Ram Paul vs State of J&K and Ors.

Impugned is the judgment dated 08.09.2005 passed by the learned Sessions Judge, Kathua where under appellant has been convicted and

sentenced for having committed offences punishable under Sections 302, 458, 307, 325, 324 and 323 Ranbir Penal Code,1989 has been

awarded life imprisonment for commission of offence under Section 302 Ranbir Penal Code,1989 and fine of Rs. 5000/, in default to undergo six \

months imprisonment. For commission of offence punishable under Section 458 Ranbir Penal Code,1989 been awarded rigorous imprisonment of

ten years and fine of Rs.5000/, in default has to undergo one years rigorous imprisonment. For commission of offence punishable under Section

307 Ranbir Penal Code,1989 been awarded ten years rigorous imprisonment and fine of Rs. 3000/, in default has to undergo rigorous

imprisonment of four months. For commission of offence punishable under section 325 Ranbir Penal Code,1989 has been awarded rigorous

imprisonment of three years and fine of Rs.1000/, in default has to undergo rigorous imprisonment of two months. For commission of offence

punishable under Section 324 Ranbir Penal Code,1989 been awarded rigorous imprisonment of two ""years and fine of Rs. 1000/, in default has to

undergo rigorous imprisonment of two months. For commission of offence punishable under Section 323 Ranbir Penal Code,1989 been awarded

rigorous imprisonment of one year and fine of Rs.1000/, in default has to undergo rigorous imprisonment of two months. All the sentences to run

concurrently.

The factual background of the case is that the Police has swung into action on the report lodged by Yashpal, son of the deceased to the effect

that in the intervening night of 21/22.09.1998 at about 2.30 AM, wife of Tarseem Kumar (hereinafter referred as victim) raised alarm whereupon

he, his wife (Kamla Devi) accompanied by Smt. Nirmal Kumari, sister, Shano Devi, mother and Faquir Chand, father rushed to the room of the

victim. Shano Devi first entered the room, accused Ram Paul caught hold of Shano Devi then and there strangulated her to death, he (Yashpaul)

and others tried to rescue Shano Devi but accused attacked them with 'drat' with intent to kill them, inflicted injuries upon them and ran away.

Thereafter victim narrated to them that accused Ram Paul entered her room with 'drat' forcibly and had sexual intercourse with her against her will.

The registration of the case as Crime No. 117/1998 Police Station, Hiranagar culminated in presenting the chargesheet (challan) to the effect

that the accused during investigation is established to have committed offences punishable under Sections 458, 376, 302, 307, 326 and 325 RPC

Trial of the case ended in conviction and sentences detailed hereinabove.

Learned appearing counsel for the appellant contended that the theory of the rape has been rejected by the trial court to that extent testimony of

the victim has been disbelieved whereas her testimony regarding murder of Shano Devi caused by the accused has been accepted when her

testimony as a whole should have been rejected. For appreciating this submission, it is quite relevant to notice the features of the case as emerge

from the perusal of the whole record.

The victim was living separately with her husband. On the date of occurrence, in connection with the duties her husband was not present in his

home. The accused had come during night at 2.30 A.M. entered into the room of the victim, door was not bolted had intercourse with the victim. It

is in the process deceased (motherinlaw of the victim) entered the room; accused was on the body of the victim stood up and strangulated her to

death. At that time alongwith victim her three children, eldest being only seven years old, namely Surjeet Singh were present. Surjeet Singh woke

up witnessed the intercourse between his mother (victim) and the accused and also the entry of the deceased and then her strangulation by the

accused. It is only after that the other family members such as Yashpaul, his wife (Kamla Devi), Sister (Nirmal Kumar) and his father (Faquir

Chand) reached the room, accused while coming out attacked them with 'drat' and injured them all.

