Banti vs State Of U.P.
2016 Latest Caselaw 6707 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 40
 

 
Case :- CRIMINAL APPEAL No. - 167 of 2010
 
Appellant :- Banti
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Sushil Kumar,Gaurav Singh,Ram Babu Sharma
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Arvind Kumar Mishra-I,J.

(Judgement Delivered by Hon'ble B.K.Narayana,J.)

1. Heard Sri. Ram Babu Sharma, learned counsel for the appellant, Sri A.N.Mulla, Sri Saghir Ahmad, Sri J.K.Upadhayay and Km. Meena, learned AGA for the State and Smt. Manju Thakur, brief holder of the State.

2. This criminal appeal has been preferred by the appellant Banti under Section 374(2) Cr.P.C. against the judgment and order dated 22.12.2009 passed by Additional Sessions Judge, Court No.9 Badaun in S.T. No. 1120 of 2008 ( State Vs. Banti) under Section 302 IPC arising out of case crime no. 94 of 2008, P.S. Rajpura, District Badaun by which the appellant has been convicted under Section 302 IPC and sentenced to imprisonment for life together with fine of Rs. 10,000/- and in case of default of payment of fine one year additional rigorous imprisonment.

3. Briefly stated, the facts of this case are that complainant Shivkali wife of Leeladhar gave a written report Ex. Ka-1 to the P.S. Rajpura, Gunnaur, District Badaun on 04.03.2008 at 10.00 a.m. alleging therein that her daughter Ramwati was married to one Pappu son of Kundan, r/o Village Gawan about 4-1/2 years before who used to demand dowry from her but about six months before Pappu had died after a prolonged illness and after his death her daughter Ramwati had returned back to her paternal home. About 1-1/2 months before the occurrence, Bhuri wife of Kundan and her other relatives had come to her house and had taken away her daughter Ramwati with them on the promise of keeping her in her house as the wife of Banti. Thereafter appellant- Banti son of Kundan also started demanding dowry from her and her daughter Ramwati and threatened to throw her out from his house in case his demands for dowry remained unfulfilled. In the night of 3/4-03-2008 accused-appellant Banti son of Kundan had committed the murder of her daughter Ramwati by shooting her. On the basis of the written report of the occurrence Ex. Ka-1, Check FIR Ex.Ka-3 was prepared and case crime no. 94 of 2008 was registered against the accused appellant Banti under Section 498A, 304 IPC and 3/4 D.P.Act and the relevant G.D.entry Ex.Ka-5 was made. After it's registeration, investigation of case crime no. 94 of 2008 was handed over to C.O., Gunnaur who after recording the statements of the complainant Shivkali PW-1 and other witnesses inspected the place of incident and prepared the site plan Ex.Ka-4. During the process of investigation, the investigating officer of the case took possession of the dead body of the deceased and after holding the inquest prepared the inquest report Ex. Ka-7 and other documents, namely, photo lash, specimen seal, chalan lash, police form no. 13, letter addressed to CMO and letter addressed to R.I. Ex.Ka-8 to Ex.Ka-14 respectively and thereafter despatched the cadevar of the deceased to the District Hospital, Badaun for conducting post mortem.

4. Dr. Naresh Kumar, conducted the post mortem of the dead body of the deceased on 05.03.2008 at about 15 hours and prepared her post mortem report Ex.Ka-6. The post mortem report of the deceased Ex.ka-6 denoted following ante mortem injuries on her dead body :-

(i) Firearm wound of entry of size 1.5 cm X 1.5 cm X brain cavity deep on left side face, 0.2 cm anteror to left ear surrounded & blackening & scoting in area about 8 cm X 8 cm..

(ii) Firearm wound of exit 2 cm X 2 cm X brain cavity deep on right side head, 6.5 cm above right ear, both injuries connecting each other.

5. According to the post mortem report of the deceased, the cause of her death was coma, shock and haemorrage as a result of ante mortem firearm injuries. The time since death was estimated to be about 1-1/2 day before from the time/date of post mortem. The investigating officer of this case after completing the investigation submitted charge sheet against the accused appellant, under Section 302 IPC before C.J.M., Badaun on which the concerned CJM took cognizance and summoned the accused. Since the offence mentioned in the charge sheet was triable exclusively by the court of session, the concerned C.J.M. committed the case to the court of Sessions for trial of the accused by his commital order dated 13.08.2008 whereupon it was registered as S.T. No. 1120 of 2008 and made over to the Court of Additional Sessions Judge, Court No.9, Badaun for trial.

6. Charge was framed against the accused appellant on 16.01.2009 under Section 302 IPC. The appellant pleaded not guilty and claimed trial.

