HIGH COURT OF JUDICATURE AT ALLAHABAD
A F R
Court No. - 46 Reserved
Case :- CRIMINAL APPEAL No. - 3609 of 2003
Appellant :- Prem Raj
Respondent :- State Of U.P.
Counsel for Appellant :- S.K. Mishra,Atul Kumar Srivastava,B.D. Maurya,Jai Singh,Raja Singh,S.R. Mishra,S.V. Singh
Counsel for Respondent :- A.G.A.
Hon'ble Surendra Vikram Singh Rathore, J.
Hon'ble Raghvendra Kumar, J.
(Delivered by Raghvendra Kumar, J.)
1. Heard learned counsel for the accused-appellant, learned A. G. A. for the State of U. P. and perused the record.
2. This criminal appeal is directed against the judgment and order dated 25.7.2003 passed by Sessions Judge, Mainpuri in Sessions Trial No.290 of 2001 (State Vs. Premraj) u/s 498 A, 304 B IPC in Case Crime No.116 of 2001, P. S. Bhogaon, District-Mainpuri whereby the accused-appellant Prem Raj has been convicted u/s 302 IPC and sentenced to imprisonment for life and further convicted u/s 498 A IPC and sentenced to rigorous imprisonment for two years. Both sentences were ordered to run concurrently.
3. Accused Vishun Dayal was also tried in Sessions Trial No.360 of 2001 u/s 498 A, 304 B IPC in Case Crime No.116 of 2001, P. S. Bhogaon, District-Mainpuri and he has been acquitted vide order dated 24.7.2003.
4. It has been conceded by the learned A. G. A. that no appeal has been preferred against the acquittal passed in favour of accused Vishun Dayal, hence, the matter with respect to accused Vishun Dayal has attained finality.
5. The FIR of this case was lodged with police on 5.4.2001 at 8.45 hours with respect to an incident that took place on 4.4.2001 at about 3.30 pm. According to prosecution, marriage of Morkali, niece of informant-complainant Ayodhya Prasad was solemnized with Prem Raj about 3 years back. Out of their wedlock a son was born. Morkali's husband Prem Raj demanded a buffalo and Rs.10,000/- as dowry. Six months prior to lodging of FIR, a buffalo was given to Prem Raj, but the amount of Rs.10,000/- was not paid. On 4.4.2001 at about 3.30 pm accused Prem Raj and Vishun Dayal insisted to Morkali to arrange for the amount and, thereafter, tried to take away her ornaments. On resistance, Prem Raj discharged a shot from country made pistol. Vishun Dayal and Prem Raj tried to hide away the dead body of deceased, but, because of presence of one Surmila (younger niece of complainant), it could not be materialized. She passed on the information to Nand Ram (Fufa of informant-complainant), who was resident of village Hasra neighbouring village of Bhogaon, and the dead body was detained at the place of occurrence and was lying on the spot.
6. Pursuant to lodging of FIR, the investigation proceeded in accordance with law. The I. O. collected samples of blood stained soil and ordinary soil from the spot and prepared recovery memo. After inquest relevant papers were prepared for the purposes of post mortem examination of the deceased Morkali. The investigation culminated into filing of charge sheet.
7. After complying with the procedure the learned trial Court proceeded with the trial and framed charge against accused Prem Raj and Vishun Dayal for the offences under Sections 498 A & 304 B IPC and an alternative charge was framed against accused Prem Raj for the offence under Section 302 IPC.
This appeal is confined to the findings of conviction and the sentence awarded against appellant Prem Raj.
8. Accused has denied the prosecution case and has stated that he has been falsely implicated due to enmity. There is no eyewitness of the incident.
