High Court of H.P.

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No.39 of 2017.

Reserved on : 01.11.2018.

Date of Decision : 06.11.2018.

Kamla Nand ...Appellant.

Versus

State of Himachal Pradesh …Respondent.

Coram

The Hon’ble Mr. Justice Sanjay Karol, Judge.

The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.

Whether approved for reporting?

1

Yes.

For the appellant : Mr. Rajesh Mandhotra, Advocate.

For the respondent : Mr. Vikas Rathore, Additional Advocate General.

Chander Bhusan Barowalia, Judge.

The present appeal is maintained by the

appellant/accused/convict (hereinafter referred to as “the accused”), laying

challenge to judgment dated 24.2.2011, passed by learned Additional

Sessions Judge, Fast Track Court, Shimla, H.P., in Sessions Trial No.16-S/7 of

2010, whereby the accused was convicted for the commission of the offence

punishable under Section 302 of the Indian Penal Code and Section 27 of the

Arms Act and sentenced as under:-

Offence Sentence

Under Section 302 IPC Sentenced to imprisonment for life and fine of

`10,000/-;

Under Section 27 of

Arms Act

Sentenced to simple imprisonment for a period of

three years and to pay fine of `10,000/-. Both the

substantive sentences shall run concurrently.

1

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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2. The key facts necessary for adjudication of this appeal can

tersely be summarized as under:

Accused-appellant, who belongs to Village Kalyai of Gram

Panchayat Dhar Kundru, Tehsil Theog, District Shimla, was having his wife,

namely, Smt. Kanta Devi, sons, namely, Rakesh Kumar (PW-1), Virender

Verma (PW-2) and Meena Devi-daughter, who was studying in ITI at Shimla.

As per the prosecution case, accused is a dead drunkard and used to quarrel

with his wife, whenever she asked the accused not to take liquor. Not only

this, the accused also gave beatings to his wife (Kanta Devi-deceased)

frequently under the influence of liquor. It is alleged that two years before

this incidence, Kanta Devi, wife of the accused left the matrimonial house and

went to the house of her parents. Further, with the intervention of the

relatives and members of Panchayat, the matter was compromised and his

wife joined company of the accused on the promise that he will not take

liquor in future nor he will beat her. On 28.5.2010, at about 6:00 PM, a day

before the incidence, accused left the house without telling anyone. In the

morning of 29.5.2010, Virender Verma, PW-2 (son of the accused and Kanta

Devi) went to nearby forest around 7:00 AM, for grazing the cattle. At about

7:30 AM, Kanta Devi, was in the kitchen and preparing meals for the day.

Rakesh Kumar, (PW-1) elder son of the accused had just put off his clothes

to take bath, when he heard a gun shot in the kitchen and cries of his mother

“Mar Diya”. He immediately put on his clothes and rushed towards the

kitchen and found that his mother Kanta Devi, was lying on the floor and

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a gun shot had hit her and she received injuries on her back side. He found

his father standing at the door of the kitchen with a gun in his hands. On

finding, something unusual had happened Smt. Nirmala Devi (PW-4) rushed

to the house of the accused, found him standing at the door with gun, then

went to the kitchen and put Kanta Devi in her lap. She tied ‘dhatu ’ (head

gear) on the wound of Kanta Devi, simultaneously, Virender Verma (PW-2)

and other residents of the village also arrived there, when people started

collecting there, the accused tried to flee away from the spot, but he fell

down and received injuries. Pradhan of the village was informed about the

incidence telephonically to Police Post Matiana within whose jurisdictions this

incidence has taken place. Police reached at the spot alongwith Police of

Police Station, Theog. Statement of Rakesh Kumar (PW-1) recorded under

Section 154 of the Code of Criminal Procedure, in respect of this incidence

and site plan was prepared. The inquest report was prepared and took into

possession, blood stained clothes from the kitchen as well as the blood lying

on the floor with the help of cotton swab in the presence of witnesses taken

into possession and spot was also photographed. Thereafter, the accused

was arrested by the police and it has been alleged in the charge sheet that he

while in police custody made a disclosure statement, under Section 27 of the

Indian Evidence Act, on 29.5.2010, in the presence of witnesses that he could

get his double barrel gun as well as the used cartridge recovered and

pursuant thereto, a double barrel gun was recovered from the ceiling of the

room and empty cartridge from a field situated nearby the house. The police

also took into possession gun as well as cartridge and got them analyzed from

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the Ballistics Expert at FSL, Junga. The report of expert shows that gun shot

