Siya Ram vs State Of U.P.
2017 Latest Caselaw 8202 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
A.F.R.
 
Court No:-47
 
Case :- JAIL APPEAL No. - 2819 of 2011
 
Appellant :- Siya Ram
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,Ram Sagar Yadav
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Shri Narayan Shukla,J.

Hon'ble Krishna Singh,J.

(Delivered by : Hon'ble Krishna Singh,J.)

This criminal jail appeal has been preferred by the appellant-accused Siya Ram against the impugned judgment and order dated 15.3.2011 passed by the Trial Court/Special Sessions Judge, Lalitpur in Special S.T. No. 14 of 2007 (State vs. Siya Ram), under Sections- 302 IPC and 3(2)(v) S.C. & S.T. Act.

By means of impugned judgment and order, trial court has convicted the appellant-accused for the offence punishable under Section-302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.2,000/- with a default sentence of two months imprisonment. The appellant-accused, however, was acquitted of charge under Section-3(2)(v) S.C. & S.T. Act.

The case against the appellant-accused has arisen on the basis of written report Ext. Ka-1 dated 1.2.2007, lodged by the informant/complainant Param s/o Paltu, r/o Village-Dailwara, District-Lalitpur, who belongs from SC category. Brief background of the present case is that on 1.2.2007 at about 6.00 P.M., his daughter in law Smt. Kiran and her daughter Ram Devi and complainant's wife Smt Girja Bai went for call of nature in an open area and at that point of time accused Siya Ram forcibly caught hold Smt Girja Bai and dragged her. Thereafter, on return, his daughter-in-law told him that accused killed Smt Girja Bai and when complainant and his daughter-in-law alongwith other villagers went there his wife was found dead. A mark of injury was found on her neck.

On the basis of written report submitted by informant, a chik FIR Ext. Ka-13 was prepared on 1.2.2007 at about 10:30 P.M. by constable clerk PW-7 Raja Ram and Case Crime No. 154 of 2007 under Sections-302 of IPC and 3(2)(v) S.C. & S.T. Act and same was registered at Police Station-Kotwali, Lalitpur.

Initially, this case was investigated by PW-9 C.O. Anoop Kumar. Thereafter, this case was investigated by PW-8 C.O. Jai Prakash Pandey and after completing investigation PW-8 C.O. Jai Prakash Pandey had submitted the charge-sheet Ext. Ka-17 against the appellant-accused under Section-304 of IPC and 3(2)(v) S.C. & S.T. Act.

The case was committed by Chief Judicial Magistrate, Lalitpur to the Court of Sessions.

The Trial Court after hearing the prosecution as well as defence and perusing the material available on record framed charges against the appellant-accused under Sections-302 of IPC and 3(2)(v) S.C. & S.T. Act. The charges framed were read over and explained to the appellant-accused. He pleaded not guilty and claimed to be tried. Hence, the prosecution was called upon to lead the evidence.

In support of the charges, prosecution had examined PW-1 Informant Param, PW-2 Smt. Kiran, PW-3 Ram Devi, PW-4 Dr. Amit Chaturvedi, PW-5 Constable Raj Kumar, PW-6 S.I. Ravindra Singh, PW-7 Constable Clerk Raja Ram Kushwaha, PW-8 IInd Investigating Officer C.O. Jai Prakash Pandey and PW-9 Ist Investigating Officer C.O. Anoop Kumar.

After conclusion of the prosecution evidence, the appellant-accused was examined under Section 313 Cr.P.C and in his statement he pleaded not guilty and denied his participation in the alleged crime. He had also stated that deceased Girja Bai was a woman of Schedule Caste category, whereas he is of general category, his mental treatment was done, sometime ago he was insane but now he is fit, however, sometimes he suffers fits of insanity but no evidence has been adduced on behalf of the appellant-accused in his defence that at the time of committing the alleged offence he, by reason of alleged lunacy/unsoundness of mind, was incapable of knowing the nature of his act.

We have heard learned Amicus Curiae as well as learned AGA for the State and perused the entire material on record.

