Himachal Pradesh High Court
Rakesh Kumar vs State Of Himachal Pradesh on 30 December, 2016
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 372 of 2016 Reserved on: 25.11.2016 Decided on: 30.12.2016 .
__________________________________________________________ Rakesh Kumar.
.....Appellant.
Versus State of Himachal Pradesh.
......Respondent.
__________________________________________________________ of Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Yes.
1 Whether approved for reporting?
rt __________________________________________________________ For the appellant: Mr. Rajesh Mandhotra, Advocate.
For the respondent: Ms. Meenakshi Sharma, Addl. AG, with Mr. J.S. Guleria, Asstt. AG.
Chander Bhusan Barowalia, Judge.
The present appeal has been preferred by the appellant/accused/convict (hereinafter referred to as "the accused") laying challenge to the judgment, dated 02.01.2006, passed by the learned Additional Sessions Judge(I), Mandi, District Mandi, H.P. (Camp at Sarkaghat), in Trial No. 20 of 2014, whereby he was convicted for the commission of offence under Section 302 Indian Penal Code, 1860 (hereinafter referred to as "IPC") and was sentenced to undergo rigorous 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 21:50:34 :::HCHP 2imprisonment for life and also to pay fine of `20,000. In case of default in payment of fine, the accused was further ordered to undergo simple imprisonment for one year.
.
2. The factual matrix, as per the prosecution story, giving rise to the present appeal are that deceased/victim, Sumna Devi (hereinafter referred to as "the deceased") was married to the accused and out of said wedlock two children of were born. The accused had suspicion upon the fidelity of the deceased. On 27.10.2013, Police Post Dharampur got rt information through Smt. Tambo Devi (PW-1), Pardhan, Gram Panchayat Binga, that the deceased had been murdered at village Dabrot. This information formed the basis for rapat No. 5, Ex. PW-19/A, which was recorded in Police Post, Dharampur. ASI, Nasib Singh alongwith other police officials went to the place of occurrence. Statement, under Section 154 Cr.P.C., of Smt. Tambo Devi (PW-1) was recorded, wherein she stated that on 27.10.2013, during day time, when she had gone to bring grass, around 4:30 p.m. she received a telephonic call from Anil Kumar, Ward Panch. The Ward Panch informed her that the mother of the accused, Smt. Gambhari Devi, divulged to him that her daughter-in-law had been killed by someone inside the house. Subsequently, she telephonically informed ::: Downloaded on - 15/04/2017 21:50:34 :::HCHP 3 PW-2, Ravi Kumar, Vice President qua the incident and reached the spot around 4:45 p.m. She discovered the dead body of the deceased, with several injuries, lying in the room. Blood .
stained clothes, stones were also there on the bed. Minor daughter of the deceased, on being questioned by PW-1, divulged that the accused quarreled with her mother and killed her. Statement of PW-1, Ex. PW-1/A, formed the basis for of rukka, which was sent by ASI Nasib Singh, through constable Baldev Singh (PW-9), to Police Station, Sarkaghat. SI rt Prashotam Dhiman made his endorsement over rukka and FIR, Ex. PW-9/A, was registered. As per the prosecution story, prior to rushing to the spot of occurrence, ASI Nasib Singh informed about the occurrence to the Superintendent of Police, Mandi, Deputy Superintendent of Police, Sarkaghat and Station House Officer, Police Station, Sarkaghat. Shri Desh Raj, Photographer, was also associated by the police, who took photographs of the spot as well as the dead body, which are Ex.
PW-14/A1 to Ex. PW14/A6. ASI Nasib Singh examined the dead body, which was lying on double folding-bed in the ground floor. Subsequently, SHO and Dy. SP, Sarkaghat, also came on the spot.