was fired from the aforesaid gun. The postmortem of the deceased was

conducted at IGMC, Shimla, from the Forensic Experts and as per the report

of expert, she died due to injuries of gun shot. Investigating Officer also took

into possession, the record pertaining to the gun licence of the accused,

purchase of live cartridges by him from Arms Dealer at Theog. It has come in

the investigation that the deceased immediately before her death had told

Nirmla Devi (PW-4) that accused had killed her. It has also come during the

investigation, on the evening of 28.5.2010, accused had gone to the house of

Tara Chand Verma, his brother-in-law and left in the early morning of

29.5.2010 for his (accused) house. After completion of investigation, challan

was prepared and presented in the Court.

3. The prosecution, in order to prove its case, examined as many

as twenty one witnesses. Statement of the accused was recorded under

Section 313 of the Code of Criminal Procedure, wherein he pleaded not guilty.

The accused did not lead evidence in his defence.

4. The learned Trial Court, vide impugned judgment dated

24.2.2011, convicted the accused for the commission of the offence

punishable under Section 302 of the Indian Penal Code and sentenced him to

undergo imprisonment for life and fine of `10,000/-. The convict is further

sentenced to simple imprisonment for a period of three years and to pay fine

of `10,000/-, for offence punishable under Section 27 of the Arms Act. Both

the substantive sentences to run concurrently.

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5. Mr. Rajesh Mandhotra, learned counsel for the

accused/appellant has vehemently argued that the prosecution has failed to

prove the guilt of the accused conclusively and beyond the shadow of

reasonable doubt, as the disclosure statement and recovery made thereafter

seems to be improbable, as per the prosecution case, accused was not having

any opportunity to conceal the gun at the place from where it was recovered.

He has argued that dying declaration is also not clear, as the deceased has

only stated that “Inhone Maar Diya ”, which does not mean that it was the

accused who has killed her. He has further argued that accused was not in

his house on the previous night and his presence in his house in the early

morning on 29.5.2010, is highly improbable.

6. Conversely, Mr. Vikas Rathore, learned Additional Advocate

General has argued that the gun belongs to the accused and accused

purchased the cartridge, empty shell of the cartridge, which was recovered

from the field found to be fired from the gun by the Ballistics Expert of FSL,

Junga, the presence of the accused alongwith gun on the door of the kitchen

making people come there after the gun shot coupled with the fact that dying

declaration of the deceased was clear and unambiguous (‘ Inhone’ means

husband) leads to only one of the conclusion that it was the accused, who

has killed his wife after firing gun shot. He has further argued that the

prosecution has proved the guilt of the accused beyond the shadow of

reasonable doubt and thus, well reasoned judgment of learned Trial Court is

not required to be interfered with.

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7. In rebuttal, learned counsel appearing on behalf of the accused

has argued that for severe punishment, strict proof is required. He has

argued that the sequence of events shows that the prosecution story is full of

lacuna and the accused, who has been convicted on the basis of prosecution

evidence, which is full of surmises and suspicion, required to be acquitted.

8. In order to appreciate the rival contentions of the parties, we

have gone through the record carefully.

9. PW-1, Rakesh Kumar, deposed that he got recorded his

statement under Section 154 of the Code of Criminal Procedure, Ex.PA, on the

basis of which, FIR Ex.PW17/A was registered in Police Station, Theog. He

deposed that the accused was his father and Kanta Devi was his mother. He

deposed that he is having one more brother Virender Verma (PW-2) and one

sister Meena. He deposed that his father was having a double barrel gun

which was licensed one. He deposed that his father was dead drinker and

there used to be quarrels between his mother and father. He deposed that

two years back, the quarrel has taken place between his mother and father

and thereafter, his mother left the matrimonial house and went to the house

of her parents. Further, she was brought back pursuant to the compromise

which took place before Pradhan of Panchayat, Vidya Sagar (PW-3), at the

time of compromise, his father has agreed not to take liquor in future. He

deposed that on 28.5.2010, his father went out of the house around 6:00 PM,

without telling anything and he did not return at night. In the morning of

29.5.2010, when his brother went to graze the cattle and his mother was

preparing meals in the kitchen, at about 7:30 AM, he had gone to bathroom

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to take bath, which is adjoining to the kitchen, when he was to take bath, he

heard the sound of gun shot from the kitchen side. He heard the cries of her

mother also “Mar Diya ”. Thereafter he (PW-1), came out from the bathroom

and found his father standing there with a gun in his hands, he was standing

just outside the door of the kitchen. He went to kitchen and found that her

mother lying on the floor with gun shot injuries on the back side. From the

wound blood was gushing out. He loudly made a call to his brother, who was

grazing cow in a field nearby. On hearing, the gun shot, his uncle Khem Raj

and Chachi Nirmla Devi (PW-4), whose house was adjoining also reached

there and his brother Virender Verma (PW-2) also came there. Thereafter, he

made a phone call to his uncle Balanand and requested him to come there.

