Rampal vs State Of U.P.
2017 Latest Caselaw 1549 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 40
 
Case :- CRIMINAL APPEAL No. - 7309 of 2011
 
Appellant :- Rampal
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Amit Saxena,Anil Kumar Singh,B. Narayan Singh,Saurabh Srivastava,Vinod Singh
 
Counsel for Respondent :- Govt. Advocate
 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Krishna Pratap Singh,J.

Heard Sri Vinod Singh, learned counsel for the appellant and Sri Saghir Ahmad, learned AGA for the State.

This criminal appeal is directed against the judgment and order dated 29.11.2011 passed by Additional Sessions Judge, Khurja, District Bulandshahar in S.T. No. 470 of 2009 (State Vs. Rampal) by which he has been convicted and sentenced to imprisonment for life under Section 302 IPC and a fine of Rs. 5000/- and in default of payment of fine one year additional imprisonment.

Briefly stated the facts of this case are that on the basis of the written report Ext. Ka-24 given by appellant Rampal at P.S. Khurja Nagar District Bulandshahar on 22.02.2009 at 00.50 hours, case crime no. 105 of 2009 under Sections 147, 148, 452, 302 and 34 IPC in respect of an incident which had allegedly taken place on 21.02.2009 at about 11.30 p.m. in which his wife Anita aged about 35 years and his daughter Jyoti aged about 2-1/2 years were allegedly murdered by Sandip, Ramapati and three unknown persons. Check FIR Ext.Ka-3 and relevant G.D. entry Ext. Ka-4 vide Rapat no. 2 at 00.50 hours dated 22.02.2009 were prepared.

In the written report of the occurrence it was stated that when the appellant came out of his house on 21.02.2009 at about 9.00 p.m. for going to his field for irrigating the same, he heard voices of some people talking coming out from his neighbour's house which indicated that they were planning something evil. When the appellant returned from his field and reached his house at about 11.30 p.m., although it was quite dark, he saw 5-6 persons including Ramapati and Sandip who were inimical towards him and who harbored animosity against him on account of his having lodged a first information report against Ramapati under Section 302 IPC, coming out from his house. In the written report it was further stated that when the appellant entered into his house he saw his wife Anita and his daughter Jyoti lying dead on the floor on which he started shouting and informed his brothers and other neighbors about the occurrence The double murder committed by Ramapati and his accomplices was a fall out of the aforesaid enmity. He then went to the police station to lodge the FIR. The investigation of this case entrusted to PW-7 Inspector Vijay Prakash who visited the place of occurrence on 22.02.2009 and after inspecting the same prepared its site plan Ext.Ka-20. He also collected plain and blood stained earth and seized blood stained clothes of Rampal from the crime scene and prepared the recovery memo of the aforesaid articles Ext.Ka-18 and Ext.Ka-19. After holding the inquest of the corpse of Km. Jyoti, he prepared the inquest report Ext.Ka11 and other related documents, namely, Panchayatnama Ext.Ka-11, police form no. 13 Ext.Ka-12, letter addressed to R.I. and C.M.O. Ext.Ka.-13 and Ext.-14, photo lash Ext.Ka-15 and impression of specimen seal Ext.Ka-16. He then conducted the inquest on the cadaver of Smt. Anita and prepared her inquest report Ext.Ka-5 and other related documents, police form no. 13 Ext.Ka-6, letter addressed to R.I. Ext.Ka-7, letter addressed to C.M.O. Ext.Ka-8, photo lash Ext.Ka-9 and impression of specimen of seal Ext.Ka-10. Thereafter he got both the dead bodies sealed and then dispatched to District Hospital Bulandshahar for conducting the post mortem. The post mortem on the cadavers of Anita and Jyoti were conducted on 22.02.2009 in District Hospital, Bulandshahar by PW-3 Dr. Narendra Dutt, who prepared their post mortem reports Ext.Ka-1 and Ext.Ka-2.

