Whether reporters of the local papers may be allowed to see the judgment? Yes. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No.446 of 2007. Date of decision: December 11, 2009. Neelam Kumari. ….Appellant. Versus State of Himachal Pradesh ….Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? For the appellant : Mr. Tara Singh Chauhan, Advocate. For the respondent : Mr. Ramesh Thakur, Asstt. Advocate General. Surinder Singh, Judge (oral): Appellant has challenged her conviction, in a case under Section 302 of the Indian Penal Code, for causing the murder of her son, named Master Tarun, aged about one year. Learned Court of sessions, sentenced her to undergo imprisonment for life and to pay a fine of Rs.10,000/-. 2. The factual matrix of the case can be stated thus. PW1 Nikku Ram is an ex-serviceman. He was married to Smt. Nirmala Devi, in the year 1982. He had no issue from said Smt. Nirmala Devi. Thus, in the year 2004, with the consent of his wife Nirmala Devi, he married appellant Neelam Kumari. 2.1. Nikku Ram provided a separate residence to Nirmala Devi in village Katli, in the house of her father-in-law, but the appellant started living with her husband in the newly - 2 - constructed house at village Nand, at a distance of 3 k.m. from village Katli. 2.2. In the year 2005, the appellant gave birth to a male child. Appellant never visited village Katli and she also used to dissuade her husband from visiting that village. She had been threatening him that in case she would be compelled to visit village Katli, she would kill her son. 2.3. On 3rd December, 2006, the father-in-law of the appellant, who was residing in village Katli had died, but appellant did not visit village Katli, to morn his death. She only went to village Katli on 8th December, 2006 alongwith her child and returned to village Nand on the same day with her husband. Thereafter, PW1 Nikku Ram alongwith his brother went to “Kainchi mor’, near Swarghat to purchase some grocery items from the shop, to perform post-death rituals of his father, leaving behind the appellant and the child in his house in village Nand. Around 8.30 p.m., when he returned to his house at village Nand, he did not find his wife and child there. Thus, he made enquiries about the appellant or the keys of the house from his tenant PW2 Dr. Sandesh Guleria, who expressed his ignorance. He then went to village Katli and stayed there for the night. 2.4. Next daty, i.e. on 9th December, 2006, in the morning, PW1 Nikku Ram received a telephonic call from the appellant around 7.30 a.m., asking him about his whereabouts and she enquired from him where he was on the previous night. - 3 - He told her that since she was not found in the house, therefore, he had to stay in village Katli in the house of her parents. 2.5. One Ram Pal son of Hari Singh, informed Nikku Ram on 9th December, 2006 at 7.30 a.m. that he should reach his village Nand as his son was ill. Thereafter, he proceeded to village Nand and found his son lying on the cot of his house. PW2 Sandesh Guleria was examining the baby. Appellant, Sita Devi and wife of Singhasan were also there and all were crying. 2.6. Nikku Ram asked the doctor as to what had happened to his son. Doctor told him that he should immediately take the baby to hospital at Nalagarh as the baby was in suspended animation and appeared to have been strangulated. On this, he asked the appellant as to what had happened to the baby. She told him having killed her son. On examining the neck, he found a circular mark which had turned blue. Thereafter he arranged for the vehicle and took the baby to hospital at Nalagarh, where the doctor declared that he was brought dead. Doctor informed telephonically at about 10.50 a.m., PW14 SI/SHO Som Nath, Police Station, Ramshehar. On this information, S.I./SHO Som Nath proceeded to the hospital, where he met Nikku Ram (PW1) and recorded his statement Ex.PW1/A, on the basis of which FIR Ex.PW13/A was registered, under Section 302 of the Indian Penal Code. 2.7. Photographs of the dead body were taken. Police also filled-in the inquest papers Exts.PW14/A and PW14/B in the presence of witnesses Madan Lal and Bir Singh. - 4 - 3. The dead body was sent for the autopsy, which was conducted in Civil Hospital, Nalagarh by PW10 Dr. Sunita Sood. On examining the dead body of the baby, she found the nail marks on the left side and ligature marks around the neck, extending upto back. Lungs, heart and vessels were found congested. The contents of the abdomen were in liquid form. 4. In the opinion of the doctor, cause of death was asphyxia, which could be due to throttling. Viscera was preserved and sent for forensic examination. On its examination, no poison was detected. Doctor confirmed that the death was due to throttling. 