He deposed that all of them were attending the deceased, accused went

away. Further, at that time, many persons gather there and they caught the

accused while running the accused fell down and received injuries on his

head. His mother died shortly, thereafter, the police from Police Post,

Matiana and Police Station, Theog, reached there, his statement was

recorded. He has stated that ‘Dhatu’ (head gear) of his mother had been

tied by his aunt on the wound of his mother. The ‘Dhatu’ (head gear) was

taken into possession by the police. Thereafter, this witness remained busy

in connection with dead body of the mother. On 31.5.2009, the police again

came to their house, at that time, his uncle, Balanand and Dinesh Verma

were also present. He handed over the gun licence to the police, which was

taken into possession, vide memo, Ex.PB, which bears his signature and

signatures of the witnesses and exhibited the licence, Ex.P1. He has

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identified the gun, which was sealed in a parcel, with three seals of FSL and

after opening the seal parcel, a double barrel gun was taken out and the

same as per this witness belongs to his father. The gun was exhibited, as

Ex.P2. He has also identified the ‘dhatu’ (head gear) to be the same of his

mother, which smeared with blood type substance. The ‘dhatu ’ (head gear)

was exhibited, as Ex.P3. He also stated that this is the same ‘dhatu ’ (head

gear) which was tied by her aunt on the wound of his mother. In his cross-

examination, he stated that income from the orchard was about `80,000/- to

`90,000/- per year. He has admitted that the gun licence had been given to

his father by the administration for crop protection. He has admitted that gun

shot was to be fired to scare the wild animals. He has stated that neither he

nor his brother load and use the gun. He has stated that the distance

between kitchen and bathroom is about 8 feet and one of the wall is common

between two. The said wall is ‘kachha ’ one. He has admitted that keys of the

house generally remained with his mother. The gun Ex.P2 and cartridges

were used to be kept by his father in his own room. He has specifically

denied that the gun and cartridges used to be at a place accessible to all

family member and the gun was to be used by any of them. He has stated

that the distance between the place where his mother was lying down in the

kitchen and door of the kitchen is about 7 feet. He has admitted that he has

not seen the gun fire with his own eyes. He has stated that the marriage of

his parents took place 23 years ago and the relations between them were

generally good, but quarrels used to take place on account of his father

taking liquor. The quarrels used to be wordy one, but sometime his father

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used to beat his mother with ‘danda ’. He has admitted that his mother never

filed any complaint with the police. He has denied that no compromise was

taken place two years back. He has admitted that partition of the land has

taken place between his father and his uncle. He has denied that he does not

possess a double barrel gun. He has admitted that his mother not met him in

the morning of 29.5.2010 before this incidence. He has stated that he had

not heard any such quarrel taken place in the kitchen on that day. He had

taken off his clothes in the bathroom, when he heard the gun shot. He has

stated that his brother used to go to School at 8:30-8:45 AM, but he has

denied the suggestion that his brother never used to go to graze cattle in the

morning. He has specifically stated that he used to graze cattle in a field at a

distance of 50-60 meters from their house and no one else used to graze

cattle there. He has denied that accused was not present, when the

incidence has taken place.

10. PW-2 Virender Verma, second son of the accused deposed that

they are two brothers and one sister. He deposed that his sister studying in

ITI, Shimla. He stated that his father used to quarrel with his mother on

account of liquor. He deposed that on 28.5.2010, his father left the house

around 7:00 PM and on the next day, he has gone to graze cattle in a nearby

forest, when he left the house, his mother was present in the kitchen. He

heard a loud call at about 7:30 AM that his mother had been killed by his

father, when he came to the house, he saw his father was on the stairs with a

gun in his hands, whereas mother was lying unconscious in the kitchen. She

had received a gun shot injuries. He has stated that Nirmla is ‘ Chachi’ and

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Khem Raj-uncle reached at the spot together. He deposed that his uncle and

aunt resided in the same building. He found blood was oozing out from the

wound of his mother. He stated that his bother telephonically informed Bala

Nand, about the incidence who also came to the spot. The accused tried to

flee from the spot, but his uncle and brother tried to catch the accused. In

this process, the accused received injuries while fleeing away from the spot.