Learned Amicus Curiae for the appellant-accused has contended that appellant-accused is innocent and has been falsely implicated in the present case due to village partibandi. Learned Amicus Curiae has further contended that appellant-accused had not committed the murder of the wife of informant Param. Learned Amicus Curiae has further contended that the prosecution has failed to disclose the motive for committing the alleged offence by the appellant-accused. Learned Amicus Curiae has further contended that it appears from the evidence, available on record, that at the time of commission of alleged offence appellant-accused was a lunatic and if the alleged offence has been committed by him, then it will be deemed to be an act of a person of unsound mind, accordingly, benefit of Section-84 of IPC has to be given to him. Learned Amicus Curiae has further contended that trial court has committed manifest error of law in convicting the appellant-accused on the basis of testimony of prosecution witnesses, who were closely related to each other. Learned Amicus Curiae has alternatively contended that it appears from the prosecution evidence available on record that alleged offence was committed by the appellant-accused without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without having taken any undue advantage. In view of the above facts and circumstances, appellant-accused may be held guilty of commission of offence under Section-304 of the Indian Penal Code.

Per contra learned AGA for the State has contended that from the prosecution evidence available on record, the case of prosecution is proved beyond reasonable doubt against the appellant-accused. Learned AGA has further contended that impugned judgment and order passed by the Trial Court is based upon proper appreciation of evidence, available on record, and finding recorded by the trial court did not suffer from any infirmity and, as such, the appeal is devoid of merit and same is liable to be dismissed.

PW-1 Param is the complainant/informant of this case. He has stated in his statement on oath that deceased Girja Bai was his wife, Kiran is his daughter-in-law and Ram Devi is his grand-daughter. About three years back at about 6.00 P.M in the evening, his wife alongwith Kiran Devi and Ram Devi went for call of nature near the Bagiya of Bhagwati Tiwari and after sometime Kiran came running and told him that accused Siya Ram came there and caught hold of Girja Bai and dragged her towards Nala and, thereafter, killed her by strangulation. Thereafter, he went on the spot and found that his wife had died. She was having injuries near her neck and jaw. Thereafter, he went to Chowki Dailwara and P.S. Kotwali with Ramesh, Ram Charan, Shivraj and got the report Ext. Ka-1 written by Ramesh. Thereon, he had appended his thumb impression. He has further stated that Daroga Ji had prepared the Panchayatnama Ext. Ka-2 on the spot wherein he had also appended his thumb impression. After sealing of the dead body, it was sent for post-mortem. Daroga Ji had collected Dibba of plastic Ext-1 and Danda Ext-2 from the place of occurrence and in this connection prepared fard Ext. Ka-3 and Ka-4 respectively. Supurdginama Ext. Ka-5 was also prepared by Daroga Ji, whereby he had received the jewellery borne by deceased.

PW-2 Kiran Devi has stated in his statement on oath that Girja Bai was her mother-in-law and Ram Devi is her daughter. About three years back at about 6.00 P.M. she alongwith Ram Devi and Girja Bai went for call of nature near Bhagwat Tiwari's Bagiya and at the said point of time accused Siya Ram came there and caught hold Girja Bai from behind and by fastening the Sari around her neck strangulated her and when accused was dragging her, then they started shouting but could not go near them due to fear. Due to strangulation, her mother-in-law died on the spot. Thereafter, they came to her father-in-law and told him about the incident.

PW-3 Smt Ram Devi has stated in her statement on oath that about 3 to 3 and 1/2 years back at about 6.00 P.M. she alongwith her grand-mother Girja Bai and mother Kiran Devi went for call of nature near Bhagwati Tiwari's Bagiya and by the said point of time she and her mother finished but Smt Girja Bai was still doing and at that time accused Siya Ram came from behind and dragged Smt Girja Bai and strangulated her by using her sari and due to strangulation, she died on the spot. Thereafter, she and her mother went to the grandfather's residence and told him about the incident. Thereafter, they reached the spot alongwith grandfather.

