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2013 Supreme(UK) 345
UTTARAKHAND HIGH COURT
Hon'ble Mr. Chief Justice Barin Ghosh and Hon’ble Mr. Justice Servesh Kumar Gupta
ASHOK KUMAR KUNDI – Appellant
Versus
STATE OF UTTARAKHAND – Respondent
Criminal Appeal No. 104 of 2010
Decided on : 08.07.2013
For the Appellant : Mr. Lokendra Dobhal, Amicus Curiae
For the Respondent: Mr. Vinod Sharma, Dy. Adv. General (Crl.) assisted by Mr. V.P. Bahuguna, Brief Holder
Headnote:(A) Circumstantial Evidences — Accused and deceased had stayed at the Ashram in room no. 10 — They both were seen alive last at 7:30-8:00 PM — In the night at about 10 P.M., a quarrel took place between the duo on the ground that the deceased was asking the accused to seek divorce from his wife and subsequently marry her to which the accused resisted — This made the accused annoyed on account of which he throttled the neck of deceased by her own ‘Chunni’ which ultimately resulted into her death at the spot itself — Quarrel was testified from the evidence of PW3 caretaker of the said Ashram and PW5 who was residing in adjacent room no. 9 — On the next day i.e. on 31.10.2008 at about 8:30 AM, accused fled from there — Subsequently, PW3 found deceased lying dead on the floor — Accused was arrested on 4.11.2008 — And on his pointing along with the key of the said room and one white ‘Chunni’ used in the commission of crime was recovered — Post mortem report opined marks of pressure on the right and left side of neck as well as abrasions and swelling over the forehead — Medical evidence fully corroborated the prosecution version — Held these circumstances, form an unbroken chain, leaving no scope of doubt to reach at the definite conclusion that it was only the appellant/accused who committed the said crime and none else — Therefore, offence punishable u/s 302, IPC proved against the appellant/accused beyond any reasonable doubt. (Paras 23 to 26)
(B) Indian Penal Code, 1860, Sec. 404 — Offence punishable under — Evident that accused had misused the A.T.M. Card of the deceased after taking the same in his possession from her belongings and withdrew Rs. 20,000/- from the account of the victim in the morning hours of 31.10.2008 as was indicated in the pictures taken out from the C.C.T.V. of the A.T.M. installed — Accused’s photograph/picture was identified by PW3 and PW4 as to be of the same person who stayed with the deceased in room no. 10 of Shivanand Ashram on the fateful night — Thus, it is proved that the accused/appellant dishonestly misappropriated a sum of Rs. 20,000/- and converted the same to be of his own, knowing well that such property was in the possession of deceased at the time of her death — Accordingly, offence punishable u/s 404 IPC proved — Appeal dismissed. (Para 27 to 29)
¼v½ ifjfLFkfrtU; lk{; & vfHk;qDr vkSj e`rdk vkJe ds d{k ua- 10 esa #ds Fks & vkSj nksuksa dks thfor vafre ckj jkf= 7-30&8-00 cts rd ns[kk x;k Fkk & jkf= esa djhc nl cts nksuksa ds e/; >xM+k gks x;k bl vk/kkj ij fd e`rdk vfHk;qDr dks mldh iRuh ls fookg foPNsnu dj vius lkFk fookg ds fy, tksj Mky jgh Fkh] ftl ds fy, vfHk;qDr rS;kj ugha Fkk & blls vfHk;qDr us ukjkt gksdj] ihfM+rk dh gh pqUuh ls mldk xyk ?kksaV fn;k] ftlls mldh e`R;q gks xbZ & >xM+s dh iqf”V PW3@vkJe ds ifjpkjd o PW5, tks cjkcj okys dejk ua- 3 esa #dk Fkk ds }kjk dkfjr & vxys fnu 31-10-2008 dks djhc lqcg 8 cts vfHk;qDr ogk¡ ls Hkkx x;k & rRi’pkr PW3 us e`rdk dks tehu ij e`rd ik;k & vfHk;qDr dks fnukad 4-11-2006 dks fgjklr esa fy;k x;k & vkSj mldh fu’kkuh ij dfFkr dejs dh pkch o vijk/k esa iz;ksx lQsn pqUuh olwyh xbZ & iksLVekVZe tk¡p esa xnZu o ck;sa rjQ ncko ds fu’kku ik;s x;s Fks o ekFks ij pksV o lwtu ds fu’kku Fks & fpfdRlk lk{; us Hkh vfHk;kstu o`rkUr dh iqf”V djh & /kkfjr & ;g ifjfLFkfr;k¡ ,d fcuk VwVh dM+h cukrh gSa tks lansg dk dksbZ dkj.k ugha NksM+rh bl fuf’pr fu”d”kZ ij igq¡pus ds fy, fd ;g flQZ vihykFkhZ@vfHk;qDr gh Fkk ftlds }kjk vijk/k dkfjr fd;k x;k Fkk & bl izdkj u/s 302, IPC n.Muh; vijk/k vfHk;qDr@vihykFkhZ ds fo#) fuLlansg fl)A ¼izLrj 23 ls 26½
¼c½ Hkkjrh; n.M lafgrk] 1860] /kkjk 404 & n.Muh; vijk/k & O;Dr fd vfHk;qDr us e`rdk dk A.T.M. Card vius dCts esa ysdj mldk nq#i;ksx fd;k Fkk vkSj #- 20]000@& e`rdk ds [kkrs ls 31-10-2008 dh lqcg fudkys Fks tSlk fd A.T.M. esa yxs dSejs ls irk pyk & vfHk;qDr dh QksVks PW3 o PW4 }kjk igpku yh xbZ Fkh] ml O;fDr ds :i esa tks ?kVuk ds fnu vkJe esa e`rdk ds lkFk d{k ua- 10 esa Bgjk Fkk & bl izdkj fl) fd vfHk;qDr@vihykFkhZ us /kks[ks ls #- 20]000@& izkIr dj vius ikl j[k fy,] ;g Kkr gksrs gq, Hkh fd ;g lEifÙk e`rdk dh e`R;q ds le; e`rdk dh Fkh & rn~uqlkj u/s 404, I.P.C. n.Muh; vijk/k fl) & vihy [kkfjtA
¼izLrj 27 ls 29½
Per: Hon’ble Servesh Kumar Gupta, J.
