Ramesh Prasad Misra vs State Of U.P.
2017 Latest Caselaw 6162 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

RESERVED
 
AFR
 

 

 
Case :- CRIMINAL APPEAL No. - 1060 of 2013
 

 
Ramesh Chandra Misra, son of Shivadhar Misra, resident of Rampur Lone, Police Station Bihar, District Unnao.
 
............... Appellant
 
versus
 
State of U.P.
 
............. Respondent
 
Counsel for Appellant :- Jail Appeal, Shri Amit Chaudhary (Amicus Curiae).
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Anil Kumar,J.

Hon'ble Anil Kumar Srivastava-II,J.

(Delivered by Hon'ble Anil Kumar Srivastava-II, J.)

1. Instant appeal has arisen against the judgment and order dated 05.4.2013, passed by learned Additional Sessions Judge/ E.C. Unnao, in S.T. No.139/2012, arising out of case crime no.315/2012, Police Station Bihar, District Unnao, whereby the learned trial court has convicted the accused under section 302 IPC and sentenced him to imprisonment for life and to pay a fine of Rs.10,000/-. In default of payment of fine he has to undergo an imprisonment for six months.

2. According to the prosecution, first information report was lodged on 04.3.2012 at about 04:30 PM at Police Station Bihar, District Unnao at case crime no.315/2012, under section 302 IPC on the written report submitted by Shubham Misra stating that on 04.3.2012, Manish Tiwari, Sudhir Kumar Tiwari, Santosh Kumar Tiwari came to his house. In the afternoon they went in the village. Complainant Shubham Misra and her mother Sunita Misra were in the house. Ramesh Prasad, father of the complainant came at about 02:00 PM and started quarreling with her mother. When she resisted then she was beaten by 'danda'. Complainant saved his mother. Sunita Misra ran inside the room then the accused Ramesh Prasad also entered in the room and bolted the same from inside and strangulated the neck of his mother by a rope. When complainant saw the incident from a hole in the door, he started crying then Manish Tiwari, Sudhir Kumar Tiwari, Santosh Kumar Tiwari also arrived at the spot. They started knocking the door and also saw the incident from a hole in the door that the accused strangulated the neck of his mother by a rope and hanged her by the rope. Thereafter, he opened the door and ran away alonwith 'danda'. Complainant and other witnesses entered the house and got down the dead body of Sunita Misra on the ground and lodged the first information report. After lodging the first information report inquest proceedings were conducted. Dead body was sealed and was sent for postmortem which was conducted on 05.3.2012 at 02:35 PM. Cause of death was found as asphyxia as a result of ante-mortem hanging. Rope was also taken into possession by the Investigating Officer. After investigation, chargesheet was submitted against the accused.

3. Accused was charged under section 302 IPC, who denied the charges and claimed trial.

4. Prosecution has produced PW-1 Shubham Misra, son of the deceased and the accused and complainant eyewitness who has proved the written report. PW-2 Santosh Kumar Tiwari eyewitness, PW-3 Sudhir Kumar Tiwari eyewitness, PW-4 SI R.P. Yadav witness of inquest, PW-5 Constable Chintamani Shukla scribe of chik FIR, PW-6 Dr. S.K. Pandey, who has conducted the postmortem of the body of the deceased on 05.3.2012. Following ante-mortem injuries were found on the body of the deceased :-

(i) Abraded contusion 6 cm x 2 cm over right side face and forehead 5 cm near the point of right ear.

(ii) Ligature mark 30 cm x 1 cm in front of neck, above thyroid and below chin, obliquely present going backward with gap of 6 cm on back of neck. 5 cm. below right ear, 4 cm below chin and 1 cm below left ear. Based grove is brown, hard and parchment like on cutting. Subcutaneous tissue is white and glastening.

(iii) Contusion 24 cm x 6 cm over right thigh on outer surface, 6 cm above the knee joint.

(iv) Multiple contusion in area of 13 cm x 6 cm, over right leg on front and outer surface, 4 cm below right knee joint.