PW-4 Dr. Amit Chaturvedi has stated in his statement on oath that on 2.2.2007 at about 1.15 P.M. he had conducted the postmortem examination of deceased Smt Girja Bai, wife of Param, aged about 60 years and found following ante-mortem injuries on the body of the deceased:-

1. Ligature mark 28.0 cm x 2.5 cm present all over neck except 3.0 cm gap over back of neck, 5.0 cm below both ear, 6.0 cm below chin, on dissection, partchment like membrane was present.

2. Contusion 4.0 cm x 2.0 cm on face on the right jaw angle.

Both lungs were congested. There were 12 tooth in the right jaw of the mouth and 16 tooth in the lower jaw. Stomach was empty. Small intestines contained gases whereas large intestines were empty.

As per postmortem report Ext.Ka-6, cause of death was asphyxia due to ante-mortem strangulation. The duration of death was about 18-24 hours. Doctor has further stated that postmortem report Ext.Ka-6 was prepared by him in his hand-writing at the time of postmortem. He opined therein that injury no. 2 of the deceased could might have caused by lathi/danda. Injury no.1 might have occurred by strangulation from behind by Sari of the deceased. The death of the deceased might have occurred on 1.2.2007 at about 6.00 p.m. Injury no.1 was sufficient to cause death of the deceased.

PW-5 Constable Raj Kumar has stated in his statement on oath that on 1.2.2007 he was posted as constable clerk at Kotwali Lalitpur and on 1.2.2007 Panchayatnama of deceased Girja Bai Ext. Ka-2 was prepared by S.I. Ravindra Singh. On 2.2.2007 dead body of the deceased Smt Girja Bai alongwith relevant papers was handed over to him and Home Guard Brij Kishore for postmortem examination.

PW-6 S.I. Ravindra Singh has stated in his statement on oath that on 1.2.2007 he was posted in Chowki Dailwara as officer incharge. On 1.2.2007 at about 11:15 p.m. Panchayatnama of the deceased Smt Girja Bai Ext. Ka-2 was prepared by him on the direction of Inspector R.B. Sahu. He has further stated that several other papers in regard to the postmortem were also prepared by him on the spot and after sealing the dead body he had handed over it to Constable Raj Kumar and Home Guard Braj Kishore for postmortem examination.

PW-7 Constable Raj Kumar Kushwaha has stated in his statement on oath that on 1.2.2007 he was posted as constable clerk at Kotwali Lalitpur. On 1.2.2007, on the basis of written complaint Ext. Ka-1 lodged by the informant Param, he had prepared the chik FIR Ext. Ka-13 and made relevant entries in this regard in G.D. No.54 Ext. Ka-14.

PW-8 C.O. Jai Prakash Pandey is the IInd Investigating Officer in this case. He has stated in his statement on oath that on 1.2.2007 he was out of station. On 8.2.2007 he had taken over the investigation from C.O. Anoop Kumar and, thereafter, he had recorded the statements of prosecution witnesses under Section-161 Cr.P.C. and inspected the place of occurrence. He has further stated that after completing the investigation he had submitted the charge-sheet Ext.Ka-17 against the appellant-accused under Section-304 of Cr.P.C. and 3(2)(v) S.C. & S.T. Act.

PW-9 C.O. Anoop Kumar is the Ist Investigating Officer of this case. He has stated in his statement on oath that at the time of occurrence he was posted as C.O. Narahat and since C.O. Jai Prakash Pandey was out of station, investigation of this case was handed over to him. Thereafter, he had initiated the investigation, inspected the place of occurrence and instructed the Inspector Incharge to make necessary arrangements of light for preparing the Panchayatnama of the deceased and other relevant papers. He has further stated that in the intervening night of 1/2.2.2007 he had recorded the statements of the complainant Param and Smt Ram Devi and Smt Kiran and on their pointing out had inspected the place of occurrence prepared the site plan. On 3.2.2007 he had recorded the statements of Imrat Lal, Mani Ram, Ram Prasad and Kallu. On 4.2.2007 accused was arrested by S.I. Ravindra Singh, then his statement was recorded by him in P.S. Kotwali. Thereafter he handed over the investigation to C.O. Sadar Jai Prakash Pandey.

