{"id":87840,"date":"2005-12-21T00:00:00","date_gmt":"2005-12-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kali-dass-vs-unknown-on-21-december-2005"},"modified":"2016-02-01T02:58:59","modified_gmt":"2016-01-31T21:28:59","slug":"kali-dass-vs-unknown-on-21-december-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kali-dass-vs-unknown-on-21-december-2005","title":{"rendered":"Kali Dass vs Unknown on 21 December, 2005"},"content":{"rendered":"
Jammu High Court<\/div>\n
Kali Dass vs Unknown on 21 December, 2005<\/div>\n
       \n\n  \n\n  \n\n \n\n \n \n  HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            \n\n Cr Appeal No. 1 of 2001 AND Confirm No. 1 of 2001\n\n\n 1. Kali Dass\n2. State of J&K\nPetitioner\n\n\n 1. State through Police Station, Ramnagar\n2. Kali Dass\nRespondent  \n\n\n! Mr.D.S..Parihar, Advocate for Petitioner.\n\n^ Mr.P.C.Sharma,Addl.Adv.General for  Respondent. \n\n\n Coram \nHon'ble Mr.Justice R.C.Gandhi \nHon'ble Mr.Justice J.P.Singh\n\n Dated: 21\/12\/2005\n\n\n: JUDGMENT :  \n<\/pre>\n
1.      This Criminal Appeal is directed against the judgment and order dated
\n30.12.2000 passed by the learned Sessions Judge, Udhampur in File
\nNo.48\/Session, titled State Vs. Kali Dass, whereby the appellant has been
\nconvicted and sentenced to undergo rigorous imprisonment for life and to
\npay a fine of Rs.1000\/- for commission of offence under Section 302 RPC. In
\ndefault of payment of fine, the appellant to undergo simple imprisonment for
\na period of six months. He has also been sentenced to undergo rigorous
\nimprisonment for three years under Section 201 RPC and to pay fine of
\nRs.500\/-. In default of payment of fine, to undergo simple imprisonment for a
\nperiod of three months. Both the sentences have been ordered to run
\nconcurrently.\n<\/p>\n
2.      The prosecution story, in brief, is that PW-Labu Ram filed a written
\ncomplaint stating therein that he had come to village ‘Panger’ where his in-
\nlaws’ house is situated. Smt. Vidya Devi-his sister has also been married in
\nthe same village, to accused-Kali Dass. Her daughter, namely, Rekha, aged
\nabout 10\/12 years has died. On coming to know that Rekha, aged about 10\/11
\nyears, daughter of his sister has died, he came to the house of his sister. He
\nsaw that his brother-in-law, Kali Dass, himself was taking the deceased-
\nRekha for cremation. He inquired from his sister the cause of death of the
\ndeceased- Rekha. She narrated the whole incident and told that the accused
\nwith criminal intention has killed her daughter. The complainant proceeded
\ntowards cremation ground and saw the dead body having number of injuries.
\nOn cremation ground, many people of the village including Numberdar were
\npresent. He told them that deceased Rekha has been killed by her father and
\nhe should be restrained from cremating the dead body as he is proceeding to
\ninform the Police. He proceeded to the Police Station and reached there at
\nabout 8.30 p.m. FIR No.79\/98 was lodged with Police Station, Ramnagar and
\nthe Police during same night reached on the spot at about mid-night and
\ninvestigation commenced.\n<\/p>\n
3.      During investigation it was found that PW-Thakur Dass accused Rekha of
\ncommitting theft and complained to her father\/accused Kali Dass. Accused
\nhas beaten his daughter ruthlessly and when her mother intervened, the
\naccused abused her also. The deceased succumbed to the injuries. She was
\ncremated despite resistance shown by Labu Ram, maternal uncle of the
\ndeceased. On 28.08.1998, site plan of the place of occurrence was prepared
\nat the instance of mother-Vidya Devi. Wearing apparels, burnt bones and
\nashes of the deceased were seized and sealed alongwith ring and kept on the
\nsuperdnama. Disclosure statement of the accused was recorded on
\n30.08.1998 and at his instance weapon of offence was also recovered.