(v) Contusion 6 cm x 2 cm over left shoulder, 4 cm below tip of the shoulder.

(vi) Contusion 2 cm x 2 cm over left shoulder, 2 cm below injury no.5.

(vii) Abraded contusion 4 cm x 1 cm over left forearm, 6 cm above wrist joint.

(viii) Multiple contusion in an area of 32 cm x 4 cm over outer surface of left thigh just above knee joint.

(ix) Multiple contusion in area of 28 x 8 cm. over left leg, just below knee joint.

(x) Lacerated wound 4 cm x 1 cm x muscle deep, over middle of left leg.

5. According to the doctor, cause of death was asphyxia, as a result of ante-mortem hanging.

6. PW-7 SI Krishna Lal Patel is the Investigating Officer. PW-8 Bheem Shankar is a witness of inquest, who was declared as hostile, PW-9 Ashok Kumar Trivedi is witness of inquest declared hostile.

7. Accused has submitted a written statement under section 233(2) CrPC wherein it is stated that he was working in Ahmedabad for the last 15 years. Sudhir Kumar Tiwari, son of Bhagwati Prasad Tiwari is the resident of native village of deceased, who usually visits the house of deceased in the absence of accused. Accused objected upon it. Deceased felt bad when the accused asked Sudhir not to come to his house in his absence. Accused came from Ahmedabad a day earlier to the date of incident. He found Sudhir Kumar Tiwari present in the house. Accused scolded his wife. Deceased also got annoyed upon the accused. In next morning Sudhir Kumar Tiwari left the house. Accused also went to his fields. At about 1 to 2 PM, he got the information that his wife has committed suicide. When he came to his house, he found that his wife was hanging. He took her dead body to the ground. She had died. Sudhir Kumar also arrived at the spot and started beating the accused. False report is lodged. They have also taken the Shubham with them, who is residing in his maternal grandfather's house. Accused has produced DW-1 Satya Narain.

8. After appreciating the evidence on record, learned trial court recorded the finding of conviction against the accused holding that the first information report is promptly lodged. Statement of PW-1, PW-2 and PW-3 supports the prosecution version which also finds support from the medico-legal evidence. PW-1 Shubham is the son of the accused. There is no reason that he would falsely depose against his own father. Deceased has suffered ante-mortem injuries on her body. Accordingly, accused was convicted and sentenced.

9. We have heard Shri Amit Chaudhari, learned amicus curiae for the accused-appellant, who has preferred a jail appeal and also Ms. Farhat Jamal Siddiqui, learned A.G.A. and perused the record.

10. Learned amicus curiae submits that the whole prosecution story is highly doubtful. Presence of the witnesses at the place of incident is not proved. Deceased has committed suicide as the accused was having doubt over her character.

11. The manner in which hanging is alleged by the prosecution, could not be accepted. Manish Tiwari is not examined by the prosecution, rather withheld by the prosecution. It is further submitted that at the most it could be a case of Section 306 IPC but the learned trial court has erroneously convicted the accused under section 302 IPC.

12. There are certain salient features in this case. Complainant and eyewitness PW-1 Shubham is the son of deceased and accused while the other witnesses are relatives of deceased from her maternal side. A suspicion has been raised by the accused on the chastity of the deceased on account of regular visit of Sudhir Kumar to his house. Accused was serving at Ahmedabad, who was casually visiting his house. He came to his house a day prior to the incident. This fact is stated by the accused in his statement made under section 233 (2) CrPC.

13. Now, it is to be seen as to whether prosecution has been able to successfully prove the charges against the accused ?

14. Admittedly, deceased died in the house of the accused. According to the post-mortem examination report, deceased died due to ante-mortem hanging. PW-6 Dr. S.K. Pandey had found ten ante-mortem injuries on the body of the deceased. This fact is not denied by the accused that the deceased did not died in his house, rather a plea is set-up that at the time of incident accused was at his fields where he received information that his wife has committed suicide. Now, it is to be seen as to whether the incident took place as alleged by the prosecution or the deceased had committed suicide in her house.

