RAKESH KUMAR Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) Appellant herein is convict (hereinafter to be referred as 'accused') . He has been tried for the commission of an offence punishable under Sections 364 and 302 of the Indian penal Code, however, convicted and sentenced to undergo life imprisonment and to pay a fine of Rs. 20, 000/- for the commission of an offence punishable under section 302 IPC alone vide judgment dated 27.1.2017 passed by learned Additional Sessions Judge, Sirmaur District at Nahan in Sessions trial No. 51-N/7 of 2015.

(2.) Aggrieved by his conviction and sentence the convict-appellant has preferred the present appeal for quashing and setting aside the impugned judgment on the grounds, inter alia, that the same is against the law and facts of the case. He had no intention to kill his son deceased Himanshu. He was not seen by anyone while throwing his son in Kulhal canal. The circumstantial evidence produced against him no where suggest that it is he who has thrown his son Himanshu in the canal. The chain of the evidence led against him is not complete so as to clinch that it is he alone and none else had eliminated deceased Himanshu. The trial Court was not justified to make basis the statement he made under Section 313 Cr.P.C. while recording his findings of conviction and sentence. His version in the statement does not absolve the prosecution from the onus upon it to prove him guilty beyond all reasonable doubts. The testimony of the prosecution witnesses, none else but closely related hence interested one, has been erroneously relied upon to record the findings of conviction against him. The person like PW15 Parvinder Singh is a liar because his statement that he noticed the accused driving the motor cycle with his child as pillion rider at a time while buying some articles from S.K. General Store and that when returned the child was not on the motor cycle is absolutely false. PW15 according to the accused is a stock witness, hence deposed falsely. Near Yamuna bridge, only dhabas and tea-stalls are situated and not any general store. PW16 Ram Dass admit that there exists path adjoining Kulhal canal being used by the people to have access to village Khara and Baba Bhure Shah Mandir. Therefore, in a broad day light i.e. around 11:30 A.M. or 100 noon how a grown up child could have been thrown in the canal. Otherwise also, a person thrown in canal would raise hue and cry, however, no such evidence has been produced. Therefore, PW16 has also made a false statement.

(3.) Complainant in this case is Reena Devi (PW1) . She is wife of accused. They married each other on 7.5.2000. Two sons namely Deepak and Himanshu (deceased) were born to them out of this wedlock. Since the accused was suspecting extra marital relations of the complainant with someone else and was also of the belief that both sons were not born to her from his loins and rather from the loins of the person with whom she was having extra marital relations, he had no liking for both children. He also used to torture the complainant on this pretext. She was given merciless beating by him in the year 2010. She, therefore, left the matrimonial home with her sons and started living in the house of her parents. It is in the year 2013 the accused compromised all disputes with her and assured that he will not torture her any further. On the assurance so given by him she returned to the matrimonial home and they again started living together with children. After some time he again started torturing her at the same pretext. She had been managing her stay in the matrimonial home anyhow or other.