7. The prosecution in order to prove the charge of murder framed against the accused appellant examined the complainant of the case Shivkali as PW-1, Naresh, PW-2 and Zakir PW-3 as witnesses of fact. Since the defense counsel admitted the genuiness of the documents brought on record by the prosecution for proving its case against the accused appellant under Section 294 Cr.P.C. except the written report of the incident Ex.Ka-1, the prosecution evidence was closed.

8. The accused in his statement recorded under Section 313 IPC denied that he had committed the murder of Ramwati and alleged false implication. He further stated that on the date of the incident he had gone to Haridwar for bringing gangajal and hence there was no question of his committing the murder of Ramwati. Although initially he refused to examine any defense witness but later he examined Bhuri, Veerpal and Kalyan as DW-1, DW-2 and DW-3 as defense witnesses for proving his alibi.

9. The learned Additional Sessions Judge Court No.9 Badaun after considering the submissions made before him by the learned counsel for the parties and scrutinizing the entire evidence on record, both oral as well as documentary, convicted the appellant under Section 302 IPC and sentenced him to imprisonment for life and fine of Rs. 10,000/- together with default clause.

10. Learned counsel for the appellant submitted that the prosecution has failed to prove its case against the appellant beyond all reasonable doubts by any cogent evidence as all the three witnesses of fact examined on behalf of the prosecution to prove its's case against the accused-appellant had failed to support the prosecution case during the trial and were declared hostile. He next submitted that from the evidence of Bhuri, Veerpal and Kalyan who were examined as DW-1, DW-2 and DW-3 and also the three witnesses of fact examined on behalf of the prosecution it was proved that the accused appellant was not present in his house on the date of the incident and had gone to Haridwar for bringing gangajal from there and the deceased was murdered by the miscreants who had forcibly entered into his house in the night of the occurrence with the object of committing theft. Prosecution had further failed to prove that the accused appellant had any motive to commit the crime in question.

11. Such being the state of evidence on record conviction of the appellant and the sentence awarded to him cannot be sustained and is liable to be set aside.

12. Per contra, Sri J.K.Upadhayay leanred AGA appearing for the State submitted that the prosecution case stands proved to the hilt from the facts deposed by the three witnesses of fact examined on behalf of the prosecution, namely, complainant Shivkali, PW-1, Naresh PW-2 and Zakir PW-3 notwithstanding the fact that they were declared hostile on the request of the prosecution and which further stands fully corroborated from the medical evidence on record. The evidence of the defense witness does not inspire any confidence and it is apparent that they had given false evidence on oath during the trial for proving the false plea of alibi set up by the accused appellant in defense for establishing his innocence. Even otherwise the deceased having been shot dead in the house of the accused appellant in the night of 3/4.03.2008 where she was residing with him as his wife a very heavy burden lay on him explain the circumstances under which the deceased had been shot as the facts relating to the incident were within his special knowledge which he had failed to discharge. The convinction of the accused appellant recorded by the trial court is based upon cogent evidence and the sentence awarded to him is supported by relevant considerations and warrant no interference by this Court. This appeal lacks merit and is liable to be dismissed.

13. We have very carefully considered the submissions made by the learned counsel for the parties and scanned the entire lower court record.

14. The only question which arises for our consideration in this appeal is that whether the proseuction has been able to prove its case against the accused appellant beyond all reasonable doubts or not.

15. The accused appellant Banti has been tried in the present case for having committed the murder of Ramwati daughter of the complainant Shivkali PW-1, who at the time of the incident was living in his house as his wife without being formally married to him after the death of his elder brother Pappu to whom the deceased Ramwati was legally wedded. Except the written complaint of the complainant Ex.ka-1, the written report of the incident, the defense counsel has not challenged the genuiness and authenticity of the other documents brought on reocrd by the prosecution as evidence for proving the charge of murder framed against the accused appellant.

16. According to the written report of the incident given by PW-1 Shivkali mother of the deceased to police station Rajpura, Gunnaur, District Badaun on 04.03.2008 at about 10.00 a.m., her daughter Ramwati was married to one Pappu son of Kundan about four years before the occurrence who had died about six months before the occurrence after a prolonged illness and thereafter her daughter Ramwati had returned back to her parental home. However about 1-1/2 months before the incident Bhuri, wife of Kundan mother in law of the deceased had taken away her daughter Ramwati back to her house on the promise of keeping her there as the wife of accused appellant Banti as per the prevailing custom but soon thereafter accused appellant also started demanding dowry from her and her daughter and threatended to throw her out of his house in case his demand of dowry was not fulfilled and in the night of 3/4-03-2008 he committed the murder of Smt. Ramwati by shooting her.