3. ASI Nasib Singh filled form 25-35A, Ex. PW-1/H. ::: Downloaded on - 15/04/2017 21:50:34 :::HCHP 4 The dead body was taken into possession and sent for post mortem examination at CH Sarkaghat, alongwith application, Ex. PW-13/A, under the supervision of Constables Hem Raj .
and Desh Raj. Spot map, Ex. PW-19/B, was prepared. Blood stained stones were also found over the bed. Blood stained smeaj, bra, shirt, salwar, blood stains from first floor, from stairs, bed sheet/khind (mattress), were collected vide memos, of viz., Ex. PW-1/B to Ex. PW-1/G. The articles were wrapped in different parcels and sealed with seal impression 'S'. Facsimile rt of seal impression 'S', Ex. PW-1/G, was separately taken on a piece of cloth, which was witnessed by PW-1, Tambo Devi, and PW-2, Ravi Kumar. The parcels, alongwith seal impression, were taken into possession vide aforesaid memos. Statements of PW-1, Tambo Devi, and PW-2, Ravi Kumar, were recorded by ASI Nasib Singh.
4. The accused, who was present in the house, was interrogated and subsequently arrested vide memo, Ex. PW-
9/H. Information qua his arrest was given to his uncle, Bahadur Singh. Case property was deposited with MC HHC Ramesh Kumar. On application, Ex. PW-12/A, the accused was medically examined at CH Sarkaghat, and his Medico Legal Certificate, Ex. PW-12/B, was obtained. ASI Nasib Singh ::: Downloaded on - 15/04/2017 21:50:34 :::HCHP 5 handed over the case file to SI/SHO Satish Kumar for further investigation. On 28.10.2013, SI Satish Kumar (PW-20) started investigation and visited the spot alongwith PW-5, Smt. Neela .
Devi alias Leela and Inder Singh (sister of deceased and her maternal uncle). PW-14, Desh Raj, Photographer, was also associated. Statement of Kumari Shiwani, Ex. PW-7/A, was recorded in presence of Neela Devi alias Leela, Inder Singh and of the same was signed by the aforesaid persons and attested by PW-20, SI Satish Kumar, also did videography of the statement rt in association with Photorapher Desh Raj. On 30.10.2013, the accused was interrogated in the police station by PW-20 in presence of Ajay Chandel, Pardhan Gram Panchayat Ropari and Santosh Kumar brother of the deceased. The accused revealed that he had hidden a bamboo stick/baint in the room of his house below the bed and this fact is only known to him.
Disclosure statement of the accused, Ex. PW-3/A, was recorded and baint was recovered at his instance in presence of aforesaid witnesses. Sketch of the baint, Ex. AS3, was prepared on a piece of paper in presence of Santosh Kumar and Ajay Chandel.
Videography of the entire recovery proceedings was done.
Recovered baint was wrapped in a cloth parcel and sealed with seal impression 'N' at six places. Facsimile seal, Ex. PW-3/C, ::: Downloaded on - 15/04/2017 21:50:34 :::HCHP 6 was separately taken over a piece of cloth and the aforesaid baint was taken into possession vide memo, Ex. PW-3/B. Supplementary statement of the Photographer Desh Raj was .
also recorded. Spot map, Ex. PW-20/A, qua recovery of baint, was prepared.
6. On 01.11.2013, the accused, through his disclosure statement, Ex. PW-2/A, which was given in presence of Up of Pardhan Ravi Kumar and Anil Kumar, disclosed that he can give demarcation of the place where he had beaten his wife. On rt the basis of statement of the accused, Ex. PW-2/A, fard nishandehi, Ex. PW-2/B was prepared and spot map, Ex. PW-
20/B, was drawn. After receiving the result from RFSL, the case property, vide rapat No. 17(A), was taken from malkhana Incharge for showing the same to Medical Board Members, who conducted the post mortem of the deceased. Their opinion, Ex.
PW-13/E, was also obtained. Vide memo, Ex. PW-20/D, the dead body, after post mortem, was handed over to Bahadur Singh. Further investigation was assigned to ASI Nasib Singh (PW-19). Aks Sajra and jamabandi, Ex. PW-15/B and Ex. PW-
15/C, respectively, were obtained from the Halka Patwari, Gian Chand (PW-15). Copy of Pariwar register, Ex. PW-6/B, was obtained from the Secretary Gram Panchayat, Binga, on moving ::: Downloaded on - 15/04/2017 21:50:34 :::HCHP 7 an application, Ex. PW-6/A. Statements of Constable Ramesh Kumar, Baldev Singh and Gambhari Devi were recorded.
7. In order to prove its case, the prosecution examined .
as many as twenty witnesses. The statement of the accused, under Section 313 Cr.P.C., was recorded. No defence was led by the accused.