5. Probable duration between injuries and death was within two hours and between death and postmortem within eight hours. The postmortem report is Ex.PW10/B. 6. PW14 S.I./ SHO Som Nath had visited the spot in village Nand. He called Bhagwanti Devi, Pradhan of the Gram Panchayat and Ward member Krishan Lal and took the photographs of the room of the appellant, prepared site plan Ex.PW14/C and recorded the statements of Bhagwanti Devi, Krishan Lal and Nikku Ram and PW2 Dr. Sandesh Guleria. 7. Appellant was interrogated. On her interrogation, she produced green Dupatta Ex.P2, which was allegedly used by her in the commission of the crime. Dupatta was sealed in a parcel and was taken into possession vide memo Ex.PW1/C. Its seal was handed over to Pradhan Bhagwanti Devi. Specimen of seal impression Ex.PW14/D was separately taken. Parcel of - 5 - Dupatta was deposited with MHC in Police Station, Ramshehar. It was sent for the forensic examination. As per report Ex.PX, it was found to have contained the blood and human skin tissues. 8. On the completion of the investigation, the case was presented against the appellant in the court for trial. 9. Learned trial Court, after perusing the challan and the documents appended thereto, charge-sheeted the appellant, for committing the murder of her son, by strangulation, punishable under Section 302 of the Indian Penal Code. Appellant pleaded not guilty and claimed trial. 10. To prove its case, prosecution examined PW1 Nikku Ram husband of the appellant, PW2 Dr. Sandesh Guleria, who had initially checked up the baby, PW3 Krishan Lal Ward Member and PW4, Bhagwanti Devi, Pradhan of the Gram Panchayat, Nand to prove the recovery of Dupatta Ex.P2 and also the extra judicial confession made before her and PW5 Smt. Umarwati, wife of Singhasan and cause of death by PW10 Dr. Sunita Sood, who conducted the postmortem, besides examining other witnesses. 11. Appellant was also examined under Section 313 of the Code of Criminal Procedure. She denied the above allegations and took up the stand that none except her father-in- law liked her in the family in village Katli. Nirmala Devi, the first wife of Nikku Ram used to threaten her that if she would not leave her husband, she would kill her son. On 8th December, 2006, she visited village Katli. None talked to her. She stayed - 6 - there for the night. At about 10 or 10.15 p.m., she kept her child on the bed of Nirmala Devi and she slept on the floor. When she got up in the morning and went to see her child, he was found unconscious and did not respond. Thereafter, she took her son to the doctor in village Nand. At that time, she did not know about the whereabouts of her husband. The doctor after examining her son take him to her room and keep the baby on the bed. After examining the baby, doctor told her to take him to Nalagarh, then she started crying. On hearing her cries, two ladies came there and asked the reason for her crying. She told them that something had happened to her child. When she came out of her room carrying the child, her husband arrived there. Then both of them took him to Nalagarh hospital. 12. Appellant was called upon to enter into her defence, but no evidence in defence was led. 13. Learned trial Court did not believe the defence version, but while relying upon the evidence of the prosecution, convicted and sentenced the appellant, as aforesaid, to which she has assailed in this appeal. 14. Sh. Tara Singh Chauhan, learned counsel for the appellant, vehemently argued that the prosecution mainly relied upon the extra judicial confession, which is otherwise full of contradiction and replete and not confidence inspiring, but the learned trial Court conveniently ignored the major contradictions, which go to the root of the case making it a suspect. He further argued that FIR against the appellant is a fabricated document - 7 - and further ventilated that if the evidence is re-examined in the right perspective, there are grounds to set-aside the conviction passed by the learned trial court. 15. On the other hand, Shri Ramesh Thakur, learned Assistant Advocate General supported the impugned judgment. 16. We have given our thoughtful consideration to the contentions raised by the learned counsel for the appellant and have carefully scanned the evidence on record. 