Bhagat Ram vs State of H.P.

Bhawani Singh, J.—This appeal arises out of the conviction of accused by the trial Court for offence u/s 304 Part-II. Indian Penal Code by the decision of June 28, 1989 in Sessions Trial No. 83 of 1988. The accused has been sentenced to rigorous imprisonment for a period of five years and to pay fine of Rs. 500/-. In default of payment of fine, to undergo further rigorous imprisonment for two months. Benefit of Section 428, Code of Criminal Procedure has, however, been extended to him.

The prosecution case is that accused Bhagat Ram (hereafter ''accused'') is the father of deceased Tripta Devi (hereafter, ''deceased''). The deceased was seven years old at the time of her death. Sita Devi (PW-1O) is the wife of the accused, married fifteen years back. They had four children - Bimla (13), Nand Lal (10), Ram Lal (6) and deceased Tripta Devi (7). The accused used to give beatings to Sita Devi and her children as a result of which Sita Devi left his house and was living with her parents at Makri for about two years before the occurrence. Bimla Devi had also left the house of the accused fifteen/twenty days before the occurrence as a result of beatings by the accused. The accused was living in his house at Nakrara with his sons Nand Lal, Ram Lal and daughter Tripta Devi. On March 10, 1988, he brought the deceased from the house of Surat Ram (PW-4) where the deceased had gone on the previous day. He gave beatings to her with a ''Danda'' after tying her with rope (Ext.P-2). The occurrence of beatings was seen by Nand Lal and Ram Lal (present in the house). The deceased demanded water but the accused did not give it to her. When the accused went out of the house for some-time, Nand Lal gave water to the deceased. On return, the accused gave beatings to the deceased again with a ''Danda''. The condition of the deceased deteriorated due to beatings and she started taking hiccups. The accused repented and offered to distribute sweets worth Rs. 5/- in case deceased became well. However, the condition of the deceased did not improve and she died during the same evening. The accused wrapped the body of the deceased in a ''Khandolu'' (Ext.P-3). Nand Lal and Ram Lal went to sleep. In the morning of March 11, 1988, Nand Lal found the body of the deceased missing from the house.

Gulabi Devi (PW-2) is the aunt of the accused through distant relations. She is residing in the same village at some distance from the house of the accused. She did not see the deceased in the house of the accused on March 11, 1988 for the whole day. She enquired about her whereabouts from Nand Lal on March 12, 1988. Nand Lal informed her that the deceased had been killed by the accused in the night of March 10, 1988 by beating with ''Danda''. Gulabi Devi informed Ward Panchayat Member Nikka Ram (PW-3) in the evening of March 12, 1988 that the accused had killed the deceased. Nikka Ram informed the police, Police Station, Kot telephonically in the morning of March 13, 1988. It was recorded by ASI Mahant Ram in daily ''Rojnamcha'' of March 13, 1988 (Ext. PB). Receiving this information, ASI Mahant Ram (PW-13) went to village Nakrara and visited the house of the accused who was not there. Nand Lal gave the statement (Ext.PF) to ASI Mahant Ram u/s 154, Code of Criminal Procedure. It was thumb marked by Nand Lal after admitting the correctness of the sentences. It was attested by Ram Chand (PW-6), present there, and then sent to Police Station, Kot for the registration of the case. Accordingly, the First Information Report (Ext.PW) was registered u/s 302/201, Indian Penal Code.

Investigation was conducted by SHO Laxmi Chand (PW-12), ASI Mahant Ram and ASI Parduman Singh (PW-11). Rope (Ext.P-2) was produced by Nand Lal on March 13, 1988 before ASI Mahant Ram. The dead body of the deceased was found in the fields of Bhagat Ram in the evening of March 14, 1988. It was lying under the ''Beer'' (Boundary). Inquest report (Ext. PB) was prepared by Mahant Ram in the evening of March 15, 1988. The dead body was photographed by Prem Chand (PW-8) and sent for post mortem examination to District Hospital, Bilaspur. Post mortem examination was conducted by Dr. B.D. Sharma (PW-1) who noticed multiple abrasions, lacerated wound, multiple contusions on chest, back, right abdominal walls and other parts of the body of the deceased. Haemorrhagic patches were present in the stomach and small intestines of the deceased. There was a separation of the sutures of the skull of the deceased and multiple rupture of the right lung. The doctor opined that the death of the deceased was caused due to shock and haemorrhage. The accused was not found in the village. He was arrested on June 14, 1988 by SHO Laxmi Chand from a flour mill at Delhi where he was working as a labourer.

