Ram Charan vs State
2018 Latest Caselaw 852 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

						AFR
 
						Reserved on 5.5.2018
 
						Delivered on 24.5.2018
 

 
Case :- JAIL APPEAL No. - 1925 of 2012
 

 
Appellant :- Ram Charan
 
Respondent :- State
 
Counsel for Appellant :- From Jail
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Om Prakash-VII,J.

Hon'ble Aniruddha Singh,J.

(Delivered by Hon'ble Aniruddha Singh,J.)

1. Present Jail Appeal has been filed by appellant Ram Charan against judgment and order dated 31.1.2012 passed by Additional District & Sessions Judge, Court No.8, Basti in Sessions Trial No. 96 of 2006 (State of U.P. Vs. Ram Charan and two others) arising out of Case Crime No. 124 of 2006, under Sections 302/34 I.P.C., Police Station Valtarganj, District Basti whereby appellant Ram Charan has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life with fine of Rs. 1,000/- and in default, six months' additional imprisonment.

2. Prosecution story in brief is that in the night at 12.30 on 8/9.3.2006, Jagram (deceased) husband of complainant Smt. Sitapati who was watchman in a brick kiln was sleeping there; Ram Charan (appellant) assaulted Jagram with spade (Fawada), he received four incised wounds and died resultantly. Tulasi Ram (P.W.-2) and Rajendra (P.W.-7) and some other persons tried to catch but he fled away. This incident was seen by two persons namely Tulsi Ram (P.W.2) and Rajendra (P.W.7) and F.I.R. was lodged for the offence under Section 302 IPC on 9.3.2006 at 6.30 a.m. by Smt. Sitapati (P.W.1) wife of deceased. Specific role of assault with spade (fawda) was assigned to the appellant and that was recovered at the pointing out of appellant.

3. On the basis of written report (Ext. Ka-21), case was registered and investigation was started. Prepared recovery memo of spade (Fawda) is exhibited as (Ext. Ka-9); recovery memo of blood-stained & plain soil and piece of 'kathari' and blanket as (Ext. Ka-6), Panchayatnama as (Ext. Ka-2), Chik F.I.R. as (Ext. Ka-3), G.D. entry as (Ext. Ka-4), postmortem report as (Ext. Ka-7), site plan as (Ext. Ka-8) and charge sheet as (Ext. Ka-10).

4. After inspection of site, site plan was prepared with index which is exhibited as (Ext. Ka-8). One bloodstained, spade (fawda)' was recovered at the pointing out of the accused. After completing all formalities, charge-sheet was submitted which is exhibited as (Ext. Ka-10).

5. After taking cognizance by the concerned Magistrate on the charge-sheet, the case was committed to the court of Sessions for trial and after transfer it was received in the court of Additional District & Sessions Judge, Court No. 8, Basti. On 17.4.2007 charge under Section 302 IPC was framed against the accused Ram Charan to which he denied and claimed for trial.

6. Co-accused Ram Surat and Tilak were summoned under Section 319 Cr.P.C. and on 14.8.2008 charge under Section 302/34 IPC was framed to which they denied and claimed for trial but they have been acquitted after trial.

7. In order to prove the charge on behalf of prosecution besides documentary evidence, Court examined nine witnesses in all i.e. P.W.1 Sitapati, P.W.2 Tulasi Ram, P.W.3 Shiv Poojan Chauhan, P.W.4 Ram Dev, P.W.5 Ramesh, P.W.6 Bechan Lal, P.W.7 Rajendra Prasad, P.W.8 Doctor Vishwa Deepak Srivastava and P.W.9 Ashok Kumar Mishra.

8. After closure of prosecution evidence, statements of accused-persons under Section 313 Cr.P.C were recorded. They specifically stated in their statements that they are innocent, they have not committed any offence and have been falsely implicated.

9. Trial Court after hearing parties, vide impugned judgment and order, convicted and sentenced the accused appellant for the offence under Section 302 IPC. Hence this appeal.

