HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. Cr Appeal No. 1 of 2001 AND Confirm No. 1 of 2001 1. Kali Dass 2. State of J&K Petitioner 1. State through Police Station, Ramnagar 2. Kali Dass Respondent ! Mr.D.S..Parihar, Advocate for Petitioner. ^ Mr.P.C.Sharma,Addl.Adv.General for Respondent. Coram Hon'ble Mr.Justice R.C.Gandhi Hon'ble Mr.Justice J.P.Singh Dated: 21/12/2005 : JUDGMENT :
1. This Criminal Appeal is directed against the judgment and order dated
30.12.2000 passed by the learned Sessions Judge, Udhampur in File
No.48/Session, titled State Vs. Kali Dass, whereby the appellant has been
convicted and sentenced to undergo rigorous imprisonment for life and to
pay a fine of Rs.1000/- for commission of offence under Section 302 RPC. In
default of payment of fine, the appellant to undergo simple imprisonment for
a period of six months. He has also been sentenced to undergo rigorous
imprisonment for three years under Section 201 RPC and to pay fine of
Rs.500/-. In default of payment of fine, to undergo simple imprisonment for a
period of three months. Both the sentences have been ordered to run
concurrently.
2. The prosecution story, in brief, is that PW-Labu Ram filed a written
complaint stating therein that he had come to village ‘Panger’ where his in-
laws’ house is situated. Smt. Vidya Devi-his sister has also been married in
the same village, to accused-Kali Dass. Her daughter, namely, Rekha, aged
about 10/12 years has died. On coming to know that Rekha, aged about 10/11
years, daughter of his sister has died, he came to the house of his sister. He
saw that his brother-in-law, Kali Dass, himself was taking the deceased-
Rekha for cremation. He inquired from his sister the cause of death of the
deceased- Rekha. She narrated the whole incident and told that the accused
with criminal intention has killed her daughter. The complainant proceeded
towards cremation ground and saw the dead body having number of injuries.
On cremation ground, many people of the village including Numberdar were
present. He told them that deceased Rekha has been killed by her father and
he should be restrained from cremating the dead body as he is proceeding to
inform the Police. He proceeded to the Police Station and reached there at
about 8.30 p.m. FIR No.79/98 was lodged with Police Station, Ramnagar and
the Police during same night reached on the spot at about mid-night and
investigation commenced.
3. During investigation it was found that PW-Thakur Dass accused Rekha of
committing theft and complained to her father/accused Kali Dass. Accused
has beaten his daughter ruthlessly and when her mother intervened, the
accused abused her also. The deceased succumbed to the injuries. She was
cremated despite resistance shown by Labu Ram, maternal uncle of the
deceased. On 28.08.1998, site plan of the place of occurrence was prepared
at the instance of mother-Vidya Devi. Wearing apparels, burnt bones and
ashes of the deceased were seized and sealed alongwith ring and kept on the
superdnama. Disclosure statement of the accused was recorded on
30.08.1998 and at his instance weapon of offence was also recovered.
Statements of witnesses under Section 161 Cr.P.C. were recorded and challan
was presented.
4. The accused was charge-sheeted on 03.02.1999 for the alleged commission
of offence under Section 302/301 RPC. He pleaded not guilty and was put to
trial.
5. The prosecution examined PWs-Labu Ram, Vidya Devi, Mohan Lal,
Surinder Dass, Thakur Dass, Munshi Ram, Satya Devi and Rajinder Singh,
Investigation Officer, to prove the charge against the accused.
6. On appreciation of evidence and hearing learned counsel for the parties, trial
court has recorded the finding of conviction and awarded sentence of
imprisonment for life to the accused for committing the murder of his
daughter-Rekha.
7. The judgment of the learned Sessions Judge has been challenged on the
grounds that the trial court has not properly appreciated the evidence and
discrepancies pointed out before the trial court were fatal to believe the story
of the prosecution. Therefore, the learned trial court has recorded erroneous
findings to come to the conclusion of conviction and sentence.
8. We have heard the learned counsel for the parties and perused the record.
Learned counsel for the appellant has drawn attention of the Court on the
statements of the prosecution witnesses, to point out the discrepancies, for its
re-appreciation. To appreciate the prosecution story, we would like to
appreciate the statements of the witnesses.
9. PW-Labu Ram, is the complainant and maternal uncle of the deceased and
brother of Vidya Devi-mother of the deceased. He has stated in his statement
that out of the wedlock of her sister and accused Kali Dass, five children are
born. The deceased was about 10/11 years of age at the time of her death.