8. The learned Court below, vide its judgment dated of 02.01.2016, convicted the accused for the offence punishable under Section 302 IPC and sentenced him to undergo rigorous rt imprisonment for life and to pay fine of `20,000/-. In case of default in payment of fine, the accused was also ordered to further undergo simple imprisonment for one year, hence the present appeal.
9. We have heard the learned Counsel for the respondent/accused and learned Additional Advocate General for the respondent/State.
10. The learned counsel for the appellant has argued that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt and the accused may be acquitted by setting aside the judgment of conviction, as recorded by the learned Court below. Conversely, the learned Additional Advocate General has argued that the findings of conviction, as ::: Downloaded on - 15/04/2017 21:50:34 :::HCHP 8 recorded by the learned Court below are just, reasoned and deserves no interference, as the prosecution has proved the guilt of the accused beyond reasonable doubt. In rebuttal, the .
learned counsel for the accused has argued that the prosecution has failed to connect the accused with the offence and, thus the accused may be acquitted.
11. As per the prosecution, the accused gave beatings to of the deceased with baint (bamboo stick) and stones on 27.10.2013 during day time due to which she died. The whole rt incidence was witnessed by minor daughter of deceased, Kumari Shiwani (PW-7) and minor son Rahul. Kumari Shiwani informed to her grand mother, Gambhari Devi, and she informed Ward Panch, Anil Kumar. Ward Panch further informed about the incidence to PW-1 Pardhan, Tambo Devi, and PW-1 informed PW-2, Up Pardhan, Ravi Kumar. PW-1 also telephonically informed the police.
12. The statement of PW-7, Kumari Shiwani, is very vital. Being a minor witness, her awareness was verified by the learned Trial Court by putting questions of different nature and she was declared a competent witness. PW-7 has deposed that the deceased was her mother, accused is her father and Gambhari Devi is her grand mother. There are seven rooms in ::: Downloaded on - 15/04/2017 21:50:34 :::HCHP 9 her house and she used to sleep with her grand mother in the room of first floor and her parents used to sleep in the ground floor. She has further deposed that there is window in each .
room and one can see inside the room through the gap of door and window. As per this witness, she was present alongwith her brother, Rahul, when her mother died. She has also identified the photographs of the deceased and admitted that of there were injury marks on the person of the deceased. She heard the noise of cries of her mother and when she peeped rt inside, she noticed that her mother was lying unconscious on bed and blood was oozing from her body. She noticed blood stains on the spot and bed, which is also identifiable in the photographs. PW-7 has further deposed that her father had not visited their house after the death of her mother and she used to live with her grand mother. She has stated that when her mother was being given beatings by baint, she was in the courtyard. On the day of occurrence she did not go to school and was present in the house, as it was Sunday. She had given statement, Ex. PW-7/A, to the police, which bears her signatures. As per the version of this witness, nobody rescued her mother. She identified baint, Ex. AS2, and deposed that with the same baint her father gave beatings to her mother and ::: Downloaded on - 15/04/2017 21:50:34 :::HCHP 10 the baint was on the ground floor. This witness was exhaustively cross-examined and during her cross-examination she deposed that cow barn is near to the house and at the time .
of occurrence her grand mother had gone to work in NREGA near Government School, Marhi. She denied that she alongwith her brother was with her grand mother at Marhi.
She voluntarily stated that her brother was at home and she of had gone to Marhi School with her grand mother, however, she further stated that she could reach Marhi School from her rt house in two minutes. She could not divulge name of her mausi, but she stated that she knows her by face. This witness denied that there was no baint in the hand of the accused and she had seen the baint in the Court. She voluntarily stated that baint was lying in the ground floor, which was earlier used by dada (Jabra), who has expired. A very imperative Court question was put to this witness, "why she had gone to the place of work of her grand mother"? She replied that "I had gone to call my grand mother by saying that my mother had died". The statement of PW-7 was recorded by the police in presence of her mausi, Leela Devi and Inder Singh and the same was videographed by IO. This fact is fortified by PW-14, Desh Raj (Photographer) and he tendered CD, which is ::: Downloaded on - 15/04/2017 21:50:34 :::HCHP 11 Ex. CI. The videography is duly proved by PW-14, Desh Raj.