He deposed that accused was not carrying gun with him while fleeing.

Thereafter, Vidya Prakash, Vidya Sagar and Prakash, also came on the spot.

He stated that his mother had told Vidya Sagar, Pradhan of Gram Panchayat,

Dhar-Kandru that accused used to quarrel with his mother after taking liquor.

In his cross-examination, he has stated that he is studying in 10+1. He

deposed that he used to go School from house around 9-9:15 AM. He

deposed that when he reached his house, his mother alongwith brother were

present there. Police recorded his statement in his house. He has stated that

he is not in a position to take his mother to the hospital, as there was no

occasion to take her to the hospital. He has denied the suggestion that he has

not gone to the forest in the morning. He stated that the gun used to be kept

in a room, where the accused normally used to sleep. He stated that our

house is double storyed and in the ground floor, cattle are kept. He has

stated that he does not know where his father used to keep the cartridges.

He does not know about the loading of gun. He stated that the relationship of

his mother and father were cordial, but sometime they used to quarrel on the

point of liquor. He has denied that no such quarrel took place on 28.5.2010.

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11. PW-3, Vidya Sagar, President of Gram Panchayat, Dhar Kundru

and Advocate by profession. As per this witness, on 29.5.2010, at about 8:00

AM, he received a phone call from Vidya Prakash, husband of Up-Pradhan of

Panchayat that gun shot had been fired on a lady. He immediately

telephonically informed Police Post, Matiyana about it. He went to Kalyai, in

a vehicle of Station House Officer, Theog, the police of Police Post, Matiyana,

reached at place Kalayai, almost simultaneously many persons had collected

at the spot, the accused was standing nearby his kitchen and he had been

detained by the people. PW-1, Rakesh Kumar, got his statement recorded

before the police. He remained associated with the police when blood was

taken with the cotton swab and put into a bottle. The ‘dhatu ’ (head gear)

was taken into possession, which was smeared with blood and recoveries

were effected. As per this witness, the accused also made disclosure

statement in his presence and on the basis of disclosure statement, gun was

recovered from the ceiling. He identified the gun and cartridges to be the

same in the court on that day. He also identified the ‘dhatu’ (head gear),

and the cartridge Ex.P4, which was recovered from the spot. He also

deposed that he appended his signatures on the parcel. He deposed that

Pradhan of Panchayat, had gave information that the accused used to beat

the deceased. Earlier, the deceased had gone to the house of her parents

after getting annoyed from the conduct of the accused, as he had beaten her.

He deposed that he has also gone to the house of the parents of deceased in

order to get the matter compromised and pursuant to the compromise, the

deceased had joined the company of the accused. He deposed that written

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compromise was effected at that time and copy thereof was given to the

parties and one copy was retained with the Panchayat, but now it was

misplaced, while the record was shifted to new Panchayat Ghar. In his cross-

examination, he deposed that he know all the residents of the area in the

capacity of Pradhan of Gram Panchayat. At that time, 20-25 persons of the

locality had collected there. He stated that just adjoining to the house of the

accused, the other house located at some distance of about 5-10 minutes

walk. He deposed that gun was taken into possession from the ceiling and at

that time, he was present in that room. In his cross-examination, he

admitted that 15-20 persons are authorized to possess this type of gun in his

Panchayat, but he do not know the kind of guns they have. He has stated

that his statement was recorded on the spot. They remained on the spot till

8:00 PM. He stated that it is incorrect that no proceedings were prepared in

his presence. He has denied the suggestion that accused never used to

quarrel with his wife and used to give beatings. He has denied that no

compromise was got effected by the Panchayat. He stated that police

recorded his statement twice. He has denied the suggestion that being

Pradhan of the Panchayat, he made his false statement.