15. PW-1 Shubham is the son of accused, who has given a categorical eyewitness account of the incident. It is stated by him that Manish Tiwari, Sudhir Kumar Tiwari and Santosh Kumar Tiwari had come to his house. At that time accused was not present. Thereafter, all of them went in the village. Thereafter, at about 02:00 PM accused came and had altercation with the deceased. He started abusing her. On receiving a resistance from the deceased accused started beating her by 'danda'. PW-1 Shubham intervened then the deceased ran into the room. Accused also entered into the room and bolted the same from inside. He tied a rope in the neck of his mother. PW-1 Shubham saw the incident from a hole in the door. He started crying then Sudhir, Manish, Santosh came and knocked the door but the accused did not open the door. He hanged the deceased with a rope in the 'dhanni' (a piece of wood which is kept for support in the roof) and thereafter he ran away. When Shubham and witnesses put the deceased on floor, she was dead. Statement of PW-1 is a natural statement. Admittedly, he is the son of accused and deceased.

16. A minor son of the accused and deceased would not falsely implicate his father only because of the fact that his mother has died. It has been held by the Hon'ble Apex Court in Bipin Kumar Mondal vs. State of West Bengal, (2010) 12 SCC 91, in para 20 that :-

"20. In view of the above, we reach the inescapable conclusion that there is nothing on record to show that there could be any reason for Sujit Mondal, PW 1, a son, to falsely implicate and rope his father into such a gruesome murder or the other witnesses, who had been so close relatives and neighbours of the appellant, would support the prosecution case. During the cross-examination of all of the witnesses, nothing had transpired for which their evidence may be discarded. The witnesses were natural and most probable and their presence at the place of occurrence immediately after the commission of crime is expected, being close relatives and neighbours. No reason could be given as to why such close relations of the appellant would depose against him. Undoubtedly, there is nothing on record to show as what could be the motive behind the murder of his wife and son by the appellant. However, it can be difficult to understand the motive behind the offence."

17. Presence of PW-1 at the spot is natural. He was present in his house wherein his mother was also present. Accused came. There is a motive for the accused to have heated altercations with the deceased.

18. Although, it is a case of direct evidence wherein motive loses its importance, as has been held by the Hon'ble Apex Court in Bipin Kumar Mondal vs. State of W.B, (2010)12 SCC 91 in para 24 that :-

"24. It is settled legal proposition that even if the absence of motive as alleged is accepted that is of no consequence and pales into insignificance when direct evidence establishes the crime. Therefore, in case there is direct trustworthy evidence of witnesses as to commission of an offence, the motive part loses its significance. Therefore, if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence could not be discarded only by the reason of the absence of motive, if otherwise the evidence is worthy of reliance. (VideHari Shanker v. State of U.P.,(1996) 9 SCC 40, Bikau Pandey v. State of Bihar [(2003) 12 SCC 616 and Abu Thakir v.State of T.N.[(2010) 5 SCC 91."

(emphasis supplied)

19. Even if we look into the motive of the case, we found that there was a strong motive for the accused for commission of the crime. Accused was working at Ahmedabad, who casually comes to his house. PW-1 Shubham has also stated that Sudhir Kumar used to visit his house but the accused did not liked it, hence, he objects to it. Accused was having suspicion about the chastity of his wife. On the date of incident also Manish, Sudhir and Santosh had come to the house of the accused. When they went to the village, accused came and started abusing the deceased. There was a strong motive for the accused for commission of the crime.

