Rajasthan High Court - Jodhpur
Kalu Nath vs State on 12 April, 2019
Author: Vinit Kumar Mathur
Bench: Sandeep Mehta, Vinit Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR.
D.B. Criminal Appeal No. 232/2014
Kalu Nath S/o Harnath Yogi, aged 25 years, Resident of
Surajnagar Lulas, Police Station-Shahpura, District Bhilwara
(Raj.).
----Appellant
Versus
State
----Respondent
For Appellant : Mr. Tarun Dhaka, Amicus Curiae.
For Respondent : Mr. N.S.Bhati, PP for the State.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR Judgment (Per: Hon'ble Mr. Vinit Kumar Mathur, J.) 12/04/2019 The present appeal was admitted by this court on 28.04.2014 and Mr. Tarun Dhaka, Advocate was appointed as an Amicus Curiae to assist the Court on behalf of the accused- appellant.
The present criminal Jail appeal under Section 374(2) of Cr.P.C. has been preferred by the accused-appellant against the judgment and order of conviction dated 20.12.2013 passed by the learned Additional Sessions Judge No.3, Bhilwara in Sessions Case No.79/2012 (40/2011) whereby the accused-appellant has been convicted and sentenced as under:-
Offence Sentence Fine In Default 302 IPC Life Rs.4000/- Eight months imprisonment additional rigorous (Downloaded on 27/06/2019 at 11:18:01 PM) (2 of 9) [CRLA-232/2014] imprisonment 201 IPC Five years Rs.2000/- Six months rigorous additional imprisonment rigorous imprisonment
The sentences were ordered to run concurrently except for those in default of payment of fine.
Brief facts necessary to be narrated are that a written report was submitted by Udanath (PW3) to the Station House Officer, Police Station- Kotdi District Bhilwara on 10.06.2011 stating inter- alia that his daughter Mani was married to Kalunath for last five years. The couple was blessed with a son Bheru who was one and half years old. His daughter was maltreated and assaulted by the accused-appellant, and therefore, she was staying with him. On 09.06.2011 at around 3:00 pm, Kalunath and Madan came to his house on a motorcycle and took his daughter Mani alongwith her son Bheru on the pretext of taking them to her matrimonial home. In the evening, Mani came back without her son Bheru. Upon enquiry being made from Mani about Bheru, she informed that her husband Kalu left her at the Kotdi Bus Stand, took Bheru with him and went away with Madan Luhar. She thought that they had gone to bring some eatables but when Kalu and Madan did not return, she came back to her parental house. Upon gaining this information he asked Girdhar Singh to call Kashinath(father of the accused) and tell him that Kalu had taken away Bheru and Mani had come back home. On this Kashinath told that he would inquire Kalu of the whereabouts of Bheru and inform them accordingly. In the morning, they received a telephonic call by Kashinath that Kalu had murdered Bheru by drowning him in the Fatehsagar Pond situated at Kotdi. On getting this information, he along with his daughter Mani and other villagers went to the pond and saw the (Downloaded on 27/06/2019 at 11:18:01 PM) (3 of 9) [CRLA-232/2014] dead body of Bheru lying in the Fatehsagar pond. Kalu had murdered his son and drowned him in the pond to evade the factum of his murder.
On this report, a formal F.I.R. No.110/2011 (Ex.P.23) was registered at Police Station- Kotdi, District Bhilwara on 10.06.2011 for the offences under Sections 302 & 201 IPC against the accused-appellant.
After conclusion of the investigation, the police filed charge- sheet against the accused-appellant for the offences under sections 302 & 201 IPC.
Learned trial court framed, read over and explained the charges for the offences under Sections 302 & 201 of IPC to the charge sheeted accused, who pleaded not guilty and sought trial.
During the trial, the prosecution examined as many as 20 witnesses and documents Ex.P/1 to Ex.P/25 were exhibited in support of its case. No evidence was put-forth by the accused party in its defence.
The accused-appellant was examined under Section 313 of Cr.P.C. and he was confronted with the evidence adduced against him during the course of trial which he denied and stated that he was innocent and falsely implicated.
Learned trial Court, after hearing the arguments from both the sides, convicted and sentenced the accused-appellant for the offence under section 302 & 201 vide judgment dated 20.12.2013. Hence this appeal.
We have heard learned Amicus Curiae appearing on behalf of the appellant and the learned Public Prosecutor.
Learned Amicus Curiae has vehemently and fervently argued that there is no eye witness in the present case and it is a case of (Downloaded on 27/06/2019 at 11:18:01 PM) (4 of 9) [CRLA-232/2014] circumstantial evidence. The prosecution has failed miserably to prove the offences alleged against the accused-appellant. The chain of circumstances is not complete so as to indicates that it was the appellant alone and none else, who was involved in the commission of the offences alleged in the present case. He further argues that evidence of Mani (PW6) is not reliable as the relationship between her and Kalu was strained, and therefore, just to falsely implicate the appellant in the present case, the said allegations were foisted upon him. He prays that the appellant should be acquitted of all the charges leveled against him by setting aside the judgment dated 20.12.2013.