12. PW-4, Nirmla Devi, sister-in-law of the accused, deposed that

accused used to quarrel with his wife (Kanta Devi) after taking liquor, as

Kanta Devi, used to ask the accused not to drink. She deposed that on

29.5.2010, at about 7:30 AM, she rushed to the spot immediately, on hearing

gun shot and cries and there put Kanta Devi in her lap, tied ‘ dhatu’

(head gear) on the wound and then Kanta Devi made dying declaration to her

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that “Inhone Mar Diya” . PW-5, Sanjeev Verma, in whose presence the

articles of the deceased i.e. ornaments were handed over to Bittu Verma, vide

memo, Ex.PG. PW-6, Karam Chand, Halqua Patwari, Patwar Circle Dhar

Kundaru, who prepared copy of jamabandi, Ex.P5 and prepared tatima Ex.P6,

of the spot and handed over them to the Investigating Officer, SI Ram Phal

(PW-21). PW-7, Ishwari Devi, mother of the deceased to show that there

had been quarrels between the accused and the deceased regarding liquor

and even Kanta Devi had left the matrimonial house, when the accused gave

beatings to her. PW-8, Dr. Peeyush Kapila, Assistant Professor, Department

of Forensic Medicine, I.G.M.C, Shimla, who conducted autopsy upon the

deceased and prepared report Ex.PW8/C. The observations during the

postmortem examination are as under :

“166 cm, female body was brought with blood soiled

clothes on back. Body had cooled down to room

temperature. Hypostasis was present on back, fixed. Rigor

mortis present in sm aller joints. No evidence of

decomposition present. Skiagrams of Xray were taken

before autopsy.

Antemortem Injury :

1. 11 x 4 cms Lacerated penetrating gunshot wound

present on left back, medial end of injury 2 cms from

midline at the level of L3-4 vertebrae, lateral end having

grazed and medial and having avulsion, 60 cms from top of

head, 102 cm from heel and 2 cms from midline, placed

transversely.

After opening the body wad 3.5 x 1.5 cm, black made

of plastic & rubber was present in the retroperitoneal space

on right side. There was fracture of spine and transverse

processes of L3-4 vertebrae. Some pallets were present on

right lumbar region just below the skin, taken out and

preserved to be handed over to the police. Individual pellet

wounds 3 in number present in mesentery of small

intestine lacerating liver on right inferior lobe. There was

contusion of pancreas and perinephric area of right side.

Gross laceration of vessels of abdomen present in the tract

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which directed from left side of back to right side lacerating

skin, muscles, then fracturing L3-4, transacting spinal cord

completely, lacerating major vessels in retroperitoneal

space and reaching almost horizontally to right side just

below skin. No blackening, singeing, scorching or tattooing

were present on the skin.

Contents of Cranium and thorax were grossly normal

except that they were pale.

One pallet/bone fragment have exited from skin of right

lumbar area measuring .05 cms.

No food or fluid was present in stomach without any smell

or congestion.

Laceration of right lobe of liver by pallets was present.

Peri-nephric contusion was present without injury to

kidney.

Uterus was non pregnant size and was normal.”

13. PW-9, Dr. Naseeb Singh Patial, Ballistics Expert, examined Fire

Arm i.e. gun Ex.P2, cartridge case, Ex.P4, traces of gun shot on cotton swab

as well as the clothes, jacket and shirt Ex.P7 of the deceased and then

prepared report Ex.PW9/A. PW-10, Dr. Kuldeep, who conducted the

postmortem in Civil Hospital, Theog and gave his report, Ex.PW10/B. He also

examined the accused and prepared MLC, Ex.PW10/E. PW-11, Mohinder

Kumar, salesman of Theog Gun House from where the accused purchased

cartridges on 29.12.2009 produced the entries of the relevant register, which

is Ex.PW11/A. PW-12, Jeet Ram, Junior Assistant of SDM Office, Theog, to

prove the report Ex.PW12/B, regarding the verification of gun licence of the

accused. PW-13, HHC Ranjeet Singh of Police Post, Matiana, to prove entries

of Roznamacha Ex.PW13/A, which were made on the basis of intimation given

in Police Post, Matiana, regarding the incidence. Further, he brought rukka

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Ex.PA from the spot for registration of FIR in Police Station, Theog and after