The relation between his sister, and accused Kali Dass had never remained
cordial. On 27.08.1998, he had gone to village ‘Panger’ to his in-laws’ house
and came to know there about sudden death of deceased-Rekha. He went to
the house of his sister. On reaching there, he saw that the accused alongwith
other 4/5 persons was taking dead body of deceased-Rekha towards
cremation ground. He inquired from his sister about the cause of death of her
daughter and he was told that the accused has tortured her daughter to death
on the allegations of committing theft. He rushed towards the cremation
ground and examined the dead body of deceased-Rekha and found number of
injuries inflicted on her person. While he was examining the dead body, the
accused abused and threatened him. He requested the people gathered there
to restrain the accused from cremating the corpse as he is proceeding to
report it to the Police. He reached the Police Station, Ramnagar at about 8/9
p.m. and filed a written report exhibit EXPWLR. FIR was registered and
Police reached on the spot by mid-night. By that time, dead body had already
been cremated by the accused. Police seized red chilly powder from the spot,
lying near the pillar vide seizure memo EXPWLR/3. Police also seized bones
and ashes of the deceased from cremation ground vide seizure memo
EXPWLR/4. The accused was arrested and he made disclosure statement
with regard to ‘Sota’ (Stick) with which he had inflicted injuries on the
deceased-Rekha. Recovery of ‘Sota’ was made at the instance of the accused
vide seizure memo EXPWLR/5 and the witness has proved the disclosure
statement and recovery memo EXPWLR/6.
In his cross-examination, he stated that he inquired from his sister the cause of death on
reaching her house. He tried to stop the accused for carrying his daughter for cremation. About
50/60 persons had gathered at cremation ground and he examined the dead body in presence of
these persons. The deceased had sustained injuries on her chest and arms. Eyes of the deceased
were red in colour, upon which he requested Numberdar and other persons present on the spot not
to allow the accused to lit the pyre. He further stated that 5/6 officials of the Police and SHO
Police Station, Ramnagar came on the spot. When accused was arrested, Police inquired from
him as to why he has cremated her daughter, to which he replied that his daughter had vomited
before her death. Seizure memos were prepared by the Police on the next day. The clothes of
deceased were produced before the Police by his sister. Upon disclosure statement of the accused
and at the instance of the accused, ‘Sota’ was also recovered by the Police.
10. PW-Vidya Devi mother of the deceased is the only eyewitness to occurrence.
She has stated that PW-Thakur Dass had leveled allegations of committing
theft of Rs.25/- against her daughter before her husband-accused, upon which
accused returned to his home and inquired about his daughter from the
witness. She said that daughter had gone to fetch water from nearby spring,
upon which the accused picked up a “Sota” and went to find out her and took
her daughter beating to his shop. Witness was also present there. At the shop,
accused fastened her with a pillar and also folded and fastened her hands on
her backside and started beating her mercilessly. He administered beating
with ‘Sota’ for recovery of theft amount. When she intervened, accused also
beat her and turned her out. While beating, accused inquired about theft. The
deceased told that she has not committed any theft. Accused took red chilly
powder and put the same into the eyes and mouth of the deceased. The
deceased was crying and weeping. She went there and put water in her
mouth. While deceased was being beaten mercilessly and ruthlessly by the
accused, she told that purse has been kept in the house, upon this accused
released her and took the deceased to the house. The purse could not be
found and accused again fastened her with pillar in his house with parna (a
piece of cloth used as covering for head or tieing it around neck), and again
started beating with ‘Sota’. He remained beating for about two hours. The
witness tried to save but accused pushed her and turned her out. The daughter
under such frustration of beating stated that she has kept the purse in the
street. The accused took the daughter to street but purse could not be found
there also. The accused again took the daughter inside the house and again
fastened her with the pillar. The accused started beating her mercilessly. The
witness has stated that in her presence, the accused kept chilly powder in a
cup and also brought a blade and again threatened the deceased to state truth
otherwise he will not spare her. Helpless deceased could not state anything
about purse. He again started beating and while such beating, the eyes of the
deceased came out and her neck slided down and then only the accused
stopped beating and released the deceased. The witness saw that the tongue
of her daughter had came out and she had died. The accused put chader on
the deceased. Mohan Lal, her son, told her that he is going to the house of
Pandit on the instructions of the accused to bring Sankh (counch shell).
Accused and PW-Vidya Devi gave bath to the deceased. The deceased had
injuries all over her body. In the meantime, her brother Labu Ram also came.
He inquired the cause of death and while weeping she narrated the incident.
The police came at about 12 p.m. She narrated the incident to the police.