On June 18, 1988, while in police custody, the accused made a disclosure statement to ASI Parduman Singh in the presence of Manga Ram (PW-9) and Sudarshan Kumar that he had kept concealed one ''Danda'' in the roof of his house and could get the same recovered. This statement was recorded (Ext. PX) and was thumb marked by the accused. Pursuant to this disclosure statement, the accused produced the ''Danda'' (Ext. P-1) from the roof of the house. This ''Danda'' (Ext.P-1) was used by him for giving beatings to the deceased. On completion of the investigation, the accused was sent for trial under Sections 304/201, Indian Penal Code on the allegations that he had caused the death of the deceased by giving her beatings and had, therefore, committed offence of culpable homicide not amounting to murder, punishable u/s 304, Indian Penal Code. He pleaded not guilty and claimed to be tried. The prosecution examined thirteen witnesses in support of its case.

In his statement u/s 313, Code of Criminal Procedure, the accused has denied the entire prosecution case. He denied that he used to give beatings to his wife and children. He has also denied that he gave beatings to the deceased on the day of occurrence. According to him, the land of his aunt Chinto Devi was in his possession. Nikka Ram wanted to purchase that land of Chinto Devi with the help of Gulabi Devi. He did not permit this sale transaction. Gulabi Devi and Nikka Ram were, therefore, nursing grudge against him and they have implicated him falsely in this case. In defence, Beli Ram has been examined. The trial Court received evidence heard the parties and convicted the accused u/s 304 Part-II, Indian Penal Code and sentenced him in the manner stated in the preceding part of the judgment. The accused has assailed this judgment through this appeal.

The matter has been examined carefully. Shri Anup Chitkara learned Counsel for the accused. Contended that there is no eye-witness (sic)ing how the deceased had died. Gulabi Devi (PW-2) could not be depended since she had inimical relations with the accused. The accused had no intents on to kill the deceased. The case, therefore, falls u/s 325, Indian Penal Code. Finding of the dead body proved that the deceased was killed by some-one else. The accused deserves to be released on probation being the first offender and keeping in view his immediate requirement at home to look after the other children. All these submissions have been opposed by the learned Counsel for the State. It was strongly contended that the offence has been proved against the accused beyond all reasonable doubts, therefore, the trial Court''s judgment is correct and deserves to be up-held. The act of the accused was thoroughly barbaric and he does not deserve any leniency. He had been beating not only his wife but also the children. By his release on probation, he will mis-behave with his wife and the children. I proceed to discuss these submissions of the learned Counsel for the parties.

The death of the deceased was homicidal in nature which is not disputed. This fact is proved by Sita Devi (PW-10) mother of the deceased. The doctor, who conducted the post mortem examination on her body, has also stated that these injuries could be caused by ''Danda'' (Ext.P-1) and were not the result of accident. ASI Mahant Ram (PW-13) also found during the investigation that the deceased had died homocidal death. This fact is supported by the witnesses to the inquest report. Photographs of the dead body also suggest the same thing. The deceased has been identified in these photographs by Sita Devi (PW-l0). The accused has no different opinion about it except that the deceased may have been killed by Gulabi Devi and Nikka Ram.

The case of the prosecution is that the deceased was killed by the accused by giving her beatings with ''Danda'' (Ext.P-1). In order to sustain this allegation, it was pointed out that the accused was seen beating the deceased by Nand Lal (PW-5) who disclosed this fact to Gulabi Devi (PW-2). ''Danda'' (Ext.P-1) was used by the accused and it was recovered at his instance sequal to his disclosure statement. Further, the accused was present at his house during this period and he has not examined how the deceased sustained these injuries as a result of which she died soon after. He absconded from the place when the death of the deceased had come not only to his knowledge but also the villagers.

Although Nand Lal (PW-5) has been cited as an eye-witness to the occurrence, yet he has not supported the prosecution. He is the son of the accused and was available in the house on that day. Being young and dependant upon the accused, resiling from his previous version can be easily expected. The fact remains that he has not stated that the accused gave beatings to the deceased.

Gulabi Devi (PW-2) has stated that Nand Lal (PW-5) had disclosed to her on March 12, 1988 that the deceased was killed by the accused by giving beatings, but her version loses importance and legal backing since the informer to her has not supported the prosecution about the beatings of the deceased by the accused. Gulabi Devi was not informed soon after the incident on March 10, 1988. Some-thing positive could be said about her statement, in case she had been told by Nand Lal on March 10, 1988 soon after the incident and she visiting the place of occurrence and noticing the deceased either in bad shape or in dead condition. But, she was informed on March 12,988 by which time she could not see the dead body of the deceased. When both these witnesses are out, the prosecution case hinges on circumstantial evidence.

