Ram Mohan vs State Of U.P.
2014 Latest Caselaw 2193 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No.- 52						(Reserved) (A.F.R.)
 
Case :- CRIMINAL APPEAL No. - 5074 of 2004
 
Appellant:- Ram Mohan
 
Respondent :- State Of U.P
 
Counsel for Appellant:-S.S. Sharma, Lalji Chaudhary,
 
 R.K. Tripathi, R.S. Chauhan
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Ravindra Singh,J.

Hon'ble Kalimullah Khan,J.

(Delivered by Hon'ble Kalimullah Khan,J)

1.Two Criminal Appeals No.4528 of 2004 and 5074 of 2004 were filed by appellants Jagdish and Ram Mohan respectively against one and the same impugned judgment and order dated 13.8.2004. Vide order dated 4.3.2008 both the aforesaid appeals were connected to each other. However, on account of the death of Jagdish, Criminal Appeal No.4528 of 2004 filed by him has been abated by this Bench vide order dated 11.9.2013, therefore, this judgment pertains to Criminal Appeal No.5074 of 2004 only.

2. This Criminal Appeal No.5074 of 2004 has been filed by accused appellant Ram Mohan against the judgment and order dated 13.8.2004 passed by learned Addl. Sessions Judge, Mathura in S.T. No.423 of 2003 whereby he has been convicted under section 302/34 I.P.C. and sentenced to undergo life imprisonment and to pay a fine of Rs.10,000/- and in case of default of payment of fine, he is to further undergo imprisonment for six months.

3. The aforesaid impugned judgment and order has been challenged on the ground that it is against the law and facts of the case.

4. The prosecution case in nutshell is that the first informant Smt. Pushpa is the wife of appellant Ram Mohan. Co-accused Jagdish was the real brother of Ram Mohan. Two and half years prior to the incident dated 19.10.1998, her marriage was solemnized with appellant Ram Mohan. Out of this wedlock a baby was born but on account of the torturing made by the appellant and his brother against her, she was residing with her parent at her Maika. On 19.10.1998 she alongwith her mother Smt. Brajo, sister-in-law (Bhabhi) Smt. Anita and brother Hari was going to Vidyapeeth Crossing to purchase Diwali Festival materials. When they reached at Mohalla Dusayat Goria Math at about 7.00 P.M., appellant Ram Mohan, his elder brother Jagdish (since dead) sons of Hukumi R/o Mohalla Gaura Nagar, Vrindavan, District Mathura intercepted them and the present appellant overpowered to take her forcibly. Hari intervened as the relation of his sister Smt. Pushpa with her husband Ram Mohan appellant was strained. Appellant Jagdish caught Hari hold off and made exhortation to Ram Mohan to fire at him whereupon Ram Mohan fired with country made pistol causing the death of Hari at spot. On hue and cry raised, a number of persons from the locality attracted there towards the place of incident. The assailants Ram Mohan and Jagdish fled away towards Nikunj. The incident was witnessed by the informant and other witnesses in the electric light. Leaving her mother, sister-in-law with the dead body of her brother at spot, she went to lodge the F.I.R. at Police Station Kotwali, Vrindavan, District Mathura. She dictated the report to Radha Ballabh, the Scribe and after putting her own signature thereon, she handed-over her written report Exhibit Ka-1 to police station. Chik Report Exhibit Ka-13, was drawn and case was registered in the General Diary dated 19.10.1998 at about 20:15 P.M. at Crime No.363 of 1998 under section 302/34 I.P.C. at Police Station Kotwali Vrindavan, District Mathura in the presence of S.H.O., Kotwali Shri Brijendra Singh Sindhu (P.W.5) who took the investigation of this case in his own hand. He got Inquest Exhibit Ka-4 prepared on his dictation and after observing the necessary formalities and preparing necessary documents viz. photonas, challannas, letter to C.M.O., letter to R.I. sealed and sent the dead body to Mortuary. On 20.10.1998 at about 3.30 P.M., the dead body of the deceased was subjected to postmortem examination in District Hospital, Mathura and autopsy Exhibit Ka-2 was prepared. The Investigating Officer took the plain and blood stained earth from the spot, prepared the site plan (Exhibit Ka-11), examined the informant and the witnesses under section 161 Cr.P.C. and after being satisfied with the evidence collected by him that primafacie case is made out against the appellant Ram Mohan and Jagdish, he submitted chargesheet No.235 of 1998 dated 30.11.1998 before the court of learned C.J.M. concerned whereupon on 16.6.1999 learned C.J.M. took the cognizance under section 190(1)(b) of the Cr.P.C. on the chargesheet Exhibit K12. After satisfying himself that provision under section 207 Cr.P.C. has been complied with and the case is triable by the court of Sessions, learned C.J.M. committed the case to the court of Sessions vide his order dated 4.7.2003. Learned Sessions Judge transferred the case on the file of learned Additional Sessions Judge (Court No.2), Mathura for trial according to law.