\nStatements of witnesses under Section 161 Cr.P.C. were recorded and challan
\nwas presented.\n<\/p>\n
4.      The accused was charge-sheeted on 03.02.1999 for the alleged commission
\nof offence under Section 302\/301 RPC. He pleaded not guilty and was put to
\ntrial.\n<\/p>\n
5.      The prosecution examined PWs-Labu Ram, Vidya Devi, Mohan Lal,
\nSurinder Dass, Thakur Dass, Munshi Ram, Satya Devi and Rajinder Singh,
\nInvestigation Officer, to prove the charge against the accused.\n<\/p>\n
6.      On appreciation of evidence and hearing learned counsel for the parties, trial
\ncourt has recorded the finding of conviction and awarded sentence of
\nimprisonment for life to the accused for committing the murder of his
\ndaughter-Rekha.\n<\/p>\n
7.      The judgment of the learned Sessions Judge has been challenged on the
\ngrounds that the trial court has not properly appreciated the evidence and
\ndiscrepancies pointed out before the trial court were fatal to believe the story
\nof the prosecution. Therefore, the learned trial court has recorded erroneous
\nfindings to come to the conclusion of conviction and sentence.\n<\/p>\n
8.      We have heard the learned counsel for the parties and perused the record.
\nLearned counsel for the appellant has drawn attention of the Court on the
\nstatements of the prosecution witnesses, to point out the discrepancies, for its
\nre-appreciation. To appreciate the prosecution story, we would like to
\nappreciate the statements of the witnesses.\n<\/p>\n
9.      PW-Labu Ram, is the complainant and maternal uncle of the deceased and
\nbrother of Vidya Devi-mother of the deceased. He has stated in his statement
\nthat out of the wedlock of her sister and accused Kali Dass, five children are
\nborn. The deceased was about 10\/11 years of age at the time of her death.
\nThe relation between his sister, and accused Kali Dass had never remained
\ncordial. On 27.08.1998, he had gone to village ‘Panger’ to his in-laws’ house
\nand came to know there about sudden death of deceased-Rekha. He went to
\nthe house of his sister. On reaching there, he saw that the accused alongwith
\nother 4\/5 persons was taking dead body of deceased-Rekha towards
\ncremation ground. He inquired from his sister about the cause of death of her
\ndaughter and he was told that the accused has tortured her daughter to death
\non the allegations of committing theft. He rushed towards the cremation
\nground and examined the dead body of deceased-Rekha and found number of
\ninjuries inflicted on her person. While he was examining the dead body, the
\naccused abused and threatened him. He requested the people gathered there
\nto restrain the accused from cremating the corpse as he is proceeding to
\nreport it to the Police. He reached the Police Station, Ramnagar at about 8\/9
\np.m. and filed a written report exhibit EXPWLR. FIR was registered and
\nPolice reached on the spot by mid-night. By that time, dead body had already
\nbeen cremated by the accused. Police seized red chilly powder from the spot,
\nlying near the pillar vide seizure memo EXPWLR\/3. Police also seized bones
\nand ashes of the deceased from cremation ground vide seizure memo
\nEXPWLR\/4. The accused was arrested and he made disclosure statement
\nwith regard to ‘Sota’ (Stick) with which he had inflicted injuries on the
\ndeceased-Rekha. Recovery of ‘Sota’ was made at the instance of the accused
\nvide seizure memo EXPWLR\/5 and the witness has proved the disclosure
\nstatement and recovery memo EXPWLR\/6.\n<\/p>\n
          In his cross-examination, he stated that he inquired from his sister the cause of death on
\nreaching her house. He tried to stop the accused for carrying his daughter for cremation. About
\n50\/60 persons had gathered at cremation ground and he examined the dead body in presence of
\nthese persons. The deceased had sustained injuries on her chest and arms. Eyes of the deceased
\nwere red in colour, upon which he requested Numberdar and other persons present on the spot not
\nto allow the accused to lit the pyre. He further stated that 5\/6 officials of the Police and SHO
\nPolice Station, Ramnagar came on the spot. When accused was arrested, Police inquired from
\nhim as to why he has cremated her daughter, to which he replied that his daughter had vomited
\nbefore her death. Seizure memos were prepared by the Police on the next day. The clothes of
\ndeceased were produced before the Police by his sister. Upon disclosure statement of the accused
\nand at the instance of the accused, ‘Sota’ was also recovered by the Police.\n<\/p>\n
