Ramesh vs State Of U.P.
2019 Latest Caselaw 290 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 1
 

 
Case :- JAIL APPEAL No. - 384 of 2018
 
Appellant :- Ramesh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,Seema Pandey (A.C.)
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Dinesh Kumar Singh-I,J.

(Delivered by Hon'ble Dinesh Kumar Singh-I,J.)

1. Heard Ms. Seema Pandey, learned amicus curiae and Sri J.P. Tripathi, learned A.G.A. for the State and perused the record.

2. This Jail Appeal has been preferred by the appellant-Ramesh, against the judgment and order dated 6.3.2018 passed by Additional Sessions Judge/F.T.C., Court No. -I, Chandauli in S.S.T. No. 155 of 2015 (State Vs. Ramesh) arising out of Case Crime No. 17 of 2015, P.S. Alinagar, District Chandauli whereby accused appellant has been sentenced under Section 302 IPC with life imprisonment and fine of Rs. 20,000/- and in default of payment of fine, six months additional imprisonment.

3. In brief the facts of the case are that informant Rajendra Prasad (PW-1) had lodged an F.I.R. at P.S. Alinagar, District Chandauli on 22.1.2015 at about 12:40 hours stating therein that on 22.1.2015 at about 11:10 am, his younger brother Ram Vilas was going to the house of Viki Yadav, husband of the village Pradhan for getting an Adhar Card issued, right then Ramesh S/o Shiv Kumar, R/o Revsa having a danda of bamboo in his hand assaulted his younger brother Ram Vilas many times in front of his house. Behind his younger brother, Ram Vilas, his son Satvant Kumar and a neighbour Raj Narain were also going to the same place for getting their residential certificate issued, who tried to rescue him and caught hold of Ramesh (accused). After getting information, informant also reached there and saw that his brother had succumbed to his injuries. They had apprehended the accused Ramesh and had brought him to the P.S. and the dead body of his brother was lying at the spot under supervision of his family members. On the above written report (Ext. Ka-1), Constable Mohrrir Chandrabhan Singh (PW-6), registered Crime No. 17 of 2015, u/s 302 IPC against the accused Ramesh and prepared its Chick F.I.R. Ext. Ka-6 and made entry of this case in G.D. at report no. 21, time 12:40 hours on the same day i.e. on 22.1.2015, which is Ext. Ka-7. As per PW-6, the informant had come on his own at about 11:00 am with a written report but subsequently stated that he does not recollect the exact time when he came and immediately, thereafter, his report had been lodged by him in his hand writing.

4. The investigation of this case was assigned to S.I. Sri Arun Kumar Yadav (PW-7) on 22.1.2015 and recorded statement of informant Rajendra Prasad. He also collected evidence with regard to recovery memo of danda, blood stained and ordinary soil, made site plan and also recorded statements of Rajesh, Munna, Parmanand, Suneeta Devi, Smt. Baijanti Devi and also of accused Ramesh on 23.1.2015. In parcha no. 3 dated 11.2.2015, he copied panchayatnama and took statement of S.I. Veer Bahadur Chaudhar, who had written panchayatnama and statements of Dr. S.K. Singh, who prepared post-mortem report. On 8.3.2015, in fourth parcha, he recorded statement of witness Doodhnath and Roopnath. On 16.3.2015, he sent weapon of assault which was smeared in blood for being examined by F.S.L. In parcha no. 6 dated 5.4.2015, he recorded statement of scribe of F.I.R. Constable Chandrabhan and on the same day, he submitted charge sheet against accused Ramesh under Section 302 IPC, which is Ext. Ka-8, in his hand writing. The recovery memo of danda and the memo of blood stained and ordinary soil are Ext. Ka-2 and Ext. Ka-3 respectively. The panchayatnama of the deceased (Ext. Ka-4) was prepared at his dictation by S.I. Veer Bahadur Chaudhary. S.I. Veer Bahadur Chaudhary, who has worked with him, he has identified his signature on the same. At the time of panchayatnama, papers were prepared for post-mortem i.e. report R.I. sent to Chief Medical Officer, Prapatra-13, Photo nash in his hand writing, which are Ext. Ka-9, Ka-10, Ka-11 and Ext. Ka-12. Thereafter, the dead body was handed over to Constable Tarkeshwar Prakash Gupta and Home-guard Ram Bali for post-mortem to be conducted. The danda was found to be four feet in length which is material Ext. 2, the cloth in which the same was sealed is material Ext. 1 and the blood stained soil and ordinary soil are Ext. 3 and 4 respectively. It was the said danda by which the accused had caused murder of the deceased. This witness has stated that though the said danda was sent to the F.S.L. but no report was received; no blood group was got tested of the blood which was found thereon. The informant Rajendra Prasad had stated to him that he himself and his son Satvant and a neighbour Raj Narain had brought the accused at P.S. after beating him. He had got him (accused) examined but no specific injury was found on his person. The informant had given him statement that Satvant and Raj Narain had tried to save when the accused was beating the deceased and the accused Ramesh was caught. No test was got conducted of the finger prints which might have been there on the said danda. He has shown the house of the accused in the site plan. The place of occurrence is shown to be the place on Kharanja situated between the house of accused and that of Parmanand and has denied that the place of occurrence is located in front of the house of Faujdar.

