SUBHASH PAIK @ KUTTI Vs. STATE OF UTTARAKHAND
LAWS(UTN)-2013-5-133
HIGH COURT OF UTTARAKHAND
Decided on May 14,2013

Subhash Paik @ Kutti Appellant
VERSUS
STATE OF UTTARAKHAND Respondents

JUDGEMENT

- (1.) An information (Ex.Ka-1) was given to the Police Station Rudrapur on 19.02.2008 by PW1 Mahendra Singh to the effect that the dead body of a baby girl, aged about 21/2 years, was lying in the area and the marks of injury, as also the blood was visible on the same. So, the apprehension was expressed that somebody threw the dead body after committing her murder. The police, on 19.2.2008 itself, prepared the inquest report (Ex.Ka-2) and shifted the dead body to the mortuary. In the inquest, it was apprehended that she had been raped and the death was caused on account of the injuries on her body. PW3 Gendan Lal, father of victim, also lodged an FIR (Ex.Ka-4) averring that his daughter, aged about 21/2 - 3 years, was missing somewhere and she could not be found out even after a massive hunt. Reporter also stated that he gathered information about the dead body of a baby girl lying in the mortuary, and after reaching there, he identified the same to be of his daughter Km. Kumkum. The police came into motion and accordingly arrested the accused/appellant. Investigation was thereafter conducted which culminated into the submission of chargesheet (Ex.Ka-16) against the appellant for the offences under Section 302/201/376 IPC. Charge was levelled accordingly and the accused was put to trial.
(2.) The main witnesses, whereupon the prosecution story rests, are PW3 Gendan Lal, PW4 Master Servesh (son of PW3), PW5 Ms. Kanchan (daughter of PW3) and PW6 Rama Devi (wife of PW3). So, we have meticulously gone through the evidence of the afore-mentioned witnesses. PW3 Gendan Lal has stated that on 18.2.2008, he had gone in the forest to collect the woods. When he returned in the evening, he found his wife and daughter weeping. On being asked the reason, it was disclosed that a man, having dark skin, took Km. Kumkum, aged about three years, from the lap of her sister Km. Kanchan. It was also stated that Master Sarvesh and Km. Kanchan were present in the house on the relevant day i.e. on 18.2.2008 and their mother Rama Devi had left the house at about 3 PM in order to collect the unused material lying stray in the nearby vicinity. At that moment, accused/ appellant came in the house and insisted Master Sarvesh to go and assist his mother in her business of collecting/lifting the waste material. So, Master Sarvesh also left the house. Thereafter the accused, instigated Km. Kanchan, aged about 9 years, to hand over Km. Kumkum to him on the pretext that her mother was calling the child outside. So, Km. Kanchan handed over the baby girl in possession of the accused. This accused has well been identified by Km. Kanchan, as also by Master Sarvesh in the open court, and not by way of any test identification parade.
(3.) We have heard learned amicus curiae for the appellant, as also the learned State counsel and after going through the evidence available on record, it transpires that the eyewitnesses of taking away the baby girl, from the house, are only Master Sarvesh, aged about 11 years and Km. Kanchan, aged about 9 years.;


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