9. To substantiate the charges levelled against the accused person, the prosecution has examined PW-1 Ayodhya Prasad(i.e. Informant-complainant, who has proved the execution of Tehriri report (written report) marked as Ext Ka.1), PW-2 Ram Das, father of deceased, PW- 3 Surmila (younger sister of deceased Morkali), PW-4 Constable Shiv Prasad, who has proved the execution of Chik FIR and the relevant entry in the G. D, PW-5 Dr. D. S. Rathore, PW 6 Devi Charan Yadav, PW S. I. Md. Sajjad Siddique. PW 1, PW 2 and PW 3 are witnesses of fact. PW 4 is a formal witness.
10. PW 5 Dr. D. S. Rathore is a formal witness and he has conducted autopsy on the corpus of deceased Morkali on 5.4.2001 at 4.15 pm and he has made following observations in the autopsy report (i.e. Ext Ka.4) :-
Dead body was average built; rigor mortis had passed off from upper extremities but, was present in lower extremities; eyes were half closed.
The doctor has noted following ante mortem injuries :
(i) Fire arm wound of entry 2 cm x 1.5 cm x through and through with injury no.(ii), abdominal cavity deep on epigastrium region midline, 2 cm below the sternum, whose margins were lacerated and inverted. Blackening and scorching was present around the wound.
(ii) Fire arm wound of exit 2.5 cm x 2 cm x through and through, injury no.(i) on left side lower part of chest, 2 cm from midline, and 3 cm above the sub coastal border, whose margins everted and lacerated.
On internal examination, the doctor found that the brain was soft, pale; sub coastal muscles were lacerated corresponding to injury no.(ii). Both sides of heart were empty; peritoneum was lacerated, cavity contained about 300 ml. Of blood, stomach was lacerated and its cavity was burst, opened due to injury; small intestine was lacerated, at places, and was full with gases and fluid; large intestine was full with gases and faecal matter; liver was lacerated and pale, gall bladder was empty, pancreas was lacerated, spleen was pale, both the kidneys were pale and left kidney was lacerated, the uterus was non-gravid. The death was caused due to shock and haemorrhage as a result of ante mortem injuries.
11. The inquest report i.e. Ext Ka. 5 was prepared by S. I. PW-6 D. C. Yadav in presence of C. O. Bhogaon and further connected papers relating to post mortem examination i.e. Ext Ka.6 to Ext Ka.9.
12. The investigation has been conducted by S. I. Md. Sajjad Siddique (PW-7), who received the information through R. T. Set and recorded statements of witnesses, prepared the site plan i.e. Ext Ka.10, recovery memo of blood stained soil and ordinary soil i.e. Ext Ka.11 and submitted charge sheet after conclusion of investigation against accused Prem Raj marked as Ext Ka.12 and charge sheet against accused Vishun Dayal marked as Ext Ka.13.
13. DW 1 Gaya Prasad and DW 2 Ram Swaroop have also been examined in this case as defence witnesses.
14. After conclusion of trial, the learned trial Court recorded findings of acquittal against accused Vishun Dayal.
15. The learned trial Court recorded the findings of conviction against accused Prem Raj for the offence u/s 498 A and 302 IPC whereby the instant appeal is before us for consideration.
16. It has been submitted by the learned counsel for the accused-appellant that since no appeal has been preferred against the findings of acquittal recorded by the Courts below in favour of accused Vishun Dayal, the matter of accused Vishun Dayal has attained finality and the findings so recorded, are beyond the purview of this Hon'ble Court for consideration. This legal proposition has not been disputed by the learned A. G. A.
17. It has further been contended by the learned counsel for accused-appellant that PW 1 and PW 2 are not the eyewitnesses of the incident. There testimonies are confined to the factum of demand of amount of dowry. PW 1 and PW 2 are at the same time related witnesses. PW 3 is supposed to be the direct witness of the incident of fire as alleged by the prosecution. The testimony of PW 3 is shaky. She is a child witness. No independent witness has been examined. Rest public officials are the formal witnesses. It has further been contended that the FIR has been lodged after inordinate delay without any satisfactory explanation. Hence, the learned counsel for the accused-appellant has prayed for allowing this appeal and, acquitting the accused-appellant.