The investigating officer on the basis of the evidence collected by him during the course of investigation found the complicity of the appellant informant Rampal in the double murder and arrested him. After being arrested, he confessed having committed the murder of his wife and daughter and expressed his willingness to get the knife with which he had committed the double murder recovered. Pursuant to the disclosure statement made by appellant Rampal before the police, the crime weapon (knife) was recovered on 01.03.2009 at 7.30 a.m. on his pointing out from a place infront of the platform in his house having a thatched roof, hidden under a bundle of "arhar" sticks wrapped in a light green piece of tericot on which dark green colour leaf was printed. On unwrapping the knife it was found that it had blood stains on its blade. Recovery memo of knife was prepared in the presence of SHO Jai Prakash, S.I. Radhey Shyam Upadhyay, Constables Jagdish Bhati and Sanjeev Kumar and the same is on record as Ext.Ka-21. After completing the investigation, the investigating officer filed charge sheet against the appellant under Section 302 IPC, Ext.Ka23 before the C.J.M., Bulandshahar.

Since the offence mentioned in the charge sheet was exclusively triable by the court of Sessions, he committed the case for trial of the accused to the court of Sessions Judge, Bulandshahar where it was registered and numbered as S.T.No. 470 of 2009 (State Vs. Rampal) and made over for trial to the court of Additional Sessions Judge, Bulandshahar, who on the basis of the material collected during the investigation and after hearing the prosecution as well as the accused on the point of charge framed charge under Section 302 IPC against the appellant, who pleaded not guilty and claimed trial.

The prosecution in order to prove its case examined PW-1 Kalua son of Itwari, PW-2 Soma and PW-6 Lallu alias Lalta Prasad as witnesses of fact while PW-3 Dr. Narendra Dutt who had conducted the post mortem of the dead bodies of the Smt. Anita and Jyoti, PW-4 Constable 856 Subhash Rana who had prepared the Check FIR and the relevant G.D. entry Ext.Ka-3 and 4, and PW-5 S.I. Raj Kumar and PW-7 S.I. Vijay Prakash the two investigating officers of the case were produced as formal witnesses.

Appellant Rampal in his statement recorded under Section 313 Cr.P.C. admitted the facts stated by him in the written report of the occurrence Ext.Ka-24 but denied the evidence collected during the investigation which indicated that fed up with chronic illness of his wife and his daughter, who was suffering from tuberculosis, he had committed their murders. He also denied that his clothes were seized by the police from the place of occurrence. He alleged false implication by the police in the present case at the behest of Sandip and Ramapati who harbored animosity against him after having lost in the civil litigation between them and his family members. The appellant did not examine any witness in defense. He however filed documentary evidence which has been referred to in the impugned judgment and which need not be reproduced here. Learned Additional Sessions Judge, Bulandshahar after examining the submissions made before him by the learned counsel for the parties and scrutinizing the evidence on record convicted the appellant under Section 302 IPC and awarded the aforesaid sentence to him.

Hence this appeal.