registration of the same and handed over to Investigating Officer, SI Ram

Phal (PW-21). The gun licence, Ex.P1 of the accused was taken into

possession on 31.5.2010, vide memo, Ex.PB. PW-14, Constable Surinder

Singh got the autopsy conducted upon the body of the deceased in Civil

Hospital, Theog and thereafter, in I.G.M.C, Shimla. The parcels handed over

to him by Medical Officers were deposited by him with MHC of Police Station,

Theog on 1.6.2010. PW-15, Constable Damodar Dass, who carried different

sealed parcels alongwith sample seals and dockets mentioned in Ex.PW15/A

and deposited them in FSL, Junga on 4.6.2010. PW-16, Constable Rajesh

Kumar, who brought one sealed parcel alongwith samples of seal and docket

to FSL, Junga and deposited them on 2.7.2010. PW-17, Constable Manoj

Kumar, who recorded the departure report Ex.PW17/A, when the police party

headed by SI Ramphal Yadav, left the Police Station to Village Kaliyai, on

getting intimation of this incidence. PW-18, ASI Laiq Ram, recorded FIR

Ex.PW18/A in Police Station, Theog, on the receipt of rukka Ex.PA. PW-19,

MHC Het Ram, with whom different sealed parcels were deposited by the

Police Officers during the course of investigation and then sent them to FSL,

Junga, for the purpose of analysis on different dates, vide R.C Ex.PW15/A and

Ex.PW16/A. PW-20, ASI Ajay Kalia, who partly investigated the case and took

into possession gun licence, Ex.P1, vide memo, Ex.PB. PW-21, SI Ram Phal,

deposed that on 29.5.2010 at about 8:20 AM, ASI Ajay Kalia, informed

regarding murder of a lady, on the basis of which, entry in the

daily diary was made, which is, Ex.PW17/A. He deposed that the dead body

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was inspected by him and then recorded the statement of Rakesh Verma,

Ex.PA and made endorsement, Ex.PW21/A. The rukka was sent to Police

Station, Theog, for registration of FIR through HHC Ranjit Singh (PW-13). He

stated that the blood with cotton swab and one blood stained ‘dhatu ’

(head gear), which was tied on the wound of the deceased was taken into

possession by him. The said articles were sealed separately in different

parcels and sealed with seal ‘X’ and taken into possession, vide memo, Ex.PC

in the presence of Bala Nand, Vidya Sagar and Sunil Kumar. He prepared

spot map Ex.PW21/B, which bears his signatures. He has stated that during

the course of investigation, accused disclosed that he could get the gun as

well as empty cartridge recovered, his statement was recorded, which is

Ex.PD, in the presence of Vidya Sagar, Chaman Prakash and HC Sunil Kumar.

He deposed that the gun was double barrel and on it W.J. JEFFERY & Co. Ltd.

was written. He stated that the gun was taken into possession, vide memo,

Ex.PE, after being recorded at the instance of accused. In his cross-

examination, he has stated that the spot is at a distance of 35 KM from Police

Station, Theog. He stated that no quarrel took place between the accused

and his wife on 28.5.2010, when accused went to the house of his relatives.

However, it is correct that there is no statement of any witness to this effect.

He stated that the accused did not make any disclosure statement. He

denied the suggestion that the finger prints were not taken by him from the

gun. He stated that he cannot tell, if a person fires a gun shot from 12 bore

gun, then fire residue will stick to his hands. There was no hand wash of the

accused for determining gun shot residue. He stated that the accused was

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got medically examined in the intervening night on 29/30.5.2010. He stated

that he remained present there at the spot till 8:45 PM and came to Police

Station, Theog and reached there 11:30 PM.

14. After analyzing the above record, including the evidence of the

parties and exhibits, it is clear that the following circumstances emerge for

consideration :

a) The deceased used to request the accused not to take

liquor, but the accused never listen to her. Rather, he

resorted to her beatings after taking liquor.

b) The complainant, Rakesh Kumar, who was about to

take bath in the adjoining bathroom on hearing gun shot and

cries of his mother, immediately, came out and saw th at

accused was standing at the door of kitchen with a gun in his

hands.

c) The deceased while in the lap of Nirmla Devi, PW -4,

made a dying declaration to the effect that the accused killed

her.

d) The accused made disclosure statement, while in police

custody and got recovered a gun as well as the used cartridge

in the presence of witnesses.

15. In the present case, family members are the best persons to

depose about the affairs of the family. Complainant, Rakesh Kumar (PW-1)

has categorically stated that accused, his father, is a dead drinker and there

used to be quarrels on this ground between his parents. He has further

stated that about two years before, a quarrel had taken place and thereafter,

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his mother left the house and went to the house of her parents. She returned

