Allahabad High Court
Rati Ram vs State Of U.P. on 12 December, 2012
Bench: Rakesh Tiwari, Anil Kumar Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
A.F.R
CRIMINAL APPEAL NO. 3486 OF 2001
Rati Ram son of Chhakki Lal r/o Lala Niwada, P.S. Rasoolabad, District Kanpur Dehat.
....Appellant
versus
State of Uttar Pradesh
...Respondent
connected with:
CRIMINAL APPEAL NO. 3576 OF 2001
1.Niyamat Ali son of Sri Ali Shakeer, r/o Lala Niwada, P.S.
Rasoolabad, District Kanpur Dehat.
2. Sheo Shankar son of Sri Putti Lal, r/o Madhav Nagar, P.S.
Rasoolabad, District Kanpur Dehat.
...Appellants
versus
State of Uttar Pradesh
...Respondent
Counsel for the appellants : Ms. Mridul Tripathi assisted by
Sri P.K. Tripathi, Advocate
Counsel for the respondent: Sri Ram Yash Pandey
Hon'ble Rakesh Tiwari, J.
Hon'ble Anil Kumar Sharma, J.
( Delivered by Hon'ble Rakesh Tiwari, J.)
1. Heard Ms. Mridul Tripathi, Advocate assisted by Sri P.K. Tripathi, learned counsel for the appellants, Sri Ram Yash Pandey, learned AGA and perused the record.
2. Challenge in this criminal appeal arising out of S.T. No. 101 of 1995, State versus Rati Ram and another is to the judgment and order dated 28.9.2001 passed by the Sessions Judge, Kanpur Dehat convicting and sentencing the appellant Rati Ram under Section 302 IPC and in connected appeal by Niyamati Ali and another under Section 302/34 IPC with life imprisonment.
3. The case of the prosecution is that a written report was submitted by Km. Meera Devi daughter of Ram Lal Kori resident of Ward No.3, Jhinjhak, P.S. Mangalpur to the effect that her sister Bimla was married to Rati Ram accused-appellant resident of village Lala Niwada, P.S. Rasoolabad, District Kanpur Dehat. She had no issue, hence her husband Rati Ram used to harass and torture her and also had nexus with criminals. Due to ill-treatment received at the hands of Rati Ram her sister Bimla had come back to her parents' house at Jhinjhak about two months prior to the incident and she was staying with her father. Accused Rati Ram asked Bimla's father Ram Lal to send her to his house but he refused to do so. This annoyed Rati Ram and he went back in anger. On 23.11.1994 at about 3.00 P.M. Ram Lal along with his daughter Meera Devi (complainant), Manjoo and his son Mahendra Kumar were returning home after working in their field. When they reached the field of Ram Prakash Sharma near village Gadhi, the accused-appellants Rati Ram, Niyamat Ali and Shiv Shankar armed with country made pistols came and surrounded Ram Lal. Then Rati Ram exhorted to finish Ram Lal as he was not sending Bimla with him. Ram Lal tried to run away but accused Rati Ram fired at Ram Lal with a country made pistol causing fire arm injury to him, who fell down. Accused-appellants Niyamat Ali and Shiv Shankar also fired from country made pistols but missed. On hearing the hue and cry of the complainant, her younger sister and brother, witnesses Tula Ram, Manni Lal, Suresh Chandra Pathak and other persons reached at the place of occurrence. They chased the assailants who made their escape good towards the north after crossing the canal and that the complainant Meera Devi after arranging a tractor had come to P.S. Mangalpur along with her injured father for lodging FIR at 6.30 P.M. the same day for legal action by the police in the matter.
4. On the basis of the written report by Meera Devi check report was prepared and entry in G.D. was made at sl. no.22 on 23.11.94 at 17.30 P.M. registering case crime no. 299/94 against the accused aforesaid under Section 307 IPC at P.S. Mangalpur, District Kanpur Dehat. After lodging of the FIR, the injured father of complainant was taken to P.H.C. Jhinjhak for treatment. The investigation of the case was started by S.I. Sri Om Raj Singh, who at about 7.00 P.M. recorded the statement of injured Ram Lal at P.H.C. Jhinkjhak where he had been sent for treatment. Injured Ram Lal succumbed to the injuries received by him, as such the case was converted from Section 307 IPC to Section 302 IPC. The I.O. after preparing inquest report (Ex.Ka-7) sent the body of deceased under seal cover to T.B.I. Hospital, Kidwai Nagar, Kanpur for post mortem examination along with papers.