5. On the basis of evidence on record, the charge was framed against the accused on 22.7.2009 under Section 302 IPC to which, he pleaded not guilty and claimed to be tried.

6. In order to prove its case, the prosecution has examined the informant Rajendra Prasad as PW-1, neighbour as well as cousin of the deceased Raj Narain as PW-2 and an independent eye-witness Anil Kumar as PW-3, nephew of the deceased Satvant Kumar as PW-4, Dr. Sanjay Kumar Singh as PW-5, Chandrabhan Singh, head mohrrir, who prepared Chick F.I.R. and G.D. as PW-6 and S.I. Arun Kumar Yadav, who conducted the investigation of this case as PW-7. Thereafter, the prosecution evidence was closed and the statement of accused under Section 313 Cr.P.C. was recorded.

7. The accused has stated that entire evidence which has been collected against him by the prosecution is false as he has been falsely implicated due to enmity and additionally he has stated that when he was going to fetch water from the well, the drops of water fell on the deceased because of which getting annoyed, he (accused) was beaten and on the basis of false evidence, he has been implicated in this case by the complainant side.

8. On the basis of above evidence on record, the trial court has convicted the accused-appellant as stated above after having heard both the sides.

9. We have to analyze the entire evidence again to see as to whether the appreciation of evidence has been rightly made by the trial court or does it require any interference.

10. Learned amicus curiae, Seema Pandey, has vehemently argued that accused-appellant has been falsely implicated. The evidence which has been brought on record by the prosecution has been wrongly appreciated. There are lot of discrepancies in the statements of so called eye-witnesses, in fact none has seen the occurrence. The blood which was found on the weapon of assault was not got tallied with the blood of the deceased to match the same so as to establish that it was accused Ramesh, who had actually murdered the deceased. It is also stated that danda which is shown to have been recovered from him, is a false recovery, therefore, the judgment should be set aside and the accused-appellant should be set at liberty.

11. On the other hand, learned A.G.A. has argued in respect of the impugned judgment stating that the evidence on record has been very meticulously and properly appreciated by the trial court. The three eye-witnesses including informant which include an independent witness as well, have supported the prosecution version, according to which, it was the accused appellant who actually had assaulted the deceased by the danda and the said danda which was having blood upon it was later on recovered from the accused-appellant and that the testimonies of all the three eye-witnesses are in accordance with the site plan, which is prepared by the I.O.. Accordingly, there being no infirmity in the judgment, the same deserves to be affirmed.

12. After having heard both the sides and having gone through the evidence on record, we would like to consider the entire evidence afresh to form our opinion.