20. When motive is alleged and proved by the prosecution then the eyewitness account coupled with the motive positively proves the prosecution version. In the present case also motive is proved by the prosecution. It has been held by the Hon'ble Apex Court in Sheo Shankar Singh vs. State of Jharkhand, (2011) 3 SCC 654 in para 15 and 16 that :-

"15. The legal position regarding proof of motive as an essential requirement for bringing home the guilt of the accused is fairly well settled by a long line of decisions of this Court. These decisions have made a clear distinction between cases where the prosecution relies upon circumstantial evidence on the one hand and those where it relies upon the testimony of eyewitnesses on the other. In the former category of cases proof of motive is given the importance it deserves, for proof of a motive itself constitutes a link in the chain of circumstances upon which the prosecution may rely. Proof of motive, however, recedes into the background in cases where the prosecution relies upon an eyewitness account of the occurrence. That is because if the court upon a proper appraisal of the deposition of the eyewitnesses comes to the conclusion that the version given by them is credible, absence of evidence to prove the motive is rendered inconsequential. Conversely, even if the prosecution succeeds in establishing a strong motive for the commission of the offence, but the evidence of the eyewitnesses is found unreliable or unworthy of credit, existence of a motive does not by itself provide a safe basis for convicting the accused. That does not, however, mean that proof of motive even in a case which rests on an eyewitness account does not lend strength to the prosecution case or fortify the court in its ultimate conclusion. Proof of motive in such a situation certainly helps the prosecution and supports the eyewitnesses. [See Shivaji Genu Mohite v. State of Maharashtra (1973) 3 SCC 219, Hari Shanker v. State of U.P. (1996) 9 SCC 40 and State of U.P. v. Kishanpal (2008) 16 SCC 73.

16. The case at hand rests upon the deposition of the eyewitnesses to the occurrence. Absence of motive would not, therefore, by itself make any material difference. But if a motive is indeed proved it would lend support to the prosecution version. The question is whether the prosecution has established any such motive to fortify its charge against the appellants."

21. PW-1 Shubham has stated that when accused came to the house, he started abusing the deceased, then PW-1 Shubham intervened and saved his mother. Then she ran inside the room but the accused also entered into the room and beaten his mother by 'danda'. He also bolted the room from inside. This part of the statement specifically finds support from the statement of PW-6, Dr S.K. Pandey, who found ten ante-mortem injuries on the body of the deceased which were caused by hard and blunt object. It is further stated by the doctor that ligature mark as found on the dead body could have been caused if the body is put on a rope after tightening the neck. Statement of Dr. Pandey finds support from the statement of PW-1 Shubham, who has stated that after bolting the door from inside accused tightened the neck of the deceased by a rope and put the rope on the 'dhanni', so that the body of the deceased hanged on the rope causing death of deceased. PW-1 made all efforts to open the door but could not succeed. When other witnesses namely, PW-2 Santosh and PW-3 Sudhir reached at the spot after hearing the shrieks of Shubham then they also started knocking the door and tried to get it opened, then all of a sudden accused opened the door and pushed them and ran away alongwith 'danda'. All the three entered into the room, got down the body and put it on the floor. This statement of PW-1 itself inspires full confidence wherein there is no doubt about the genuineness of the statement. Presence of PW-1 in the house is very natural. He has given a graphic description of the incident which happened in his presence. An adolescent boy of 14 years have seen the cruel act of his father, who, before the eyes of his son, had brutally beaten his wife and hanged her which resulted in the death of the deceased. Death of the deceased by hanging is also not disputed by the accused wherein it is stated in the statement under section 233(2) CrPC that she has committed suicide but although a defence has been taken but the defence could not succeed in explaining the injuries on the body of the deceased as to how those injuries occurred on her body. There was no-one else in the house at the time of incident except the accused, the deceased and PW-1 Shubham. The only irresistible conclusion which can be drawn is that the statement of PW-1 Shubham is full of credence which could not even by any score of imagination said to be a concocted one.