17. PW1 Nikku Ram, while corroborating the case of the prosecution stated that after the marriage with the appellant, he alongwith her started living in a newly constructed house at village Nand, whereas, his first wife was residing with his parents in village Katli. He further stated that whenever he used to visit his first wife and the parents in village Katli, the appellant used to get perturbed. He also stated that his father died on Ist December, 2006, thus, he went to village Katli to perform his last rites. On 8.12.2006, lot of relatives gathered in village Katli to mourn the death of his father. He stated that the appellant alongwith her baby had also visited village Katli. She was taken back by him to village Nand alongwith the child and in the evening, he went to ‘Kainchi Mor’ near Swarghat to buy ration. On his return, at about 8.30 p.m., when he visited village Nand, the appellant was not found present in the house. Thereafter, he contacted PW2 Dr. Sandesh Guleria, his tenant and enquired about the appellant. Doctor informed him that he was taking rest in his room w.e.f. 4 p.m. to 6 p.m. and he did not see her after 6 - 8 - p.m. From there, he went to village Katli and stayed there for the night. In the morning, around 7, the appellant gave a telephonic ring to him, asking about his stay during the previous night. He told her about the above facts and also told her that when he did not find her there, he came to village Katli, where he had spent the night. He also stated that around 8 a.m. Thereafter, Ram Pal informed him that his son was seriously ill and he should reach village Nand immediately. He took the lift on a scooter of Om Parkash to reach his village. On reaching there, he found his son lying on the cot. Two ladies, namely Sita Devi and PW5 Umrawati were present besides his wife (appellant). Dr. Sandesh Guleria (PW2) was examining the baby. The appellant was crying. He enquired from the ladies, as to what had happened, they told him that the appellant had killed the baby, then he asked the appellant, she admitted having committed the mistake. He also noticed the circular marks around the neck of the baby, which had turned blue. Doctor told him to take the boy immediately to Nalagarh hospital. He took the baby to Nalagarh, where he was declared dead. He further stated that the doctor informed the police and police visited hospital. He gave his statement ExPW1/A to the police and identified his signatures thereon. He was meticulously cross-examined on behalf of the accused-appellant with respect to the location of both the villages Nand and Katli and its distance and the houses existing in those villages. He denied that for the night, appellant had stayed in the house at village Katli. He also stated that the - 9 - appellant had in fact stayed for night in village Karlata, 1 K.M. away from village Nand. He denied that he married the appellant against the wishes of his first wife. He also stated that the Dupatta Ex.P2 belongs to the appellant and not to Nirmala his first wife. He categorically denied that Dupatta was recovered from village Katli and also that the appellant did not confess her guilt. He also denied that appellant was a poor woman and he got married her by deceitful means. 18. PW4 hagwanti Devi stated that in December, 2006, when she came to know that the appellant had done something to her child, she went to her residence alongwith Ward member PW Krishan Lal and in his presence, she had enquired from the appellant as to what had happened to the baby, on which she replied that she had killed her baby by strangulating him with Dupatta and now she (PW4) might kill her (appellant). She stated that the police on search of her house recovered Dupatta Ex.P2 vide memo Ex.PW1/C, in her presence and Krishan Lal aforesaid. She identified the Dupatta Ex.P2 during the trial of the case being the same having been recovered from the room of the appellant. She also admitted the suggestion that she saw Dupatta Ex.P2 when it was produced by the appellant. She also admitted the suggestion of the defence that nothing except said Dupatta was recovered by the police. Thus, the recovery of Dupatta from the house of the appellant in village Nand stands proved. Even, PW3 Krishan Lal Ward member has lent - 10 - corroboration to it and also having admitted the guilty by the appellant. 