5. Dr. L.K. Tiwari, P.W.6 conducted the post mortem on the cadaver of deceased Ram Lal son of Sri Raghubar on 24.11.94 at about 10.45 A.M and reported that the deceased was about 60 years of age who had died within a span of one day. The external examination of the body showed that the deceased was of thin built and eyes and mouth partially open. Rigour mortis was present in both the extremities. P.M. staining was present on back buttocks and thighs of the corpse. On internal examination it was found that small intestine was lacerated, in large intestine blood mixed semi-digested fluid was present with gases and faecal matter. Blood walls, pancreas, spleen, left kidney and liver were lacerated. Gall bladder was half full, right kidney and both lungs were pale, all chambers of the heart were empty. 1.5 litre of blood was found in abdominal cavity, stomach walls were lacerated and 4 Oz. blood mixed with semi-digested food present. The Doctor reported the following ante-mortem injuries on the corpse of the deceased.
1.Multiple fire arm wounds of entry on left side of lower part of chest and left flank and upper part of back of abdominal wall in an area of 17 cm. x 17 cm wounds are 9 cm. below lower scapular angle on left side wounds are of same size measuring .5 cm. x .5 cm. x abdominal cavity deep, margins inverted and black collar present around wounds.
6. Eighteen pellets were recovered from different parts of abdominal cavity which were handed over to the constables accompanying the body with sealed bundle of clothes of the deceased along with 11 police papers. The cause of death in the opinion of the Doctor was due to haemorrhage and shock on account of ante mortem injuries.
7. The Investigating Officer sent articles recovered from the place of occurrence i.e. (1) country made pistol (2) live cartridge, (3) empty cartridge, (4) sweater, (5) shirt ,(6) Bandi, (7) Dhoti, and (8) small pellets sealed along with the articles received from the doctor in an envelope separately for scientific investigation to the Forensic Science Laboratory, Lucknow. The result of scientific investigation on major parts of article nos. 1 & 4 to 8 reveals that human blood was found on them but insufficient for classification. Article nos. 5 to 7 contained blood spots measuring 60,40 and 80 cm. No blood was found on article nos. 2 and 3. However, blood on article no. 1 was found disintegrated.
8. During investigation of the case on the basis of an information of the informer S.O. Hukum Singh apprehended accused Rati Ram, Niyamat Ali and Shiv Shankar Verma at about 3.00 P.M. going on a kuchcha road leading to Duttpur from Jhijhak Rasoolabad road and on search a country made pistol 12 bore and a live cartridge 12 bore were recovered from the right pocket of pant which Rati Ram was wearing. From his search on the person of Niaymat Ali a 12 bore country made pistol and two live cartridges of 12 bore were recovered from the right pocket of his pant and from the right pocket of the pant of the third accused Shiv Shankar Verma two 12 bore live cartridges were recovered. On interrogation they confessed the incident of firing by them upon Ram Lal. Accused Rati Ram further stated that the fire shot by him caused injuries to his father-in-law, Ram Lal. The recovery memo was prepared at the spot and its copy was furnished to the accused persons. The articles recovered from their person were sealed and on the basis of this recovery memo cases under Section 25 of the Arms Act at case crime nos.301,302 and 303 of 1994 respectively were also registered at 5.30 P.M. on 24.11.1994. After the death of Ram Lal, the investigation was entrusted to S.I. Sri M.B. Singh for further enquiry.
9. On conclusion of investigation charge sheet was submitted. Charges under Sections 302 IPC and 25 Arms Act were framed against accused-appellant Rati Ram. Accused Niyamat Ali and Shiv Shankar were charged under Section 302 read with Section 34 IPC and 25 of the Arms Act. All the accused persons denied the charges pleading not guilty and claimed to be tried.
10. The prosecution in order to prove its case examined Meera Kumari, Manni Lal, S.I. Hukum Singh, S.I. Om Raj Singh, Constable Kaptan Singh, Dr. L.K. Tiwari, Ram Pal and S.I. Mehendra Bahadur Singh as P.W.1 to P.W.8 respectively.
11. Accused-appellants were examined under Section 313 Cr.P.C. stating that they have been falsely implicated in this case. D.W.1,Tula Ram was also examined as defence witness though he was named as prosecution witness in the FIR. This witness stated that deceased Ram Lal was murdered at the other side of canal on the date and time as alleged by the prosecution by unknown persons.
12. Upon hearing learned counsel for the parties and considering the evidence on record the Sessions Court by the impugned judgment convicted and sentenced the accused-appellants as stated above in this judgment.
