Ram Singh vs State Of U.P.
2012 Latest Caselaw 3994 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. 33
 

 
		        Criminal Appeal No. 3271 of 2000
 
Ram Singh                        			         ....................  Appellant.
 
Vs.
 
State of UP						 .................Respondent.
 
*******
 
Hon'ble Rakesh Tiwari, J.

Hon'ble Anil Kumar Sharma, J.

(Delivered by Justice Rakesh Tiwari)

Heard Ibha Sinha, Amicus Curiae, appearing for the appellant, Syed. Ali Murtuza, learned A.G.A., and perused the record.

This criminal appeal challenges the validity and correctness of the judgement and order dated 1.12.2000 passed by Vth Additional Sessions Judge , Farukkhabad, in S. T. No. 246 of 1999, convicting the appellant and sentencing him to life imprisonment along with fine of Rs. 10,000/- U/S 302/120-B IPC. The judgment further provides that in case of default of fine, the accused/appellant will undergo 6 months additional imprisonment.

The appeal has been filed on the ground that conviction of the appellant is liable to be set aside for the reason that the accused has been convicted without any evidence; that the deceased was allegedly murdered by the appellant and co-accused Km. Meena, is not worthy of conviction, in as much as, the co-accused has been acquitted, and that the motive assigned for murder being alleged illicit relations between the accused Ram Singh and Km. Meena, but there was no evidence on record to prove the same.

The judgment impugned is also assailed on the ground that there are no eye-witness to support the prosecution story; that chain of circumstantial evidence is incomplete, and the FIR was not existing at the time inquest was made. Subedar Gulwant, P.W. 5, had informed the Kotwali Fatehgarh about the body of deceased Parvati Devi wife of Ram Singh in the evening of 18.4.1999 vide report no. 16 at 9.30 p.m. which was entered in the G.D. . However, the scribe of the FIR , Mukesh Dixit, who is alleged to have written the first

information report of the father of the deceased as well as father of the appellant, has not been produced by the prosecution rendering the order of conviction illegal.

The version of complainant, Kalyan Singh son of Sri Kunwar Singh, in the written report was that he had married his daughter, Parvati Devi with Ram Singh son of Sri Arjun Singh, about 10 years back and two daughters namely Km. Hema aged about 6 years and Km. Pooja aged about 3 years, were born out of wedlock. It was averred in the written report that Ram Singh had illicit relations with Km. Meena, daughter of his Mausi i.e. mother's sister about two years back and he had started to harass his wife Parvati Devi since then; that accused Ram Singh had taken away the two daughters from his wife Parvati Devi, on the pretext that he will provide good education to them at Fatehgarh, but their whereabouts are not known till date.

It is further averred that father of Ram Singh came to Fatehgarh along with Parvati Devi to leave her with Ram Singh and he stayed there about 3 days, but Ram Singh did not agree to keep Parvati Devi as result of which father of Ram Singh had to leave Parvati Devi in her father's house. It is lastly stated in the written report that in the month of June, Ram Singh came to the village and he lived with Km. Meena. After great persuasion, Ram Singh brought his wife to Fatehgarh and then in a conspiracy with Km. Meena, he killed his wife Paravati Devi in the night of 17/18.4.1999. Sri Kalyan Singh father of the deceased got the report written by Mukesh Dixit, Civil Lines, Fatehgarh and handed it over to police station Kotwali, Fatehgarh on 19.4.1999, on the basis of which, Case Crime No. 174 of 1999 under Section 302, 120-B IPC was registered and chick report was prepared on the same date.

A perusal of the FIR shows that the incident had taken place in the night of 17/18.4.1999, the investigation of incident was handed over to S.S.I. Satya Vir Singh on 19.4.1999. Two letters (Ext. Ka-5 & Ext. Ka-6 respectively) written by Ram Singh, are said to have been recovered from the place of incident.