17. There is no dispute about fact that the deceased was murdered in the night of 3/4-03-2008 in the house of accused appellant. The investigating Officer of the case had taken possession of the dead body of the deceased Ramwati from the place shown by letter "A" in the verandah of the house of accused-appellant in the site plan Ex. Ka-4 of the place of occurrence. It was categorically alleged in the FIR by PW-1 that the accused appellant had committed the murder of her daughter Ramwati by shooting her with a firearm. The allegation regarding the deceased having died as a result of firearm wound inflicted on her, stands proved from the post mortem report of the deceased, contents whereof stand admitted to the defense.

18. The next question which arises for our considration is that whether the prosecution has been able to prove by any cogent evidence that the accused appellant was the author of the firearm wounds found on the dead body of the deceased or not. Admittedly the present case is not one of direct evidence as none had actually seen the accused appellant committing the murder of deceased Ramwati.

19. Record shows that all the three witnesses of fact produced on behalf of the prosecution for it's case against the accused-appellant during the trial were declared hostile after they failed to support the prosecution case.

20. PW-1 complainant Shivkali in this case in her statement recorded before the trial court denied the prosecution case as spelt out in the FIR except the fact that after the death of Pappu, the first husband of her daughter Ramwati, she had sent her daughter Ramwati to live with Banti, accused-appellant, the younger brother of her husband late Pappu on the request of her mother-in-law. She further totally distanced herself from the Ex.ka-1, the written report of the incident and deposed that although Ex.ka-1 bore her thumb impression but the contents thereof were neither dicated by her nor she knew the scribe of the Ex.ka-1 Amit Kumar son of Ram Autar, r/o Hardaspur, Post Gawan, District Badaun. She in her evidence further deposed that some unknown persons who had forcibly entered into her house had committed the murder of her daughter in the night of the incident. Upon being confronted with the facts stated by her in her statement recorded under Section 161 Cr.P.C. in which she had fully supported the prosecution case fully she denied having stated to the Investigating Officer the facts recorded by him in her statement under Section 161 Cr.P.C..

21. Similarly PW-2, Naresh the younger brother of the deceased and PW-3 Zakir also failed to support the prosecution case and were declared hostile. Upon being confronted with the facts stated by them in their statements under Section 161 Cr.P.C. supporting the prosecution case in their cross examination by the D.G.C.(Criminal), they also denied having stated the facts recorded by the Investigating Officer in their statements under Section 161 Cr.P.C.. But the fact remains that the dead body of the deceased with two firearm wounds of entry and exit on her head was recovered from the verandah of the house of the accused-appellant and since the deceased was admittedly living with the accused appellant in his house as his wife without being formally married to him at the time of occurrence a very strong burden lay on the accused appellant to explain the circumstances under which the deceased Ramwati had been shot dead in his house as the facts relating to the incident were within his special knowledge.

22. The explanation with which accused appellant had come up during the trial in his statement recorded under Section 313 Cr.P.C. in this regard is that he was falsely implicated in the present case although in the night of 3/4-03.2008 he was not present in his house as he had gone to Haridwar for bringing gangajal. DW-1 Bhuri, mother of the accused appellant, DW-2 Veerpal and DW-3 Kalyan and also PW-1 Shivkali, PW-2 Naresh and PW-3 Zakir have in their evidence recorded before the trial court corroborated the aforesaid fact.

23. DW-1 Bhuri and DW-2 Veerpal had deposed in unison before the trial court that on the night of the incident accused appellant was not present in his house and had gone to Haridwar with DW-3 Kalyan for bringing gangajal. DW-1 Bhuri had further deposed that in the night of 3/4.03.2008 around midnight some miscreants had forcibly entered into her house and asked her about the place where she kept her money then they had shot her daughter in law Ramwati on which she had raised hue and cry whereupon Veerpal and Gulab Singh r/o of the same locality had reached her house but by that time the miscreants had decamped with a sum of Rs. 5000/- from her house after shooting Ramwati.

24. Similarly DW-2 had deposed that on hearing noise coming out from the house of Banti he along with Gulab had rushed to her house and on reaching there they were informed by Bhuri mother of accused-appellant Banti that miscreants had forcibly entered into her house and had decamped after shooting her daughter-in-law Ramwati and stealing a sum of Rs. 5000/- from her house. At the time of the murder Banti was not present in the house and had gone to Haridwar for bringing gangajal. He further deposed that thereafter he had gone to the police out post.

25. DW-3 Kalyan in his stement recorded before the trial court stated on oath that on the date of the incident accused appellant had gone to Haridwar with him and four other persons for bringing gangajal.

26. Before examining the veracity of the alibi set up by the accused appellant in the light of the evidence of the witnesses examined on behalf of the defense which we have already perused it would be useful to look into the statement of the accused appellant recorded under Section 313 Cr.P.C..

