Ramesh & Others vs State Of Uttarakhand

Sudhanshu Dhulia, J

This criminal appeal has been preferred by the appellants against the judgment and order dated 01.11.2012 passed by the First Additional Sessions Judge, Haridwar in Session Trial No. 270 of 2006. Appellant no. 1 has been convicted under Section 302/34 IPC and has been sentenced to life imprisonment. Appellant no. 2 has been convicted under Section 201 IPC and has been sentenced to undergo rigorous imprisonment for three years.

Both the complainant as well as the accused are agricultural labourers/marginal agriculturist of Village Kalasia, Tehsil Laksar, Police Station Khanpur, District Haridwar. As per the first information report registered at 11:10 A.M. on 30.07.2006 at P.S. Khanpur, District Haridwar, the complainant, who is the father of the deceased, says that today at about 07:30 A.M., Ramesh (Appellant No. 1), took his son along with him on pretext that they would be taking out fire wood from river Ganges. This Court has been apprised that each year during monsoon, tree branches and even fallen trees are carried to the shore by the river, which is customarily picked by the villagers for their fuel. At about 08:30 A.M., he was informed by Samay Singh (who is another resident of the same village) that the dead body of Pradeep (i.e. son of the complainant) is lying in the field of Dhyan Singh. On this information, he reached the spot i.e. the agriculture field of Dhyan Singh, where he found the dead body of his son lying in the agriculture field. His mouth was full with sand and mud. He picked up the dead body of his son and brought it to the house and took out the mud from its mouth. Then he narrates that the day before the incident, his son had taken away some 'animal fodder', from the field of the accused Ramesh and the accused had threatened that his son would be punished for this act. In the FIR, the complainant says that he is sure that his son has been killed by Ramesh!

The inquest started on the same day i.e. on 30.07.2006 at 12:30 PM in the afternoon and continued till 01:30 PM. The opinion of the "Panchas" was that the boy has been suffocated to death. During inquest, it was also noticed that prior to the death of the deceased, he had also urinated and passed stool. The postmortem was conducted on 31.07.2006, the next day. The postmortem report also shows anti-mortem injuries, such as abraded contusion on the face, nasal bone was fractured and both the lungs were congested. As per the opinion of the doctor the cause of death was asphyxia as a result of suffocation due to smothering.

There is another document on record which is a report given to the Station House Officer, P.S. Khanpur, District Haridwar by Birbal (PW 7), Pancham (PW 3) and Sompal (PW 2), who are villagers of the same village. It was stated in the report that on 30.07.2006 at about 08:00 A.M. they had gone to the sugarcane field of Birbal for certain agricultural work. When they reached the agricultural field of Bije S/o Baasi Saini, they saw Ramesh (the main accused), his wife Surajkali and their son Guddu were carrying a boy. Ramesh had lifted the boy by holding both his hands, and Surajkali was holding his legs and Guddu, their son, was accompanying them. When the accused saw them, they dropped the body and ran away. These persons then went to the spot and found the dead body of the deceased Pradeep. Samay Singh, who was going towards the village, was informed that he should inform the father of Pradeep (deceased). These persons are Birbal, Pancham and Sompal of the same village.

The learned counsel for the appellants has expressed serious doubt on the veracity of this report or the statement, as stated above, but the fact remains that all these three persons were examined as PW 7, PW 3 and PW 2, respectively, and have kept their statement made by them in the report (Exhibit A-2).

The complainant Satpal was examined as PW 1, who said that Ramesh who is of his village had come to their house at about 7:00 A.M. on 30.07.2006 and taken his son with him on the pretext that they would be taking out fire wood from river Ganges. At about 08:30 A.M., Samay Singh (another villager of the same village) informed that the dead body of his son Pradeep is lying on the nearby agricultural field of Dhyan Singh. On this information, he went to the spot along with other villagers and found his son lying dead. His mouth was choked with sand and mud. PW 1 then states that about a day before the incident, his son had taken some animal fodder from the field of Ramesh as a result of which Ramesh had threatened that he will not leave his son alive. This witness was shown the first information report which he had lodged, which he acknowledged.

The complainant/PW 1 was cross-examined, in which he admits that Ramesh had also come to his house and had abused his family members. Thereafter he was put to lengthy cross-examination, but nothing worthwhile has come out. When he was asked as to how does he know that his son was taken by Ramesh, to this question, he specifically replies that in the morning he had gone out of the house and his wife and the son were in the house and when he returned, he was informed by his wife that Ramesh had taken Pradeep (deceased) with him.