The post-mortem report (Ext. Ka-3) of the deceased conducted on 18.4.1999 shows that before first information was lodged, an information of crime was given at Kotwali Fatehgarh by Nayab Subedar Guruwant, P.W. 5 which was entered in G.D. at 9.30 a.m.. On the basis of the report, inquest report of the deceased was prepared and sent for post-mortem along with related papers. The body carrier, Constable 848, C.P. Ram Bahadur Singh took the body of the deceased Parvati Devi for post mortem which was conducted on 18.4.1999 at about 3.20 p.m. It also appears from the papers that the Investigating Officer had prepared the site plan of the place of incident and had also recovered a letter written by the accused, Ram Singh.

The accused, Ram Singh was charged under Section 302/120-B IPC and Co-accused, Km. Meena was charged under Section 302 IPC read with Section 34 and under Section 120-B IPC. Both the accused abjured the guilt and claimed trial.

The prosecution in support of the case, produced Kalyan Singh, as P.W. 1, Dr. Yogendra Pratap Singh, P.W. 2, Arjun Singh, P.W. 3, Constable Sanjiv Patil, P.W. 4, Subedar Gurwant, P.W. 5, Head Constable Jaskaran Singh, P.W. 6, S.I. Rajesh Kumar, P.W. 7 and S.I. Rajvir Singh, P.W. 8.

On conclusion of prosecution witness, accused examined himself under Section 313 Cr.P.C. in which he denied the charges and submitted that he has been falsely implicated by his in-laws. He has also denied illicit relationship with Km. Meena.

Co-accused, Km. Meena, also denied the charges. According to her there were strained relations between Ram Singh and his father, as Ram Singh had helped her in getting service, whereas he has not helped her two brothers in getting the job. Kalyan Singh, P.W. 1, in his statement proved the contents of the FIR, stating therein that he was informed about the death of Parvati Devi by a constable who had come from Sikhlai Regiment Centre where Ram Singh was working on the basis of which he lodged the FIR.

Dr. Yogendra Pratap Singh, P.W. 2, examined by prosecution, has stated that he had conducted the post mortem of dead body of the deceased, Parvati Devi wife of Ram Singh, R/o Aanandpur, P.S. Banvasa, District Udhamsingh Nagar, presently residing at Sikhlai Regiment Centre, quarter no. 20-B-2 Bareilly line, Fatehgarh, after verification of seal etc. and according to his opinion, the deceased was aged about 37 years who died about 12 hours before, her eyes were closed, but mouth was shortly opened. Both the wrists were closed. Blood was oozing out from both the ear and nose. Nails of fingers and tongue became blue.

The ante-mortem injuries found on the body of the deceased as narrated by the doctor in his statement, are as under:

^^1- [kjkspnkj uhyxw fu'kku 3 lseh- x 1 lseh- ukd dh c`t ij nk;h rjQ dh fupyh iyd rd QSyk gqvk ekStwnk FkkA

2- [kjkspnkj uhyxw fu'kku 3-5 lseh- x 1-5 lseh- ukd dh uksd ij nksuksa uklk fNnzksa ds Åij rd QSyk gqvk ekStwn FkkA

3- [kjksp dk fu'kku 1-5 lseh- x 1 lseh- nk;h vka[k ds ckgjh dksus ij ekStwn FkkA

4- [kjksp dk fu'kku 2 lseh- x 0-5 lseh- eRFks ds nk;h vksj ekStwn FkkA

5- [kjksp 3 lseh- x 1-5lseh- Åijh vksB ij ukd dh uksd ds uhps ekStwn FkkA

6- [kjkspnkj uhyxw fu'kku 1-5 lseh- x 2 lseh- fupys vksB ij eqag ds nk;s dksus rd Syk gqvk ekStwn FkkA nksuksa vksBksa ds Hkhrjh E;sdkslk f>Yyh txg&txg QVh FkhA

7- [kjksp 7 lseh- x 2 lseh- esUMhcy ds Nk;h vksj BqM~Mh rd QSyh gqbZ ekStwn FkhA

8- v/kZ pUnzkdkj uk[ku ds fu'kku ftudh la[;k 4 Fkh xys ds nk;h vksj Åij o chp okys fgLls esa ekStwn FkhA ftudk vkdkj 1 lseh- x 0-2 lseh- ls ysdj 0-5 lseh- x 3 lseh- rd FkkA

9- [kjksp 1 lseh- x 0-2 lseh- ck;s iSj ds Hkhrj dh vksj ekStwn FkhA**

From internal examination it appears that the skin & bones were found broken, brain and left chest was congested, right side of liver was filled with blood and left side was empty. He did not find any injury due to external cause and according to the doctor, death had occurred due to smothering and chocking of throat.

