Ram Singh Kori vs State Of U.P.
2019 Latest Caselaw 3064 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR 
 
Reserved on : 07.02.2019
 
Delivered on : 17.04.2019
 
Court No. - 34
 

 
Case :- JAIL APPEAL No. - 3938 of 2017
 

 
Appellant :- Ram Singh Kori
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,Sukhvir Singh (A.C.)
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Rajendra Kumar-IV,J.

(Delivered by Hon'ble Rajendra Kumar-IV,J.)

1. This Jail Appeal has been filed by accused-appellant-Ram Singh Kori through Jail Superintendent, Jhansi against judgement and order dated 20.05.2017 passed by Additional Sessions Judge, (FTC) Court No. 2, Jhansi in Sessions Trial No. 54 of 2013 (State v. Ram Singh Kori) under Section 302 IPC, Police Station, Poonchh, District Jhansi in Case Crime No. 108 of 2011, convicted accused-appellant-Ram Singh Kori under Section 302 IPC and sentenced him to undergo for life imprisonment and Rs. 25,000/- in default of fine, he shall further undergo three months' imprisonment.

2. Prosecution story, in brief, is that on 27.06.2011, at about 2:00 p.m., Smt. Prabha Devi went to Tube-well for natural call along with his elder son-Raj aged about 7 years old while Informant, PW-2, was sitting beneath Peepal Tree along with his younger son aged about 5 years. At that time, accused-Ram Singh went towards Tube-well with Axe and, with intention to kill, assaulted Smt. Prabha Devi by Axe. On hearing alarm raised by Smt. Prabha Devi and Raj, PW-2 along with other villagers rushed to spot then accused ran away towards Jungle with blood stained Axe. Smt. Prabha Devi died on spot.

3. A Written Tehrir-Ex. Ka-2 was presented by PW-2. On the basis of Written Tehrir, chick FIR Ex. Ka-3 was registered in Police Station concerned by Constable Clerk as Case Crime No. 108 of 2011, under Section 302 IPC against accused person, entry whereof was made in General Diary, copy whereof is Ex. Ka-4.

4. PW-6 commenced investigation, proceeded to spot, visited the same and prepared Site Plan Ex.Ka-11, collected blood stained and simple of earth, prepared memo Ex.Ka-12 and 13. Thereafter, he was transferred. Further investigation was conducted by SHO-Sunil Kumar Verma who, after completing entire formalities of investigation, submitted charge-sheet Ex. Ka-14 against accused.

5. SI Vikramaditya Sachan (not examined) held inquest over dead body of Smt. Prabha Devi and prepared inquest report Ex.Ka-10.

6. PW-4 Dr. S.N. Kanchan conducted autopsy of dead body of Smt. Prabha Devi, aged about 27 years, wife of Virendra Kumar and prepared postmortem report Ex. Ka-5, expressing his opinion that death was possible at about 2:00 p.m. on 27.6.2011 due to coma and hemorrhage on account of ante-mortem injuries, Doctor found following ante-mortem injuries on the body of deceased, which read as under :-

i. Incised wound 8x2 cm cavity deep over the head.

ii. Incised wound 6x1 cm cavity deep in front of right ear.

iii. Incised wound 3x1 cm cavity deep below 3 cm right ear on right side of neck.

iv. Incised wound 2x1 cm cavity deep over right side of neck.

v. Incised wound 4x2 cm cavity deep on back of neck, right parietal temporal and mandible bone fractured. Margins, brain matter lacerated clotted blood present.

7. Case, being exclusively trial by Court of Sessions, was committed to Sessions Judge, wherefrom, it was transferred to Additional Sessions Judge, Court No. 5, Jhansi for disposal in accordance with law.

8. Trial Court framed charge on 10.10.2013 against accused under Section 302 IPC, which reads as under :-

"I, Umesh Kumar Singh, Additional Sessions Judge, Court Rooom No.5, Jhansi, do hereby charge you Ram Singh Kori as follows:

That you on 27.6.2011 at about 2 PM at tubewell no.63 at village Kanechha, within the circle of P.S. Poonchh, district Jhansi, have committed murder by causing the death of Smt. Prabha Devi, wife of complainant, by giving Axe blows on her person, and thereby committed an offence punishable under section 302 I.P.C. and within the cognizance of this court.

And I hereby direct you to be tried on the said charge by this court of Sessions."

9. Accused-appellant pleaded not guilty and claimed trial.

10. In order to substantiate its case, prosecution examined as many as six witnesses. Out of whom, PW-1 and 5 are witnesses of fact and remaining PW-1,3, 4 and 6 are formal witnesses.