13. PW-5, Neela Devi, elder sister of the deceased stated that she, being an illiterate lady, did not remember the date, .
month and year. As per the version of this witness, the marriage of the deceased was solemnized with the accused and the deceased was having two children. The deceased alongwith her children during the month of Sauj (September) visited her of house for 4-5 days and the deceased told her that accused is not keeping her well and suspecting upon her fidelity on which rt she advised the deceased to live properly in her in-laws' house.
Subsequently, she came to know that her sister was murdered by the accused by using baint and stones. When she heard about the death of her sister, she alongwith Inder Singh, her maternal uncle, went to Sarkaghat and saw the dead body of the deceased. This witness has further stated that she and her maternal uncle were taken by the police to the place of occurrence where statement of PW-7, Kumari Shiwani, was recorded in their presence. Videography of the recording of the statement was also done and PW-7 stated that her mother was killed by her father with baint and stones. PW-5 in her cross-
examination has admitted that the deceased married the accused by going against her parents. She also admitted that ::: Downloaded on - 15/04/2017 21:50:34 :::HCHP 12 the accused loved the deceased, but later on their relations became strained and the accused started giving beatings to the deceased. She had denied that on the day of occurrence .
Kumari Shiwani (PW-7) had gone to school. She has further stated that she was present in the house, as it was Sunday.
14. PW-3, Ajay Chandel alongwith Santosh Kumar witnessed the recovery of weapon of offence, i.e., baint, Ex. AS2, of which was recovered on disclosure statement made by the accused. PW-3 deposed that during the year 2011 he was rt Pardhan of Ropari Panchayat and on 30.10.2013 he alongwith brother of the deceased (Santosh Kumar) went to Police Station Sarkaghat. As per this witness, the accused, who is present in the Court, was being inquired by the police in the Police Station. The accused divulged to the police that he could get the baint recovered. The statement of the accused, Ex. PW-3/A, was recorded by the police, which bears his signatures and also the signatures of marginal witnesses. Subsequently, police took the accused alongwith witnesses to Dabrot/Marhi and the accused got recovered the baint from a room of ground floor, which was concealed under a folding double bed. Sketch of the baint, Ex. AS3, was prepared and it was packed, sealed with seal impression 'N' at four places. This witness has also ::: Downloaded on - 15/04/2017 21:50:34 :::HCHP 13 identified parcel, Ex. AS-1 and baint Ex. AS-2, which were taken into possession vide memo, Ex. PW-3/C. As per this witness, whole process was also videographed. In cross-
.
examination, this witness has deposed that he might have visited Police Station, Sarkaghat, between 9 a.m. to 10 a.m. and he was taken by brother of the deceased, being Pardhan of the Panchayat. He met the accused in the courtyard of police of station as he was brought out of judicial lock up.
15. The weapon of offence, i.e., baint was sent for rt chemical analysis and as per report, Ex. PW-13/B, Assistant Director RFSL Centre Range Mandi, detected blood traces on the said baint. Dr. Ashish Guleria, (PW-13) deposed that on 27.10.2013, ASI Naseeb Singh, through application, Ex. PW-
13/A, prayed for conducting postmortem on the dead body of the deceased. He alongwith Dr. Dharampal conducted the postmortem on 28.10.2013 and gave their report, Ex. PW-13/B, wherein they have opined as under:
"Average built female body lying on PM table. PM Rigidity-fully developed upto fingers and toes. Subject was wearing red shirt (floral)-Purple shirt blood stained.
Sacred thread around neck. No other
clothes found.
Abrasion of dimension 2x1 cm on neck,
dark brown in colour, lacerated wound on chest 3x2 cm. Irregular margins, lacerated wound in right arm 3x1 cm left ::: Downloaded on - 15/04/2017 21:50:34 :::HCHP 14 arm 2x1 cm, both on lateral aspect with irregular margins. No foreign bodies. Contusion round eye with swelling around parietal and temporal region with depression in frontal bone. Contusion on left lateral thigh with blood margin.
.