The learned trial court while appreciating the evidence and also various letters as written by the victim to the accused concluded that the

intercourse was with consent. Same is offence of adultery not the rape rightly so, the only inference which can be drawn in the facts and

circumstances narrated is that the victim had relation with the accused otherwise would not have kept the door of the room open at 2.30 A.M and

the position in which he was would not have been noticed. What in fact has happened is that the accused while having intercourse with the victim

was spotted by the deceased and the accused apprehending to be exposed strangulated the deceased. Same was witnessed by the victim and her

son. The victim PW5 while giving cover to her consented intercourse and for protecting herself from getting exposed has stated that the accused

had forcibly entered the room and raped her. She has truly stated that the deceased entered the room and the accused strangulated her to death.

She (victim) has given the actual account as to how the deceased was killed by the accused. While doing so stated the accused did put the lungi

around the neck of her motherinlaw brought her down on the ground. The accused also gave fist blow and kicks on chest and the neck of her

motherinlaw and did put the dead body underneath the bed.

The learned trial court has correctly appreciated her testimony, the story of rape has been rightly rejected and the offence of adultery has been

correctly opined, therefore, under such circumstances question of rejecting testimony of the victim as to the causing of death of the deceased by the

accused is to be accepted. Further more, Surjeet Singh, a young boy of 14 years of age has corroborated the version of the victim.

The death of the deceased on the intervening night of 21/22.09.1998 in the room of the victim and then presence of the accused in the said

room also tends to show that the deceased has been strangulated to death by the accused, no explanation whatsoever, on the part of the accused

is forth corning regarding the death of the deceased except that he has pleaded to be innocent. Accused while examined under Section 342 Cr. PC

has not set up any defence so as to prove his noncomplicity in the commission of the crime.

Learned counsel next contended that testimony of the witnesses is in conflict with the medical evidence. The death of the deceased is said to

have been caused by putting lungi around the neck of the deceased. Same is stated by PW5 (victim) as well as by Surjeet Singh, son of the victim.

As per PW18, Dr. Som Nath, the death is caused by Asphyxia. No ligature mark was seen on the neck. Further more, strangulation can not be

said to have occurred with a Lady's Dupta (Chunni). The marks found on the neck of the deceased during postmortem examination could not be

caused by fastening and pulling a 'Chunni' around the neck, otherwise impression mark would not have been only on the interior but would have

been found around the neck. The learned counsel would contend that had lungi been put around the neck and pulled with force, then ligature mark

would have been on the neck, therefore, accused is entitled to benefit of doubt supporting this contention placed reliance on the judgment of Apex

Court (Sri Niwas vs. Ram Bharosey and others) AIR 1994 SC 1539. This contention is rejected, because of the direct evidence of PW5 (victim)

and her son, Surjeet Singh who are the most natural witnesses. They have given true account of the occurrence, when it is so medical evidence has

to be read in tandem even though a bit inconsistent, but compatible. PW 18 has given the detail of injury found on the dead body as under:

No external injury, impression mark over neck discussed below:

Face: The whole face is cyanosed, bluish red appearance of the face more so at upper face; cheek & around eyes, forehead. Hemorrhage is

subconjunctival in both eyes.

Anus: Defacotion had occurred.

Neck: Impression mark is radish in duration extending from retroaurcular which is 1.25 cm x 7.5 cm extending upto submentum.

Radish duration 2 cm x 5 cm present at both sup lira clavicular region extending upto mid nick.

Opinion: Death is caused by asphyxia.

In the cross examination of the defence counsel has added the possibility of strangulation could be with both hands.

Oral testimony in any manner in the given position of the case can not be termed to be in conflict irreconcilably when there is compatibility

between oral and medical evidence though there may be a little conflict in between the two, no benefit can be extended to the accused. For

extending benefit of doubt there shall be a reasonable doubt, conflict between oral testimony and medical evidence must be incompatible. In

totality, the death of the deceased has been caused by strangulation that is only inference which can be drawn. In the reported judgment, benefit of

doubt has been given only when oral testimony was found irreconcilably in conflict with the medical evidence, so is not of any help to the appellant.