11. In statement under Section 313 recorded by Trial Court, accused -appellant denied prosecution story in toto. Entire story is said to be wrong, he claimed false implication but did not choose to lead any defence evidence. Ultimately, case came to be heard and decided by Additional Sessions Judge (FTC) Court No.2, Jhansi, who after hearing learned counsel for parties and analysing entire evidence (oral and documentary) led by prosecution, found accused guilty, convicted and sentenced, as stated above.

12. We have heard Sri Sukhvir Singh, learned Amicus Curiae for appellant and Sri Ratan Singh learned AGA for State and traveled through record with valuable assistance of learned counsel for parties.

13. Learned Amicus Curiae assailed order of conviction and sentence advancing following submissions :-

i. There is no eye witness of occurrence except a minor child namely Raj while incident is said to have happened at 2:00 p.m., near Tube-well situated in village.

ii. No independent witness has been produced by prosecution. According to PW-2, he saw appellant fleeing from spot but he did not see appellant assaulting Smt. Prabha Devi.

iii. There is no motive of incident to accused to commit present crime.

iv. Prosecution failed to recover alleged Axe which is said to be used in commission of crime.

v. There are several contradictions in the statements of prosecution, which may dent prosecution case.

vi. Prosecution has failed to establish its case beyond reasonable doubt against accused-appellant and he is entitled to get benefit of doubt.

14. Learned A.G.A. vehemently opposed submissions made by learned Amicus Curiae, submitting that accused is named in FIR; PW-5 is natural witness, who was present on the spot with victim and happens to be grand-son of deceased; there is no reason to witnesses PW-2 and PW-5 to connect accused-appellant falsely in the present case, this is day-light murder, in which, Smt. Prabha Devi was assaulted and assassinated by accused-appellant, thus prosecution proved its case beyond all shadow of reasonable doubt and appeal is liable to be dismissed.

15. Although place, time and date of occurrence, nature of injuries found on body of deceased, have not been disputed from the side of accused-appellant but even otherwise from evidence of PW-2, 4 and 5, it is established that Smt. Prabha Devi was assassinated at the time, date, place and in the manner as stated by prosecution.

16. Only question remains for consideration is "whether accused-appellant committed murder of Smt. Prabha Devi and Trial Court rightly convicted him or not?"

17. We may now briefly consider evidence led by prosecution. PW-1 Ram Prakash is witness of inquest, who deposed that he went to village Kanechcha on receiving information of death of Smt. Prabha Devi along with Ram Kishan and inquest was made before him by SI Vikramaditya Sachan, he signed on inquest report Ex. Ka-1

18. PW-2 Virendra Kumar happens to be husband of deceased, deposed that on fateful day, at about 2:00 p.m. his wife Smt. Prabha Devi was going to natural call along with her son-Raj while he was sitting beneath Peepal Tree with his younger son. At that time, his father Ram Singh (accused) went towards Tube-well with Axe. On hearing scream of his wife and son-Raj, he himself and some other persons of same vicinity rushed towards Tube-well and saw that his father was running towards Jungle with Axe. On receiving injuries, his wife fell down and succumbed to injuries. He got Ex.Ka-2 scribed by one Mohd. Shakir under his dictation and presented to Police Station. According to statement of PW-2, he did not see accused-appellant assaulting Prabha Devi with Axe but he saw the accused running from spot with Axe.

19. PW-5 Raj Kori, aged about 12 years at the time of deposition, happens to be son of deceased and grand son of accused. After examining mental status of witness by the Court, he deposed that he and his mother were going to natural call (latrine) at about 2:00 p.m. when his grand-father (accused) was coming with axe who assaulted four or five times with Axe to his mother and ran away with Axe towards Jungle. He raised alarm loudly then his father arrived there and saw his mother succumbed to injuries on the spot. Thus, PW-5 saw accused assaulting Smt. Prabha Devi with Axe. PW-2 saw accused running from the spot with Axe. Both the witness have been cross-examined at length but nothing material could be brought on record, which may dent prosecution story or render it doubtful. It is noteworthy to mention here that PW-2 is son of accused and PW-5 is grand-son of accused. PW-2 was sitting beneath Peepal Tree along with younger son and deceased was going towards Tube-well along with her son-Raj, PW-5. Incident took place at 2:00 p.m. in village, where presence of these two witnesses is quite natural. They have no reason to implicate falsely accused-appellant that too his father. In statement recorded under Section 313 Cr.P.C., accused in response of question Nos. 3, 4 and 5, answered that deposition is untrue. He has not offered any reason as to why his son and grand-son are deposing against him. It is also notable that after incident, accused himself disappeared from house while his daughter-in-law was assassinated. His conduct of fleeing for a long time is totally unnatural and goes against him.