22. PW-2 Santosh Kumar Tiwari is the son of brother of the deceased. He had come to the house of the deceased for reconciling the dispute between the accused and deceased. His presence also could not be made doubtful. PW-2 Santosh Kumar has stated that the relations between the accused and deceased were strained for the last so many years. He alongwith Sudhir and Manish reached at the house of deceased at about 12:30 noon. Since the accused was not present at the house, they went to the village. When they came back they heard the shrieks of Shubham. When they entered in the house they saw from the hole of the door that accused was hanging the deceased by a rope on the 'dhanni'. They tried to broke open the door which could not be opened. Accused ran away from the scene of occurrence. PW-3 Sudhir Kumar is the person with whom the accused was suspecting the illicit relations of his wife-deceased. PW-3 Sudhir Kumar is cousin brother of the deceased, who also went alongwith Santosh Kumar to the house of the deceased. He has also stated that when they came back from the village they heard the shrieks of Shubham. When they entered in the house they saw from the hole of the door that the accused was hanging the body of the deceased with a rope. Accused ran away with the 'danda' from the scene of occurrence. They got the dead body down to the earth.

23. Statement of PW-2 Santosh and PW-3 Sudhir is natural. A suggestion is given to PW-3 Sudhir Kumar that on the date of incident accused was not present at the spot, rather he was at Ahmedabad. The same suggestion is given to PW-2 Santosh while in the statement under section 233 (2) CrPC accused himself has stated that on the date of incident he was at his village who had come a day earlier from Ahmedabad. He was in his fields where he received the information about the death of his wife. A false defence has been taken by the accused.

24. Reliance has been placed in Jamnadas vs. State of M.P., (2016) 13 SCC 12 wherein a case of Kuldeep Singh vs. State of Rajasthan, (2000) 5 SCC 7 is referred wherein in para 18, a three- Judge Bench of the Hon'ble Apex Court has held that :-

"18.... in a case of circumstantial evidence when the accused offers an explanation and that explanation is found to be untrue, then the same offers an additional link in the chain of circumstances, to complete the chain."

25. Similar view has been taken by the Hon'ble Apex Court in Rumi Bora Dutta v. State of Assam (2013) 7 SCC 417 wherein it has been accepted that a false answer offered by the accused when his attention is drawn to the circumstances, it renders a circumstance to be of inculpating nature i.e. in such a situation a false answer can also be counted as providing a missing link for completing the chain.

26. When the accused has taken a false defence that at one place a suggestion is given to two witnesses that he was not present at his village, rather he was at Ahmedabad. But in the statement under section 233 (2) CrPC it is stated that he was present in the village but has gone to his fields where he received the information about the death of his wife. A contradictory false defence has been taken by the accused which is a strong circumstance against him.

27. Death of the deceased took place in the house of the accused. According to PW-1 Shubham accused had beaten the deceased. Thereafter, he bolted the room from inside, tightened a rope in the neck of the deceased and hanged her with the 'dhanni' causing her death. These circumstances were specifically within the special knowledge of the accused which have to be explained by him under section 106 Indian Evidence Act. Section 106 Indian Evidence Act reads as under:-

106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

Illustrations

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

(b) A is charged with travelling on a railway without a ticket. The burden of that he had a ticket is on him.

28. It is held by the Hon'ble Apex Court in Nizam and another vs. State of Rajasthan (2016)1 SCC 550 that:

15. Elaborating the principle of "last seen alive" in State of Rajasthan vs. Kashi Ram (2006)12 SCC 254 this Court held as under: (SCC p. 265, para 23)

23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categorical in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, an additional link which completes the chain. The Principle has been succinctly stated in Naina Mohmad, AIR 1960 Mad 218."

29. Admittedly, the facts were within the special knowledge of the accused. Burden lies upon the accused under section 106 Indian Evidence Act to explain the circumstances which could not be explained by the accused. Hence, the accused has failed to discharge his obligation as to how his wife died in his own house ?

30. First information report was lodged on 04.3.2012 at 04:30 PM by the PW-1 Shubham who is son of the accused while the incident took place at 02:00 PM. PW-1 Shubham has proved the written report as well as the chik FIR. First information report was lodged promptly without any undue delay. Distance of the police station from the place of occurrence is 2 Kms.