Arjun Singh, P.W. 3, father of Ram Singh, father-in-law of Parvati Devi, stated that Parvati Devi was his daughter-in-law and she died at Fatehgarh in the residential quarter of Ram Singh; that after receiving information regarding death of Parvati Devi from some person, he had come to Fatehgarh on 19.4.1999 and had moved an application (Ext. Ka-4) at police station Fatehgarh. He was declared hostile witness as he made statement that report lodged by him was not read out to him and his signatures were obtained on the report.

Constable Sanjiv Patil, P.W. 4, is a witness on whose evidence reliance has been placed by the defence. According to P.W. 4, he was on duty in Military Hospital from 17.4.1999 at about 7.30 p.m. to 18.4.1999 at about 7.30 a.m. He has further stated that on the relevant date, Ram Singh was admitted in Surgical Ward No. 3 at Bed No. 20 for the treatment of his back-ache, but he was not having any problem in moving around. In his cross-examination, the witness has admitted that he had not gone to Ward No. 3 between 1.00 a.m. to 6.00 p.m. on 18.4.1999.

Subedar Gurwant, P.W. 5, in his statement has stated that he was on duty on 18.4.1999 at Sikhlai Centre and he was directed by his superior officers to give information at police station Fatehgarh that wife of Ram Singh died in quarter, Bareilly. This information was given by him to the said police station in writing.

The formal witnesses in the case i.e. Head Constable Jaskaran Singh, P.W. 6, proved G.D. entry, which was in his hand writing as well as carban copy and chick report. S.I. Rajesh Kumar, P.W. 7, witness of inquest has stated that he had prepared inquest report in his hand writing and proved it as well as other documents of inquest, Ext. Ka-11 to Ka-15 respectively. Lastly, S.I. Rajvir Singh, P.W. 8. has stated that he had taken over the investigation of Case Crime No. 174 of 1999 from S.S.I. Vaijai Singh, after he had been posted out and proved the documents Ext. Ka16 to Ka-19.

The trial court from the evidence came to a conclusion that prosecution could not prove illicit relations between the accused, Ram Singh and co-accused, Km. Meena or that she had been a partner in crime of killing Parvati Devi with the help of Ram Singh. There is no circumstantial evidence which could support her implication in the said crime, therefore, Km. Meena cannot be held guilty only on the basis of suspicion that she is said to have identified illicit relation with accused Ram Singh. In view of this, Km. Meena cannot be held guilty of charges under Section 120-B IPC on the basis of suspicion only.

The Court also found that ingredients of Section 302 read with Section 34 IPC, are not attracted for the reason that to hold a person guilty of charges, it is necessary that there should be meeting of mind and conspiracy for committing criminal act as well as actual participation in committing the crime which was lacking in this case. Therefore, Km. Meena as well as accused Ram Singh were liable to be acquitted from the charges framed under Section 120-B IPC.

Charge under Section 302 IPC was found proved against the accused, Ram Singh to the hilt by the evidence, produced by the prosecution. He was awarded imprisonment for life and fine of Rs.10,000/- by the judgment dated 01.12.2000 passed by Court of Sessions Judge.

After hearing counsel for the parties, and on perusal of record, it appears that in the intervening night of 17/18.4.1999, incident of murder of Parvati Devi wife of accused, Ram Singh is said to have taken place in the residential quarter of Ram Singh. A report to this effect was lodged on 19.4.1999 by Kalyan Singh, father of the deceased, which was registered as Case Crime No. 174 of 1999 under Section 302/120-B IPC at police station-Fatehgarh in which the appellant was arrayed as one of the accused. After investigation, charge sheet was submitted and the matter was committed to the court of Sessions Judge, were it was registered as S.T. No. 246 of 1999: State of U.P. Vs. Ram Singh. The trial court vide its judgment and order dated 1.12.2000, convicted the appellant under Sections 302/120-B IPC with life imprisonment and fine to the tune of Rs.10,000/-. The said judgment was challenged in the present appeal in which accused Ram Singh, who was an employee of Indian Army, was released on bail by order dated 3.7.2001 and his services appears to have been terminated on his conviction.