5. Having heard learned counsel for the appellants Ram Mohan and his brother Jagdish and learned D.G.C. (Criminal), the learned trial court framed the charge under section 302/34 I.P.C. against both the accused on 23.7.2003. Both the accused denied the charge and claimed their trial.

6. In order to prove its case prosecution examined inasmuch as five prosecution witnesses apart from proving documentary evidence Exhibit K1 to Exhibit K13. Informant Smt. Pushpa is P.W. 1 who has deposed on fact and proved her written report Exhibit K1. Smt. Brajo, mother of the informant is P.W.2. Smt. Anita, wife of Hari (deceased) is P.W.3. All these three witnesses have deposed on facts and they are named witnesses in the F.I.R. They claim themselves to be witnesses of an eye account. They have deposed that on the exhortation made by Jagdish, appellant Ram Mohan fired with country made pistol at Hari causing his instantaneous death at spot. Dr. Subhash Chandra P.W. 4 has proved autopsy Exhibit K2. S.H.O., Bijendra Singh, I.O.( P.W.5) has proved the investigation and the chargesheet.

7. After recording evidence of prosecution, appellant Ram Mohan and Jagdish were examined under section 313 Cr.P.C. Appellant Ram Mohan challenged the prosecution case and he stated that informant Smt. Pushpa is his wife and out of her own accord and sweet will, she was living with her mother. He denied to have his perpetration into the crime alleged. He claimed to be present, during the relevant period, at Agra alongwith his brother Jagdish where both of them were, according to him, learning art of driving. He expressed his ignorance as to who had committed murder of Hari. He further stated that informant Smt. Pushpa had illicit relation with one Kapur Kohli with whom a quarrel of the appellants had taken place and due to the fear of said Kapur Kohli they had left their residence and had gone to Agra. Informant Smt. Pushpa did not want to live with him and to get rid of him, she has falsely implicated him and his brother in this case of the murder of her brother Hari. In this view of the matter he had taken a plea of Alibi. Similar statement was given by his brother Jagdish.

8. The appellant was called upon to enter into his defence but he did not adduce any evidence oral or documentary in nature.

9. Having heard learned D.G.C. (Criminal) and learned counsel for the appellant and after making appraisal of evidence adduced on record, learned trail court held the appellant Ram Mohan and his brother Jagdish guilty under section 302/34 I.P.C. After affording opportunity of hearing on the quantum of sentence, learned trial court convicted the appellant Ram Mohan and his brother under section 302/34 I.P.C. and sentenced him to undergo life imprisonment and to pay a fine of Rs.10,000/- each and in case of default of payment of fine he was directed to undergo further imprisonment for six months.

10.Feeling aggrieved, this Criminal Appeal has been filed.

11. Heard Sri Lal Ji Chaudhary, Amicus Curiae, the learned counsel for the appellant and learned A.G.A. for the State on the merit of this Criminal Appeal No.5074 of 2004. Perused the record.

Appellant Ram Mohan is in jail.

