant assailing the judgment and order dated 03.10.2015 passed by Learned Sessions Judge, District Nainital in Sessions Trial No.32 of 2015 (State vs. Kirti Singh), whereby the appellant has been convicted under Section 364 of IPC and sentenced to undergo rigorous imprisonment for seven years’ R.I. and a fine of Rs. 5,000/- in default of payment of which he was sentenced to undergo one month additional simple imprisonment; under Section 302 of IPC, the appellant sentenced to undergo imprisonment for life with fine of Rs.25,000/- in default of which he shall serve imprisonment of six months’ additional imprisonment and under Section 201 of IPC, the appellant is sentenced to undergo imprisonment for a period of seven years’ with a fine of Rs.5,000/- in default of which he shall serve imprisonment for a period of one month. 2. All the sentences imposed upon the appellant were directed to run concurrently and the period already undergone by the appellant in jail is also directed to be set off with the sentence so imposed. 3. The facts of the case in brief are that a written report was filed by Smt. Parwati Devi (PW-2) on 09.11.2014 at around 16:50 hours at police station Kaladhungi, District Nainital to the effect that on 01.11.2014 at 3:00 PM her son named Balam Singh alias Bablu went with Kirti Singh on Kirti Singh’s calling stating that there was some work with shopkeeper Heera Singh and he will return in three to four days. The aforesaid Balam Singh worked in the shop of Heera Singh, when Balam Singh did not return to his house after a gap of several days, she along with her son-in-law went to village Riyad; on reaching the house of Kirti Singh his children intimated that there was a scuffle between her son Balam Singh and appellant Kirti. She expressed her apprehension that her son Balam Singh has been killed by the appellant. 4. The investigation officer conducted investigation of the case, recorded the statement of the witnesses. During investigation body was recovered from cave Kaligarh, Udiyar. The death was caused by causing injuries to the private parts of the victim. She expressed her apprehension that her son Balam Singh has been killed by the appellant. 4. The investigation officer conducted investigation of the case, recorded the statement of the witnesses. During investigation body was recovered from cave Kaligarh, Udiyar. The death was caused by causing injuries to the private parts of the victim. On the basis of above information, the case was registered under Sections 364, 302, and 201 of IPC at police station Kaladhungi, District Naintial and after inspecting the place of occurrence, prepared the site plan, inquest and sent dead boy for post mortem and on completion of investigation submitted a charge sheet under Sections 364, 302, and 201 of IPC in the court. The cognizance was taken against the appellant and the case was committed to Learned Sessions Judge for trial. 5. Charges were framed against the appellant under Sections 364, 302, 201 of IPC which the appellant denied and claimed to be tried. 6. As many as ten witnesses were produced by the prosecution to prove its case against the appellant, They are PW-1 is H.C. Dharmendra Kumar, PW-2 Parwati Devi (informant), PW-3 S.I. Trilochan Singh, PW-4 Manoj Singh Manral, PW-5 S.I. Rahul Kumar Rathi, PW-6 Jodha Singh, PW-7 Dr. C.P. Bhainsora, PW-8 S.I. Trilok Ram, PW-9 Pooran Chandra Bhatt, PW-10 Heera Singh and documentary evidence was also produced and Exhibited by the prosecution witnesses. 7. Thereafter, the statement of appellant was recorded under Section 313 Cr.P.C. in which the appellant stated the prosecution case to be false and stated that he was innocent but did not give any evidence in defence. The trial court on conclusion of trial found the case to be proved against the appellant beyond all reasonable doubt and it accordingly proceeded to convict and sentence the appellant as mentioned in Para 1 of this judgment. 8. PW-1 H.C. Dharmendra Kumar has proved the chick FIR (Ext. Ka-1) and Nakal GD Rapat No.31–KA/4 (Ext. Ka-2). He identified his handwriting and signature on these exhibits. 9. 8. PW-1 H.C. Dharmendra Kumar has proved the chick FIR (Ext. Ka-1) and Nakal GD Rapat No.31–KA/4 (Ext. Ka-2). He identified his handwriting and signature on these exhibits. 