10.     PW-Vidya Devi mother of the deceased is the only eyewitness to occurrence.
\nShe has stated that PW-Thakur Dass had leveled allegations of committing
\ntheft of Rs.25\/- against her daughter before her husband-accused, upon which
\naccused returned to his home and inquired about his daughter from the
\nwitness. She said that daughter had gone to fetch water from nearby spring,
\nupon which the accused picked up a “Sota” and went to find out her and took
\nher daughter beating to his shop. Witness was also present there. At the shop,
\naccused fastened her with a pillar and also folded and fastened her hands on
\nher backside and started beating her mercilessly. He administered beating
\nwith ‘Sota’ for recovery of theft amount. When she intervened, accused also
\nbeat her and turned her out. While beating, accused inquired about theft. The
\ndeceased told that she has not committed any theft. Accused took red chilly
\npowder and put the same into the eyes and mouth of the deceased. The
\ndeceased was crying and weeping. She went there and put water in her
\nmouth. While deceased was being beaten mercilessly and ruthlessly by the
\naccused, she told that purse has been kept in the house, upon this accused
\nreleased her and took the deceased to the house. The purse could not be
\nfound and accused again fastened her with pillar in his house with parna (a
\npiece of cloth used as covering for head or tieing it around neck), and again
\nstarted beating with ‘Sota’. He remained beating for about two hours. The
\nwitness tried to save but accused pushed her and turned her out. The daughter
\nunder such frustration of beating stated that she has kept the purse in the
\nstreet. The accused took the daughter to street but purse could not be found
\nthere also. The accused again took the daughter inside the house and again
\nfastened her with the pillar. The accused started beating her mercilessly. The
\nwitness has stated that in her presence, the accused kept chilly powder in a
\ncup and also brought a blade and again threatened the deceased to state truth
\notherwise he will not spare her. Helpless deceased could not state anything
\nabout purse. He again started beating and while such beating, the eyes of the
\ndeceased came out and her neck slided down and then only the accused
\nstopped beating and released the deceased. The witness saw that the tongue
\nof her daughter had came out and she had died. The accused put chader on
\nthe deceased. Mohan Lal, her son, told her that he is going to the house of
\nPandit on the instructions of the accused to bring Sankh (counch shell).
\nAccused and PW-Vidya Devi gave bath to the deceased. The deceased had
\ninjuries all over her body. In the meantime, her brother Labu Ram also came.
\nHe inquired the cause of death and while weeping she narrated the incident.
\nThe police came at about 12 p.m. She narrated the incident to the police.
\nPolice seized wearing apparels of the deceased and parna which she had
\nwashed on the instructions of the accused. She has identified parna in the
\ncourt. She has also identified the “Sota”. She has been cross-examined and
\nhas stated that PW-Mohan Lal has also slapped the deceased. Mohan Lal
\ncame to the house during recess and at that time, the accused had taken the
\ndeceased to the house. In his presence also the accused was beating the
\ndeceased. At the shop the deceased was kept fastened with a pillar for an
\nhour and chilly powder was put in her eyes and mouth in her presence. The
\ndeceased had never vomited. From the shop, the deceased was taken to the
\nhouse. During the time of beating, witness was present there. Deceased died
\nin her presence. Distance of the shop and house is about 100 yards. The
\ndeceased had injuries on arms, back, legs and blood was oozing from injury
\ncaused by beating on the backside of the head. The accused did not permit
\nany body to go near the deceased or to narrate the incident and cause of death
\nto the people who came to the house. After cremation of the dead body, the
\naccused ran away from the house.\n<\/p>\n
11.     PW  Thakur Dass has stated that he was grazing his cattle where some body
\ninformed him about the commission of theft in his house. He inquired from
\nthe deceased as to whether she has committed theft. On 3rd day while he was
\ngoing towards Ramnagar he met Kali Dass-accused in the way from whom
\nhe inquired as to whether he has been providing any expenses to his
\ndaughter. The accused told him that his daughter has her own cash but still he
\nwould inquire from her. The witness stated that when he returned his home in
\nthe evening he came to know about the death of daughter of the accused. In
\ncross-examination, he stated that he has not lodged any report about theft.\n<\/p>\n
12.     PW-Munshi Ram, Numberdar of the village, has stated that he came to know
\nabout death of daughter of the accused. He was going to the house of the
\naccused alongwith other locals and saw the accused carrying dead body of
\nthe deceased towards cremation ground. He also accompanied the accused
\nand on the cremation ground Labu Ram, brother-in-law of the accused, came
\nthere and stated that the deceased be not cremated because he is going to
\nPolice Station to lodge the report, upon this accused chased him to administer
\nbeating. Accused was caught by people there and PW-Labu Ram left for
\npolice station. He told the accused that till police comes dead body be not
\ncremated. Despite that the accused and his son did not bother about it and
\ncremated the dead body. The police came during night and accused was
\ncaught next day by the police. The bones and ashes and wearing apparel were
\nseized vide seizure memos EXPWLR-2, EXPWLR-3, EXPWLR-4
\nrespectively. He has further stated that the accused has made disclosure
\nstatement with regard to ‘Sota’ with which the deceased had been beaten and
\nat his instance ‘Sota’ has been recovered. He has proved the disclosure
\nstatement and recovery memo. He has further stated that the police during
\ninvestigation came into the house of Munshi Ram. He was called being the
\nNumberdar of the village.\n<\/p>\n
13.     PW  Surinder Dass aged about 15 years, a student, has stated that during
\nrecess, i.e. at about 10 a.m. he had come at his home for taking meals. While
\nhe was going towards his house, he saw Rekha deceased, accused and his
\nwife coming from the shop towards their house. The accused was having
\n‘Sota’ in his hand. When he came to his house after close of the school i.e.