Multiple abrasion around left elbow and right thigh lateral 4x6 cm 4x1 cm, 3x1.2 cm dark brown in colour. Abrasion on hip both sides extending from right to left wide on right and narrow on left side, 5.2 cm on right side and 3x1 cm on left side. Bark brown in colour, lacerated wound on Tibial side (front) on left side 3x2 cm of dimension no foreign body detected. No injury seen on media thigh and around external genitals, abrasion around waist right side no visible frontal and prital region with depression on frontal bone.
rt
Fracture present on frontal bone,
Membranes of brain tear with haematoma spinal cord not opened.
Thorax-Plaura, Larynx and trachea, right lung and left lung Paricardium, heart large vessels-congested, walls, ribs and cartilages normal.
Abdomens: Kidneys congested, walls,
peritoneum mouth, pharymx and
Oesophagus, stomach and its contents, small intestines and their contents, large intestines and their contents, liver spleen, bladder, organs of generation (external and internal) normal. No sign of pregnancy, Muscles bones joints-fracture frontal bone.
Certificate of cause of death: With the best of our clinical knowledge, the subject died of subdural hematoma which leads to cardiopulmonary rest. Though the viscera had been preserved and sent for chemical examination and final opinion about any suspected chemical will be given after viscera examination from forensic laboratory.
Probable time between injury and death was within one hour. The probable time between death and postmortem was within ::: Downloaded on - 15/04/2017 21:50:34 :::HCHP 15 24 hours."
Viscera containing spleen part of liver, one kidney, stomach, blood were sealed in separate Jars sealed with seal impression .
CH Sarkaghat, after taking facsimile seal impression, Ex. PW-
13/C, on a separate piece of cloth was handed over the police.
Police brought report No. 8578, Ex. PW-13/B, from RFSL Mandi, which was issued by Assistant Director RFSL Mandi.
of After perusal of the same, finally the Medical Board observed that no alcohol, no poison has been detected in viscera.
rt Therefore, the opinion remained the same. On 27.12.2013, SHO, P.S. Sarkaghat, moved an application, Ex. PW-13/D, whereby the weapon of offence, i.e., baint was shown to the medical board. PW-13 alongwith Dr. Dharampal gave their opinion, Ex. PW-13/E, opining that injuries mentioned in postmortem report can be caused by bamboo stick/baint. Dr. Dharampal also identified stones, Ex. P1 to Ex. P4. According to this witness, injuries mentioned in postmortem report, Ex.
PW-13/B, can be caused with the recovered stones and other bodily injuries, which were found on the body of the deceased, were sufficient to cause death in ordinary course. In his cross-
examination, this witness admitted that time between injuries and death cannot be said with precision. He has also admitted ::: Downloaded on - 15/04/2017 21:50:34 :::HCHP 16 that there should be three member board to conduct the postmortem. This witness denied that injuries, as mentioned in Ex. PW-13/B, can be caused in an accident. He has also .
denied that the injuries sustained by the deceased are possible by fall from stairs.
16. PW-4, Anil Kumar, stated that he was informed by the mother of the accused, Gambhari Devi, telephonically that of the accused killed the deceased. He went to the spot and disclosure statement of the accused, Ex. PW-2/A, was recorded.
rt On the basis of Ex. PW-2/A, police prepared the spot map, Ex.
PW-2/B in his presence. This witness could not divulge the exact time when he received telephonic call from the mother of the accused. He admitted that he did not go through the contents of Ex. PW-2/A.
17. Smt. Tambo Devi, Pardhan, deposed as PW-1. Her statement, Ex. PW-1/A, under Section 154 Cr.P.C was recorded by the police. She deposed that when she reached the house of the deceased, Gambhari Devi, Rakesh Kumar and two minor children were weeping. She did not make any inquiry from Gambhari Devi. As per this witness, accused Rakesh Kumar disclosed that someone killed his wife and the children did not disclose anything. The minor daughter had gone to school.
::: Downloaded on - 15/04/2017 21:50:34 :::HCHP 17This witness was declared hostile and during her cross-
examination she has admitted that blood stained shirt, smeaj, shirt, bra and salwar were taken into possession vide memo, .