It has been submitted by the learned counsel for the appellant that all the three witnesses of fact PW-1 Kalua, PW-2 Soma and PW-6 Lallu alias Lalta Prasad having failed to supprt the prosecution case in their statements recorded before the trial court and having further denied that they had ever told the investigating officer that on the date of the incident they had seen the accused Rampal coming out of his house in an agitated state and going towards the jungle and they having not been confronted by the DGC (criminal) with their previous statements reduced in writing by the investigating officer nor the two investigating officers having deposed in their evidence that PW-1 Kalua, PW-2 Soma and PW-6 Lallu alias Lalta Prasad had stated before them that they had seen the accused appellant coming out of his house on the date of occurrence in an agitated state and going towards the forest, there was no legally admissible evidence before the trial court for convicting the appellant for the double murder of his wife and daughter and hence the recorded conviction of the appellant by the trial court cannot be maintained. He next submitted that two out of the three witnesses of fact examined by the prosecution during the trial, namely, PW-2 Soma and PW-6 Lallu alias Lalta Prasad were declared hostile after they failed to support the prosecution case in their examination in chief and were cross examined by the DGC (Criminal) with the permission of the Court but he failed to elicit anything from them which may even remotely indicate that they had not spoken the truth in their examination in chief. He further submitted that although Section 106 of the Evidence Act is not at all attracted to the facts and circumstances of the case yet the learned trial judge convicted the appellant by illegally applying Section 106 of the Evidence Act despite the prosecution having miserably failed to discharge the initial burden of proving by any cogent evidence that the accused appellant was either present in his house at the time when double murders were committed or he was seen coming out of his house at any point of time before or after the occurrence by any witness. The recovery of crime weapon allegedly on the pointing out of the appellant as claimed by the prosecution has been fabricated by the police with the object to create false evidence against the appellant. Such being the state of evidence the recorded conviction of the appellant as well as the sentence awarded to him are liable to be set aside.

Per contra Sri Saghir Ahmad learned AGA submitted that the appellant by stating in the written report of the occurrence Ext.Ka-24 as well as in his statement recorded under Section 313 Cr.P.C. that when he had returned to his house after watering his fields at about 11.30 p.m. he saw Sandip, Rampal and three other unknown persons coming out of his house who according to the appellant had murdered his wife and daughter, virtually admitted his presence at the time and place of occurrence and the version of the crime narrated mentioned by him in the written report nominating Ramapati, Sandip and three unknown persons as accused having not been found to be true during investigation, the prosecution was not obliged to lead any evidence to prove his presence in his house at the time of the incident. He further submitted that the accused appellant having himself admitted his presence at the place and at the time of the occurrence and he having failed to come up with any satisfactory explanation with regard to circumstances under which and by whom his wife and daughter had been murdered in his house, the trial court rightly convicted the appellant by applying Section 106 of the Evidence Act. Moreover the recovery of crime weapon from the house of the appellant pursuant to the disclosure statement made by him before the police after his arrest was another very clinching circumstance which pointed out at the guilt of the appellant. It is proved from the report of the forensic expert Ext.Ka-25 that the blood found on the knife recovered from the house of the appellant on his pointing out and on his jawahar jacket and full sleeves woolen vest was human blood, which further establishes the complicity of the appellant in the commission of the double murder. He lastly submitted that the recorded conviction of the appellant is based upon cogent evidence and the sentence awarded to him is supported by relevant consideration and requires no interference by this Court. This appeal lacks merit and is liable to be dismissed.

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

Record shows that the appellant in this case was tried and convicted for having committed double murder of his wife Smt. Anita and daughter Jyoti in his house at about 11.30 p.m. on 21.02.2009 and convicted by the trial court by applying Section 106 of the Evidence Act. Although the FIR was lodged by appellant Rampal himself arraying two named persons Sandip and Ramapati and three unknown persons as accused but during the investigation their complicity was not found. On the contrary the material collected during the investigation indicated at the appellant as the person, who had committed the murder of his wife and daughter and accordingly he was charge sheeted and put to trial.

Before proceeding to examine whether the trial court had correctly invoked the aid of Section 106 of the Evidence Act for convicting the appellant in this case it would be useful to have a glimpse at the case law on the issue.

"One of the earliest cases in which Section 106 of Evidence Act was examined and explained are Attygalle versus Emperior reported in (1936) 38 Bombay LR 700. Stephen Seneviratne versus King reported in (1937) 39 Bombay LR 1.

"In the aforesaid decisions, Their Lordships of the Privy Counsel dealt with Section 106 of Ordinance No. 14 of 1895 (corresponding to Section 106 of the Indian Evidence Act). It was held that Section 106 of the Evidence Act does not affect the onus of proof and throw upon the accused the burden of establishing innocence."