12.Learned counsel for the appellant has submitted that the F.I.R. is too prompt to believe. First informant Smt. Pushpa deposed that she dictated the report to Scribe Radhaballabh at the gate of the police station- Kotwali Vrindavan, Mathura but contradicting her deposition Smt. Anita (PW-3) who is the wife of Hari hereinafter called the 'deceased' has deposed that the said report Ex. Ka-1 was prepared by Smt. Pushpa in her own handwriting in the police station. All the prosecution witnesses Smt. Pushpa (PW-1), her mother Smt. Brajo (PW-2) and Smt. Anita (PW-3) are the members of one and the same family. Therefore, being inimical to appellant Ram Mohan and highly interested in the case of Smt. Pushpa their evidence are not to be believed. It has come in their evidence that neither they nor the deceased had taken meal on the day of incident since 9:00 a.m. up to the time of incident. In the evening, deceased had returned to his house, to take a cup of tea, from the hotel where he was in an employment but the autopsy shows that semi digested 50 grams materials were found in his stomach and digested food was found in his small intestine whereas the faecal matter and the gases were found in his large intestine. According to him the medical evidence is inconsistent with the testimonies of prosecution witnesses PW-1 to PW-3 and on this count also they are not reliable witnesses. He has further submitted that appellant was not present at spot during the relevant time rather, he was at Agra where he was learning driving skill. The appellant had neither any motive nor any intention to commit the murder of deceased. The evidence of all aforesaid three witnesses on facts are contrary to each other. There is no independent witness produced by the prosecution to support the prosecution story although all the witnesses on facts have admitted that there were a number of independent witnesses available at the spot who had seen the incident. Appellant has no criminal history. Smt. Pushpa had illicit relation with Kapoor Kohli, who was inimical to him and she did not want to live with the appellant and, therefore, in order to get rid of him, she has falsely implicated him in this case and lastly, he submitted that the incident took place on the spur of moment. It was not preplanned or premeditated. Therefore, the case does not fall within the ambit of section 302 I.P.C. utmost it is a case punishable under section 304, Part-II I.P.C. But learned trial court without applying his judicial mind and making any proper appraisal of evidence on record held the appellant guilty for murder which deserves to be set aside by allowing this criminal appeal on merit.

13. Per contra, learned A.G.A. has repelled the submission made by the learned counsel for the appellant and argued that it is a case of direct evidence. All the three prosecution witnesses on facts are the witnesses of an eye account. All of them belong to one family. It was occasion of Deepawali festival. All of them were going to purchase the materials for the festival along with the deceased, the only mail member with them, therefore, their presence on spot is highly probable and natural. They have given categorical and specific evidence on the point that it was present accused appellant Ram Mohan who had fired with country made pistol at Hari (deceased) with intention to commit his murder on the exhortation made by his elder brother Jagdish. Their deposition are consistence inter-se and are corroborated by the evidence of each other. The evidence of Smt. Pushpa who is the wife of appellant Ram Mohan is fully corroborated by the contents of her report Ex. Ka-I and the medical evidence fully corroborates the evidence of all the aforesaid three witnesses PW- 1, PW- 2 and PW-3. They are fully reliable witnesses. Lengthy cross-examination were made but these witnesses remained intact throughout. The motive and intention to commit the murder of the deceased has been fully established and proved by the prosecution. The date, time and place of incident have not been challenged by appellant. Even the presence of eye witnesses including the first informant at spot have not been challenged during the course of trial. The date and time of lodging prompt report have also not been challenged by the appellant and all the aforesaid facts are fully proved by prosecution. The inquest was prepared in the night of incident itself and the dead body was subjected to post-mortem examination within 24 hours of the incident. A fire arm wound of entry on the right side chest and corresponding fire arm wound of exit was found on the left side of chest of deceased which fully proved the case of prosecution. The weapon used by the appellant in committing the crime, the seat of injury i.e. chest of deceased; the nature of injury through and through, and strong motive are factors establishing the intention of the appellant to commit the murder of the deceased and, therefore, the case falls within the ambit of section 302 I.P.C. The appellant has taken a plea of alibi but has failed to prove it on record, therefore, it is another strong incriminating circumstance against him to establish his culpability in committing the crime. The weilding of country made pistol at the time of intercepting the deceased, informant and others in the way to the market are the suggestive factors of the intention of the appellant to commit the murder. None of the exception of section 302 I.P.C. are attracted and, therefore, the case does not fall within the ambit of culpable homicide not amounting to murder. Lastly, he submitted that the arguments advanced by the learned counsel for the appellant are imaginary which are not supported by the evidence on record. The appeal lacks merit and deserves dismissal.