27. It is noteworthy that the accused appellant in his statement recorded under Section 313 Cr.P.C. has neither stated that on the night of the incident the burglars had forcibly entered into his house in his absence as he had gone to Haridwar to fetch gangajal and they after committing the murder of Ramwati had decamped with a sum of Rs. 5000/- which was kept in his house nor that on the date of the murder he had gone to Haridwar with Kalyan but had merely stated that he had gone to Haridwar on the date of incident for bringing gangajal. The aforesaid glaring omissions in the statement of the accused recorded under Section 313 Cr.P.C. render the evidence of DW-1 and DW-2 on the point of accused appellant having gone to the Haridwar on the date of the incident and the deceased having been shot by the miscreants who had forced their entry into the house of the accused appellant in his absence and that of DW-3 also that accused-appellant had gone to Haridwar with him totally unreliable and untrustworthy, which coupled with the failure of his mother Bhuri or any other member of his family to lodge any FIR of the incident of such a grave magnitude gives rise to only one inference that all the three witnesses examined by the defense had not spoken the truth in their evidence tendered by them on oath during the trial and the whole story of the miscreants having forcibly entered into the house of the accused appellant in the night of 3/4.03.2008 in his absence and their having decamped from his house with a sumof Rs. 5000/- after committing the murder of Ramwati appears to be after thought and concocted by the defense to secure aquittal of accused appellant in the present case.

28. It is apparent that whatever has happened to the deceased Ramwati had happened to her in the house of of the accused appellant in the night of 3/4.03.2008.

29. In order to establish his innocence accused appellant had pleaded that on the night of the incident he was not present in his house and had gone to Haridwar for brining gangajal. In order to establish the aforesaid plea of alibi, the accused-appellant as we have already noted had examined DW-1, DW-2 and DW-3 who had deposed that the accused appellant had gone to Haridwar for bringing gangajal on the date of the incident and he was not present in his house DW-3 had further deposed that he had also accompannied the accused appellant to Haridwar, however, upon a careful appraisal of the evidence of DW-1, DW-2 and DW-3, we have found their testimony wholly unreliable for the reasons given hereinabove.

30. If the accused-appellant was actually not present in his house in the night of the incident and had gone to Haridwar for bringing gangajal with DW-3 Kalyan, he could have proved his alibi by bringing on record more reliable and convincing evidence like the ticket of the bus by which he had gone from Badaun to Haridwar and returned from Haridwar to Badaun, which he strangely did not.

31. Further more the accused-appellant himself could have entered the witness box and deposed on oath in support of his defense but he did not do so. The Apex Court in the case of Shaikh Sattar Vs. State of Maharashtra, 2010 (8) SCC 430 has held that the burden to establish the alibi is on the accused. The proposition has been reiterated by the Apex Court by the Apex Court in the case of Jitendra Kumar Vs. State of Haryana, (2012) 3 SCC (Criminal) 67. The Apex Court laid down that the plea of alibi has to be so as to completely exclude the possibility of the accused appellant at the place of occurrence at the relevant time .

32. After examining the records we find that this burden has not been discharged by the accused appellant and in view of the above, his presence in his house at the time of incident stands proved. Once it is established that the accused appellant was present in the house, the place of occurrence in the present case at the relevant time it was obligatory upon him in the facts of the case to inform the police as to what had happened to deceased Ramwati which he had failed to do.

33. The witnesses may lie but the circumstances dont. We find that the motive for the accused appellant to commit the murder of Ramwati has been inadvertantly furnished by his mother DW-1 Bhuri herself in her evidence recorded before the trial court. There is no dispute about the fact that the deceased Ramwati was the wife of Pappu elder son of Bhuri. Bhuri owned about four bhighas of land and had three sons of whom only two were alive on the date of the incident as deposed by her on page 18 of the paper book in her cross examination. What follows is that after the death of Pappu his wife deceased Ramwati had inheritted the legal share of her deceased husband in the aforesaid land. If Ramwati was eliminated her share in the land in question would have devolved on the accused appellant and the surviving son of Bhuri. Thus with a view to grab the share of his deceased brother's wife Ramwati in the land in question, the accused apellant appears to have committed the murder of Ramwati after bringing her from her parental home on the promise of keeping her as his wife in his home and propounded a false theory that miscreants who had entered into his house in his absence with the object of committing theft had shot the deceased dead. Thus it cannot be said that the accused appellant had no motive to commit the murder of Ramwati.

34. Having examined the material on record we find that the prosecution on the basis of evidence lead by it has been able to bring home the charge against the accused appellant by invoking the aid of Section 106 of the Indian Evidence Act.

35. Thus in view of the foregoing discussions, we do not find that the recorded conviction of the appellant and the sentence awarded to him by the trial court suffer from any illegality, infirmity or perversity requiring any interference by this Court.

36. The appeal lacks merit and is accordingly dismissed.

37. There shall however be no order as to costs.

Order dated:- 27/10/2016

Abhishek Sri/-