The above-titled appeal challenges the judgment and order dated 30.03.2010 rendered by learned Sessions Judge, Tehri Garhwal in S.T. No.09 of 2009. The said case was tried for the offences u/s 302, 380 and 411 IPC pertaining to crime no.3202 of 2008 of P.S. Muni-Ki-Reti, District Tehri Garhwal. The trial ended in conviction of the accused/appellant for the offences punishable under Sections 404 and 302 IPC wherefor he was appropriately sentenced. However, the accused was acquitted from the offence punishable u/s Section 411 IPC.
2. The prosecution was conducted for the murder of Smt. Archana Sharma, a young lady of about 26 years of age, by the accused Ashok Kumar Kundi, both R/o Lucknow. Both were also married, having their own respective spouse, but still they were paramour of each other. So both of them used to stay at Shivanand Ashram situated at Muni-Ki-Reti (almost in Rishikesh town), Uttarakhand in order to augment their illicit intimacy.
3. The deceased lady was employed in the office of Public Analyst Laboratory, Medical & Health Services, situated at Lucknow whereas the accused, being a Technical Assistant in Railway, was also employed at the same station. Archana Sharma (deceased) procured an official envelope to be delivered at Dehradun while the accused also suitably planned a trip to the venue of occurrence where they stayed in the intervening night of 30/31.10.2008 at room no.10. Deceased was emphatically asking the accused to seek divorce from his wife and marry her thereafter to which the latter was not ready. So, to get rid of Archana Sharma, accused allegedly strangulated her by her own ‘Chunni’ at about 10 PM of the fateful night. Next morning i.e. on 31.10.2008, accused left the spot to return Lucknow passing through Saharanpur, leaving the dead body of deceased in the said room itself. He also took out the A.T.M. Card of deceased whereby he withdrew a sum of Rs.20,000/- at Saharanpur, as he was aware about the code number of the said Card mentioned by Archana Sharma on the card itself. Later on, when he came to know that the Police was behind him, he was returning for Tehri Garhwal to surrender in the court concerned, but meanwhile the police, on 4.11.2008, apprehended him on way to nearby Tehri. Thereafter, on the pointing out of the accused/appellant, a lock along with its key of room no.10 where he stayed and a white ‘Chunni/Dupatta’, used to commit the crime, was recovered.
4. Meanwhile, the first information report was lodged by Alok Kumar Sharma (husband of deceased) on 1.11.2008 at 6:15 PM at P.S. Muni-Ki-Reti, District Tehri Garhwal.
5. PW3 Ranjan Karmakar, caretaker of the Ashram, soon detected the dead body in the said room and informed the police accordingly. On 31.10.2008 at 10:45 AM, inquest report (Ex.Ka-5) was prepared. The members of inquest found abrasions and bluish contusions on both sides of neck of deceased along with other marks of injury on her forehead. So, the opinion for conducting the post-mortem of the dead body was suggested which was conducted on 01.11.2008 at 12 PM by a Team of three-doctors, including PW6 Dr. R.K.L. Srivastava, at Government Hospital, Narendra Nagar, report whereof is Ex.Ka-12. The following ante-mortem injuries were found on the dead body: -
1. “Signs of pressure on the right and left side of neck.
2. Abrasion on and over the forehead.
3. Abrasion on the forehead with injury and swelling.
Cause of death was opined due to asphyxia because of ante-mortem injuries.”
6. The police collected formidable evidence and culminated investigation into the submission of chargesheet (Ex.Ka-34) u/s 302 and 420 IPC against the accused/ appellant. Learned Sessions Judge, Tehri Garhwal, on 10.4.2009, framed charges against the accused/appellant for the offences punishable under Sections 302, 380 and 411 IPC, to which he abjured his guilty and claimed trial.
7. The prosecution has examined as many as 13 witnes