13. Aggrieved the appellants have come up in appeal challenging the judgment and order dated 28.9.2001 sentencing them and praying for allowing the appeal by setting aside the judgment and order impugned on the ground that the conviction of the appellants is against the weight of evidence on record and is based on conjectures and surmises.
14. The arguments assailing the judgment and order impugned advanced by the learned counsel for the appellants are:-
There is no reliable evidence produced by the prosecution to prove its case;
The trial Court has not considered that single injury cannot form the basis of conviction under Section 302 IPC;
The accused-appellants have been falsely implicated in this case as the place of occurrence where the incident is said to have taken place is under a clout because no blood was found by the I.O. on the alleged place of occurrence, hence the case of the accused appears to be more plausible.
15. No other point has been raised by the learned counsel for the appellant.
16. Per contra, Sri Ram Yash Pandey, learned AGA submits that there are eye-witnesses of the factum of incident besides the dying declaration of Ram Lal, deceased which is corroborated and supported by the testimony of these eye-witnesses. The FIR has been promptly lodged. The place of occurrence as stated by the prosecution witnesses is established by the site plan. The occurrence has taken place in broad day light. The trial Court after discussing the oral and medical evidence has rightly passed the impugned judgment and order sentencing the accused-appellants, hence no interference is required by this Court.
17. After hearing learned counsel for the parties and on perusal of the record it is apparent that Bimla daughter of deceased Ram Lal was married to accused Rati Ram. Since the couple had no progeny from the wedlock, hence accused Rati Ram not only used to harass and torture her but also threatened to do away with her. Due to fear of her life from her husband, she had come to her parents' house and was staying with them. Accused-appellant Rati Ram, her husband wanted to take her to his house but Ram Lal her father ( since deceased) refused to send her with him. This annoyed Rati Ram. It is in this backdrop that with vengeance in his heart he along with co-accused, in a pre-planned manner, committed the murder of his father-in-law, Ram Lal.
18. There are two eye-witnesses of the occurrence in this case namely, P.W.1, Meera Kumari and P.W.2 Manni Lal besides the dying declaration of the deceased recorded by the I.O. just few minutes before his death. P.W.1, Meera Kumari is the daughter of the deceased. She stated that she along with his father, sister Manjoo and brother Mahendra Kumar had gone to work in the field on the date of occurrence. The incident took place in the month of November when after working in the field, they were returning home. Deceased Ram Lal was walking in front of them followed by her and others when the trio reached near the field of Ram Prakash Sharma under village Gadhi, accused along with other co-accused came on the spot armed with country made pistol, surrounded Ram Lal and accused Rati Ram fired at him with his country made pistol causing multiple fire arm wound on left side of the lower part of chest and upper part of back of the abdominal wall on the left side, on account which he fell down. P.W.1, Meera Kumari identified him as Rati Ram, her sister's husband and other two accused who were known to her from before as friends of Rati Ram as they used to come to the house with Rati Ram.
19. There could be no mistake in their identification by her as all the accused persons were known to her and the occurrence took place on 23.11.1994 at 3.00 P.M. in the broad day light. The accused Rati Ram is stated to have fired from a close range, while the shots fired by the other two accused missed him as Ram Lal fell down after being seriously injured by the first shot fired by Rati Ram. The statement of P.W.1, Meera Kumari is cogent,clear and reliable. The accused could not elicit any material contradiction in her statement in support of their case. Her statement before the Court is quite consistent with the prosecution story and in conformity with the FIR. She is eye-witness to the murder of her father at the hands of her brother-in-law Rati Ram and other co-accused persons and her presence at the place of occurrence is undoubtedly established. There is also no reason for her to falsely implicate the accused persons because Rati Ram was her sister's husband and the other two accused Niyamat Ali and Shiv Shankar though had no enmity with the deceased had come armed with him to do away Ram Lal. P.W.2, Manni Lal the other eye-witness of the occurrence has also corroborated the statement of P.W.1 and has supported the prosecution case. The motive as alleged in the FIR has also been corroborated, established and fully proved by P.W.1, Meera Kumari, who apart from being the complainant, is also an eye-witness of the occurrence and real sister of Bimla, the wife of accused Rati Ram. There is no material contradiction in his testimony. He is neither relative of the complainant nor inimical to accused and is not a partisan witness.