Ex. PW-1/B, and were packed in a cloth parcel, which was sealed with seal impression 'S'. She admitted that soil stained with blood, broken bangles and soil stained with blood from the ground floor were taken into possession vide memos, Ex. PW-
of 1/C to Ex. PW-1/E. In presence of PW-2, Ravi Kumar, khind (mattress) and bed sheet were recovered vide memo, Ex. PW-
1/F. rt Ex. P-1 to Ex. P-9 (articles) were recovered in her presence. This witness in her cross-examination deposed that she met the accused on way when she was going to his house.
She has denied that police did not recover anything from the spot and there was rumour that someone killed the deceased.
She volunteered that accused was saying that his wife was killed by someone.
18. Shri Ravi Kumar, while appearing as PW-2 has deposed that accused divulged that someone had killed his wife. PW-2 has further stated that PW-1, Pardhan, telephonically informed the police. He has deposed that in presence of Tambo Devi, Pardhan, vide memo, Ex. PW-1/B, stone, smeaj, shirt, salwar and bra were taken into possession.
::: Downloaded on - 15/04/2017 21:50:34 :::HCHP 18As per this witness, in his presence, soil stained with blood was also taken into possession vide memo, Ex. PW-1/C. He has admitted the police took into possession cement pieces, Ex.
.
P11, soil, Ex. P12, vide memo Ex. PW-1/D, khind (mattress), Ex. P13 and double bed sheet, Ex. P15, vide memo, Ex. PW-
1/F. He has admitted that Investigating Officer filled form 25- 35, Ex. PW-1/H, in his presence. He has also admitted that of seal impression, Ex. PW-1/G, of seal 'S' was taken on piece of cloth. This witness was declared hostile, as he deposed that rt PW-7 Kumari Shiwani did not disclose any facts qua killing of her mother. PW-2 has denied that PW-7, Kumari Shiwani, divulged to the police that her father killed her mother with stones. He has also denied that on the basis of Ex. PW-2/A accused identified the place of occurrence. During his cross-
examination he has deposed that police came on the spot at about 6/6:15 p.m.
19. PW-6, Lalit Kumar, issued copy of Pariwar Register, Ex. PW-6/B, of the accused. PW-8, HHC Shyam Lal, deposed that MHC, Police Station, Sarkaghat, handed over 12 cloth parcels to him, which were sealed with different seal impressions and he deposited the same in proper condition at RFSL, Mandi. As per this witness, on his return he handed ::: Downloaded on - 15/04/2017 21:50:34 :::HCHP 19 over the receipt to MHC. PW-9, Constable Baldev Singh, brought rukka, Ex. PW-1/A, from the spot and gave the same to SHO, Prashotam Dhiman, who registered the FIR, Ex. PW-9/A. .
PW-10, HHC Ramesh Chand, deposed that on 27.10.2013, ASI Naseeb Singh, around 11:55 p.m., deposited with him five parcels, which were sealed with seal impression 'S'. On 28.10.2013, he gave the above parcels to PW-9, Constable of Baldev Singh vide RC No. 29/13, Ex. PW-10/A, with a direction to deposit the same in malkhana. No tampering had occurred rt during the time he possessed the said parcels. PW-11, Dharam Singh, Incharge of malkhana, deposed that on 28.10.2013 vide RC No. 29/13, Constable Baldev Singh, deposited ten cloth parcels, which were sealed with different seal impressions and one envelope of specimen seal impression CHK. He made entry in malkhana register at Sr. No. 1152/13. He also tendered the abstract copy of malkhana register, Ex. PW-11/A. He has further deposed that on 30.10.2013, SI Satish Kumar (PW-20), deposited a cloth parcel having seal impression 'N' at six places, which stated to have contained a baint. No tampering took place during the time he possessed the case property.
20. Dr. Dinesh, M.O. CH Sarkaghat (PW-12), conducted the medical examination of the accused and issued MLC, Ex.
::: Downloaded on - 15/04/2017 21:50:34 :::HCHP 20PW-12/B. According to him the accused was not under alcoholic influence. He has further stated that he did not take urine and blood samples of the accused. As per this witness, .