\nafter 1 p.m., his sister Radha inquired the cause of weeping from the mother
\nof the deceased, who told that Rekha has died. He went to the house of Kali
\nDass at about 2 p.m. where people had assembled there. Police had come
\nthere during night and recorded his statement.\n<\/p>\n
14.     The son of the accused has also been cited as prosecution witness who has
\nnot supported the prosecution story and was declared hostile.\n<\/p>\n
15.     We have heard the learned counsel for the parties and perused the record.
\nLearned counsel for the appellant has submitted that there was discrepancies
\nin the statements of the prosecution witnesses. Appellant’s son who
\naccording to PW-Vidya Devi has also seen the accused while beating the
\ndeceased when he came to home during recess in the school has not
\nsupported the story of the prosecution. PW-Vidya Devi had strained relations
\nwith her husband, therefore, she has involved the accused. He has also
\npointed out that PW-Thakur Dass has not stated that the deceased has
\ncommitted theft of Rs.25\/- in his house. His submission is that motive of
\nadministering beating was to find out truth of theft and not to kill her,
\ntherefore, there was no intention of killing the deceased. The conviction and
\nsentence under such circumstances was not warranted and trial court has
\nerroneously appreciated the evidence and recorded the conviction and
\nawarded sentence for life.\n<\/p>\n
16.     On appreciation of evidence, we find out that PW-Thakur Dass has
\nspecifically complained while pointing out that the accused does not give any
\nexpenses to his daughter which pointedly can be spelt out that it relates to
\nmoney. On his pointed reference of money to the accused, the accused told
\nThakur Dass that he will find out from his daughter and tell him. This
\nhappened in the morning of 28th August 1998 while PW-Thakur Dass was
\ngoing to Ramnagar and accused met him in the way. Thereupon the accused
\nwent to home and inquired from PW-Vidya Devi where Rekha, his daughter,
\nhas gone and on her being told that she has gone to the spring to fetch water,
\nhe picked up a ‘Sota’ and went towards the spring and brought the daughter.
\nIt has come in the evidence of PW-Vidya Devi, who is the only eye witness,
\nthat when deceased told the accused that she has kept the purse in the house,
\nhe released the deceased and brought to the house and when he was beating
\nin the house, the deceased told the accused that she has kept the purse in the
\nstreet. He released the deceased and brought her to street, therefore, only
\nreason and motive of beating was to find out truth of theft, therefore plea of
\nthe learned counsel for the appellant-accused is that there was no motive of
\nkilling the deceased. So far as commission of offence is concerned, it is seen
\nfrom the evidence that mother of the deceased was abused and pushed out
\nwhile her helpless daughter of tender age was being beaten to death by the
\nunfortunate father. She has narrated the conduct of the accused. The accused
\nhas mercilessly and ruthlessly beaten her daughter till her death. PW-Vidya
\nDevi has been supported by PWs-Surinder Dass and Munshi Ram and Labu
\nRam.\n<\/p>\n
17.     The conduct of the accused is further relevant which makes out that the
\naccused was in hurry to destroy the evidence so that the offence committed
\nby him may not come to light. He after killing the deceased in the way
\nnarrated by PW-Vidya Devi immediately took the dead body for cremation.