Scope of section 106 of the Indian Evidence Act was examined inconsiderable detail by the Apex Court in the case of Shambhu Nath Mehra versus State of Ajmer reported in AIR 1956 SC 404, wherein learned Judges spelt out the legal principle in paragraph

11."This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that it means facts that are preeminently or exceptionally within his knowledge."

The Apex Court in the case of State of Rajasthan v. Thakur Singh reported in (2014) 12 SCC 211, while allowing the appeal preferred before it by the State of Rajasthan against the judgment and order of the Rajasthan High Court, by which the High Court had set aside the conviction of accused Thakur Singh recorded by the trial court under Section 302 I.P.C. on the ground that there was no evidence to link the respondent with the death of the deceased which had taken place inside the room in the respondent's house, in which he had taken the deceased (his wife) and their daughter and bolted it from within and kept the room locked throughout and later in the evening when the door of the room was broken open the deceased was found lying dead in the room occupied by her and the respondent-accused, held:

The High Court did not consider the provisions of Section 106, Evidence Act at all. The law is quite well settled, that burden of proving guilt of the accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused, and if he does not do so, then it is a strong circumstance pointing to his guilt based on those facts. In the instant case, since the deceased died an unnatural death in the room occupied by her and the respondent, cause of unnatural death was known to the respondent. There is no evidence that anybody else had entered their room or could have entered their room. The respondent did not set up any case that he was not in their room or not in the vicinity of their room while the incident occurred, nor he did set up any case that some other person entered room and cause to the unnatural death of his wife. The facts relevant to the cause of the death of the deceased being known only to the respondent, yet he chose not to disclose them or to explain them. The principle laid down in Section 106, Evidence Act, is clearly applicable to the facts of the case and there is, therefore, a very strong presumption that the deceased was murdered by the respondent. It is not that the respondent was obliged to prove his innocence or prove that he had not committed any offence. All that was required of the respondent was to explain the unusal situation, namely, of the unnatural death of his wife in their room, but he made no attempt to do this. The High Court has very cursorily dealt with the evidence on record and has upset a finding of guilt by the Trial Court in a situation where the respondent to failed to give any explanation whatsoever for the death of his wife by asphyxia in his room. In facts of the case, approach taken by the Trial Court was the correct approach under the law and the High Court was completely in error in a relying primarily on the fact that since most of the material prosecution witnesses (all of whom were relatives of the respondent) had turned hostile, the prosecution was unable to prove its case. The position in law, particularly Section 106, Evidence Act, was completely overlooked by the High Court, making it a rife at a perverse conclusion in law.

Thus, what follows from the reading of the law reports referred to herein above, is that prosecution has to establish guilt of the accused filtered of all reasonable prognosis favourable to accused to secure conviction and it is never relieved of its initial duty. It is only when the initial burden has been discharged by the prosecution then the defence of the accused has to be looked into. Section 106 of the Indian Evidence Act can not be applied to fasten guilt on the accused, even if the prosecution has failed in its initial burden. However once the prosecution establishes entire chain of circumstances together in a conglomerated whole unerringly pointing out that it was accused alone who was the perpetrator of the crime and the manner of happening of the incident could be known to him alone and within his special knowledge, recourse can be taken to section 106 of the Evidence Act. Aid of Section 106 of the Evidence Act can be invoked only in cases where prosecution could produce evidence regarding commission of crime to bring all other incriminating circumstances and sufficient material on record to prima-facie probablise its case against the accused and no plausible explanation is forthcoming from the accused regarding fact within his special knowledge about the incident.

Section 106 of the Evidence Act lays down only this much that if a fact is in the "special knowledge of a person" and other side could not have due knowledge of it in spite of due diligence and care then burden of proving that fact lies on that person in whose special knowledge it is."

We now proceed to examine the evidence on record on the touch stone of the principles laid down by the Hon'ble Apex Court in catena of its judgement of which we have already taken note herein above for ascertaining whether the trial court rightly convicted the appellant by applying Section 106 of the Evidence Act.