9. PW-2 Smt. Parwati Devi reiterated the version of FIR and stated that the deceased was her real son and 01.11.2014, the deceased was at home; at about 3:00 PM the appellant Kirti Singh came nearby the temple which is just adjacent to her house and called her son, after communicating with each other her son returned to the house and apprised her that he was going for a land transaction and would return in three to four days; when the deceased did not return to the house she went to the house of appellant to know the whereabouts. The children and the family members of the appellant intimated her that there was a scuffle a few days back between the appellant and the deceased, thereafter the deceased was not seen anywhere. She also inquired about the said matter from the neighbours Manoj, Heera Singh and Pooran Singh. They stated that on 01.11.2014 at about 9:00 PM on hearing the noise they proceeded to the appellant’s house, at that time the deceased was there at the courtyard of the house and the appellant threatened them to flee there-from. The said facts were also corroborated by the said witness in her cross-examination and no discrepancy is found in her statement. She recognised the appellant who was present in the court-room and also stated that the decease and the appellant had enmity as the appellant believed that the deceased had made a complaint against him. Apart from it, the deceased and the appellant’s daughter were caught by the police which annoyed the appellant. 10. PW-3 S.I. Trilochan Joshi is the first investigation officer who started the investigation and recorded the statements of the villagers. He also recovered a pair of slipper (Material Ext. 1 and 2) from the kitchen of the appellant, memo Ext. (Ka 5) was prepared by him. He further on oath stated that the appellant had made a confessional statement to him, the dead body was also recovered by him and the identification of the dead body was also done in his presence. 11. 1 and 2) from the kitchen of the appellant, memo Ext. (Ka 5) was prepared by him. He further on oath stated that the appellant had made a confessional statement to him, the dead body was also recovered by him and the identification of the dead body was also done in his presence. 11. PW-4 Manoj Singh Manral who was the cousin of deceased stated that the appellant is his uncle and on 01.11.2014 at about 06:30 PM when he was watching TV, Lalit along with his daughter came to the house and stated that there was a scuffle between the appellant and the deceased. When he reached the place of incident the appellant was hurling abuses against the deceased and was asking his children to bring lathi. The appellant threatened him and said that it is a personal matter between the appellant and the deceased. He returned to his house because of the threat. 12. PW-5 S.I. Rahul Kumar Rathi on oath stated that he had accompanied PW-3 S.I. Trilochan Joshi along with other police personnel namely Kirpal Singh, Nasir Hussain with the driver of Government vehicle. A pair of slippers was recovered from the courtyard of the appellant, the Jija of the appellant identified the slippers as deceased’s slippers. On interrogating the appellant, he became uptight and did not reply. Memo was prepared at the spot. The appellant confessed his guilt and stated that the deceased was his real nephew and he had sexually harassed his daughter. On account of which he inflicted injuries to the private parts of the deceased of which he died, his dead body was kept in the field and next day he threw it in the cave so that the evidence disappeared but the dead body was recovered and photographs were taken. The dead body was identified by Jodha Singh and Bachi Singh as that of deceased Balam Singh which was in naked condition and recovery memo (Ext. Ka-14) was prepared in his handwriting and contained his signature. The appellant also intimated on his interrogation that on account of clothes having been torn, he brought the deceased clothes to his field and burned them in the bushes. 13. PW-6 Jodha Singh is the maternal uncle of the deceased. He stated that his sister called him and informed him that the deceased Balam Singh went with appellant but did not return. 13. PW-6 Jodha Singh is the maternal uncle of the deceased. He stated that his sister called him and informed him that the deceased Balam Singh went with appellant but did not return. Thereafter, he wrote the FIR which was signed by the informant. He further stated that he accompanied the police and was there with them till the recovery of dead body. 14. PW-7 Dr. C.P. Bhainsora conducted post-mortem examination of the dead body. 15. PW-8 S.I. Trilok Ram Bagretha is the second investigation officer who conducted the investigation. He recorded the statements of first investigation officer, witness of inquest report, witness of recovery of dead body and witness of recovery of pair of slippers and other witnesses. He also prepared site plan. After the completion, he submitted the charge sheet (Ext. Ka-29) before the court. 16. Pooran Chandra Bhatt has deposed that on 01.11.2014 at about 6:30 PM the younger son of the appellant came to his house and told him that there was a scuffle going on between the appellant and the deceased. On reaching the place of incident he saw the appellant hurling accusation towards the deceased, the deceased was weeping, on seeing them the appellant started to hurl abuses against them saying that why did they come here, it was their personal matter and they will solve it, and asked them to go back. He further asked his children to bring danda .They came back due to fear. 17. PW-10 Heera Singh on oath stated that around one and a half month back the deceased went to Kaladhungi with the daughter of appellant, the said information was given to him by the appellant. He further stated that when he reached the place of incident he saw the deceased weeping, appellant hurling abuses against him and asking his children to bring a danda. They left thinking that it is a matter between uncle and nephew and they will solve it between themselves, since then they have not seen the deceased. On 07.11.2014 the deceased mother asked him about the deceased and he intimated the entire incident which happened on 01.11.2014. 