It is evident from the prosecution evidence available on record that no motive has been imputed by the prosecution against the appellant-accused for committing the alleged offence. It is pertinent to mention here that motive is a thing which may not sometime be obvious. It may be hidden and may be close in the heart of the accused. It is only the accused, who may be knowing as to why he has committed the offence. Since this case is based on direct evidence of PW-2 Kiran Devi and PW-3 Smt Ram Devi, who have seen the appellant-accused at the time of committing the alleged offence. In these circumstances absence of motive in the instant case will not in any way effect the prosecution case adversely and it cannot be said that in absence of motive appellant-accused is entitled for acquittal.

In the case of Shamsher Singh @ Shera Vs State of Haryana (2002) 7 SCC 536, Hon'ble Apex Court held as under:-

"Even if there is absence of motive, it would not benefit the accused when there is reliable and acceptable version of the eye witnesses, which is supported by the medical evidence, pointing against him. "

In the case of Dharnidhar Vs State of U.P. And others (2010) 3 Supreme Court Cases (Cri.) 491, Hon'ble Apex Court held as under:-

"it is not always necessary for prosecution to establish definite motive for commission of crime to secure conviction of accused. It would always be relatable to facts and circumstances of a given case. Absence of motive does not essentially result in acquittal of accused if he is otherwise found guilty by cogent and reliable evidence. However, in cases which are entirely or mainly based upon circumstantial evidence, motive can have greater relevancy or significance".

It is true that PW-1 informant Param in his cross-examination has admitted that accused used to get fits of madness. It is also true that appellant-accused has stated in his statement under Section-313 Cr.P.C. that he was a lunatic but now he is fit, however, sometimes he suffers from fits of insanity. Now it is to be ascertained as to whether the appellant-accused was lunatic/unsound mind at the time of commission of the alleged offence. Section-84 of IPC provides as under:-

"84. Act of a person of unsound mind.-"Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law."

In Shiromani Upadhyay vs. State of Bihar, 1996 S.C. 'R', Hon'ble Apex Court has held as under:-

"only that lunancy will be a defence in a crime which is legal. Legal lunancy means such a guilty intent in which the criminal has become incapable of knowing the nature and consequences of his act at the time of committing crime due to lunancy."

It is true that PW-1 Param husband of the deceased has admitted in his cross-examination that prior to the occurrence appellant-accused was suffering from fits of madness/insanity but from the above admission, it cannot be inferred that at the time of alleged occurrence appellant-accused by reason of unsoundness of mind, was incapable of knowing the nature of his act.

It is relevant to mention here that no evidence has been adduced on behalf of the appellant-accused in his defence to substantiate his plea that at the time of committing the alleged offence, he had become incapable of knowing the nature and consequences of his act due to lunacy.

In view of the above and considering the prosecution evidence, available on record, we are of the considered view that it is not established that at the time of committing the alleged offence appellant-accused by the reason of alleged lunacy, was incapable of knowing the nature of his act, hence, benefit of provisions of Section-84 cannot be given to the appellant-accused.

In the case of Shyam Babu vs. State of U.P. AIR 2012 SC 3311, Hon'ble Apex Court has held as under:-

"Where the presence of the eye-witnesses is proved to be natural and their statements are nothing but truthful disclosure of actual facts leading to the occurrence, it will not be permissible for the Court to discard the statement of such related or friendly witnesses. There is no bar in law on examining family members or any other person as witnesses. In fact, in cases involving family members of both sides, it is a member of the family or a friend who comes to rescue the injured. If the statement of witnesses, who are relatives or known to the parties affected is credible, reliable, trustworthy and corroborated by other witnesses, there would hardly be any reason for the court to reject such evidence merely on the ground that the witness was a family member or an interested witness or a person known to the affected party or friend etc".

In the case of Gangabhavani vs. Rayapati Venkat Reddy & Ors AIR 2013 SC 3681, Hon'ble Apex Court has held as under:-

"The evidence of closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. Thus, natural witnesses may not be labelled as interested witnesses. Interested witnesses are those who want to derive some benefit out of the litigation/case. In case the circumstances reveal that a witness was present on the scene of the occurrence and had witnessed the crime, his deposition cannot be discarded merely on the ground of being closely related to the victim/deceased."