14.In 1983 C.A.R. 343 (S.C.) - Bharwada Bhoginbhai Hirjibhai Vs State of Gujarat - it was held that "Seven principles have been laid down by the Hon'ble Apex Court for appreciation of the evidence:-

1.By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.

2.Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore can not be expected to be attuned to absorb the details.

3.The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.

4.By and large people can not accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder.

5.In regard to exact time of an incident or the time duration of an occurrence usually, people make there estimates by guess work on the spur of the movement at the time of interrogation and one can not expect people to make very precise or reliable estimate in such matters. Again it depends on the time sense of individual which varies from person to person.

6.Ordinarily a witness can not be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

7.A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."

15.In 2009 (65) A.C.C. 273 (S.C.) - Prithu @ Prithi Chand & another Vs State of H.P. - Aforesaid case law has been followed by the Hon'ble Supreme Court and further observed that "It was observed that undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the root of the matter and shake the basic version of the prosecution witnesses. A witness cannot be expected to possess a photographic memory and to recall the deals of an incident verbatim. Ordinarily, it so happens that a witness is overtaken by events. A witness could not have been anticipated the occurrence which very often has an element of surprise. The mental faculties can not, therefore, be expected to be attuned to absorb all the details. Thus minor discrepancies were bound to occur in the statement of witnesses."

16.In 2013 (81) A.C.C. 901(S.C.) - Babu & another Vs State rep. by Inspector of Police - it was held that "Witnesses examined after more than one and half years of the incident - Natural for them to differ in some respects of what they saw and what they remember."

17.In 2011 S.C.C. (Cri.) 654 - Iqbal Moosa Patel Vs State of Gujarat - it was held by the Hon'ble Supreme Court that "Proof beyond reasonable doubt does not mean that the degree of proof must be beyond a shadow of doubt."

18.In 2003 (3) A.C.R. 2961 (S.C.) - State of Punjab Vs Karnail Singh - It has been held in para 8 that "The Hon'ble Apex Court expressed surprise over the impression which prevailed in the minds of the ''member of the Bar' that relatives were not independent witnesses."

19.In 2008 (2) C.A.R. 652 (S.C.) - Ashok Kumar Chaudhary Vs State of Bihar - it was held that " Merely because a witness happens to be the relative of the victim of crime, can not be characterize as interested witness because the relationship per se does not affect the credibility of the witness."

20.In 2012 (3) J.I.C. 796 (S.C.) - Gajoo Vs State of Uttrakhand - it was held by the Hon'ble Apex Court that "Interested witness - Connotation - Held, an interested witness is one who derives benefit from the result of litigation or seeing accused punished - A relation does not mean interested witness."

21.In 2008 (2) C.A.R. 602 (S.C.) Ashok Kumar Chaudhary Vs State of Bihar - it was held by the Hon'ble Apex Court that " Prosecution should have attempted to secure public witnesses, but at the same time one cannot lose sight of the ground realities that the members of the public are generally insensitive and reluctant to come forward to report and depose about the crime even though it is committed in their presence - It will be erroneous to lay down as a rule of universal application that non examination of a public witness by itself gives rise to an adverse inference against the prosecution or that the testimony of a relative of the victim, which is otherwise creditworthy cannot be relied upon unless corroborated by public witnesses."

22.Keeping in view the aforesaid submission of learned counsel for the parties and the principles of law enunciated by the Hon'ble Apex Court for appraisal of evidence, we have made appraisal of the evidence on record by applying our judicial mind.

23.Smt. Pushpa has appeared in the witness box as P.W.1 and deposed that she alongwith her brother Hari (deceased) was going to market on 19.10.1998. Her mother Brajo and Bhabhi Smt. Anita wife of deceased were also accompanying them. At about 7.00 P.M. on the said date when they reached opposite Godia Math at Mohalla Dusayat, Ram Mohan appellant and his elder brother Jagdish reached there and tried to forcibly take her away with them. Her brother forbade to do so whereupon Jagdish caught him hold off and made exhortation to Ram Mohan that ' Mar Sale ko goli' whereupon Ram Mohan fired with his country made pistol as a result of which Hari sustained fire arm injuries and died at the spot simultaneously. Leaving her mother and sister-in-law with the dead body of her brother, she went and lodged the report Exhibit Ka-1 to the police station concerned.