18. Learned A. G. A., refuting the arguments of the learned counsel for the accused-appellant, has submitted that it is a case of direct evidence. Specific role has been assigned to the accused-appellant regarding commission of murder of deceased due to non-fulfillment of his demand of balance amount of Rs.10,000/- as dowry. As such, the accused-appellant is not liable to be acquitted and the impugned judgment and order passed by the learned trial Court needs to be affirmed dismissing the instant appeal.
19. It is a settled proposition of law that while exercising the appellate jurisdiction, the High Court is obliged in law to reappraise the evidence available on record and to draw inference afresh without being influenced by the findings recorded by the learned Court below keeping in view the basic principle of criminal jurisprudence that accused-appellant is innocent until otherwise is established from the materials available on record. [Ref :Padam Singh Vs. State of U. P., 2000 (1) SCC 621; Rama & others vs. State of Rajasthan, 2002 (4) SCC 571; Majjal Vs. State of Haryana, 2013 (6) SCC 798; Kamlesh Prabhudas Tanna and Anr V. State of Gujarat, 2014 Cr.LJ 443.]
20. In the instant case, the FIR of the incident dated 4.4.2001 at about 3.30 pm was lodged with the police on 5.4.2001. The FIR is delayed one. So far as the aspect of delay in lodging FIR is concerned, it has time and against been considered by Hon'ble the Apex Court and it has been pleased to make observations about the importance of FIR and impact of delay, if any, in lodging of FIR. Hon'ble the Apex Court has laid down the following proposition recently in the case of Jai Prakash Singh vs State of Bihar & Another reported in (2012) 4 SCC 379. The relevant paragraph 12 is being reproduced hereinbelow :-
"The FIR in criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eye- witnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it looses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question."
21. It is settled law that if delay in lodging the FIR cannot be explained satisfactorily it is fatal to the case of prosecution. However, it is obligatory on the part of the Court to take notice of delay and examine the same in the backdrop of the case as to whether any acceptable explanation has been offered by the prosecution and, if such an explanation has been offered whether the same deserves acceptance of being satisfactory.
22. The Hon'ble Apex Court in the case of State of Haryana vs Gyan Chandra reported in J. T. 2001 (5) SC 1691 has been pleased to observe that :
"Delay has the effect of putting the Court on its card to search that if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not? If the prosecution fails to satisfactorily explain the delay, the delay would be fatal to prosecution. However, if the delay is explained to the satisfaction of the Court, the delay cannot itself be the ground for disbelieving and discarding the entire prosecution case."
23. In Ram Dass & Others vs State of Maharashtra reported in 2007 (2) SCC 170 the Hon'ble Apex Court was pleased to observe that mere delay in lodging the first information report is not necessarily fatal to the prosecution. However, the fact that the report was lodged belatedly, is a relevant fact of which the Court must take notice. This fact has to be considered in the light of other facts and circumstances of the case.
24. In view of propositions cited above, the legal position so emerges that mere on the ground of delay, the entire story of prosecution cannot be discarded. But, in such a situation an onerous duty is cast upon the Court to appreciate the contents of FIR and the evidence available on record keeping in view the aspect of delay and to see whether the delay goes to the root of the prosecution case or not?