13. PW-1 Rajendra Prasad in support of the prosecution's case stated above has deposed that on 27.1.2015 at about 11:00 am, his younger brother Ram Vilas was going for getting Adhar Card as well as his residential certificate issued to the house of Viki Yadav, who is husband of village Pradhan, right then accused Ramesh met him with a danda in his hand in front of his own house and started assaulting all of a sudden his brother Ram Vilas and made repeated blows by it upon his head which was seen by PW-1's son Swatantra Kumar and independent witness Raj Narain, who were coming behind him also for the same purpose and they tried to intervene in order to defend the deceased and in the process, caught hold of Ramesh. About this occurrence, PW-1 was told by Anil Kumar, who came running and, thereafter, he (PW-1) also went to the spot and saw that his brother had already died. He had dictated the written report to Suresh Kumar of his village and, thereafter, the same was signed by him and, thereafter, the same was given at P.S. Alinagar, which is Ext Ka-1. After getting the information, the police of Alinagar came to the place of incident with accused Ramesh Kumar and took into their possession the weapon of assault (danda) and prepared its memo, upon which his signature was obtained. Thereafter, the police also prepared fard of blood stained and ordinary soil and obtained his signature thereon at the place of incident and, thereafter, the dead body of his brother Ram Vilas was sealed and the panchayatnama was also prepared which was got signed by him as well as other witnesses and the police personnel. Subsequently, the dead body of his brother was sent for post-mortem. He also recognized his signatures on the memo of danda, memo of blood stained and ordinary soil and panchayatnama.

14. In cross-examination, this witness has stated that he is resident of village Rewsa, where he does majdoori (work of labourer) and goes to be on work at about 9:00 am and returns in the evening at about 5:00-6:00 pm. On the date of incident, he had not gone for work. At the time when the occurrence happened, he was having food and when he reached the place of incident, his younger brother had already died. The distance of his house from the place of incident is 1 km. He had not seen the occurrence with his own eyes as the same had happened at 10:11 am, regarding which he came to know subsequently by the villagers, information regarding which was given to him by Anil Kumar of his village.

15. In respect of the occurrence, he had got an application written by Suresh Kumar and had given it at the P.S. He had gone to the place of occurrence first and, thereafter, to the P.S. and at the place of occurrence he along with others had apprehended the accused. The police had come at the place of occurrence and had arrested the accused there only. The accused-Ramesh was not beaten by them, rather was only detained. He had not stated to the I.O. that he and his son and neighbour Raj Narain had beaten the accused Ramesh and had handed him over at police station. He has denied the suggestion that the said accused has not committed murder of the deceased. He has further stated that they had never had any conflict with the accused earlier and also denied that because of election rivalry, he has falsely implicated the accused-Ramesh.

16. From the above statement of this witness, it is apparent that he has proved the F.I.R. which has been promptly lodged because incident happened on 22.1.2015 at 11:10 am and its report has been lodged the same day at 12:45 pm and though the distance from the place of incident from the P.S. is 4 km, hence there was no opportunity for him to make any kind of consultation in lodging the report. As regards his coming to know about the occurrence, he has clearly stated that Anil Kumar had given information about the occurrence, pursuant to which, he had gone to the place of incident, where he found the deceased dead, therefore, it is apparent that from his statement only F.I.R. stands proved, although he was not an eye-witness of the occurrence.

17. There is some discrepancy noticed with respect to the fact that the accused was apprehended on the spot by the eye-witnesses and was taken to the police station but this witness has stated that when police came on the place of incident then it arrested the accused but we are not inclined to hold that such discrepancy would be fatal for the prosecution because the said contradiction is not very material in the present case.

18. PW-2 Raj Narain has stated in examination-in-chief that on 22.1.2015 at about 11:10 am, his brother deceased Ram Vilas who was his collateral, was going for getting Adhar Card issued to the house of village Pradhan and he was being followed by him as well as Satvant because they were also going for the same purpose. Ram Vilas was little ahead there and as soon as they reached near the well also, on the Kharanja, accused started assaulting the deceased by danda and by the said assault Ram Vilas fell down on the ground. Many blows were made by the said danda upon the head of the deceased. He and Satvant rushed towards the place of incident having seen this occurrence happening and caught hold of Ramesh after chasing him and other villagers also assembled at the place of occurrence. Ram Vilas (deceased) died on the spot due to the injuries having been received by him. After getting the information, Rajendra Prasad (PW-1), also reached the place of incident, who got the report lodged. Fard in respect of the danda having been taken in possession as well as blood stained soil and ordinary soil, his signatures were also obtained thereon by the police and he is also a witness of panchayatnama, which was prepared in front of him and his signatures were obtained thereon. He had also stated that he has narrated entire story to the I.O.