Police seized wearing apparels of the deceased and parna which she had
washed on the instructions of the accused. She has identified parna in the
court. She has also identified the “Sota”. She has been cross-examined and
has stated that PW-Mohan Lal has also slapped the deceased. Mohan Lal
came to the house during recess and at that time, the accused had taken the
deceased to the house. In his presence also the accused was beating the
deceased. At the shop the deceased was kept fastened with a pillar for an
hour and chilly powder was put in her eyes and mouth in her presence. The
deceased had never vomited. From the shop, the deceased was taken to the
house. During the time of beating, witness was present there. Deceased died
in her presence. Distance of the shop and house is about 100 yards. The
deceased had injuries on arms, back, legs and blood was oozing from injury
caused by beating on the backside of the head. The accused did not permit
any body to go near the deceased or to narrate the incident and cause of death
to the people who came to the house. After cremation of the dead body, the
accused ran away from the house.
11. PW Thakur Dass has stated that he was grazing his cattle where some body
informed him about the commission of theft in his house. He inquired from
the deceased as to whether she has committed theft. On 3rd day while he was
going towards Ramnagar he met Kali Dass-accused in the way from whom
he inquired as to whether he has been providing any expenses to his
daughter. The accused told him that his daughter has her own cash but still he
would inquire from her. The witness stated that when he returned his home in
the evening he came to know about the death of daughter of the accused. In
cross-examination, he stated that he has not lodged any report about theft.
12. PW-Munshi Ram, Numberdar of the village, has stated that he came to know
about death of daughter of the accused. He was going to the house of the
accused alongwith other locals and saw the accused carrying dead body of
the deceased towards cremation ground. He also accompanied the accused
and on the cremation ground Labu Ram, brother-in-law of the accused, came
there and stated that the deceased be not cremated because he is going to
Police Station to lodge the report, upon this accused chased him to administer
beating. Accused was caught by people there and PW-Labu Ram left for
police station. He told the accused that till police comes dead body be not
cremated. Despite that the accused and his son did not bother about it and
cremated the dead body. The police came during night and accused was
caught next day by the police. The bones and ashes and wearing apparel were
seized vide seizure memos EXPWLR-2, EXPWLR-3, EXPWLR-4
respectively. He has further stated that the accused has made disclosure
statement with regard to ‘Sota’ with which the deceased had been beaten and
at his instance ‘Sota’ has been recovered. He has proved the disclosure
statement and recovery memo. He has further stated that the police during
investigation came into the house of Munshi Ram. He was called being the
Numberdar of the village.
13. PW Surinder Dass aged about 15 years, a student, has stated that during
recess, i.e. at about 10 a.m. he had come at his home for taking meals. While
he was going towards his house, he saw Rekha deceased, accused and his
wife coming from the shop towards their house. The accused was having
‘Sota’ in his hand. When he came to his house after close of the school i.e.
after 1 p.m., his sister Radha inquired the cause of weeping from the mother
of the deceased, who told that Rekha has died. He went to the house of Kali
Dass at about 2 p.m. where people had assembled there. Police had come
there during night and recorded his statement.
14. The son of the accused has also been cited as prosecution witness who has
not supported the prosecution story and was declared hostile.
15. We have heard the learned counsel for the parties and perused the record.
Learned counsel for the appellant has submitted that there was discrepancies
in the statements of the prosecution witnesses. Appellant’s son who
according to PW-Vidya Devi has also seen the accused while beating the
deceased when he came to home during recess in the school has not
supported the story of the prosecution. PW-Vidya Devi had strained relations
with her husband, therefore, she has involved the accused. He has also
pointed out that PW-Thakur Dass has not stated that the deceased has
committed theft of Rs.25/- in his house. His submission is that motive of
administering beating was to find out truth of theft and not to kill her,
therefore, there was no intention of killing the deceased. The conviction and
sentence under such circumstances was not warranted and trial court has
erroneously appreciated the evidence and recorded the conviction and
awarded sentence for life.
16. On appreciation of evidence, we find out that PW-Thakur Dass has
specifically complained while pointing out that the accused does not give any
expenses to his daughter which pointedly can be spelt out that it relates to
money. On his pointed reference of money to the accused, the accused told
Thakur Dass that he will find out from his daughter and tell him. This
happened in the morning of 28th August 1998 while PW-Thakur Dass was
going to Ramnagar and accused met him in the way. Thereupon the accused
went to home and inquired from PW-Vidya Devi where Rekha, his daughter,
has gone and on her being told that she has gone to the spring to fetch water,
he picked up a ‘Sota’ and went towards the spring and brought the daughter.