24. Smt. Brajo P.W.2 is the mother of informant Smt. Pushpa. Smt. Brajo supported the deposition of Smt. Pushpa in toto and stated that Ram Mohan and Jagdish used to assault the informant and, therefore, for about 4-5 months she was living with her. Deceased was in employment at Hotel Durga which is situated at Vidyapeeth Crossing. On the day of incident at about 7.00 P.M. when her son came to her house, all the four members of the family set out to purchase materials for celebrating the Diwali festival and when they reached near Godia Math at Mohalla Dusayat, appellant Ram Mohan appeared there and forcibly wanted to take her daughter Pushpa. Hari, her son intervened whereupon on the exhortation made by Jagdish, Ram Mohan appellant fired with his country made pistol at him as a result of which Hari died at spot.

25. Corroborating the testimony of Pushpa and Smt. Brajo prosecution witness Smt. Anita P.W.3 has deposed that she is the wife of deceased Hari. Ram Mohan fired at Hari with country made pistol on the exhortation made by his elder brother Jagdish on 19.10.1998 at about 7.00 P.M. when they were in the way to the market. She has fully corroborated the statement of informant that her relation with her husband Ram Mohan was strained and Pushpa was living at her Maika for about 4-5 months prior to the date of incident. Ram Mohan wanted to forcibly drag his wife Pushpa and on intervention made by Hari, Ram Mohan committed murder of her husband Hari.

26. All the aforesaid three prosecution witnesses on facts have been cross-examined at length but nothing material could be fetched out from their mouth to disbelieve their testimonies or their presence on the spot.

27. The contents of the F.I.R. fully corroborates the testimony of the first informant Smt. Pushpa P.W.1 which is further corroborated by the evidence of Smt. Brajo P.W.2 and Smt. Anita P.W.3. The postmortem examination report fully support the prosecution version and the testimony of the first informant and other two aforesaid witnesses. In cross-examination made by the learned counsel for the appellant Smt. Brajo P.W.2 has clearly and categorically stated that the fire was opened from a distance of 10 to 12 ft. and the postmortem examination report Exhibit Ka-2 speaks that there was no blackening or tattooing found around the wound of entry caused on the person of the deceased Hari. The absence of blackening and tattooing around the injuries proves the fact that there is no inconsistency in between the occular and the medical evidence. The presence of wound of entry towards right side of the chest and wound of exit over left side outer part chest fully support the prosecution version that deceased was shot dead with fire arm injury. The length and breadth of both the injuries shows that the wound of entry was 1cm x 0.5 cm x chest cavity deep over right side chest and wound of exit was 2 cm x 1 cm x chest cavity deep over left side outer part chest. It is known to all concerned that wound of exit is always greater than the wound of entry in fire arm injury cases as is there in the present case Dr. Subhash Chandra P.W.4 has proved the postmortem examination report Exhibit Ka-2 and deposed that the death of deceased Hari was due to shock and hemorrhage as a result of anti-mortem fire-arm injuries. He has further deposed that instantaneous death of Hari (deceased) is probable on 9.10.1998 at 7.00 P.M. There is no inconsistencies whatsoever, in between ocular testimony and the medical evidence adduced on record.

28. The incident has taken place on 19.10.1998 at about 7.00 P.M. and the report was lodged on 19.10.1998 at 20:15 P.M. after covering a distance of 1 K.M. from the scene of incident to the police station concerned and, therefore, the F.I.R. is prompt which contains the details of the incident, the names of accused, the weapon used, the motive, mode, manner and the result of the assault, the presence and name of witnesses at spot without any ambiguity. Therefore, this prompt F.I.R. rules out any kind of concoction, fabrication, manipulation, maneuvering and after thought of the F.I.R. It was held in case law Jai Prakash Singh Vs. State of Bihar and another 2012(2) Supreme Court Cases (Criminal) 468 by the Hon'ble Supreme Court that the F.I.R. in a criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt loding of the F.I.R. in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names fo the actual culprits and the part played by them as well as the names of the eye witnesses present at the scene of occurrence. If there is a delay in lodging the F.I.R., it loses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large numbers of consultations/deliberations. Undoubtedly, the promptness in lodging the F.I.R. reflects the first hand account of what has actually happened, and who was responsible for the offence in question.