20. The testimony of these two eye-witnesses i.e. P.W.1, Meera Kumari and P.W.2, Manni Lal is further corroborated by the dying declaration recorded by the I.O. at P.H.C. Jhinjhak where injured Ram Lal was taken for treatment. Since no doctor at P.H.C. was available at that time as such treatment could not be given to the injured immediately. On perusal of the dying declaration it is found that injured Ram Lal was in a fit state of mind at the time of his death. He requested the I.O. to listen to him carefully as he was under pain of injury and was unable to speak loudly. In the dying declaration he stated that his son-in-law Rati Ram had fired at him and he fell down. Thereafter, accused Niyamat Ali and Shiv Shankar also fired. He had named his assailants before dying stating that accused Niyamat Ali belongs to village Gadhi and accused Shiv Shankar belongs to village Madhav Nagar. His dying declaration recorded by the I.O. reads thus:-
^^onj;k¶r Jh jke yky dksjh S/o j?kqoj dksjh R/o dLck >h>d okMZ ua- 3 Fkkuk eaxyiqj ftyk dkuiqj nsgkr us crk;k fd "eq>ls cksyk ugh tk jgk gS esjh ckr /;ku ls lquks eq>s esjs gh nkekn jrhjke us vkt djhc 3 cts fnu xksyh ekjh ftldh xksyh yxus ls eSa fxj iM+k ¼dqN nsj :ddj½ mlds lkFk mlds xkao dk U;ker vyh vkSj f'ko'kadj oekZ ek/kouxj dk Fkk mUgksus Hkh Qk;j fd;s Fks cksyk ugh tk jgk gS esjs ?kj dk [;ky j[kuk bruk dgdj pqi gks x;k vc ugh cksy jgk gSA^^
21. The aforesaid declaration of deceased a few minutes before his death is short, natural and quite free from any suspicious circumstance which has been accepted by the Court below as reliable .
22. The Place of occurrence is fixed not only by the ocular testimony of eye-witnesses, P.W.1 Meera Kumari and P.W.2 Manni Lal but also by the site-plan (Ex.Ka-5) prepared and proved by the Investigating Officer as well as by the defence witness Tula Ram, D.W.1, who in his statement stated that on hearing the sound of firearm from the side of canal patri, he went there and saw injured Ram Lal lying there. In the circumstances, it leaves no doubt to conclude that the place of occurrence was the same as stated by the prosecution witnesses, P.W.1, P.W.2, the I.O. and the defence witness also. The medical evidence on record also corroborates the prosecution case. P.W.6, Dr. L.K. Tiwari has has proved the post mortem report of Ram Lal. He stated in his statement stated that the fatal injury to the deceased was caused by a single shot of fire arm.
23. As regards the claim of false implication of the accused-appellants is concerned, we do not find any cogent reason for false implication as stated above. There is no enmity between the complainant and accused Rati Ram, who is the sister's husband and son-in-law of deceased Ram Lal. She is an innocent minor daughter of the deceased of about 14 years of age at the time of occurrence. She had submitted the written report of the occurrence without the aid and advice of any person as her father had been killed in her presence by the accused persons who had surrounded her father and fired at him. Her father had breathed his last in her lap. Therefore, it would be too much to say that she had implicated the accused falsely for no reason and left the real assailants of his father to go scott free.
24. In view of the above, we do not find any force in the contention of the learned counsel for the appellants that they have been falsely implicated in this case. Even Tula Ram,D.W.1 their defence witness admitted the occurrence at the place fixed by the I.O. but appears to have given a tutored version that he heard only the sound of fire and when he reached there, he saw Ram Lal lying injured on the ground. So, in our mind, the prosecution has been able to prove its case by reliable evidence. The argument of the counsel for the appellants that single injury cannot form the basis of conviction under Section 302 IPC is fallacious for the reason that the single injury in this case proved fatal to the deceased who not only named Rati Ram and other with him in his dying declaration to have fired upon him but motive is also present and can be gathered from the FIR itself. The place of occurrence according to defence also is the same as described by the prosecution with a little shifting from the field of Ram Prakash Sharma to canal side. Both are quite close to each other, therefore, insignificant. In the facts and circumstances of the case, we do not find any substance in the case of the accused-appellants.
25. For all the reasons stated above we find that the conclusion arrived at by the trial Court that the prosecution has successfully proved its case against the accused-appellants beyond all reasonable doubts, does not suffer from any infirmity. In the result, criminal appeal no. 3486 of 2001 ( Rati Ram versus State of U.P.) with connected criminal appeal no. 3576 of 2001( Niyamat Ali and another versus State of U.P. ) fails and are accordingly, dismissed.
26. Let a certified copy of this judgment be sent to the Court concerned for its immediate compliance which should be reported to this Court within a month.
Dated:-12.12.2012
CPP/-