Record shows that the prosecution had examined three witnesses of fact, namely, PW-1 Kalua, PW-2 Soma and PW-6 Lallu alias Lalta Prasad for proving that at the time and on the date of the occurrence the accused appellant was seen coming out of his house and walking towards the jungle in an agitated and disturbed condition but all the three witnesses of fact failed to support the prosecution case in their examination in chief and accordingly PW-2 Soma and PW-6 Lallu alias Lalta Prasad were declared hostile on the request of the DGC (Criminal). Although with the permission of the trial court PW-2 Soma and PW-6 Lallu alias Lalta Prasad were cross examined by DGC (Criminal) but he could not extract anything out of them, which may be said to even remotely support the prosecution case. Record further shows that in this case the accused appellant has not denied his presence a the place of occurrence at the time of the incident. Since the appellant has admitted his presence at the place of occurrence and the version of the double murder narrated by him in the FIR as well as in his statement recorded under Section 313 Cr.P.C. was found to be false during the investigation and the accused failed to examine any witness in defense for establishing his version of the occurrence during the trial, what happened in his house on the date of the occurrence at the time of the incident was a fact which was within the special knowledge of the appellant and in view of Section 106 of the Evidence Act, the burden of proving that fact was upon him which in our opinion the appellant miserably failed to discharge.

There are circumstances on record indicating the facts relevant to the cause of death of the deceased were known only to the appellant yet he choose not to disclose them or to explain them satisfactory. The principle laid down in Section 106 of the Evidence Act is clearly applicable to the facts of this case and there is, therefore, a very strong presumption that Smt. Anita and Km Jyoti were murdered by the appellant.

Another very material circumstance, which proves the complicity of the appellant in the commission of the double murder is the recovery of the blood stained knife (crime weapon) on his pointing out from his house on 01.03.2009 pursuant to the disclosure statement made by him before the police after his arrest on 28.02.2009 in the presence of SHO Jai Prakash, S.I. Radhey Shyam Upadhyay, Constables Jagdish Bhati and Sanjeev Kumar. PW-7 Vijay Prakash in his evidence tendered before the trial court proved that knife used in the commission of the crime was recovered from the house of the appellant on his pointing out pursuant to the disclosure statement made by the appellant before him. He proved the recovery memo of the crime weapon Ext.Ka-21 and the site plan of the place from where the crime weapon was recovered as Ext.Ka-22. He also proved that material Ext.Ka-1, appellant's Jawahar jacket was seized by him from the accused. According to the forensic report the blood found on the knife and jawahar jacket of the appellant Ext.Ka-25 was human blood. PW-7 was cross examined by defense counsel at great length for proving that the weapon used in this case was not recovered from the house of the appellant on his pointing out and the alleged recovery of crime weapon on the appellant's pointing out was fabricated by him, but he failed to elicit anything out of him which may discredit the prosecution's claim that the crime weapon in this case was recovered from the appellant's house on his pointing out.

It is true that the crime weapon was not produced by the investigating officer during the trial but non production of the crime weapon during the trial, in our opinion would not adversely affect the prosecution case as the recovery memo of the crime weapon which was brought on record and proved by PW-7 Vijay Prakash as Ext.Ka-21.

We now proceed to examine whether the medical evidence on record corroborates the prosecution case that the appellant had committed the murder of his wife and daughter with a knife at about 11.30 on 21.02.2009.

The post mortem on the cadavers of the deceased Anita and deceased Jyoti was conducted at 5.35 p.m. and 5.15 p.m. respectively by PW-3 Dr. Narendra Dutt, who also prepared their post mortem reports Ext.Ka-1 and Ext.Ka-2.

The post moretem report of the deceased Jyoti Ext.Ka-1 shows following ante mortem injuries on her dead body:-

1. Incised wound present in front of neck, nearly rectangular in shape measuring 7 cm x 5 cm x 7 cm x 4 cm, on exploration larynx c hyoid bone upper part of trachea and upper part of oesophagus c major vessels (ext cartilage vessels) found cut and missing.