According to counsel for the appellant, it is a case of circumstantial evidence. She had strenuously argued that on the fateful night the incident took place, the accused, Ram Singh was admitted in surgical ward no. 3, bed no. 20 of military hospital. She has also relied upon the testimony of Sanjiv Patil, P.W. 4 in support of the fact that the accused, Ram Singh was in the said hospital on the night of 17/18.4.1999. However, in his cross-examination, Sanjiv Patil has categorically stated that he had not gone to the said surgical ward no. 3 of military hospital at all in the night of 17/18.4.1999 between 1.00 a.m. to 6.00 a.m. where Ram Singh was admitted. Therefore, alibi of accused sought to be proved through Sanjiv Patil, P.W. 4 is worthless as the incident is said to have taken place in the night of 17/18.4.1999.

The contention of learned counsel for the appellant that no other patient who was admitted in the said surgical ward no. 3, was produced to establish that the accused, Ram Singh was not in the surgical ward no. 3 on the night of 17/18.4.1999 between 1.00 p.m. to 6.00 a.m., does not in any way help the case of the accused. No patient would keep vigilance upon any patient until and unless he is aware or has string suspicion about him. However the burden to prove alibi squarely lies on the accused, which he has failed to prove through reliable evidence.

The counsel for the appellant further contended that Kalyan Singh, P.W. 1, has wrongly lodged the FIR against the accused, is not believable for the reason that S.I. Rajesh Kumar, P. W. 7 and his assistant S.I. Kaptan Singh, who are police constable, will have no intention to have falsely implicated the accused, Ram Singh in the said incident. Anti- mortem injuries show that the blood was oozing out from the left ear which establishes that the deceased was killed by smothering. The doctor has also opined that murder of Smt. Parvati Devi was committed by smothering. It is noteworthy that in evidence of Sanjiv Patil, P.W. 4, it has come that the accused had no walking problem at all due to said backache which indicates that the accused had got himself admitted in the hospital in a pre-planned manner only for creating an alibi.

In this case the place of incident and the anti mortem injuries found on the person of deceased are sufficient to conclude that the deceased was done to death by accused-appellant and none else for the following reasons:

             a)    that the death of deceased has taken place in
 
                    the official quarter of accused situated in army 
 
	           precincts where entry of any outsider or civilian 
 
                    is prohibited; 
 

 
            b)    that it is not a case of suicide; 
 

 
	   c)    that the accused has taken false plea of alibi; 
 

 
            d)    that the accused was not keeping the 
 
                   deceased with him; 
 

 
           e)   	 that two letters Ex. Ka-5 and Ka-6 which were 	 		 identified by father of accused, P.W. 3 to be in 		          the hand writing of accused clearly prove sore 		          relations with his deceased wife; 
 

 
           f)      that u/s 106 Evidence Act the accused was  			          required to give plausible explanation regar-
 
                   ding homicidal death of his wife.
 

 
	Thus, the above mentioned circumstances were such as to be conclusive of guilt of the accused and they are incapable of explanation on any hypothesis consistence with the innocence of the accused-appellant. 
 

For all the reasons stated above, we are of the view that there is no illegality or infirmity in the judgment impugned in the present appeal, and the appellant has rightly been convicted for life imprisonment with the fine of Rs.10,000/- under Section 302/120-B IPC.

We appreciate the efforts of Ibha Sinha, Amicus Curiae, who has prepared the case and assisted the Court in disposal of this old appeal. She would get Rs.2,100/- for her services rendered to the Court and it should be paid to her within a month.

The appeal is, accordingly, dismissed.

Let certified copy of judgment be sent to the court concerned for ensuring compliance which should be reported to this Court in two months.

Dated: 06.09.2012

RCT/-