10. In this matter, on previous occasion when the matter was taken up, no one appeared to argue the appeal on behalf of the appellant, hence, notice was sent through concerned Superintendent of Jail to the accused appellant to engage counsel. On showing his in-ability to engage private counsel, Court appointed Sri Sita Ram Sharma as Amicus Curiae.

11. Heard Sri Sita Ram Sharma, learned Amicus Curiae for the appellant and Sri Ratnendu Kumar Singh and Sri B.D. Nishad, learned A.G.A. for the State.

12. Learned Amicus Curiae submitted that recovery of spade (fawda) was falsely planted; F.I.R. was lodged ante-timed & ante-dated with consultation of police personnel. Because case crime number was not mentioned in the postmortem report and no body has identified the accused. Tulsi Ram and Rajendra Prasad were not present at the place of occurrence; they are chance witnesses. Incident took place at night and there was no source of light. There is no cogent and reliable evidence against the appellant.

13. Learned A.G.A submitted that there is sufficient evidence against the accused-appellant to convict him under Section 302 IPC.

14. We have considered rival submissions made by the learned amicus curiae and learned A.G.A. for the State and gone through entire record.

15. The F.I.R was lodged on 9.3.2006 at 6.30 a.m. and incident took place on 8/9.3.2006 at 12.30 (night). It appears that F.I.R. was lodged after six hours of the incident. Distance between place of incident and police station is eight kilometres, hence F.I.R. was lodged timely.

16. Second argument advanced by learned amicus curiae is that case crime number was not mentioned in the postmortem report. Mention of case crime number in postmortem, is not mandatory. F.I.R. was not lodged ante-timed & ante-dated. Deceased died on the spot, hence after incident, immediately complainant went to police Station and lodged F.I.R. In inquest report (panchayatnama), case crime number is mentioned, hence we find no force in argument that the F.I.R. was lodged ante-timed and ante-dated.

17. According to postmortem report, four ante mortem injuries were found on the body of deceased Jagram which are as follows;

i. contused incised wound 12 cm. X 2 cm. X bone cut left side face near obliquely placed in 2 to 8 O'clock position just below present of left ear. Left jaw (mandible) is cut.

ii. Contused incised wound on left side of neck 5 cm. X 0.5 cm. X muscle deep 1.5 cm. below injury no. 1 nearly parallel to injury no. 1.

iii. Contused incised wound on left side neck 12 cm x 3 cm x bone cut obliquely from left side chin. Left side carotid artery, left side of hyoid bone and left side cervical 3rd bone are cut obliquely placed.

iv. Contused lacerated wound on left side neck 5 cm x 1 cm x muscle deep 1 cm below end of injury no. 3.

18. P.W. 2 Tulasi Ram and P.W. 7 Rajendra Prasad are eye witnesses and independent witnesses. They are neither relatives of deceased nor interested witnesses. They supported the prosecution case and specifically stated that Ram Charan has killed the deceased in presence of both witnesses and specific role has been assigned to this accused Ram Charan to kill the deceased. Hence, on this point involvement of accused Ram Charan is not doubtful. Hence statement of P.W. 2 and P.W.7 are wholly reliable.

19. This Court after scanning the evidence on record, has to adjudicate whether the prosecution has proved charge levelled against accused appellant beyond reasonable doubt or not. Word 'proved', 'disproved and 'not proved' are defined under Section 3 of Evidence Act as under:-

"Proved".-A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."

"Disproved".-A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist."

"Not proved".- A fact is said not to be proved when it is neither proved nor disproved.

20. The question is whether a prudent man under these circumstances can believe that the facts deposed by the witnesses do exist beyond reasonable doubt.

21. It is pertinent to mention here that deceased was killed at the time, date and place mentioned/disclosed by the prosecution. It is not denied by the accused and proved by the prosecution. Hence, it is deemed to be admitted.

22. Now, question is whether injuries received by deceased were caused by accused appellant or not. At this point as stated above, P.W.-2 and P.W.-7 are eye witnesses and have fully supported the prosecution case proving that deceased was killed by this accused Ram Charan.