25. In the instant case, from perusal of FIR it appears that after the incident took place, the only alleged eyewitness was a girl aged about 10 years. She somehow managed the retention of dead body of deceased and thereafter, conveyed the message to one Nand Ram (i.e. fufa of informant), r/o village Hasra, which is neighbouring village of Bhogaon(i.e. Village of occurrence). The information was communicated to the informant at about 8 pm or 9 pm on the date of incident whereupon he along with Ram Das, Veer Pal, Gopi Nath reached to the village of deceased Morkali and found deceased dead. Whereafter in the night at 12 O' Clock they proceeded towards P. S. Bhogaon for lodging FIR. The FIR was lodged on the next day of incident at 8.45 am. In the event of delay in lodging of the FIR, the Court has to prima facie see the aspect of exaggeration, colouration and concoction, if any, in the FIR. In the instant case, the incident resulted into death of deceased Morkali. The death in itself being terrifying event. From the testimony of PW 1 it is evident that in the night at about 12 O'clock they proceeded for police station, the distance being 10 km as is mentioned in the chik FIR. It appears natural that some reasonable time must have been consumed in searching for conveyance to reach the police station. This aspect cannot be ignored. So far as the aspect of concoction, colouration or exaggeration is concerned, the FIR is confined to the averments of balance of Rs.10,000/- whereby the offence of dowry death was alleged to have been committed. The FIR has been registered for the offence u/s 498 A, 304 B IPC read with Section ¾ of Dowry Prohibition Act. The mental trauma is one of the factor, which has its impact in such fact and situation. In view of facts and circumstances of instant case, we are not convinced with the submissions of accused-appellant that mere on the score of delay, the prosecution case should be discarded.
More so, the contents of FIR shall be appreciated in the light of averments of witnesses of fact.
26. So far as the appreciation of testimony of a child witness is concerned, the matter has been considered by Hon'ble the Apex Court time and again and the guidelines have been propounded by the Apex Court through various pronouncements. In the cases of Shivasharanappa and others vs State of Karnataka and Jagadevappa and other vs State of Karnataka and others decided on 7.5.2013 in Criminal Appeal No.1366 of 2007 and Criminal Appeal No.508 of 2007 respectively in paragraph 16 of the judgment, the Hon'ble Apex Court has propounded as follows :
"Thus, it is well settled in law that the court can rely upon the testimony of a child witness and it can form the basis of conviction if the same is credible, truthful and is corroborated by other evidence brought on record. Needless to say, the corroboration is not a must to record a conviction, but as a rule of prudence, the court thinks it desirable to see the corroboration from other reliable evidence placed on record. The principles that apply for placing reliance on the solitary statement of witness, namely, that the statement is true and correct and is of quality and cannot be discarded solely on the ground of lack of corroboration, applies to a child witness, who is competent and whose version is reliable."
27. In the case of Alagupandi @ Alagupandian vs State of Tamil Nadu in reference to Criminal Appeal No.1315 of 2009 decided on 8.5.2012, the Hon'ble Apex Court in paragraph 23 has pleased to observe as follows :
"It is a settled principle of law that a child witness can be a competent witness provided statement of such witness is reliable, truthful and is corroborated by other prosecution evidence."
28. In the case of State of Rajasthan vs Chandgi Ram & Ors reference to Criminal Appeal no.937 of 2008 decided on 9.9.2014 the Hon'ble Apex Court has highlighted the safeguards, which the Courts should undertake for appreciating the evidence of a child witness. The safeguards have been disclosed in paragraph 11, which are being reproduced below :
"The evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the cross-examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The court may ascertain his suitability as a witness by putting questions to him [pic] and even if no such questions had been put, it may be gathered from his evidence as to whether he fully understood the implications of what he was saying and whether he stood discredited in facing a stiff cross-examination. A child witness must be able to understand the sanctity of giving evidence on oath and the import of the questions that were being put to him. The law on the issue can be summarised to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition. It is well settled in law that the court can rely upon the testimony of a child witness and it can form the basis of conviction if the same is credible, truthful and is corroborated by other evidence brought on record. Needless to say, the corroboration is not a must to record a conviction, but as a rule of prudence, the court thinks it desirable to see the corroboration from other reliable evidence placed on record. The priniciples that apply for placing reliance on the solitary statement of the witness, namely, that the statement is true and correct and is of quality and cannot be discarded solely on the ground of lack of corroboration, apply to a child witness who is competent and whose version is reliable."