Per contra, learned Public Prosecutor has supported the judgment dated 20.12.2013 passed by learned trial court and submitted that there is ample evidence on record which clearly connects the appellant with the offences alleged. The prosecution has been able to prove the allegations levelled against the appellant beyond all reasonable doubt. He submits that Mani (PW6) and Sheshraj (PW13) are the witnesses of "last seen"
aspect who deposed that Bheru was last seen in the company of the appellant when he was alive. He further submits that as per the statement of Mani (PW6), the motive behind the incident is evident as the appellant used to suspect character of his wife and used to threaten her of killing his son Bheru stating that he was an illegitimate son born from loins of some other person.
He further submits that as noted by the learned trial court in para 28 of impugned judgment, there are different versions projected by the appellant in his defence regarding cause of death of Bheru. It has been noted that Bheru alone went to the pond and drowned there. At the same time, it has been stated that (Downloaded on 27/06/2019 at 11:18:01 PM) (5 of 9) [CRLA-232/2014] since there was illicit relationship between Madan and Mani, therefore, Madan Luhar murdered Bheru by drowning him in the pond. Another story which has been stated in this para is that when the appellant and his son Bheru went to have a bath in the pond, Bheru died by drowning. This lucidly shows that false pleas to save himself have been buttressed by the appellant. Thus he submits that the trial court has rightly appreciated the entire evidence available on record, and therefore, correctly came to the conclusion that the appellant was guilty for the offences alleged. As such, the judgment passed by the trial court warrants no interference by this court.
We have considered the submissions made at bar and have minutely gone through the record of the learned trial court as well as judgment dated 20.12.2013 impugned herein.
PW3 Udanath, who is father of Mani (PW6) stated in his statement that relationship between his daughter and the appellant was never cordial. His daughter was assaulted by the appellant, therefore, she stayed with him. On the fateful day, the appellant along with Madan came to his house and took away his daughter and her son with them. Thereafter, on inquiry being made, it revealed that dead body of Bheru was lying in the Fatehsagar pond and therefore, report was lodged. Bheru was last seen alive in the company of his daughter, Kalunath and Madan when they left his house. Although, this witness has been declared hostile by the prosecution yet his testimony to the extent of Bheru and Mani being taken away by the appellant and Madan is clear.
PW6 Mani is the mother of deceased Bheru. She clearly stated that she was often assaulted by the appellant. She was (Downloaded on 27/06/2019 at 11:18:01 PM) (6 of 9) [CRLA-232/2014] being maltreated for last 2½ to 3 years of marriage. After birth of their son Bheru, the appellant used to assault her and maltreat her suspecting her character. He also used to threaten her to kill Bheru on his suspicion that he was not his son. For brevity, it will be useful to reproduce the statement of PW6 Mani in vernacular for better appreciation of the facts:-
"esjk ifr dkyqukFk tc eSa llqjky xbZ rks eq>s ekjrk fiVrk Fkk vkSj eq>s dgrk Fkk fd HkS: esjk iq= ugha gS vkSj rsjs fdlh vksj ds lkFk esa uktk;t laca) gSA vkSj eSa HkS: dks tku ls ekj nwaxkA "
She stated that she and Bheru were taken away by the appellant and Madan on a motorcycle. Madan left the three of them and went away. Thereafter, the appellant took her to Ramdev Ji Temple and made her to sit there. The appellant took away Bheru on the pretext of getting some biscuits while she kept sitting in the temple. The appellant did not return till 6:00 in the evening. She tried to look out for him in the vicinity but could not find him. She went to her parental house and informed her father of the same. His father called Banna sa to inform Kashinath Ji and tell the entire story. Banna Sa informed that Kalu had not returned home and when he would come, he would inform the same to him. In the morning, a phone call was received and they got to know that Kalu had murdered Bheru by drowning him in the pond. On getting this information, she along with her father and other persons of the village went to the pond where they saw Bheru dead. During the cross-examination of this witness, nothing significant was elicited so as to doubt the credibility or veracity of the deposition made by her in the examination-in-chief.
PW15 Sunil Kumar who conducted autopsy upon the body of Bheru opined the cause of death as asphyxia due to drowning. (Downloaded on 27/06/2019 at 11:18:01 PM)
(7 of 9) [CRLA-232/2014] Even the postmortem report (Ex.P/12) also mentioned the cause of death being asphyxia due to antemortem drowning.