PW 4 Samay Singh is the witness, who actually informed the complainant that the dead body of his son is lying in the agricultural field. This witness was declared hostile by the prosecution.

Although no statement of Smt. Priya, who is the wife of the complainant and the mother of the deceased, were recorded by the Investigating Officer, but she was summoned by the court as Court Witness, and examined as CW 1. She states that on 30.07.2006 at 07:30 A.M., Ramesh came to her house and took her son Pradeep along with him on the pretext that they would be taking out wood from river Ganges. She also says that soon thereafter she was told that her son has been killed. She immediately fell unconscious and regained consciousness in the evening. She did not even see the dead body of her son.

Learned counsel for the appellants would argue that it is a case of circumstantial evidence. The motive shown to the accused is extremely weak, which is of stealing animal fodder and this cannot be a cause for killing the son of the complainant. The witnesses of last seen i.e. Birbal, Pancham and Sompal are planted witnesses, and are not the true witnesses of the last seen. There is hardly any witness against the accused, which may have called for the conviction in this case.

At this stage, we may also note that out of three accused, one accused namely Guddu was a child of 12 years of age hence no chargesheet was filed against him presumably in view of Section 83 of IPC*, although we do not have before us to verify this.

All the same, in the trial, Ramesh i.e. appellant no. 1 has been convicted under Section 302/34 IPC and has been sentenced to life imprisonment, whereas Surajkali i.e. appellant no. 2 his wife has been convicted under Section 201 and has been sentenced for rigorous imprisonment for three years. This Court has also been informed by the learned counsel for the appellants that during the pendency of the appeal Surajkali/appellant no.2 has passed away, a fact which is confirmed by Mr. V.K. Jemini, learned Deputy Advocate General. Consequently, the appeal so far as Surajkali/appellant no. 2 is concerned, stands abated. Therefore we are only hearing the appeal of accused Ramesh/appellant no. 1.

"83. Act of a child above seven and under twelve of immature understanding. - Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion."

Indeed it is a case of circumstantial evidence and in a case of circumstantial evidence a greater burden lies on the shoulder of the prosecution to prove its case. The chain of evidence must be complete, and there should be one and only one conclusion, based on the evidence produced by the prosecution, which should be that the act has been committed by the accused, and by no one else. In other words, there is a heavy burden on the prosecution to prove its case.

In the present case, however, we do find that based on the evidence which was there before the trial court, correct conclusion has been drawn by the trial court, which is of conviction of the accused under Section 302/34 IPC. This is for the reason that although it is a case of circumstantial evidence, but there is a overwhelming evidence against the accused. First and foremost is the motive itself. At this stage, we may also record that both the accused and the complainant, as already been referred above, are marginalized agricultural labourers. They are all illiterates. The deceased had stolen animal fodder from the field of the accused and though it is a weak motive but nevertheless it is a motive. A very strong evidence is there, not only in the form of Birbal (PW7), Pancham (PW 3) and Sompal (PW 2), who are the witnesses of last seen and who had seen the body of the deceased being carried by the accused at about 08:30 a.m., but the most important would be the mother of the deceased Smt. Priya (CW 1), who has said that it was Ramesh who had come to her house on 30.07.2006 at 07:30 A.M. and taken away his son.

The fact that it was Ramesh who had taken the son of the complainant from his house early in the morning at 07:30 A.M. on 30.07.2006 is never in doubt.

Thereafter the three witnesses i.e. PW 7, PW 3 and PW 2 have seen the body of the deceased being carried by the accused on 30.07.2006 at 08:00 A.M.

Although Ramesh was arrested from the village the next day i.e. on 31.07.2006, the other two accused i.e. Surajkali and Guddu were absconding and they only surrendered on 28.08.2006 and 16.09.2006, respectively.

Most importantly from the postmortem report it has clearly come out that the deceased was smothered and done to death. The symptoms of smothering have been noticed in the inquest report, confirmed by the postmortem report. In the ante mortem injuries present on the body of the deceased, nose bone is fractured and abraded contusion on face and the condition of the vital organs of the body such as lungs, liver and brain, which were congested and the mud being there in the mouth. All these signs prove that the boy was smothered to death.

We therefore uphold the conviction and sentence awarded by the learned Trial Court. Consequently, the appeal is dismissed.

The appellant Ramesh is on bail. His bail is cancelled. He shall be taken into custody forthwith to serve the remaining sentence.

Let a copy of this judgment along with the Lower Court Record be sent to the court concerned for onward compliance.