KAILASH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) ANKIT Bansal, a child of four years, studying in nursery, as per prosecution version was done to death by the appellant Kailash Bansal, real brother of father of the hapless child. Put to trial, the offence committed by him was held established vide judgment recorded by the learned Additional Sessions Judge (Fast Track) No. 2, Ajmer dated 15. 3. 2002 vide which he has been held guilty for offence u/s. 302 IPC and sentenced to undergo R. I. for life and to pay fine of Rs. 1,000/-, and in default of payment of fine, to further undergo RI for three months.

(2.) PROSECUTION in its endeavour to secure conviction against the appellant, relied upon statement made by PW-26, accomplice of the appellant in the commission of crime who turned approver and circumstantial evidence details whereof shall be given in the forthcoming paragraphs.

(3.) PROSECUTION examined Chandra Prakash Bansal and Smt. Vaishali as PW-1 and PW-5, father and mother respectively of the deceased. Chandra Prakash Bansal (PW-1) stated that on 4. 10. 1999 he had left his son Ankit Bansal at Happy Montessori School at 8. 10 a. m. At 10. 15 a. m. when his wife Vaishali had gone to take his son, the child was not found in the school. On enquires made from the school, it came to be known that someone had taken Ankit. Everyday, he used to leave the child in the school whereas his mother Vaishali used to go to fetch him. It came to his notice at about 12 that someone had taken the child from the school. Thereafter, he went along with his father to lodge the report. Report was lodged by his father. They kept on searching the child at night. His elder brother Surya Prakash and younger brother Kailash also associated them in searching the child. Next day at about 10 a. m. in a small room built in a plot at Link Road they found dead body of the child. One Kamlesh Kumar told them that Hemant who indulged in bad deeds could reveal something about the child. His statement u/s. 164 Cr. P. C. was recorded by the Magistrate. He had told about doubts entertained by them or Hemant. It was on the asking of the police that he had expressed that they doubted their brother Kailash. He had talked to the teacher with regard to his son who had told him that a body aged 18-19 years had taken him. This witness, on permission sought by the Public Prosecutor was declared hostile and was cross-examined wherein he admitted that he had made statement u/s. 164 Cr. P. C. before the Magistrate but he had not told the Magistrate that the appellant used to take liquor. He, however, admitted portion `c' to `d' contained in his statement u/s. 164 Cr. P. C. wherein it is recorded that after death of the child, the appellant had indulged in abusing. He admitted portion `e' to `f' of his statement u/s. 164 Cr. P. C. but stated that he had made the said statement on the asking of the police. He admitted other portions of his statement made u/s. 164 Cr. P. C. as well but qualified the said admissions by stating that he had got the statement recorded as told to him by the police. He, however, admitted that on 4. 01. appellant had quarelled with him and that he had lodged report against the appellant on 5th January. It is significant to mention here that in his statement made before the Magistrate u/s. 164 Cr. P. C. PW-1 Chandra Prakash bansal had stated that he was married on 6. 12. 1994 and was blessed with a son and a daughter. They were four brothers, the eldest being Surya Prakash. His other brothers were Kailash and Mahesh. His parents were alive. His father, brother Suray Prakash and the witness Chandra Prakash himself were all doing business of cycle. Kailash and Mahesh were also running Shri Ram Guest House which is on the first floor of the shop. Ankit, his son, had already died in the occurrence which took place on 4. 10. 1999 which date he had left him in Happy Montessori School at 8. 10 a. m. His mother had gone to take him at 11. 15 a. m. but came to know that someone had already taken him. They made enquiries from the neighbourhood but found no clue of the child. After leaving his child at the school, he had gone to his shop. At 10. 15 a. m. when his elder brother Surya Prakash came, he (the witness) along with his nephew Sourabh had gone to pay electricity bill. At about 11. 30 - 11. 45 a. m. when he came back at the shop, his elder brother Surya Prakash told him that some had taken Ankit from the school. He went to the school and Madan told him that at 9. 15 a. m. someone had taken the child. He was told that some relation of the child had taken him. With regard to the appellant, he stated that he was not on speaking terms with him for the last 8-10 years. Kailash used to consume liquor since beginning. Kailash after consuming liquor had abused him on number of occasion. Two-three months prior to his (Kailash's) marriage, Kailash had told him that Chandiya and others were miscreants of no consequence, let his marriage be over, he would show how miscreants (Dadagir) should live. For last 5-6 months, Kailash was trying to come near the child Ankit. On number of occasions, he had taken the child for giving him sweet or biscuits. He had taken the child to Pushkar also. After murder of his child when the whole family was depressed, Kailash celebrated Diwali by cracking fire. His wife also did the same. After death of Ankit, he came to him on a number of occasions after consuming liquor and shouted with loud voice that he had finished Ankit and that he should call police and further that the police shall not be able to do anything against him. He used to fight after consuming liquor. On 4th January also he had quarrelled regarding which report was lodged by the witness on 5th January. The witness also stated that he fully doubted Kailash and his neighbour Hemant for killing his son Ankit. They were continuously enquiring from them as to whether child was found or not. He also stated that nobody had demanded ransom from him.