29. There does not appear any substance in the contention of the learned counsel for the appellant that the F.I.R. is too prompt to believe because lodging of F.I.R. within a space of one hour and fifteen minutes after covering of distance of 1 KM cannot be said to be too prompt F.I.R.

30. As regards the submission of learned counsel for the appellant that P.W.-1 is sister of deceased, P.W.-2 is his mother and P.W.-3 is his wife, therefore, they are interested witnesses and for the said reason their statements ought to have been discarded, we do not agree with the said submissions.

The Supreme Court of India in case Bur Singh Vs. State of Punjab (2008) 16 SCC 65 has observed in the following terms:

"11........Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible."

"12. Merely because the eye witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering the prosecution version."

It was held in case laws (1) State of Punjab Vs. Karnail Singh 2003 (3) ACR 2961 S.C., (2) Ashok Kumar Chaudhary Vs. State of Bihar, 2008 (2) CAR 652 S.C. (supra) that mere interestedness of a witness is not sufficient to discard his testimony. The only precaution in appraisal of evidence of such witness is required to be more cautious and the courts are required to test their evidence on the anvil of strict judicial scrutiny and when we test their evidence on the aforesaid anvil we have no hesitation to hold that all the three prosecution witnesses P.W.1, P.W.2 and P.W.3 are wholly reliable witnesses. There is no room for doubt in their testimony. Their testimony is consistent throughout. Their presence at spot has not been challenged by the appellant and even otherwise their presence at the spot was but natural when all of them were going to market and the appellants intercepted them in the way. The strained relation in between the parties is not sufficient to discard their testimony. In fact, enmity supplies the motive to the accused to commit a particular offence and in this case only the appellant and his brother have been named in the F.I.R. Had their been any other assailant he would not have been spared by the first informant especially, when the mother and the wife of the deceased were also there at the spot at the time of the incident.

31. The date, time and place of incident are not challenged by the appellant, the date and time of lodging report at Police Station Kotwali Brindawan, District Mathura has also not been challenged. The presence of Smt. Pushpa, the wife of appellant has not been challenged during the course of cross-examination. The death of Hari (deceased) has also not been challenged. The autopsy Ex. Ka-2 and the evidence of the Doctor Shubhash Chandra (PW-4) prove the fact that the deceased had a fire arm wound of entry 1 cm - 5 cm into chest cavity deep over right chest. 10 cm below nipple at 12 O'clock position. Direction obliquely downwards towards left side no blackening and tattoo. Margin inverted and a fire arm wound of exit 2 cm into 1 cm into chest deep over left side outer part chest 12 cm below axilla. Margin everted communicating to injury no. 1.

32. The aforesaid witnesses of facts including Smt. Pushpa, Brajo and Smt. Anita had deposed that the incident took place on 19.10.1998 at 7:00 PM at Mohalla- Usayat Godiyamath, S.H.O. Sri Vijendra Singh (PW-5) has proved the chick report on G.D. and registration of this case and deposed that the F.I.R. was registered at police station on 19.10.1998 at 20:15 PM. No cross-examination on the aforesaid aspects of the case has been made by the defence, therefore, the aforesaid facts are found proved. It is not disputed that the relation in between appellant Ram Mohan and informant Smt. Pushpa had not remained cordial and for about five months she was living separately from her husband. On the day of incident she was at her Maika because she was being beaten by her husband, appellant Ram Mohan and his brother Jagdish in her in-laws house and was not provided meal. As per her deposition she was unwilling to go to live with her husband. It is admitted to the defence that deceased, Hari is the real brother of informant Smt. Pushpa. Under the aforesaid facts and circumstances of the case, naturally the appellant would have been in search of opportunity to drag her wife forcefully from her Maika to compel her to live with him and the possiblity that he had some clue from some sources that his wife was likely to go for marketing on the occasion of Deepawali festival cannot be ruled out otherwise there was no sense of his weilding country made pistol with him at the time of incident and likewise, the possibility or the probability of the deceased, being young male member of the family, accompanying the first informant and other two ladies of his house up to the market cannot be ruled out especially when the relation in between his sister Smt. Pushpa and appellant Ram Mohan were strained within his knowledge. When Ram Mohan along with his brother intercepted them in the way of the market and tried to take his sister forcibly from amongst them, it was but natural for the deceased to intervene and try to rescue Smt. Pushpa from the forceful clutch of her husband, appellant. But the scene was created by the appellant himself and, therefore, the question of provocation caused to him at the instance of the deceased does not arise. There does not appear any substance in the contention of the appellant that his wife Smt. Pushpa had developed her illicit relation with Kapoor Kohli for the following reasons:-