he has recovered pant and shirt containing blood stains and packed the same. He has denied that he did not preserve the clothes of the accused. PW-15, Gian Chand, Patwari, prepared the spot map, Ex. PW-15/B and issued jamabandi, Ex. PW-
of 15/C depicting the location of the house of the accused. PW-
16, HC Hoshiyar Singh, deposed that on 07.11.2013 he sent 12 rt parcels, as per list mentioned in RC, Ex. PW-16/C to RFSL Mandi for chemical analysis through HHC Shyam Lal. PW-17, Constable Sanjeev Kumar, had drawn rapats, Ex. PW-17/A and Ex. PW-17/B qua departure and arrival of Investigating Officer alongwith case property, which was to be shown to the medical board. PW-18, Parshotam Dhiman, registered FIR, Ex. PW-9/A. PW-19, ASI Nasib Singh, Investigating Officer, investigating the matter. PW-20 is SI/SHO Satish Kumar, partly investigating the matter.
21. The statement of PW-7, Kumari Shiwani, who is a minor witness, is very material evidence. The statement of a child witness is reliable and trustworthy, if the Court comes to the conclusion that the child witness is not tutored. PW-7, ::: Downloaded on - 15/04/2017 21:50:34 :::HCHP 21 Kumari Shiwani, admittedly used to reside with her grand-
mother, Gambhari Devi (mother of the accused). In her cross-
examination, she could not divulge the names of her maternal .
grand parents, as she was not in touch with them. Evidently, the statement of PW-7, Ex.PW-7/A, was recorded in presence of Neela Devi alias Leela and Inder Singh and videography of the same was also done. In the video CD, Ex. C-1, which was of played in the open Court by the leaned Trial Court, PW-7 unequivocally deposed that her father (accused) killed her mother.
rt PW-7 meticulously stated that it was Sunday on 27.10.2013, so she did not go to school, thus tutoring of this witness is not probable. PW-7 was living under the care and custody of Smt. Gambhari Devi, her grand mother, who was given up by the prosecution, being won over by the accused.
Thus, there is likelihood of pressurizing of this witness by her grand mother. After scrutinizing the statement of this witness coupled with the facts of the case, it is worth noticing that in fact the pressure is supposed to be on the child witness (PW-7) to depose in favour of the accused as she was living in the care and custody of her grand mother, who is mother of the accused.
PW-7 was subjected to extensive cross-examination, but she has specifically stated that she had gone to call and tell her ::: Downloaded on - 15/04/2017 21:50:34 :::HCHP 22 grand mother that her mother had died. She has specifically denied the suggestion put by the learned counsel for the accused that baint was not in hands of her father. She also .
denied that she had seen baint, Ex. AS2, for the first time in the Court. In fact, she has identified the baint as the one which was used by her dada (grand father), locally called Jabara. In these circumstances, after exhaustively examining the of statement of child witness (P'W-7), it can safely be held that there is no infirmity in her statement. It is correct that the rt competency of a child witness depends upon the degree of his/her understanding and in the case in hand the degree of understanding of Kumari Shiwani (PW-7), child witness, is in fact very good and par excellence, thus it can be inferred that she was not tutored.
22. As per prosecution story baint, Ex. AS2 was got recovered by the accused himself. Manifestly, CDs Ex. C2, Ex.
C3 and the statement of PW-3, Ajay Chandel, reveal that accused made a disclosure statement, Ex. PW-3/A. The said statement was made in presence of PW-3, Ajay Chandel, and as per CD accused led the police party and witnesses inside the room and he got recovered a baint (Ex. AS2), which was hidden below a folding double bed. Now, if the recovery part is ::: Downloaded on - 15/04/2017 21:50:34 :::HCHP 23 examined in conjunction with the statement of PW-7, Kumari Shiwani, then the story of the prosecution stands further fortified, as PW-7 deposed specifically that baint was in the .
ground floor and the same was recovered from the ground floor.
As per the testimony of PW-7, the said baint belonged to her Dada (Jabra), who is no more. Lastly, the recovery of baint has been further substantiated by PW-3, Ajay Chandel. Thus, the of recovery of baint stands fully established by the prosecution.