back only when a compromise was effected in the presence of Pradhan and

other respectable persons. PW-7, Ishwari Devi, mother of the deceased has

also stated that her daughter and the accused remained happy for 8-9 years

and thereafter, accused-Kamla Nand, started quarreling with her and he used

to beat his wife after taking liquor. Further, about two years before this

incidence, her daughter was beaten by the accused and then, she came to

her house. She has further stated that the matter was settled in the

Panchayat by way of written compromise in the presence of Vidya Sagar,

Pradhan. Nirmla Devi (PW-4), who is devrani (sister-in-law) of the deceased

and resided in the same building, has also deposed that the matter regarding

quarrels between the accused and his wife was taken by the Panchayat and

conciliation was effected pursuant to the assurance of the accused, that he

would not take liquor in future and not to beat his wife. PW-3, Vidya Sagar,

Pradhan of Gram Panchayat, Dharkundru, has also stated that accused had

beaten his wife, and the deceased, getting annoyed with his behaviour, had

gone to the house of her parents. He has further stated that he had gone to

the house of the parents of the deceased and got the matter conciled

pursuant to which, she joined the company of the accused. Complainant,

Rakesh Kumar (PW-1), elder son of the accused and his statement was

recorded during trial of the case on 13.12.2010. He has stated that on

28.5.2010, his father left the house around 6:00 PM without telling anything

and he did not return even during night. On 29.5.2010, his brother Virender,

went to graze cattle, whereas, mother was preparing food in the kitchen. He

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has further stated that at about 7:30 AM, when he was in the bath room to

take bath, he heard gun shot and cries of his mother “Mar Diya” from kitchen

side. He has elaborated his statement and stated that he came out of the

bathroom and found that his father (accused) was standing just outside the

door of the kitchen with gun in his hands. Further, when he went to kitchen,

he saw his mother lying on the floor and a gun shot had hit her on the back.

He made a call loudly to his brother, who was grazing cattle in a nearby

fields. He has further stated that on hearing gun shot, his uncle Khem Raj

and aunt, Nirmla (PW-4) came there and immediately thereafter, his brother

Virender Verma (PW-2) came. He has stated about the arrival of police to the

spot and making to them, statement Ex.PA. This is what, he has deposed to

about the material aspects of the case, i.e. about the person, who killed his

mother. It is evidently clear that if his statement is accepted as correct, it

leaves no doubt that it was the accused who, killed his wife with gun shot.

16. Statements of PW-1, Rakesh Kumar and PW-2, Virender Verma,

also show that their versions are true, they had spoken truth and nothing

else, so their versions are fully reliable and trustworthy. PW-2, Virender

Verma, has specifically stated that he had gone to forest for grazing cattle,

thereafter, when he came home, he had to go to School. In villages,

generally children do domestic works before going to the School. His

statement is that he was grazing cattle in the field and the forest is adjoining

to the field, he reached back within two minutes and found his father

standing there and mother lying unconscious. Similarly, statement of PW-1,

Rakesh Kumar, is trustworthy, reliable and there is no reason, whatsoever, to

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discard his version. It is not in dispute that the complainant was family

member of the accused and he was residing in that house at the relevant

point of time. His presence in the house was natural. The incidence has

taken place in the early hours of the morning around 7:30 AM and it is quite

natural that at that time people used to take bath. Site plan Ex.PW21/B,

prepared by SI Ramphal, Investigating Officer (PW-21) depicts that bathroom

at point ‘j’ is adjoining to kitchen and one of the wall between the two is joint.

The distance between the doors of the kitchen and the bathroom is just 8

feet. The wall between the kitchen and the bath room there was a ‘kachha’

wall, as has been stated by the complainant. So, there is nothing doubtful, in

the deposition of the complainant that he heard the gun shot and the cries of

his mother in the bathroom. There was nothing unusual and unnatural if the

complainant immediately came out of the bathroom and rushed towards the

kitchen. The distance between the doors of kitchen and bathroom is just 8

feet and it would have been covered by the complainant within a second.

The complainant, immediately came out of the bathroom on hearing gun

shot. He saw his father standing at the door of kitchen. No other person was

found standing with him at that time. The accused was alone, therefore,

there is no ground to believe that some other person might have used the

gun and committed the crime. PW-2, Virender Verma, younger son of the

accused was studying in a School. He has stated that on 29.5.2010, at about

7:00 AM, he went to nearby field to graze cattle and on the loud call, at about

7:30 AM, of his brother, that father had killed the mother, he came to house

and saw the accused on the stairs with a gun. His statement has been

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disputed by the defence on the ground that he was a student of a Senior