While examining a case based on circumstantial evidence, Court has to keep in mind the parameters laid down in numerous pronouncements by the apex Court. (See: Hanumant Vs. The State of Madhya Pradesh, ; Eradu and Others Vs. State of Hyderabad, ; Khasbaba Maruti Sholke Vs. The State of Maharashtra, ; Pohalya Motya Valvi Vs. State of Maharashtra, ; Prem Thakur Vs. State of Punjab, ; Sharad Birdhichand Sarda Vs. State of Maharashtra, ; Kansa Behera Vs. State of Orissa, ; Laxmi Raj Shetty and Another Vs. State of Tamil Nadu, ; Kishore Chand Vs. State of Himachal Pradesh, ; Padala Veera Reddy Vs. State of Andhra Pradesh and others, ; and decisions of this Court in Cr. Appeal No. 121 of 1991 Khem Singh and Ors. v. State of H.P., decided on June 5, 1992; Cr. Appeal No. 81 of 1982 State of H.P. v. Purshotam Dass, decided on July 1, 1992.)

The prosecution heavily depends upon the recovery of ''Danda'' (Ext. P-1) made sequal to the disclosure statement (Ext. PK) of the accused during his arrest. Its recovery at his instance was made when he led the police party to his house. The trial Court has rejected this piece of evidence erroneously. The accused made disclosure statement during his arrest by the police (Ext. PK) that he had kept concealed a ''Danda'' in the roof of his house and could get the same recovered. This ''Danda'' (Ext. P-1) was recovered at his instance when he led the police party to his house. This recovery has been proved and there is no reason why this important piece of evidence should be rejected simply because ''Danda'' of this nature is commonly available and did not contain any blood on it. It may be a commonly available kind of ''Danda'' and may not have contained blood on it, but the fact remains that it was recovered sequel to the disclosure statement made by the accused u/s 20 of the Evidence Act. Its recovery has been proved and Dr. B.D. Sharma (PW-1) has also stated that the injuries to the deceased could possibly be inflicted with ''Danda'' (Ext.P-1). This is the first circumstance against the accused.

The second circumstance against him is that the incident of beatings took place on March 10, 1988. It is supported by medical opinion that the deceased could have died more than three days from March 16, 1988, the date of post mortem examination, and within 24 hours after the infliction of injuries. Gulabi Devi (PW-2) did not see the deceased after March 10, 1988. To the same fact is the evidence of Nand Lal (PW-5) and Sita Devi (PW-10). The accused was present in his house on March 10 and 11, 1988 and by this time the death of the deceased had become known to the villagers including Beli Ram (DW-1). He was the only adult member of the family available in the house during this time with young children - Nand Lal (10) and Ram Lal (6). It was for him to explain the circumstances about the beatings to the deceased and her ultimate death. Failure to do so creates a vital incriminating circumstance against him. The evidence also points "out that he was in the habit of beating his wife and children. The wife and some children had left his house since they were fed up of with his behaviour. Assuming that the decease had disappeared from the house or she was given beatings by some-one else, why did not the accused raise hue and cry? Why did not he report the matter to the villagers, his relations, the police, the authorities? His total passivity demonstrates his participation in the commission of the crime. The contention that Gulabi Devi (PW-2) and Nikka Ram (PW-3) are inimical towards him since he did not allow the sale of Chinto Devi''s land in favour of Nikka Ram, is hardly acceptable since there is complete lack of evidence sustaining this allegation.

The third circumstance is the abscondence of the accused from the village after the death of the deceased had come, to the knowledge of the villagers. Apart from others, ASI Mahant Ram (PW-13) has stated that the accused was not available in the village. He could be arrested by SHO Laxmi Chand (PW-12) on June 14, 1988, more than three months, from Delhi. He knew about the death of the deceased. He did not complain about it to any one, in case the deceased had been killed by some-one else. These factors disclose that his leaving the village after the incident was intentional. He wanted to avoid the arrest in connection with this case.

Aforesaid circumstances make a complete chain of evidence against the accused. They plainly demonstrate that the deceased was beaten to death by the accused and none-else. The evidence is comprehensive, clinching and conclusive. No other view can possibly be taken in face of this kind of evidence against the accused. The trial Court has examined the matter quite properly before holding the accused guilty for offence u/s 304 Part-II of the Indian Penal Code. This finding is confirmed and the contention that it would be a case u/s 325, Indian Penal Code is rejected looking to the fact that the deceased was beaten with ''Danda'' (Ext.P-1) so severely that she sustained large number of internal and external injuries on her person.

Now, the question arises whether the sentence awarded to the accused deserves to be maintained or modified. It was contended by the learned Counsel for the accused that the accused is not a previous convict and is the sole bread earner of his wife and other children, therefore, lenient view be taken against him by reducing the sentence already undergone. This plea is opposed by Shri Ram Murti Bisht, learned Assistant Advocate General, who contends that the accused does not deserve any leniency. His behaviour was most abnoxious and barbaric.

Giving serious consideration to the pleas of the learned Counsel for both the sides, I am of the opinion that the interest of justice would not suffer in case the punishment is reduced by two years. Accordingly, the appeal is rejected except as to the reduction of sentence by two years.