31. A prompt F.I.R. lends credence to the prosecution case because a prompt F.I.R. eliminates all the chances of cooking up of a false story. Hon'ble the Apex Court in the case of Meharaj Singh vs. State of U.P., (1994) 5 SCC 188 while emphasizing the importance of recording a prompt FIR the Supreme Court observed as under :-

"FIR in a criminal case and particularly in murder case is a vital and valuable piece of evidence for the purpose of appreciating evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain earliest information regarding the circumstance in which the crime was committed, including the names of the actual weapons, if any, used, as also the names of the eye witnesses if any. Delay in lodging the FIR often result in embellishment, which is a creature of an afterthought. On the account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version of exaggerated story."

32. In Thulia Kali vs. State of Tamil Nadu, (1972) 3 SCC 393 the Supreme Court observed as under :-

"............... first information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the standpoint of the accused."

33. In Kishan Singh through LRs v. Gurpal Singh and others, (2010) 8 SCC 775 the Supreme Court held that "Prompt and early reporting of the occurrence by the informant with vivid details gives assurance regarding truth of its version. In case there is some delay in recording the FIR the complainant must give an explanation for the same. Undoubtedly, delay in lodging FIR does not make the complainant's case improbable when such delay is properly explained."

34. Hon'ble the Apex court in the case of Nanhe Vs. State of Uttar Pradesh, 1973 (3) SCC 317 has held that a prompt F.I.R. eliminates the chances of cooking up of a false story.

35. A prompt first information report has been lodged by the PW-1 Shubham Misra who is a natural witness of the incident, hence, the first information report is trustworthy.

36. Rope used in the commission of crime was taken into possession by the Investigating Officer. Investigating Officer has recorded the statement of the witnesses promptly and has also prepared the site plan. Although the witnesses of inquest namely, PW-8 Bheem Shankar and PW-9 Ashok Kumar Trivedi have turned hostile but it did not adversely affect the prosecution version. Learned trial court has rightly disbelieved the statement of DW-1 Satya Narain, who has stated that he heard that the deceased has committed suicide but when police came at the spot he was not present there. Presence of accused at his village is proved by the statement of DW-1 which negatives the suggestion of the accused given to PW-2 Santosh and PW-3 Sudhir Kumar that accused was not present at this house, rather he was at Ahmedabad on the date of incident.

37. Learned trial court has rightly placed reliance upon the statement of PW-1 Shubham, PW-2 Santosh and PW-3 Sudhir Kumar.

38. Learned amicus curiae has submitted that the Investigating Officer has not shown the place in the site plan from where witnesses have seen the incident. Presence of witnesses is proved. According to Investigating Officer PW-7 SI Krishna Lal Patel the height of the room was about 9 feet. He recovered the rope from a ring on the roof of the room. Investigating Officer was not cross-examined on the point that he has not shown the place from where the witnesses have seen the incident. Specifically all the three witnesses namely PW-1 Shubham, PW-2 Santosh and PW-3 Sudhir Kumar have stated that they have seen the incident from a hole in the door. They tired to make all efforts to broke open the door but could not succeed and the accused randomly opened the door, pushed them and ran away with the 'danda' from the place of occurrence. There is a consistent statement of all the three witnesses which could not be held as short of truthfulness, hence, even if the place from where the witnesses have seen the incident is not shown in the site plan, it could not extend any favour to the accused.

39. Having considered the submissions of the learned counsel for the accused and learned A.G.A. and after appreciating the evidence on record we are of the considered view that the prosecution has successfully proved the charges against the accused. Learned trial court has rightly appreciated the evidence on record and recorded a finding of conviction against the accused. Appeal lacks merit and deserves dismissal.

40. Appeal is dismissed. Judgment and order dated 05.4.2013 passed by the learned trial court is confirmed. Accused is in jail. He should serve out the sentence as imposed by the trial court and confirmed by this Court.

41. Office is directed to certify the judgment to the learned lower court forthwith. Office is further directed to send the lower court record to the learned trial court forthwith. Learned trial court should send the compliance report within eight weeks.

Date :- 02.11.2017

mks

(Anil Kumar, J.)

(Anil Kumar Srivastava-II, J.)