23. P.W.1 Sitapati is wife of deceased and she also corroborated statements of P.W.-2 and P.W.-7. Although she is not eye witness but after the incident she reached at the place of occurrence and had seen the dead body of deceased having received injuries and she stated same statement as stated by P.W.-2 & P.W.-7.

24. Just after the incident, bloodstained spade used in the crime was recovered from the possession of this appellant which was hanging on cycle of deceased. This evidence is also very material evidence against this appellant.

25. If we compare injuries received on the body of deceased with the weapon "spade" recovered from the possession of accused, we find that injuries found on the body of deceased could be caused by spade recovered from the possession of appellant. This is very material evidence against the appellant. Recovery memo of spade was proved as Ext. Ka-9 which was recovered on 9.3.2006 just after the incident.

26. Learned Amicus Curiae submitted that injuries received on the body of deceased are not probable to have been caused by spade. This submission has no force as the doctor examined in the matter has clearly stated that injuries received by deceased are possible to have been caused by axe or any heavy sharp-edged weapon & recovered spade is a heavy sharp-edged weapon to cause such injuries. No specific question has been put by the defence from the doctor to the extent that injuries found on the body of deceased could not be caused by weapon "spade".

27. Main defence taken by the appellant is that accused was unsound mind at the time of incident. On this point, Section 84 IPC is very material which is quoted below:-

"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."

28. On perusal of Section 84 IPC, it is very material to know whether at the time of incident, appellant was incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law. From perusal of record, it is not proved that at the time of incident appellant was incapable of knowing the nature of his act. Absolutely nothing is on record to substantiate the defence of appellant.

29. It is also very relevant at this point to mention that according to Section 105 of Evidence Act, burden lies on the accused to prove the defence. Section 105 of Indian Evidence Act is quoted below for ready reference:-

"105. Burden of proving that case of accused comes within exceptions.--When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.

30. As observed by Hon'ble Apex Court in AIR 1972 SC 2443 Seralli Ali Mohammad vs. State of Maharashtra, the appellant's plea on the ground of unsound mind in absence of material evidence adduced by appellant cannot be accepted.

31. At this point, Section 6 of the Indian Evidence Act, 1872 is also relevant and is quoted below:-

"6. Relevancy of facts forming part of same transaction.--Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.

32. From perusal of record, it is proved that accused appellant was known to P.W.-2 and P.W.-7. Shop of P.W.-2 Tulsi Ram is near the place of incident and he used to sleep at night in front of his shop. Accused appellant also used to purchase goods from the shop of P.W.-2 and in this way they were known to each other. P.W.-2 Tulsi Ram reached on the spot on uproar of 'bachao-bachao' of deceased and has seen the occurrence. Accused appellant was present on the spot at that time.

33. P.W.-7 was driver of the tractor of the brick kiln and presence of P.W.-7 was also natural. He is the eye witness of the incident and he has also seen that this accused appellant had killed the deceased.

34. From perusal of record, it has come that two accused were summoned under Section 319 Cr.P.C. and examination-in-chief of P.W.-2 was recorded twice. Hence some minor contradictions are natural in the statement of P.W.-2 and P.W.-1 & P.W.-7 which are not fatal to the prosecution case.

35. P.W.-1 Sitapati, wife of deceased has clearly stated that deceased was 'Chawkidar' at brick kiln and he was doing his duty. Before the incident accused came before her husband/deceased and asked for employment and her husband refused and due to that reason he killed the deceased. After incident she lodged the FIR. P.W.-2 Tulsi Ram supported the prosecution case. P.W.-3 Shiv Poojan Chauhan who stated that case was registered and entry was made in G.D., has proved chik report (Ext. Ka-3), GD entry (Ext. Ka-4) and Ext. Ka-5 (letter for medical examination of accused Ram Charan). P.W.-5 Ramesh who is the witness of panchayatnama has proved Ext. Ka-2. P.W.5 also proved Ext. Ka-6 (recovery memo of blood stained and plain earth, kathari & pieces of blanket). P.W-6 Bechan Lal has proved panchayatnama (Ext. Ka-2). P.W.-8 Dr. V.D. Srivastava proved postmortem report ( Ext. Ka-7). P.W.-9 Ashok Kumar Misra proved the site plan(Ext. Ka-8), recovery memo of spade (Ext. Ka-9) and charge sheet (Ext. Ka-10).

