Hardibazar, District Korba (C.G.) v. Police Station Kusumunda, District Korba (C.G.)

Judgment

1. Assail in the present Criminal Appeal, under Section 374(2) of the Code of Criminal Procedure, 1973 (for (Cr.A. No. 485 of 2019) short ‘CrPC’) is to the Judgment dated 29.1.2018 passed by learned Additional Sessions Judge, Katghora, District Korba (Trial Court) in Sessions Case No.5/2016.

2. By the impugned judgment, the sole appellant herein has been convicted for offence under Section 302 (three counts) of the Indian Penal Code, 1860 (for short ‘IPC’) and sentenced thereunder to suffer Rigorous Imprisonment for Life (three counts) and to pay fine of Rs.2000/- on each count and in default of payment of fine to suffer additional Rigorous Imprisonment for One year on each count, for committing murder of his wife Ambika Kaushik (D-1), aged about 23 years, and two minors sons Yuvraj Kaushik (D-2), aged about 5 years, and Harsh Kaushik (D-3), aged about 2 years. He has further been convicted for offence under Section 201 of IPC and sentenced thereunder to suffer Rigorous Imprisonment for Three years and to pay fine of Rs.1000/- and in default of payment of fine to suffer additional Rigorous Imprisonment for Three months, for concealing the evidence of murder of the above- mentioned three deceased persons. Both the sentences have been directed to run concurrently. (Cr.A. No. 485 of 2019) Prosecution’s case, in brief:-

3. In the intervening night of 13.10.2015 and 14.10.2015, the appellant has committed murder of his wife D-1 Ambika Kaushik and two minor sons D-2 Yuvraj Kaushik and Harsh Kaushik. According to the prosecution, in the night, the appellant asked favour of his wife D-1 Ambika Kaushik to make physical relationship with her, to which she denied as the appellant was in a drunken state. On account of the said issue, a quarrel took place between the appellant and his wife, Ambika Kaushik (D-1), hearing which their two minor sons, Yuvraj Kaushik (D-2) and Harsh Kaushik (D-3) both wake up and started crying. In order to stop Yuvraj Kaushik from crying, the appellant gagged his mouth and strangled his neck and also slammed him down which made him unconscious and ultimately he died. Seeing that, when Ambika Kaushik (D-1) and Harsh Kaushik (D-3) started crying, the appellant assaulted them with an iron pipe and also slammed Harsh Kaushik (D-3) against the wall. There was bleeding started from the heads of both Ambika Kaushik (D-1) and Harsh Kaushik (D-3) and they stopped breathing and died. Thereafter, the appellant pulled the dead-bodies of three deceased persons (D-1, (Cr.A. No. 485 of 2019) D-2 & D-3) to the pit made for putting cow-dung in the garden of his house and he further dig the said pit with the use of a pick-axe and hid the dead bodies of the three deceased persons in the pit covering them with the cow-dung. After that, the appellant put on new clothes and went to K.J.S. Coal Washery, Dhatura for doing his duties.

4. PW-1 Ku. Varsha Maravi, who had gone to sleep in the house of the appellant at the fateful night and was sleeping in that night along with the deceased persons in a room of the house, had seen the appellant assaulting the deceased persons (D-1, D-2 & D-3) with an iron pipe. She had not reacted out of fear and seen the entire incident from the room of the house and in the morning she went to her house.

5. In the morning around 6:00 a.m. on 14.10.2015, the appellant came back from his duties and informed the neighbours as well as PW-4 Laxmichand Kashyap (brother of D-1 Ambika Kaushik) about the deceased persons not found present by him in his house. PW-4 Laxmichand Kashyap reached the house of the appellant immediately and found bloodstains scattered all over the house and on the bed in the house and also saw a bloodstained iron pipe lying there He also noticed (Cr.A. No. 485 of 2019) that the cow-dung pit in the house garden of the appellant was dug up. On his information, Rojnamcha Sanha No.9/2015 was registered at Police Chowki Hardibazar and the matter was informed to the Police Station Kusumunda.