18. Heard learned counsel for the parties and perused material available on record and examine the evidence meticulously. 19. On 07.11.2014 the deceased mother asked him about the deceased and he intimated the entire incident which happened on 01.11.2014. 18. Heard learned counsel for the parties and perused material available on record and examine the evidence meticulously. 19. It is submitted by learned counsel for the appellant that it was a blind case as the dead body of the deceased was recovered from jungle in a cave ten days after he was found missing from the village as according to the case of the prosecution, the deceased was called by the appellant on 01.11.2014 at about 03:00 p.m. from his village and missing report was lodged by his mother-Smt. Parwati Devi (PW2) on 09.11.2014 at 16:50 hours in Police Station Kaladungi, District Nainital. The dead body was recovered on 11.01.2014 at the pointing out of the appellant. 20. It is also submitted by learned counsel for the appellant that there is one circumstance of last seen against the appellant, but there is no proximity between the last seen and the time of death of deceased as the dead body was recovered on 11.01.2014 and there is no evidence on record about the timing of death of the deceased. She further submitted that the case is based on circumstances evidence and the chain of circumstances is not complete. There is missing link in the chain and as such, merely on the basis of such weak evidence, the appellant has wrongly been convicted. 21. Per contra, learned Deputy Advocate General appearing for the State has vehemently submitted that the case of the prosecution and the judgment and order by which the appellant was convicted is a foolproof case, though based on circumstantial evidence, but the circumstances are proved by the cogent evidence of the prosecution witnesses and there is no missing link as suggested by the defence in the chain of circumstances. Thus, he submitted that the appellant has rightly been convicted, more so, there was motive attached with the appellant for committing murder of the deceased for the reason that deceased enticed away the daughter of appellant and they were got recovered in Kaladungi some months back. The appellant was furious upon the deceased and this was a strong motive to commit the murder and to kill the deceased. 22. The appellant was furious upon the deceased and this was a strong motive to commit the murder and to kill the deceased. 22. We have appreciated the arguments advanced by learned counsel for the parties in the light of evidence and material available on record. The mother of the deceased (PW2-Parwati Devi) lodged a first information report (Ext.Ka-3) scribing it by her brother (PW6) Jodha Singh in the Police Station Kaladungi, Nainital. In the said first information report, the appellant was named as appellant and on the basis of which the chick FIR was lodged with Police Station Kaladungi, District Nainital and a Case Crime No.2 of 2014 was registered against the appellant under Section 364 IPC. In the said First Information Report, the PW2-Parwati Devi, candidly stated that on 01.11.2014 at around 03 p.m. appellant-Kirti Singh called her son-Balam Singh @ Bablu and he went with him informing her that there was some work with shopkeeper-Heera Singh and he would come back in 3 to 4 days. When he did not return, PW2 and his brother-in-law (Jija) went village Riyad in his search, where in the house of appellant, appellant’s children told about the fight between deceased and appellant. On this information, having been received, the first information report was lodged against the appellant-Kirti Singh. 23. Since the matter was serious enough, the investigation was transferred to regular police vide order dated 10.11.2014 passed by Senior Superintendent of Police, Nainital. During investigation, police went to the house of appellant and during search black colour sleeper of plastic mark ‘flite’ was recovered from the kitchen of appellant’s house which was immediately identified by brother-in-law of deceased, Sri Bachi Singh saying that these sleepers belong to Balam Singh and a fard recovery of sleepers (Ext. Ka-5) was also prepared. 