PW13 Shesh Raj was the contractor of fisheries on the Fateh Sagar pond stated that at around 6:00 in the evening, he saw the appellant with a small kid who was in his lap. Upon seeing the dead body, he stated that the kid was the same whom he saw in the lap of the appellant the previous evening.
A close reading of the statement of Mani (PW6) depicts a very clear picture that the relationship between her and the appellant was not cordial. She was being often assaulted and harassed. The appellant used to suspect her character and also doubt paternity of his son Bheru to the extent that he told his wife that Bheru was not his son and is an illegitimate child. The statement given by Mani (PW6) was also the first hand account of the incident and tallies facts mentioned in the written report filed by Udanath (PW3).
In these circumstances, we have no reason to disbelieve the statement of Mani (PW6) as the same gets complete corroboration from the testimony of prosecution witnesses Udanath (PW3) and Shesh Raj (PW13) who are the witnesses of last seen.
We note that there was strong motive for the appellant to kill Bheru as he was doubting his paternity and character of his wife Mani (PW6). He also used to threaten Mani (PW6) to kill Bheru. For all these reasons, he duped Mani by taking her on the motorcycle and leaving her at the Kotdi Bus Stand on the false pretext of taking her and Bheru to their matrimonial home. After leaving Mani in the lurch, the appellant took away Bheru and drowned him to death.
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(8 of 9) [CRLA-232/2014] We also note that different versions were given by the appellant in defence as described in para 28 of the judgment. It will be worthwhile to reproduce the same in vernacular:-
"28. HkS: dks thfor voLFkk esa vafre ckj ns[kus ds ckn D;k ?kVuk gqbZ blds laca/k esa Hkh vfHk;qDr dh vksj ls xokgksa ls fojks/kkHkklh lq>ko fn;s x;s gSA xokg ih-M-3 mnkukFk dks ;g lq>ko fn;k x;k gS fd ekuh vkSj HkS: cl LVs.M ij :ds x;s vkSj ekuh us gh HkS: dks ekj Mkyk gks tcfd xokg ih-M-6 ekuh dks ;g lq>ko fn;k fd HkS: vdsyk gh rkykc ij pyk x;k gks vkSj tgka ij Mwcdj ej x;k gksA ;g lq>ko Hkh fn;k x;k fd ekuh vkSj enuyky ds izse laca/k gks vkSj enu yqgkj gh cPps dks ysdj x;k gks tc fd xokg ih-M-14 enu yky dks ;g lq>ko fn;k x;k fd og ekuh dks pkgrk gks vkSj mls ikus ds fy, HkS: dks Mqcksdj ekj fn;k gksA blds foijhr xokg ih-M-1 dks ;g lq>ko fn;k x;k fd nksuksa cki&csVs ogka ugkus ds fy, x;s gks vkSj csVk Mwc x;k gksA ;|fi lHkh xokgksa us bu lq>koksa ls badkj fd;k gS ijUrq ;g rks Li"V gS fd vfHk;qDr us HkS: dh e`R;q ds laca/k esa vyx&vyx fojks/kkHkklh lq>ko xokgksa ls fd;s gSA xokg ih-M-1 fuHkZ;flag ls iz'u iwNus ij xokg us dgk fd ;g xyr gS fd nksuksa cki&csVs ogka ugkus x;s gks vkSj csVk Mwc x;k gksA ,slh fLFkfr esa vfHk;qDr Lo;a gh vius lq>ko ls ;g Lohdkj dj jgk gS fd og vkSj HkS: nksuksa rkykc ij ugkus x;sA bl izdkj HkS: dks ysdj rkykc ij tkus dh ckr Hkh Lo;a vfHk;qDr ds lq>ko ls lkfcr gksrh gSA bl izdkj HkS: dks thfor vafre ckj tc vfHk;qDr ds lkFk ns[kk x;k mlds i'pkr D;k ?kVuk gqbZ bl laca/k esa dksbZ Hkh larks"ktud Li"Vhdj.k vfHk;qDr ugha ns ik;k gSA "
This show that the appellant was harping from one point to another just to wriggle out of the charges leveled against him by the prosecution.
The testimony of PW6 Mani, PW3 Udanath & PW13 Seshraj having corroborated by the medical evidence clearly establishes the prosecution story and completes the chain of events pointing towards the fact that it was the appellant alone and none else who (Downloaded on 27/06/2019 at 11:18:01 PM) (9 of 9) [CRLA-232/2014] was involved in the commission of the offences alleged in the present case.
In view of the discussion made above, the appeal filed by the accused-appellant is hereby dismissed being devoid of merit. The judgment dated 20.12.2013 passed by learned Additional Sessions Judge No.3, Bhilwara is upheld. The record of the trial Court be returned forthwith.
(VINIT KUMAR MATHUR),J (SANDEEP MEHTA),J
3-Anil Singh/-
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