36. Learned Amicus Curiae submitted that P.W.-2 and P.W.-7 are only chance witnesses and they were not present at the time of incident. This submission has no force. P.W.-2 and P.W.-7 are natural and independent witnesses as one witness was driver and another was shop owner whose shop existed behind brick kiln. There is no reason to disbelieve statements of these witnesses because they are neither relatives nor interested witnesses of the deceased.

37. As discussed above, P.W.-2 and P.W.7 are eye witnesses and their presence on the spot at the time of incident is not doubtful. Both of the have stated that they had seen that accused appellant had killed the deceased. Statement of P.W.-2 and P.W.-7 are corroborated by statement of P.W.-1 and other relevant papers, statement of witnesses, injury report(medical evidence) and recovery of spade. Therefore, offence of accused is proved beyond reasonable doubt.

38. Learned Amicus Curiae on behalf of appellant submitted that there was no motive of the accused and why would he kill the deceased, hence he may be acquitted. This submission has no force. It was held in the State of U.P. vs. Nawab Singh, 2005 SCC (Criminal) 33 that motive is not a sine qua non for the commission of a crime. Moreover, it takes a back seat in a case of direct ocular account of the commission of the offence by a particular person. In a case of direct evidence the element of motive does not play such an important role as to cast any doubt on the credibility of prosecution witnesses even if there be any doubt raised in this regard. If the eye witnesses are trustworthy, the motive attributed for the commission of crime may not be of much relevance. Failure to prove motive or absence of evidence on the point of motive would not be fatal to prosecution case when other reliable evidence available on record unerringly establishes the guilt of the accused. Inspsite of that, motive mentioned in the FIR has been proved by P.W.-1 Sitapati as she has deposed that deceased refused to give employment to the accused-appellant and hence he killed him.

39. Submission of learned Amicus Curiae on behalf of appellant that FIR was lodged on the dictation of police, is also not acceptable because it is merely a suggestion.

40. Learned Amicus Curiae on behalf of appellant further submitted that there are major contradictions in statements of witnesses of facts. This submission has also no force as there is no major contraction on material points which may fatal the case of prosecution.

41. In the case of Lallu Manjhi & Another vs. State of Jharkhand reported in AIR 2003 SC 854, the Supreme Court has held as below:-

"The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness. {See - Vadivelu Thevan etc. v. State of Madras, AIR 1957 SC 614}."

42. After analying judgment of Supreme Court in the case of Lallu Manjhi & Another vs. State of Jharkhand(supra) we find that the testimony of witnesses P.W.2 Tulsi Ram and P.W.-7 Rajendra Prasad are "wholly reliable".

43. Hence A prudent man under these circumstances can believe that the facts deposed by the witnesses would have existed beyond reasonable doubt.

44. For the foregoing discussions and in the backdrop of law laid down by Apex Court, we find that charge levelled against the appellant stands proved beyond reasonable doubt. There is no infirmity in the judgment of conviction and sentence dated 31.1.2012. The appeal is dismissed. Judgment and order of lower court dated 31.1.2012 is upheld. Conviction and sentence awarded to appellant Ram Charan in the Sessions Trial No. 96 of 2006 (State Vs. Ram Charan & two others) arising out of Case Crime No. 124 of 2006 under Section 302 are hereby affirmed.

45. Let Sri Sita Ram Sharma, Amicus Curiae be paid Rs.10,000/- by the Registry of this High Court within two months.

46. Copy of this judgment be also supplied to the accused appellant through the concerned Superintendent of Jail.

47. Copy of this judgment alongwith original record of Court below be transmitted to the Court concerned for necessary compliance. A compliance report be sent to this Court within one month. Office is directed to keep the compliance report on record.

Order Date :-24.5.2018

A. Singh/P.P.