19. PW5 Umrawati wife of Singhasan has also stated that she had visited the house of appellant at village Nand. Sita Devi was already present there. Doctor had examined the baby. After sometime, PW1 Nikku Ram also came there and enquired as to what had happened to the baby. The appellant admitted having killed him. Thereafter, the boy was taken to Nalagarh hospital. 20. PW2 Dr. Sandesh Guleria, corroborated the version of PW1 Nikku Ram. He stated that Nikku (PW1) had visited him and enquired about the whereabouts of the appellant as she was not found by him in the house at village Nand. He informed him that he was sleeping and he did not see her after 6 p.m. Thereafter, he left his quarter. He stated that next day i.e. on 9.12.2006, at about 7.30 a.m., appellant came alongwith the child in her lap and told him that something had happened to him. He told her to take the baby to her room and followed her. On his examination, he did not feel the breathing moment of the child and asked about her husband, so that child could be taken to hospital at Nalagarh. He asked Om Parkash a shopkeeper nearby to inform her husband Nikku on telephone at the earliest. He also confirmed the arrival of two ladies Sita Devi and PW5 Umrawati, in the house of the appellant, on hearing the cries of the appellant. He also stated that he was called inside by Sita Devi and she had shown marks on the neck of the baby. He - 11 - then examined the boy and noticed those marks on the neck and asked the appellant as to how these marks had appeared. She told him that those marks of the Chain, which the boy was wearing, but he noticed that those were of scratch marks, probably with the nail or some hard object. After sometime, her husband Nikku Ram also came there and took baby to Nalagarh. In cross-examination, he suspected a case of suspended animation of the baby, which is death like situation. He admitted that when he told that the boy was serious, appellant started crying. He also admitted the suggestion given on behalf of the appellant that he had also asked the appellant as to where she was during the previous night as her husband was looking for her, but he categorically denied that she told him that he was at village Katli where something had happened to her baby. 21. PW10 Dr. Sunita Sood has stated that the ligature marks found on the neck of the baby were due to some pressure by Dupatta, which caused asphyxia and led to death by throttling. 22. On the critical examination of the evidence aforesaid, it stands proved that on 8.12.2006, appellant had visited village Katli alongwith baby. It also stands established that she was taken back by PW1 Nikku Ram to his house at village Nand alongwith her child, thereafter, he went to Swarghat to make some purchases. On his return, when he did not find his wife in village Nand, he enquired from PW2 Dr. Sandesh Guleria and even he expressed his ignorance about her whereabouts. - 12 - Thus, PW1 Nikku Ram went to the parental house at village Katli and stayed there, which was not liked by the appellant. Earlier also she was threatening Nikku Ram that if he would visit village Katli, she would kill her son. It also stands established that in the morning, she rang up her husband at village Katli and enquired about his absence from village Nand during the previous night when he informed that he was in village Katli. She might have got annoyed and around 7.30 a.m. when she took her baby to Dr. Sandesh Guleria, he was in a suspended animation with ligature and nail marks around his neck. Sita Devi and PW5 Umrawati, Bhagwanti Devi, Pradhan of the Panchayat and ward member Krishan Lal unequivocally testified that the appellant had confessed the guilt to them having killed the baby and this fact has also been corroborated by the husband of the appellant PW1 Nikku Ram. Not only this, there is also another important piece of evidence on record i.e. recovery of Dupatta Ex.P2, which belonged to the appellant. It stands proved on record by the testimony of the recovery witness discussed above that the Dupatta of the appellant Ex.P2 was proved by the appellant and taken into possession by the police and sealed on the spot from the house of the appellant in village Nand. It was sent for the forensic examination and it was found of have blood stains and the human skin tissues, which clearly connects the appellant with the offence charged. 23. Therefore, in our considered opinion, for the above reasons, we do not find any illegality in the judgment of - 13 - conviction and sentence passed by the learned trial court, as such, the appeal is devoid of any merit and is dismissed. Send down the records. (Surjit Singh) Judge (Surinder Singh) December 11, 2009. Judge *Pds*