Learned counsel next contended that the use of 'Lungi' for strangulation has not been put to the accused during examination under Section 342

Cr. PC, this contention is only to be rejected because it has been put to the accused that he has strangulated the deceased to death. In reply he has

stated that he neither entered into the room of the victim nor had killed the deceased, that apart one more question put about the disclosure and

recovery of various items including 'Lungi' has been put, to which he has replied that he has not made any disclosure nor made any statement. It

was open for the accused to tender the plausible explanation instead he has chosen to reply all questions in routine by saying that he has not

committed any offence and witnesses have deposed wrongly.

Learned counsel next contended that there are contradictions which have not been appreciated, as per the story of the prosecution when the

victim had raised alarm, PW Yashpaul, Kamla Devi, Nirmala Kuniari, Shaiio Devi and Faquir Chand rushed to her room, Shano Devi entered first

was strangulated while others when intervened were attacked and injured. When according to PW5 (victim) and her son Surjeet Singh, accused

had sexual intercourse with the victim, deceased entered, accused stood up and strangulated her to death. The discrepancy and contradiction is not

such which will shake basic edifice of the prosecution case, when the death of the deceased in the room of occurrence and presence of accused is

fully proved.

Learned counsel next contended that the Investigating Officer of the case has not been examined which has caused prejudice to the accused.

In support relied on the judgment Behari Prashad and others vs. State of Bihar (1996) 2 SCC 317, same is of no help to him as the facts are all

together different. Nonexamination of the investigating Officer per se does not vitiate the trial. In the instant case, non examination of the

Investigating Officer has not caused any prejudice as the testimony of the two natural witnesses to the occurrence has remained to be impeached.

Those two statements are enough for recording the conviction as has been rightly done by the trial court. The deposition made by these two

witnesses requires no elucidation.

Learned counsel finally submitted that in case the aforesubmissions will not prevail still offence committed will fall within the ambit of Section

304 part (II) RPC The accused has already under gone 10 years of imprisonment. The question as to whether culpable homicide committed will

amount to murder or not. The submission as made though attractive but on scrutiny is found devoid of merit. The reaction of the accused while

spotted having intercourse with the victim is beyond proportions. It is true that the accused had never gone to the house of the victim with the

object of the committing murder of the deceased; he had gone to have intercourse with the victim, that too with the consent of the victim. Reaction

of the accused is spontaneous in the process intentional murder has been committed.

Morally degraded accused with the object of screening the illicit relation with so called victim, developed the intention, at the super of the

moment to kill the deceased. Strangulation until death and then pulling the dead body and throwing it underneath the bed/cot, itself shows as to

how gruesome act of the accused has silenced the innocent lady (deceased) for ever. According to PW 5 (victim) the accused laid 'lungi' around

the neck of the deceased and brought her down on the ground, gave fist and kick blows, consequent thereto deceased (her motherinlaw) passed

urine there, and after killing placed her dead body under the bed. The deposition of this witness supported by Surjeet Singh clearly indicates as to

how gruesome: murder has been committed. PW Surjeet Singh, though figured in the list of witnesses was not prudence, but the Learned Trial

Court while examining the record has rightly inconsonance with law, exercised the power under Section 540 Cr. PC, thereafter, recorded his

statement which has advanced the cause of justice.

The learned counsel rightly referred to the judgment reported in AIR 2008 SC 1823 ( Daya Nand vs. State of Harayana ) wherein distinction

between Section 299 and Section 300 Ranbir Penal Code,1989 been clearly explained while applying the same, act of the accused falls within the

ambit of culpable homicide amounting to murder.

The only safe result inferable beyond doubt and also as is proved is that the accused got exposed while committing intercourse with the so

called victim, made deceased to breath the last, did put the dead body beneath the cot, least knowing that the other family member (PWs) named

above will reach the room of occurrence, but while finding them attacked and injured them all. Learned trial court has evaluated and has reached to

a reasonable and correct conclusion which does not call for interference. Hence conviction recorded sentence awarded against the accused are

maintained. Sentence of life imprisonment awarded is confirmed. Appeal dismissed. Copy of the judgment and record of Trial Court be send back

for further follow up action.