It has come in the evidence of PW-Vidya Devi, who is the only eye witness,
that when deceased told the accused that she has kept the purse in the house,
he released the deceased and brought to the house and when he was beating
in the house, the deceased told the accused that she has kept the purse in the
street. He released the deceased and brought her to street, therefore, only
reason and motive of beating was to find out truth of theft, therefore plea of
the learned counsel for the appellant-accused is that there was no motive of
killing the deceased. So far as commission of offence is concerned, it is seen
from the evidence that mother of the deceased was abused and pushed out
while her helpless daughter of tender age was being beaten to death by the
unfortunate father. She has narrated the conduct of the accused. The accused
has mercilessly and ruthlessly beaten her daughter till her death. PW-Vidya
Devi has been supported by PWs-Surinder Dass and Munshi Ram and Labu
Ram.
17. The conduct of the accused is further relevant which makes out that the
accused was in hurry to destroy the evidence so that the offence committed
by him may not come to light. He after killing the deceased in the way
narrated by PW-Vidya Devi immediately took the dead body for cremation.
Per chance PW-Labu Ram, maternal uncle of the deceased, came and saw the
injuries on the dead body of the deceased in the cremation ground. PW
Munshi Ram, Numberdar who was present in the cremation has supported
version of PW-Labu Ram that PW-Labu Ram had seen the injuries on the
dead body in the cremation ground. Numberdar also supported PW-Labu
Ram that he told the people that the accused be prevented from cremating the
dead body as he is proceeding to lodge report to the Police, upon this the
accused abused and chased him for beating. This conduct of the accused
shows that commission of offence was lurking in his mind and he was aware
that if it came into the notice of the Police, it will create problem for him and
that is why with this design in mind, he abused PW-Labu Ram and
succeeded in cremating the dead body achieving his object to destroy the
evidence. PW-Surinder Dass has also supported the fact that while coming to
his home during recess in School for taking meals. He saw the deceased,
mother of the deceased and the accused going from shop towards their house.
PW-Vidya Devi has also stated that during that time the deceased was
brought to the house after releasing from pillar on her being told that she has
kept the purse in the house. This circumstance corroborates with the evidence
of PW Vidya Devi.
18. Taking totality of the circumstances and evidence in consideration, the
prosecution has proved beyond shadow of doubt the guilt against the
accused. Learned counsel for the appellant has also submitted that the
learned trial court was not right in awarding the sentence for the commission
of offence under Section 302 RPC as the case does not fall under any of the
four clauses of the said Section. Section 300 RPC is reproduced here under: –
“300. Murder- Except in the cases hereinafter excepted, culpable homicide is murder, if
the act by which the death is caused is done with the intention of causing death, or-
Secondly- If it is done with the intention of causing such bodily injury as the offender
knows to be likely to cause the death of the person to whom the harm is caused, or
Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily
injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-
Fourthly- If the person committing the act knows that it is so imminently dangerous that it
must in all probability cause death, or such bodily injury as is likely to cause death, and commits
such act without any excuse for incurring the risk of causing death or such injury as aforesaid.”
19. For the conviction of accused under Section 302 RPC, the prosecution has to
prove that the accused has committed the act with the intention of causing
death or causing such bodily injury, likely to cause death, or the bodily injury
inflicted is sufficient in the ordinary course of nature to cause death and that
the person committing the act knows that it is so imminently dangerous and
in all probability may cause death, causes such injury and commits such an
act incurring the risk of causing death. Only intention of the accused to beat
his daughter was to know the factum of theft as to whether she had
committed the theft. He had no intention to kill her. It is noticed at the same
time that the beating administered to the child of 10/11 years of age is of
highest magnitude, adopting criminal and cruel method of putting red chilly
powder in the mouth and eyes of the deceased. The protector of the minor
child committed this gruesome act, which no father would do to a minor
female child for no fault of her. He did not show any remorse even after
murder. The child died as a result of gruesome torture. The helpless mother
could not save her child from the cruel clutches of her husband because of
the obstinate criminal mind exhibited by the accused during commission of
the offence.
20. The act of assault inflicted by the accused on the deceased was not with the
intention to cause murder or with the requisite knowledge that death would
otherwise be the inevitable result. The accused could not have been
convicted under Section 302 RPC.
21. Taking into consideration the fact that the accused had no intention to cause
death or his action would result into such consequence of death, the act of the
accused amounts to culpable homicide not amounting to murder for the
commission of offence under Section 304 Part-II RPC. The accused is
convicted and sentenced to suffer rigorous imprisonment for a period of ten
years with fine in the sum of Rs. 50,000 which on realization to be paid to his
wife who is living separately because of this incident. In default whereof, the
appellant shall suffer further rigorous imprisonment for a period of three
years. The judgment of the trial court is, accordingly, modified and appeal is
disposal of. Reference is decided accordingly.