Class at that time and he could not have afforded to graze cattle, that too in

the morning, when he was also required to go to School. There is substance

in the defence. His statement shows that he, his aunt, Nirmla Devi, PW-4 and

Uncle Khem Raj, reached the place of incidence almost simultaneously, within

a minute or two. The important thing to take note of his statement is that he

had seen his father with a gun on the stairs, shown at point ‘m’, which

connect the upper floor of the building with court yard. So, it is evident that

after committing crime, the accused tried to flee via these stairs, shown at

point ‘m’ and he was seen with gun by Virender Verma (PW-2) at that point of

time. The mere fact that Nirmla Devi (PW-4), has not supported the

prosecution case on the point that she had seen the accused standing with a

gun outside door of the kitchen, does not dilute the statement of Virender

Verma (PW-2). The accused was having sufficient time to conceal the

weapon after committing the crime, as everyone was busy looking after the

deceased, who may be unconscious at that time and healing her wound. So,

we do not find any force in the arguments of learned counsel appearing on

behalf of the appellant that he was having no time to conceal the recovery of

weapon, on this disclosure statement is not believable. Rather, disclosure

statement made by the accused leading to the recovery of weapon is in the

presence of witnesses and duly proved on record. The recovery of weapon is

a fact, which is proved by the prosecution on record. At the same point of

time, the accused has purchased cartridges. FSL report shows that the

cartridge was fired from the gun and it was owned and possessed by the

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accused. The dying declaration of Kanta Devi-deceased to her ‘devrani’ when

she was lying in the kitchen. Points to her husband only as the Hindu ladies

do not refer their husbands by names, whenever their reference comes in a

talk. They have devised an easiest expression to refer them i.e. ‘Inhone’. The

deceased had sufficient time to see the accused, because it was a broad

summer day and the accused was very close to her i.e. within a gap of 02

mtrs. Therefore, when she told Nirmla Devi (PW-4) “Inhone Mujhe Maar

Diya”, she clearly conveyed that it was her husband, who killed her with gun

shot. PW-4, Nirmla Devi, had heard the cries and weeping of Rakesh,

immediately after the gun shot as also of his making call to his brother

Virender. She has further stated that Virender also reached the spot almost

simultaneously with her, which also shows that Virender Verma (PW-2) was

not present in the house, when the incidence had happened. This belies that

defence plea that expression ‘inhone’ is referable to Rakesh and Virender also.

Nirmla Devi (PW-4), sister-in-law of the deceased that she always considered

the deceased as her elder sister. So, there were reasons for the deceased to

confine in her and tell what had happened to her. So, there is no vagueness

or ambiguity in dying declaration and it necessarily refers to the accused

alone. There is due corroboration of the dying declaration on material

particulars of the case i.e. presence of accused at the door of the kitchen with

gun by Rakesh Kumar (PW-1) and death of the deceased on account of gun

shot etc. The wife of the accused was fired at about 7:30 AM on 29.5.2010,

when she was in the kitchen and preparing food. The accused was found

with a gun in his hands outside the kitchen, by none else, but his son Rakesh

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Kumar. The deceased told few minute, thereafter her sister-in-law, that she

had been killed by her husband. The accused was not present in the house

on the previous night, but his presence on the spot at the relevant point of

time is proved. The injuries were found sufficient in the ordinary course of

things to cause death. Strange is the human behaviour and a person may

resort to heinous crime for small and trifling matters. The accused wanted to

lead free and unbridled life and did not like day-to-day interference of his wife

in matters relating to liquor etc. and for this reason, he went to the extent of

killing her. The accused used a gun from a very short distance and fired at

his wife, who received gun shot and died. The intention to kill his wife, on

the part of the accused is very evident on record. The accused, admittedly,

was granted licence Ex.P1, in respect of double barrel gun bearing No.34535

W.J. Jeefary for self/crop protection by the competent authority. He used it,

as is evident from the statement of Dr. Nasib Singh Patial and the report of

FSL, Ex.PW9/A, for unlawful purpose. Therefore, accused committed the

offence within the ambit of Section 27 (1) of the Act.

17. In view of the above facts and circumstances of the case, it is

amply clear that the prosecution has proved the guilt of the accused

conclusively and beyond the shadow of reasonable doubt. The only

conclusion is that it was the accused, who has killed his wife by firing gun

shot with his licencee gun, knowingly fully well in all probabilities that the gun

shot will cause death of his wife (Kanta Devi-deceased).

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18. In our considered view, the prosecution has been able to

prove the guilt of the accused, beyond the shadow of reasonable doubt, by

leading clear, cogent, convincing and reliable evidence. We, thus, do not

find any merit in this appeal, which is accordingly dismissed. Pending

application (s), if any, also stand (s) disposed of.

19. Copy of this judgment be send to the convict free of cost,

through DGP (Prisons), as prayed for by Mr. Rajesh Mandhotra, learned Legal

Aid Counsel.

(Sanjay Karol)

Judge

(Chander Bhusan Barowalia)

November 6, 2018 Judge

(CS)

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