24. During investigation, on interrogation appellant confessed his guilt stating that on 01.11.2014 during scuffle and fighting deceased-Balam Singh was killed by him and his dead body was kept in a Rikhu Udiyar (a cave) in Kaligad Gadhera (Water Stream). He further made a statement on interrogation that he can get the said dead body recovered and on the basis of the aforesaid disclosure statement, the dead body of deceased-Balam Singh was recovered at the pointing out of the appellant from the cave Rikhu Udiyar. He further made a statement on interrogation that he can get the said dead body recovered and on the basis of the aforesaid disclosure statement, the dead body of deceased-Balam Singh was recovered at the pointing out of the appellant from the cave Rikhu Udiyar. A recovery memo (Ext.Ka-14) of the dead body was prepared by the Investigating Officer which was proved and exhibited by PW6-Jodha Singh and PW3-S.I. Trilochan Joshi. 25. The appellant was arrested immediately after recovery of the dead body on his pointing out. Vide (Ext.Ka-15), the arrest memo was prepared by the Investigating Officer and after arrest of the appellant, Sections 302 & 201 IPC were further added. The inquest report was prepared and the body was sent for postmortem. The autopsy was conducted over the body on 12.11.2014 at 12:45 p.m. by PW7-Dr.C.P. Bhainsora. The dead body was found in a naked condition; it was in decomposed condition; maggots were also there and foul smell was coming out from the body. Following external and internal injuries were reported by the Doctor over the dead body:- (a) External Injuries:- (i) Contusion present over the underlying layer of scalp over occipital region with sutural fracture of left parieto occipital bone on the back of head. (ii) Contusion present over the rights testis. (b) Internal Injuries:- (i) Brain paste like in consistency due to decomposition with haemolysed blood. (ii) Rest all other internal organ partially decomposed. In the opinion of the Doctor, the cause of death was shock and hemorrhage as a result of described head injury and injury to testis following blunt impact force to head and genital region and according to Doctor, the time of death might be 29/30.10.2014. 26. As stated above, from the evidence of PW2, it is proved that deceased was taken from his house by appellant at the pretext of some work with shopkeeper-Heera Singh. She proved this fact during evidence. She also proved this fact that children and family member of appellant told her about the scuffle between appellant and the deceased-Balam Singh and thereafter, the deceased was not seen anywhere. PW2 inquired about the incident from neighbours of the appellant i.e. Manoj Singh (PW4), Pooran Chandra Bhatt (PW9) and Heera Singh (PW10). PW4, PW9 and PW10 supported and proved the fact of fighting between appellant and the deceased. PW2 inquired about the incident from neighbours of the appellant i.e. Manoj Singh (PW4), Pooran Chandra Bhatt (PW9) and Heera Singh (PW10). PW4, PW9 and PW10 supported and proved the fact of fighting between appellant and the deceased. PW4 himself went to the place of incident where the appellant was hurling abuses upon the deceased-Balam Singh and was asking the children to bring lathi (stick). Thus, it is proved beyond all reasonable doubt that deceased was taken from his house by the appellant and there was a fight/scuffle between them in the house of appellant-Kirti Singh which was witnessed by Manoj Singh (PW4). 27. PW3-S.I. Trilochan Joshi is the Investigating Officer who recovered a pair of sleeper, material Ext. 1 & 2 from the kitchen of the appellant vide recovery memo (Ext.Ka-5). He proved the said memo Ext.Ka-5 and has also proved the fact that the appellant made a confessional statement to him which laid to the recovery of the dead body which was identified by the prosecution witnesses Jodha Singh (PW6) and Bachi Singh. The recovery of the dead body after disclosure statement of the appellant from Kaligad Udiyar (a cave in the jungle) is the incriminating circumstance, which is also proved, beyond all reasonable doubt against the appellant. 28. The motive has also been proved by the prosecution that one and a half month back, deceased-Balam Singh enticed daughter of the appellant and this was a reason for committing the murder of appellant. Pooran Chandra Bhatt (PW9) and Heera Singh (PW10) have also seen the deceased with the appellant where deceased was weeping. Thus, we see that the chain of circumstantial evidence is completely proved and there is no missing link as suggested by learned counsel for the appellant and the prosecution has proved its case against the appellant beyond all reasonable doubt. 29. Thus, we see no reason to interfere with the well reasoned judgment and order passed by learned trial court. As a result, the appeal preferred by the appellant, being bereft of any merit is liable to be and is accordingly dismissed. The judgment and order under challenge is accordingly, affirmed. 30. The appellant is already in jail. He shall serve out the sentence, so awarded. Registry to send a copy of this judgment along with the TCR to the court concerned for information and compliance.