Babu Toup vs State of Uttarakhand

Servesh Kumar Gupta, J.—The challenge herein is to the judgment and order dated 17.4.2009 rendered by learned Additional Sessions Judge/First F.T.C., Roorkee in S.T. Nos. 81 of 2008 and 82 of 2008, both titled as State v. Babu Toup. S.T. No. 81/2008 was tried for the offences punishable under sections 354 and 302 IPC whereas S.T. No. 82/2008 was tried for the offence punishable u/s 25 of the Arms Act. In all the offences, learned Additional Sessions Judge has found the accused guilty and has passed the sentence appropriately. The case was initiated on the basis of the first information report (Ex. Ka-1), which was lodged by Shyam Lal, the real brother of accused. The genesis of prosecution was that the appellant was the real father-in-law of Mrs. Santri, W/o Pritam Singh (deceased). The appellant/accused had an evil eye upon Mrs. Santari and to molest her, after consuming liquor, was the order of the day. This was the subject-matter of usual quarrel between Pritam Singh and accused Babu Toup. Once resistance was extended by Pritam Singh when Mrs. Santari was molested at about 1 PM on the date of incident i.e. 5.11.2007, which infuriated the accused. Accused took out his gun and opened the fire upon his son Preetam making him shot dead. When Mrs. Santari escaped from the house in order to save herself, accused chased her too for some distance. The incident was seen by villagers Harpal, Harphool, Ram Kumar, Rajesh, Yashpal and several others. The police station was informed and later the report, having been scribed by Mool Chand, was lodged by Shyam Lal on 5.11.2007 itself at 2:30 PM, i.e. within 1� hours of the incident, on the basis whereof Chik report (Ex. Ka-2) was prepared. Inquest (Ex. Ka-11) commenced on the same day on 5.11.2007, which could be concluded up till 4:50 PM. The opinion expressed by the witnesses of the inquest, as also by the Sub Inspector of the Police, was that the deceased had died on account of gunshot injuries. Autopsy on the dead body was conducted on 6.11.2007 at 1:00 PM., report whereof is Ex. Ka-2. Cause of death was found to be haemorrhage and shock due to ante mortem injuries, whereas the duration of death was opined to be one day old. The following ante-mortem injuries were noticed on the dead body during autopsy:--

Six gunshot wounds of entry in an area of 6 x 4 c.m., left side, lower chest and upper abdomen, 14 c.m. below nipple at 5 o''clock position, each wound measuring 1.0 x 1.0 c.m. circular and surrounded by the rim of collar of abrasion.

All the six tracks were passing through the abdominal wall. Fire tracks pierced through spleen and were embedded in vertebrae L1, L2 and L3 as shown in X-ray (x-ray done before starting post-mortem examination).

Sixth track was passing through abdominal wall rupturing anterior wall of stomach and embedded in right lobe of liver.

The accused was arrested on the date of incident itself, and from his possession, a 12 Bore gun and two live cartridges were recovered, recovery memo whereof is Ex. Ka-5. From the place of occurrence, the police also recovered an empty cartridge wherefore the recovery memo Ex. Ka-8 was prepared. Plain and bloodstained soil too was taken into possession from the spot, recovery memo whereof is Ex. Ka-7.

During the course of investigation, the gun along with two live cartridges and one empty cartridge was sent for the purpose of expert opinion. Report given by Forensic Science Laboratory, Uttarakhand is available on record. The investigation, accordingly, culminated into submission of the charge-sheets Ex. Ka-10 (under sections 354, 302 IPC) and Ex. Ka-16 (under section 25 Arms Act) against the appellant/accused.

Charge was framed by learned Additional Sessions Judge accordingly against the accused for the selfsame offences and he was put to trial.

In this case, prosecution has examined as many as 17 witnesses, who are PW 1 Shyam Lal (complainant), PW 2 Mool Chand (scribe of FIR), PW 3 Har-pal, PW 4 Harphool, PW 5 Chhotta, PW 6 Ram Kumar, PW 7 Yashpal, PW 8 Rajesh Kumar, PW 9 Veer Singh, PW 10 Smt. Santri (wife of deceased), PW 11 Dr. Ajay Mohan Agarwal (who conducted autopsy), PW 12 HCP Nitendra Sharma, PW 13 Constable Shekhar Singh, PW 14 Inspector B.S. Chauhan (I.O. of the case), PW 15 SSI K.C. Bhatt, PW 16 S.I. R.K. Kannojia (who conducted investigation u/s 25 Arms Act) and PW 17 Dy. Inspector Pankaj Devrani.

Thereafter, the statement of accused was recorded u/s 313 Cr.P.C. He has denied the recovery of any gun or of any cartridge from his possession. Besides, he has stated that father-in-law of his son, named Jasram, used to demand money from him (the accused) and failure to meet his demand has caused this occurrence. This explanation of the accused has no legs to stand because had this allegation been of some substance, then there was no cause for Jasram to shot dead his real son-in-law to the detriment of his own real daughter, inasmuch as making her widow.