I.Had there been any illicit relation in between the informant and Kapoor Kohli the appellant would hardly have any interest in her so as to prompt him to go to bring her with him especially when she was already living separately at her Maika for about five months.

II.Had there been any grain of truth in the contention of the appellant that he along with his brother was living at Agra during the relevant period out of fear of Kapoor Kohli with whom his quarrel had already taken place on the point of illicit relation of his wife he would not have thought to go to bring his wife who was unwilling to live with him.

33. Under the aforesaid scenario of facts within all humane probability he would have nourished grudges against his wife Smt. Pushpa and would have thought to teach a lesson to her and eventually on the alleged date and time of incident in a pre-arranged plan and cool-calculated manner armed with country made pistol he reached at the spot and in the process of forcible overpowering his wife, he committed the murder of Hari.

34. There does not appear any substance in the contention of learned counsel for the appellant that on the date and time of incident, appellant was in District Agra for want of evidence on record.

In case law Akbar Sheikh and others Vs. State of West Bengal (2009) 7 S.C.C. 415 it has been held that if the accused has taken plea of alibi, he is to prove the same.

If the accused takes a plea of alibi which is not found proved by evidence, it would be another incriminating circumstance against accused. Admittedly no evidence to prove the alibi taken by the appellant has been led by him. Therefore, it is another incriminating circumstance against him and there is no substance in the contention of learned counsel for the appellant that since the appellant has stated in his examination under Section 313 Cr.P.C. that on the date and time of the incident, he was at Agra, therefore it should be taken to be gospel truth.

35.Learned counsel for the appellant has argued that from the evidence of P.W.-1, P.W.-2 and P.W.-3 it transpires that deceased Hari had not taken his meal throughout the day of incident but his postmortem examination report reveals that there was semi-digested food 50 gms. found in his stomach and, therefore, the ocular testimony is inconsistent with the medical evidence and, therefore, prosecution case deserves to be disbelieved. On the other hand, learned A.G.A. has submitted that undoubtedly, deceased Hari was an employee in a hotel and he had gone on his duty in the morning of the day of the incident and returned in the evening, therefore, the possibility of his taking something during the day hours at any time cannot be ruled out. There appears substance in his contention.

Moreover, the contents of stomach are not the sole factor always to ascertain the time of death. Exact time when deceased had taken dinner is not on record. Mere presence of semi-digested food in stomach of deceased would not belie prosecution case which was supported by the evidence of all the three wholly reliable prosecution witnesses on fact and investigation conducted, more so when evidence of Doctor supporting prosecution case on the point of date and time of death has gone unchallenged. Therefore, the presence of 50 gms. stomach content is not sufficient to discard the testimony of eye witnesses or to disbelieve them. There is no evidence on record that the deceased was on fast on the day of incident rather it has come in the evidence that he had come to his house in the evening and took a cup of tea. The possibility of taking some biscuits etc. alongwith the tea cannot be ruled out. No such assertions has been put to either of the witnesses on this point.

The Supreme Court in case Mani Ram Vs. State of Rajasthan 1993 Supp (3) SCC 18 has held " the process of digestion depends upon the digestive power of an individual and varies from an individual to an individual. It also depends upon the type and amount of food taken. The period of digestion is different for different types of food."

We concur findings of fact recorded by the learned trial court based on proper appreciation of evidence clearly proving the guilt of the accused. We see no reason to interfere with the findings of guilt as well as the order of sentence. Resultantly, the appeal stands dismissed.

Order Date :- 30.5.2014

S.Sharma