2. Incised wound of 7 cm x 4 cm x abdominal cavity deep present on mid of abdomen, 2 cm below uniblreas, intestines are coming out peuktun cut.

The death was stated to be due to shock and hemorrhage as a result of ante mortem injuries. The time of death was estimated to be about 18 hours before the conduct of the post mortem.

The post mortem on the dead body of the deceased Anita Ext.Ka-2 shows following ante mortem injuries on her body:-

1. Incised wound in rectangular shape 8 cm x 6 cm x 8 cm x 5 cm present on front of neck, on exploration larynx, upper part of trachea and upper part of oesophagus are missing Ext. cernotruf RP & LT are cut.

2. Incised wound of 8 cm x 3 cm present on the abdomen, 3 cm above umblicers (Peritoneal cavity deep). Viscera preserved on the demand of police vide enclosure no. 9.

The death was opined to be due to shock and haemorrhage as a result of ante mortem injuries and the duration of death was also estimated to be about 3/4 of the day i.e. 18 hours.

Dr. Narendra Dutt who had conducted the post mortem on the cadavers of the deceased Anita and Jyoti was examined as PW-3. He proved the post mortem reports of the deceased Ext.Ka-1 and Ext.Ka-2. On page 37 of the paper book, he categorically deposed that it was possible that both the victims had died on 21.02.2005 at about 11.30 p.m. and the injuries found on their dead bodies were caused by a knife. He denied the sugestion given to him by the defense counsel that the injuries found on the cadavers of the deceased could not have been caused by a knife.

Thus, in view of the foregoing discussion, we find that the prosecution had succeeded in proving beyond all reasonable doubt that the accused-appellant was present in his house, a fact which has been admitted by him, at the time when his wife and daughter were murdered. The fact, what happened in his house, was within his special knowledge and the burden of proving the aforesaid fact lay on him which he miserably failed to discharge. The version of the crime given by him in the FIR was found to be false by the Investigating Officer during the investigation and although the written report of the occurrence was lodged by the accused appellant himself but since the material collected during the investigation pointed towards the guilt of the appellant, he was charge sheeted and put to trial. Even during the trial he failed to lead any evidence for proving the fact with regard to what had actually happened at the time of the occurrence in his house. Although two out of the three witnesses of fact examined by the prosecution during the trial, PW-2 and PW-6 were declared hostile after they failed to support the prosecution case but from the evidence of PW-1 who had also failed to support the case, it is fully proved that the wife of the appellant was perennially ill and his daughter was suffering from tuberculosis and on account of illness of his wife and daughter, the appellant was mentally tense, which gives credence to the prosecution version that fed up with the illness of his wife and his daughter, he committed their murder. The weapon used for committing the double murder was proved by the prosecution to have been recovered from the house of the appellant on his pointing out pursuant to the disclosure statement made by him before the investigating officer after his arrest. The medical evidence on record fully corroborates the prosecution story that Anita and Jyoti had died at about 11-11.30 p.m. on 21.02.2009 due to shock and haemorrhage as a result of ante mortem injuries found on their dead bodies, which could have been caused by a knife.

It is true that from the documentary evidence adduced by the appellant before the trial court and also from the evidence of PW-1 Kalua, it is proved that the appellant and the initial suspects Sandip and Ramapati were litigating but that in itself would not be sufficient to hold that Sandip and Ramapati along with their accomplices had committed the double murder in the absence of any reliable and tangible evidence against them. Enmity is a double edged sword. If it can be a cause for committing a crime, then it can also be a reason for false implication.

Thus in view of the above, we have no hesitation in holding that the learned trial judge did not commit any illegality, infirmity or perversity in convicting the appellant under Section 302 IPC and sentencing him to imprisonment for life.

This appeal lacks merit and is accordingly dismissed.

Order Date :- 1.6.2017

Abhishek Sri.