29. In view of above propositions laid down from time to time the legal position thus flows that the child witness is a competent witness and there is no legal impediment in placing reliance upon the testimony of a child witness provided that in the assessment of the Court it is found credible, trustworthy and wholly reliable. Even requirement of corroboration is dispensed with in such circumstance. Reliance can be placed upon the solitary statement of a child witness if, the statement is true and correct and is of quality and his deposition is found to be inspiring confidence and is away from the shadow of tutoring.
30. Since, the conviction of accused-appellant has been recorded by the learned trial Court on the basis of alternative charge framed u/s 302 IPC, it appears essential for us to consider the testimony of the child witness i.e. PW 3 Surmila at first.
31. So far as assessment of testimony of PW 3 Surmila is concerned, she is admittedly a child. She has categorically stated that Vishun Dayal caught hold of Morkali and accused Prem Raj fired a shot upon Morkali and the deceased succumbed to gun injury. She has further stated that Rs.10,000/- was demanded by accused Prem Raj and Vishun Dayal. This witness has been subjected to cross-examination. In her cross-examination, she has stated that at one place that Prem Raj was employed at brick kiln. On the date Morkali died, Prem Raj in the morning went to brick kiln. Vishun Dayal visited to the brick kiln for giving information of death of Morkali to Prem Raj. After receiving the information Prem Raj did not come from the brick kiln. Even in the evening Prem Raj did not meet her. Subsequently, she has taken a different stand and stated that Prem Raj after firing the shot ran away to the brick kiln and did not come back even after a call. Subsequently, she again changed her statement and stated that in the noon when Prem Raj returned from the brick kiln, he fired a shot on Morkali. Further she stated when Prem Raj went to brick kiln in the morning then he did not come back. The date on which Prem Raj fired shot on Morkali, he went to the brick kiln in the morning and did not come back. Prem Raj used to come back in the evening from the brick kiln. Subsequently, on querry by the Court, this witness has stated that Prem Raj fired shot then, he stayed in the night at someone's place and in the morning he went to the brick kiln. Further she has stated that the date on which Prem Raj fired a shot on deceased, he did not go to the brick kiln. She continued to state that at about 14 hours Prem Raj firstly ate the bread and then went to brick kiln. After Prem Raj took the bread, Vishun Dayal went for grazing the buffalo. At that time this witness, deceased and mother of appellant Prem Raj remained at home. PW 3 was causing the child of Morkali to play in her lap in a room. She did not hear the sound of fire. Her sister Morkali died, this fact was not disclosed to her by anyone. When she came to the room her sister was lying dead and nearby a country made pistol was lying. Katta was taken up by mother of Prem Raj. Her sister was lying dead. The witness started weeping. The informant of death of deceased Morkali was conveyed through Dabloo and Sarvesh to the sister and mother of PW 3 respectively.
There is lack of consistency in examination-in-chief and cross-examination of this witness. At one place she has assigned a specific role to appellant and other accused, who has been acquitted by the learned trial Court. At one place she has stated that on the date of incident Prem Raj left the house in the morning and did not come back after receiving message at brick kiln by Vishun Dayal about the death of Morkali (deceased). At one place she has stated that after firing at deceased Prem Raj did not go to brick kiln. At one place she has stated that she was with the child of the deceased in the neighbouring room and did not hear the sound of fire. When she came out of the room she saw that her sister Morkali had died. As such, there is lack of consistency and coherence throughout the statement of PW 3. It is true that being a child she is competent enough, but due to lack of coherence, consistency and uniformity in her testimony, her testimony cannot be relied or acted upon without due corroboration. No other evidence is available on record to corroborate the facts averred by PW 3 in her statement before the Court. In absence of proper corroboration, the testimony of PW 3 does not inspire confidence and does not come in the category of wholly reliable witness. In absence of corroboration the testimony of PW 3 is not of much avail for the prosecution for establishing the guilt of murder of deceased Morkali by appellant Prem Raj by use of fire arm weapon i.e. illicit country made pistol. If, the testimony of PW 3 is taken to be not inspiring confidence thus, remains the testimony of PW 1 and PW 2 for appreciation.