\nPer chance PW-Labu Ram, maternal uncle of the deceased, came and saw the
\ninjuries on the dead body of the deceased in the cremation ground. PW
\nMunshi Ram, Numberdar who was present in the cremation has supported
\nversion of PW-Labu Ram that PW-Labu Ram had seen the injuries on the
\ndead body in the cremation ground. Numberdar also supported PW-Labu
\nRam that he told the people that the accused be prevented from cremating the
\ndead body as he is proceeding to lodge report to the Police, upon this the
\naccused abused and chased him for beating. This conduct of the accused
\nshows that commission of offence was lurking in his mind and he was aware
\nthat if it came into the notice of the Police, it will create problem for him and
\nthat is why with this design in mind, he abused PW-Labu Ram and
\nsucceeded in cremating the dead body achieving his object to destroy the
\nevidence. PW-Surinder Dass has also supported the fact that while coming to
\nhis home during recess in School for taking meals. He saw the deceased,
\nmother of the deceased and the accused going from shop towards their house.
\nPW-Vidya Devi has also stated that during that time the deceased was
\nbrought to the house after releasing from pillar on her being told that she has
\nkept the purse in the house. This circumstance corroborates with the evidence
\nof PW Vidya Devi.\n<\/p>\n
18.     Taking totality of the circumstances and evidence in consideration, the
\nprosecution has proved beyond shadow of doubt the guilt against the
\naccused. Learned counsel for the appellant has also submitted that the
\nlearned trial court was not right in awarding the sentence for the commission
\nof offence under Section 302 RPC as the case does not fall under any of the
\nfour clauses of the said Section. Section 300 RPC is reproduced here under: –\n<\/p>\n
            “300. Murder- Except in the cases hereinafter excepted, culpable homicide is murder, if
\nthe act by which the death is caused is done with the intention of causing death, or-\n<\/p>\n
         Secondly- If it is done with the intention of causing such bodily injury as the offender
\nknows to be likely to cause the death of the person to whom the harm is caused, or<\/p>\n
       Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily
\ninjury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-\n<\/p>\n
      Fourthly- If the person committing the act knows that it is so imminently dangerous that it
\nmust in all probability cause death, or such bodily injury as is likely to cause death, and commits
\nsuch act without any excuse for incurring the risk of causing death or such injury as aforesaid.”\n<\/p>\n
19.     For the conviction of accused under Section 302 RPC, the prosecution has to
\nprove that the accused has committed the act with the intention of causing
\ndeath or causing such bodily injury, likely to cause death, or the bodily injury
\ninflicted is sufficient in the ordinary course of nature to cause death and that
\nthe person committing the act knows that it is so imminently dangerous and
\nin all probability may cause death, causes such injury and commits such an
\nact incurring the risk of causing death. Only intention of the accused to beat
\nhis daughter was to know the factum of theft as to whether she had
\ncommitted the theft. He had no intention to kill her. It is noticed at the same
\ntime that the beating administered to the child of 10\/11 years of age is of
\nhighest magnitude, adopting criminal and cruel method of putting red chilly
\npowder in the mouth and eyes of the deceased. The protector of the minor
\nchild committed this gruesome act, which no father would do to a minor
\nfemale child for no fault of her. He did not show any remorse even after
\nmurder. The child died as a result of gruesome torture. The helpless mother
\ncould not save her child from the cruel clutches of her husband because of
\nthe obstinate criminal mind exhibited by the accused during commission of
\nthe offence.\n<\/p>\n
20.     The act of assault inflicted by the accused on the deceased was not with the
\nintention to cause murder or with the requisite knowledge that death would
\notherwise be the inevitable result. The accused could not have been
\nconvicted under Section 302 RPC.\n<\/p>\n
21.     Taking into consideration the fact that the accused had no intention to cause
\ndeath or his action would result into such consequence of death, the act of the
\naccused amounts to culpable homicide not amounting to murder for the
\ncommission of offence under Section 304 Part-II RPC. The accused is
\nconvicted and sentenced to suffer rigorous imprisonment for a period of ten
\nyears with fine in the sum of Rs. 50,000 which on realization to be paid to his
\nwife who is living separately because of this incident. In default whereof, the
\nappellant shall suffer further rigorous imprisonment for a period of three
\nyears. The judgment of the trial court is, accordingly, modified and appeal is
\ndisposal of. Reference is decided accordingly.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Jammu High Court Kali Dass vs Unknown on 21 December, 2005 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. ^ […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,17],"tags":[],"class_list":["post-87840","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jammu-high-court"],"yoast_head":"\nKali Dass vs Unknown on 21 December, 2005 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kali-dass-vs-unknown-on-21-december-2005\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kali Dass vs Unknown on 21 December, 2005 - 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