We have heard learned Counsel for the respective parties and perused the material on record.

Having gone through the entire prosecution evidence, we found that PW 1 Shyam Lal is the real brother of the accused. He has admitted the submission of first information report in the police station after having the same been scribed by Mool Chand. For rest of the averments made in the FIR, he has shown his unawareness and thus, declared hostile by the prosecution.

PW 2 Mool Chand is the scribe of FIR. He has also become hostile but has accepted the preparation of the first information report by him. He has also admitted his signature upon the same.

PW 3 Harpal and PW 4 Harphool have denied that they had ever seen the questioned incident, so they have been declared hostile by the prosecution.

PW 5 Chhota is the witness of inquest who has admitted his signature upon the same.

PW 6 Ram Kumar, PW 7 Yashpal, PW 8 Rajesh Kumar and PW 9 Veer Singh have denied to have witness any occurrence at the spot, so they have also been declared hostile.

PW 10 Mrs. Santari is the star witness who is the wife of deceased. She has proved each and every fact in sequence of the incident it took place. It was her second marriage with the deceased Preetam. After the death of her previous husband Tejpal, she was living as a wife with deceased. Having passed a couple of days peacefully, she felt that her father-in-law was having an evil eye upon her. Her mother-in-law had already died. Her father-in-law (accused) expressed his gestures to have physical relations with her. She used to resist the same. When the things went out of tolerance, she complained this ill attitude of her father-in-law to her husband Preetam. On the date of incident, when her husband Preetam sought explanation of the objectionable attitude of the accused Babu Toup, the latter became enraged and shot dead Preetam from the gun, which was kept in the house. Preetam fell down and died at the spot. Accused also chased Mrs. Santari who escaped from the house to save her life but anyhow she could save herself.

PW 11 is Dr. Ajay Mohan Aggarwal who conducted autopsy on the person of deceased and has proved the same. He has opined the cause of death as haemorrhage and shock due to ante-mortem injuries.

PW 12 is HCP Nitendra Sharma who has proved the preparation of Chik FIR and making entry of the same in the G.D. Besides, PW 13 Constable Shekhar Singh and PW 15 SSI Kailash Chand Bhatt have also been examined, who are the formal witnesses of the case.

PW 14 In-Charge Officer B.S. Chauhan is the Investigating Officer of the case, who conducted the investigation and submitted charge-sheet against the accused.

PW 17 S.I. Pankaj Devrani is the I.O. who started investigation of the case u/s 25 Arms Act and PW 16 is S.I. R.K. Kannojia who concluded the said investigation.

On a perusal of the aforesaid evidence, we find that the clinching evidence, as available on record against the accused, is the evidence of PW 10 Mrs. Santari, who is the wife of deceased. She is the ocular witness of the case along with narrator of backdrop of this incident. She has well proved that her father-in-law (accused) used to keep an evil eye upon her. The appellant/accused expressed every unwanted desire to have physical relations with PW 10 to which she always resisted. When the situation became intolerable, she complained about this uncalled for behavior of the accused to her husband. Preetam, husband of PW 10 questioned his father about his conduct, as afore-stated, which made the accused exasperated, as a result of which he committed this crime. The motive can apparently be noticed that accused did have intention to remove even his son Preetam from the way so that he could have been in a favourable position to satisfy his sexual lust with PW 10, who is none other but his own daughter-in-law.

The corroborative evidence, available on record, is the report given by Scientific Officer, Forensic Science Laboratory, Uttarakhand, which has duly been forwarded by the letter dated 27.5.2008 issued by the Director In-Charge of the said Laboratory. This report, along with the said forwarding letter of the Director In-Charge, is admissible in evidence as per the provisions of section 293 of the Code of Criminal Procedure. The said report reveals that the gun, as also the test fired cartridge case, recovered from the possession of the accused, were the same, by which the incident, in question, was committed. It has been resulted in the examination that 12 Bore cartridge, marked ''C-1'', was fired from the gun, so recovered from the accused. Memo for recovery of 12 bore gun along with two charged cartridges from the possession of the accused is Ex. Ka-5, whereas the memo for recovery of empty cartridge is Ex. Ka-8. Ex. Ka-5 even bears the signature of accused for which he, in his statement u/s 313 Cr.P.C., could not offer any explanation regarding his signature available on the said memo. The statement given the accused that the incident was committed by Jasram, father-in-law of Preetam Singh for the reason that the appellant refused to make payment to him, is not convincing, and is thus, discarded.

In view of what has been stated above, we find no force in this appeal preferred by the appellant through jail. The jail appeal is, accordingly, dismissed. Impugned judgment and order of conviction, passed by the Trial Judge, is hereby affirmed. Let a copy of this order along with the Lower Court record be sent back. The appellant be also informed accordingly about the result of his appeal through Superintendent of the concerned jail.