PW-21 Smt. Sadhna Singh, Inspector of Police Station Kusumunda, reached the spot and on the suspicion of the dead-bodies of deceased persons hidden in the cow- dung pit the same was excavated vide Ex. P-30 in presence of S.D.M. Virendra Lakda and from the said cow-dung pit the dead-bodies of three deceased persons (D-1, D-2 & D-3) were recovered. One pocket diary was also seized from the said cow-dung pit vide Ex. P-24. Merg intimations in respect of three deceased persons were recorded vide Exbts. P-8, P-9 & P-10 and Dehati Nalishi was registered against unknown vide Ex. P-11. Crime Details Form (Ex. P-22) was prepared by the Investigating Officer, PW-21 Smt. Sadhna Singh. Bloodstained and plain cow-dungs were seized from spot vide Ex. P-26. The pick-axe which was used to dig up the cow-dung pit was also seized from the spot vide Ex. P-27. Seizure of iron rod was made from the house vide Ex. P-25. Bloodstained mattress cover of the bed was seized from the house vide Ex. P-28. Similarly, (Cr.A. No. 485 of 2019) bloodstained samples of the distemper on which blood was found scattered on the wall of the house as well as the plain samples of distemper and bloodstained piece of the floor were seized vide Ex. P-24. FIR was registered vide Ex. P-71 at the instance of PW-3 Laxmichand Kashyap. Inquest Panchnamas were prepared vide Exbts. P-15, P-16 & P-17. Post-mortem of three deceased persons i.e. D-1 Ambika Kaushik, D-2 Yuvraj Kaushik and D-3 Harsh Kaushik was conducted vide Exbts. P-18, P-19 & P-20 by PW-16 Dr. A.N. Kanwar who found the death of all the three deceased persons to be homicidal in nature. Memorandum statement of the appellant was recorded vide Ex. P-31 pursuant to which, a sari, vest and jeans pant all smeared with bloodlike stains were seized vide Ex. P-21. Appellant was arrested vide Ex. P-6. Nazri Naksha was prepared by the Patwari V.R. Kaushik vide Ex. P-32. During the investigation, statements of the witnesses were recorded under Section 161 of CrPC. The statement of the child witness, PW-1 Ku. Varsha Maravi, was recorded under Section 161 of CrPC vide Ex. P-1. Her statement under Section 164 of CrPC was recorded vide Ex. P-2 and the order-sheets for recording of her statement are Ex. P-3. (Cr.A. No. 485 of 2019)

7. After completion of the entire investigation, the appellant was charge-sheeted before the concerned Magistrate who took cognizance on the charge-sheet and the case, being exclusively triable by the Sessions Court, was committed to the court of Sessions for trial. After committal, the appellant appeared before the Trial Court where charges were framed against him for offences under Sections 302 and 201 of IPC to which he denied and entreated for trial.

8. During the course of trial, in order to prove its case, the prosecution examined as many as 22 witnesses as PW-1 to PW-22 and exhibited 71 documents vide Exhibits P-1 to P-71. After closure of the prosecution evidence, statement of the accused/appellant was recorded under Section 313 CrPC in which he denied the circumstances appearing against him in the evidence produced by the prosecution, pleaded innocence and false implication.

9. On conclusion of trial, learned Trial Court, by the impugned judgment dated 29.1.2018, after appreciating the oral and documentary evidence available on record, held the appellant guilty of the offences punishable under Sections 302 and 201 of IPC for committing murder of his wife D-1 Ambika Kaushik and two minor sons D-2 Yuvraj Kaushik and D-3 Harsh Kaushik and (Cr.A. No. 485 of 2019) concealing the evidence of their murder, and accordingly convicted and sentenced him as mentioned above in the second paragraph of this judgment, which led to filing of the present appeal by the appellant calling in question the legality, validity and correctness of the impugned judgment passed by learned Trial Court. Submissions on behalf of the appellant:-

10. Mr. V.R. Tiwari, learned Senior Counsel appearing for the Appellant, assailing the conviction of the appellant recorded by the learned Trial Court to be unjustified and praying for setting aside the impugned judgment, submits as under:- 1) PW-1 Ku. Varsha Maravi who is a child witness aged about 8 years, her testimony is not reliable and trustworthy as she is a tutored witness and has not seen the incident. Her statement has been recorded in violation of proviso to sub-Section (1) of Section 4 of the Oaths Act, 1969 as she was below 12 years of age and the learned Trial Court was not satisfied that she understood the duty of speaking the truth and as such her testimony is liable to be rejected in light of the decision of the Supreme Court in the matter of Pradeep v. State of (Cr.A. No. 485 of 2019) Haryana1 and Golla Yelegu Govindu v. State of Andhra Pradesh2. 2) The statement of PW-1 Ku. Varsha Maravi recorded under Sections 161 of CrPC (Ex. P-1) as well as under Section 164 of CrPC (Ex. P-2) are in variance of her statement recorded before the Trial Court, as to from which place she has seen the appellant assaulting the deceased persons. 3) The Crime Details Form (Ex. P-22) prepared by the Investigating Officer, PW-21 Smt. Sadhna Singh and the Nazri Naksha (Ex. P-32) prepared by the Patwari V.R. Kaushik also nowhere depict as to from which place PW-1 Ku. Varsha Maravi has seen the incident. Thus, relying upon the decision of the Supreme Court rendered in the matters of Singhara Singh v. State of Haryana and Another 3 and Pratap Singh and Another v. State of Madhya Pradesh4, it cannot be said that she has seen the incident in absence of her position shown in Exbts. P-22 & P-32, the two site plans, and even the Patwari, who has prepared Ex. P-32, has not been examined. As such, the testimony of PW-1 Ku. 1 2 3 4