It transpires from the statement of PW-1 that on 1.2.2007 at about 6.00 p.m. his wife Smt Girja Bai, Smt Kiran Devi and Smt Ram Devi were gone for easing themselves near Bhagwat Tiwari's Bagiya and his wife was killed there by the appellant-accused Siya Ram by strangulating, thereafter, Smt Kiran Devi had told him about the incident and then he reached on the spot and found the body of the deceased.

It is evident from the testimony of PW-2 Kiran Devi and PW-3 Smt Ram Devi that they are the eye-witnesses of the alleged occurrence and in their statement they had stated that on 1.2.2007 at about 6.00 p.m. they had gone alongwith deceased Girja Bai for easing themselves at the place of occurrence wherein appellant-accused killed the deceased by strangulating her. In our considered opinion, presence of aforesaid witnesses at the time of occurrence on the place of occurrence is quite natural. Aforesaid witnesses deposed that they saw the appellant-accused dragging and strangulating the deceased. It is important to mention here that PW-2 and PW-3 were put to lengthy cross-examination by defence but nothing could be elicited by way of cross-examination so as to create doubt about their presence at the place of occurrence. Appellant-accused is named in the FIR, there is complete consistency and co-herence in the examination-in-chief and cross-examination of the aforesaid prosecution witnesses. The name, time, date and place on which the offence was committed and by whom the offence was committed has been revealed in the FIR lodged by PW-1 Param and same finds corroboration from the testimony of PW-2 and PW-3 which is also in co-herence with the story set-up in the FIR.

PW-4 Dr. Amit Chaturvedi has conducted the postmortem examination of the deceased on 2.2.2007 at about 1:15 p.m. and prepared the postmortem report Ext.Ka-6 and as per the same death of deceased might have occurred by 18 to 24 hours prior to the time of said examination. Doctor opined that deceased appears to have died due to strangulation as a result of asphyxia on 1.2.2007 at about 6.00 p.m. In our opinion, the prosecution case stands further, supported by the medical evidence.

There is nothing on record to show and substantiate that the prosecution witnesses had any animus against the appellant-accused falsely implicate him in the present case. In view of the above facts and circumstances, there is no justification to disbelieve the statements of the prosecution witnesses.

Keeping in mind the reasoning given by trial court when we examine the submissions, we also noticed that overall considerations or the evidence, available on record, substantiates the guilt of the appellant-accused in killing of the deceased.

We have noticed that no deadly weapon was used by the appellant-accused in the commission of alleged offence. The genesis of the occurrence appears also not to have been disclosed by the prosecution. It is not the case of the prosecution that appellant-accused had been nurturing, any grudge against the deceased or the informant from before or had any motive to commit the alleged offence. It appears from the prosecution evidence, available on record, that alleged offence was committed by the appellant-accused without pre-meditation and without having taken undue advantage. It is evident from the testimony of the Investigating Officer Jai Prakash Pandey PW-8 that after completing the investigation he had submitted the charge-sheet Ext. Ka-7 against the appellant-accused under Section-304 of IPC. On the basis of discussions, made above, and after considering and critically appraising the evidence, available on record, we are of the view that appellant-accused is guilty of commission of offence, culpable homicide not amounting to murder under Section-304-I of the Indian Penal Code and not under Section-302 thereof.

Keeping in view the facts and circumstances of the case, we are of the opinion that imposition of a sentence of 10 years rigorous imprisonment and a fine of Rs.10,000/- with a default sentence of simple imprisonment of one year under the aforementioned provision shall meet the ends of justice and we direct that out of the fine recovered Rs.9,000/- shall be paid to the father of the deceased as compensation.

The appeal is allowed in part to the extent mentioned hereinabove. Let a copy of judgment and order alongwith original record be transmitted to the Trial Court for information and necessary compliance.

                       (Krishna Singh,J.)      (Shri Narayan Shukla,J.)
 
Order Date :- 21.12.2017
 
S Rawat