32. PW 1 & PW 2 have categorically stated that there was balance of Rs.10,000/- of dowry amount, which was not paid, for which the demand was raised. The factum of death of deceased within seven years of her marriage, has not been disputed by the accused-appellant. The factum of death of Morkali is also not dispute, which is not a natural death. The factum of balance of Rs.10,000/- of dowry amount remained pending, has been conceded by PW 1 & PW 2 for which the demand was being raised by appellant Prem Raj with deceased Morkali and she was being insisted to arrange the same from her parental home. She was subjected to wrong treatment as has been alleged by PW 2, who is father of deceased. PW 1 has also stated that there has been continuous demand of balance of Rs.10,000/- and due to non-fulfillment of the said demand she was subjected to wrong behaviour.
33. The necessary requirement for the offence under Section 304B IPC is as follows :
"Section 304B IPC. Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death."
34. PW 1 & PW 2 have made a clear allegations through their respective oral testimonies about the demand of dowry and attributed the cause of death to be due to non-fulfillment of the demand of dowry.
35. It is a case in which the dead body has been recovered from the house of accused-appellant. Appellant was living in the same house from where the dead body of deceased was recovered. For offence u/s 304B IPC the presumption would be against the husband and relatives of the husband, if unnatural death of victim is caused as a result of being subjected to cruelty or harassment for non-fulfillment of demand of dowry. And, more so, Section 106 of Evidence Act would also come into play because the dead body has been recovered from the place of abode of appellant Prem Raj and deceased Morkali, where the appellant was residing with his parents as well. The burden has shifted on the shoulders of appellant. He is under legal obligation to narrate the circumstances, which resulted into the death of deceased.
36. On the basis of discussions made above, we are of the considered opinion that the accused-appellant has failed to discharge the onus as is required under law as per Section 106 of Indian Evidence Act.
37. The medical opinion positively indicates that the cause of death of Morkali (deceased) was as a result of shock and haemorrhage due to ante mortem injuries and the ante mortem injuries are fire arm injuries. In the instant case, recovered item no.(i) blood stained soil, item no.(ii) sari, item no.(iii) peticoat, item no.(iv) blouse & item no.(v) bra, were sent to State Forensic Laboratory. The report of the Serologist categorically stated the presence of human blood. The spots of human blood was found on "Janeu" and pieces of clothes, which were disintegrated and could not be ascertained.
38. Considering the totality of circumstances and time span within which the death has been caused, we are of the considered opinion that the evidence available on record is sufficient to substantiate the guilt for offence u/s 304B IPC against the accused-appellant. The learned trial Court has rightly recorded the findings of conviction against the accused-appellant for the offence u/s 498A IPC. So far as offence u/s 498A IPC is concerned, the findings are reasoned one and are substantiated by the evidence available on record.
39. So far as findings of conviction for the offence u/s 302 IPC is concerned, we do not concur with the findings of the learned trial Court. We are in complete disagreement with the findings of the trial Court recorded in this regard and the findings of conviction recorded u/s 302 IPC requires to be altered u/s 304B IPC against the accused-appellant.
40. In view of aforesaid observations made in the body of the judgment, the appeal deserves to be partly allowed and is, accordingly, partly allowed. The conviction of accused-appellant for the offence u/s 498A IPC is hereby affirmed and his conviction for the offence u/s 302 IPC is hereby converted into conviction for the offence u/s 304B IPC and sentenced to rigorous imprisonment for seven (7) years. Both the sentences to run concurrently.
41. As per submission of both sides, the accused-appellant is reported to be in jail. The accused-appellant is entitled to commutation of sentence as per provisions of Section 428 of Code of Criminal Procedure.
42. Let the lower Court's record be sent back to the Court concerned forthwith along with a copy of this judgment and order for immediate compliance.
(Raghvendra Kumar, J.) (S. V. S. Rathore, J.) Order Date :- 8th September 2015 M. Himwan