23. It is emanating from the record that consequent rt upon the disclosure statement, Ex. PW-3/A, made by the accused, PW-20 SI Satish Kumar effected recovery of baint, vide recovery memo, Ex. PW-3/B. There no incriminating material available on record disproving disclosure statement, Ex. PW-
3/A. Apparently, the recovery was effected after three days of occurrence, i.e., on 30.10.2013. The recovered baint, Ex. AS2, was sent to RFSL, Mandi, for chemical analysis and the report of Assistant Director RFSL, Ex. PW-13/B, depicts that blood was detected in traces over the baint, but the same was insufficient for the purpose of serological examination. Thus, the chemical analysis reveals that blood was found on the said baint. As per postmortem report, Ex. PW-13/A, Dr. Ashish Guleria (PW-13), opined that injuries mentioned in the ::: Downloaded on - 15/04/2017 21:50:34 :::HCHP 24 postmortem report can possibly be caused by baint, Ex. AS2.
Thus, the conspectus of the above discussion is that statement of PW-7, child witness, stands duly substantiated viz-a-viz .
disclosure statement, Ex. Pw-3/A, recovery memo, Ex. PW-3/B, RFSL report, Ex. PW-13/B and statement of Dr. Ashish Guleria, PW-13.
24. As per the prosecution story ASI Nasib Singh (PW-
of
19) was asked to come on the spot by PW-1, Tambo Devi, Pardhan, Gram Panchayat, Binga. This fact also stands rt corroborated by PW-1, Tambo Devi, PW-2 Ravi Kumar and PW-
4, Anil Kumar. PW-19 recovered four stones, Ex. P1 to Ex. P4, which were stained with blood. The recovery of stones has been admitted by PW-1, Tambo Devi, and PW-2, Ravi Kumar.
Recovered stones were chemically examined at RFSL, Mandi, and as per report, Ex. PW-13/B, human blood was detected on the stones. PW-12, Dr. Dinesh, Medical Officer, C.H. Sarkaghat, handed over to police samples of blood and urine alongwith pant and T-shirt containing blood stains, which were sealed with seal impression CH. As per the testimony of PW-
13, Dr. Ashish Guleria, the injuries mentioned in postmortem report can be caused by stones, Ex. P1 to P4, and baint, Ex.
AS2. Admittedly, accused was arrested on 27.10.2013 and was ::: Downloaded on - 15/04/2017 21:50:34 :::HCHP 25 medically examined by PW-12, Dr. Dinesh, on 28.10.2013. PW-
12 preserved pant and T-shirt of the accused, which were stained with human blood, and he handed over the same to .
police. The defence did not give any explanation qua presence of blood on the clothes of the accused. The fact that the accused was suspecting fidelity of the deceased also stands substantiated by PW-5, Neela Devi alias Leela (sister of the of deceased). As per her statement accused, when deceased and their children stayed in her house for 4-5 days, the deceased rt divulged to her that accused was suspecting on her character.
Nothing incriminating has come on record to disbelieve her statement.
25. On meticulous analysis of the material on record, it can be held that on the day of occurrence there was an altercation between the accused and the deceased and accused taking help of stones, Ex. P-1 to Ex. P-4, baint, Ex. AS2, killed the deceased. The entire happening was witnesses by PW-7, Kumari Shiwani, and her younger brother Rahul. PW-7, Kumari Shiwani, saw the occurrence through a window side that is why she deposed that her mother was crying for help.
As her grand mother had gone to work in NREGA, nobody helped the deceased. Recovery of weapon of offence, that is, ::: Downloaded on - 15/04/2017 21:50:34 :::HCHP 26 baint, Ex. AS2, and its identification by PW-7 demonstrates that the same was used as a weapon of offence by the accused.
26. Manifestly, blood traces were found on the recovered .
baint and pant and shirt of the accused were also stained with blood, which were preserved by PW-12, Dr. Dinesh, while medically examining him. The presence of human blood on Ex.
AS2, baint, and stones, Ex. P-1 to Ex. P4, show that these were of used for committing the offence. Thus, the chain of circumstances is complete. In these circumstances, this Court rt finds that the prosecution has proved the guilt of the accused conclusively and beyond the shadow of doubt, thus the judgment of conviction passed by the learned Court below deserves no interference. Accordingly, the appeal, being devoid of any merit, is dismissed. Pending application(s), if any, shall also stand(s) disposed of.
(Tarlok Singh Chauhan) Judge (Chander Bhusan Barowalia) Judge 30th December, 2016 (virender) ::: Downloaded on - 15/04/2017 21:50:34 :::HCHP