20. So far as argument of relation of witnesses is concerned, we are not impressed with submission made by learned Amicus Curiae for accused-appellant for reasons that if relation witnesses are found to be reliable, natural and trustworthy, their evidence cannot be discarded on the ground of their relationship with deceased or accused.

21. In Ganga Bhawani v. Rayapati Venkat Reddy and Others, 2013(15) SCC 298, Court has held as under :-

"11. It is a settled legal proposition that 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.

(Vide: Bhagalool Lodh & Anr. v. State of UP, AIR 2011 SC 2292; and Dhari & Ors. v. State of U. P., AIR 2013 SC 308)."

22. It is settled law that merely because witnesses are closely relative to deceased, their testimonies cannot be discarded. Relationship with one of the parties is not a factor that affects credibility of witness, more so, a relative would not conceal actual culprit and make allegation against an innocent person that too his own father and grand-father. However, in such a case, Court has to adopt a careful approach and analyse evidence to find out that whether it is cogent and credible evidence.

23. In so far as discrepancies, variations and contradictions in prosecution case are concerned, we have analysed entire evidence in consonance with submissions raised by learned counsel's and find that the same do not go to the root of case.

24. In Sampath Kumar v. Inspector of Police, Krishnagiri, (2012) 4 SCC 124, Court has held that minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and sense of observation differs from person to person.

25. We lest not forget that no prosecution case is foolproof and the same is bound to suffer from some lacuna or the other. It is only when such lacunae are on material aspects going to the root of the matter, it may have bearing on the outcome of the case, else such shortcomings are to be ignored. Reference may be made to a recent decision of the Apex Court (3 Judges) in Criminal Appeal No. 56 of 2018, Smt. Shamim v. State of (NCT of Delhi), decided on 19.09.2018.

26. So far as motive is concerned, it is well settled that where direct evidence is worthy, it can be believed, then motive does not carry much weight. It is also notable that mind set of accused persons differs from each other. Thus merely because that there was no strong motive to commit the present offence, prosecution case cannot be disbelieved. We do not find any substance in the argument advanced by learned Amicus Curiae.

27. In Lokesh Shivakumar v. State of Karnataka, (2012) 3 SCC 196, Court has held as under :-

"As regards motive, it is well established that if the prosecution case is fully established by reliable ocular evidence coupled with medical evidence, the issue of motive looses practically all relevance. In this case, we find the ocular evidence led in support of the prosecution case wholly reliable and see no reason to discard it."

28. In the present case, it is fully established that Smt. Prabha Devi was seriously injured by accused. Evidence shows that dead body of deceased was found near Tube-well in village at the time of inquest. Medical evidence shows that death of Smt. Prabha Devi might have occurred due to ante-mortem injuries at that time, as alleged by prosecution. Accused-appellant in his statement under Section 313 Cr.P.C. has given reply that witnesses gave false statement but he did not suggest as to why PW-2 and PW-5 gave false statements against him, therefore, there cannot be any hesitation to come to conclusion that accused caused death of Smt. Prabha Devi by causing several injuries on her body by Axe due to which, she succumbed to injuries.

29. In view of facts and legal position discussed hereinabove, we find that Trial Court has rightly analysed evidence led by prosecution and found him guilty and convicted accused for having committed murder of Smt. Prabha Devi, an offence punishable under Section 302 IPC. Conviction and sentenced awarded by Trial Court is liable to be maintained and confirmed. No interference is warranted by this Court.

30. So far as sentencing of accused-appellant is concerned, it is always a difficult task requiring balance of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in individual cases.

31. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation upon court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide: Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].

32. Hence, applying the principles laid down in the aforesaid judgments and having regard to the totality of facts and circumstances of case, nature of offence and the manner in which it was executed or committed, we find that punishment awarded to accused-appellant by Trial Court in impugned judgment and order is not excessive and it appears fit and proper and no question arises to interfere in the matter on the point of punishment imposed upon him.

33. In the result, Appeal lacks merit and is hereby dismissed.

34. Lower Court record alongwith a copy of this judgment be sent back immediately to District Court and Jail concerned for compliance and apprising the accused-appellant.

35. Before parting, we provide that Sri Sukhvir Singh, Advocate, who has appeared as Amicus Curiae for appellant in present Jail Appeal, shall be paid counsel's fee as Rs. 10,000/- for his valuable asistance. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer, posted in the office of Advocate General at Allahabad, without any delay and, in any case, within one month from the date of receipt of copy of this judgment.

Order Date :- 17.04.2019

Akram