19. In cross-examination this witness has stated that he and Satvant had beaten up the accused Ramesh and had over-powered him and apart from them who else were there in apprehending Ramesh, he does not recollect. At that time, mar-peet was going on between the deceased and the accused and he along with Satvant had intervened in order to save the deceased. He does not know whether any quarrel had happened between the deceased and the Ramesh pursuant to some water drops having got sprinkled upon the deceased, he has stated it to be wrong that when he and Satvant Kumar were beating the accused Ramesh, in the said process, a blow of danda was received by the deceased which resulted in his death. The deceased was ahead of them about 20 paces (10 meters). He could not tell the thickness of danda. Lot of blood was lying on the place of incident, sample of which was collected by the I.O. in front of him, the fard of which was signed by him also. Before he reached the place of incident, the deceased had already been assaulted three-four times. The deceased had received injuries on his head on the frontal region and had received many injuries. Whether accused had already danda in his hand or not, he does not recollect and whether he had reached all of a sudden, he does not recollect. He was beaten for about one minute. He had not taken the accused to the police station, rather the accused was arrested by the police at the place of incident and has denied that he was falsely implicated due to political rivalry.

20. The statement of this witness is in sync with the statement of PW-1 as regards the lodging the F.I.R. Apart from that this witness has clearly deposed in respect of the place of incident and the manner in which the assault was made upon the deceased that he was following the deceased and was hardly 20 paces ahead of him when this occurrence happened and prior to that the deceased had already made about four blows on his head, whereafter he tried to save him along with PW-3 also but the deceased died as a result of injuries. We do not find any reason to disbelieve the statement of this witness to have seen the occurrence, his presence does not appear to be doubtful. No such enmity is shown from the defense side which would make us discredit his testimony given in the examination-in-chief.

21. PW-3, Anil Kumar, has stated in examination-in-chief likewise that on 22.1.2015 at about 11:00 am, he was going via G.T. Road to his home and when he reached village, he saw that Ramesh (accused) was standing near his house on the chakroad and was assaulting Ram Vilas (deceased) by danda of bamboo many times and by getting the said blows, Ram Vilas fell down on the ground. Thereafter, Ramesh and Satvant ran towards them and they caught hold of Ramesh. This witness had seen this occurrence with his own eyes and after having seen it, had gone running to the house of Rajendra Prasad (first informant) to give him the news about this occurrence. He had also told Rajendra Prasad and others that Ramesh had been set free from jail one year ago, had assaulted Ram Vilas by danda by which Ram Vilas had fallen on the passage after his head was fractured. On receiving this information, Rajendra Prasad and others came to the place of incident and saw that Ram Vilas had died. Ramesh was caught by all and was taken to P.S., where a case was registered. He had given statement before I.O.

22. In cross-examination, this witness has stated that he does majdoori (work of labour) in Mugalsarai, where he gets work for ten to twenty days but he does not remember as to how many years ago, the incident had taken place. Ramesh was not being beaten by anyone. He was present on the place of incident as he was coming home by G.T. Road. He was present about twelve to twenty paces away from the place of incident and to the South of the place of incident, there is a well and house of Achhayvar and Ramesh. On 21.1.2015, he had not gone for work. Satvant, Raj Narain were going behind Ram Vilas (deceased). Ramesh was assaulting Ram Vilas by danda, was not seen by him, thereafter, he stated that he had seen. Ramesh had made two to four blows of danda on Ram Vilas which was seen by him with his own eyes. The danda was about four inch in diameter. Many people had assembled there but he does not recollect their names. The length of danda may have been about three to four feet. After catching hold of the accused, he was beaten about one or two times, but who had beaten, he does not recollect their names. He has denied that after having seen the occurrence, he became dizzy and fainted. Ramesh was arrested near the well by the Inspector. He further stated that it is right to say that accused Ramesh was caught by Rajendra and others and was brought to P.S. to lodge F.I.R. and there only Ramesh was arrested by police. Ram Vilas had received injury on his head but specific parts of the body where he received injuries, he could not tell. He has also denied the suggestion that when accused Ramesh was beaten by accused Ram Vilas, Satvant and Raj Narain, during that incident somebody made a blow upon Ram Vilas because of which he received injuries.

23. It is clear that this witness has clearly stated that he had given information to the first informant the deceased being beaten by the accused which gets corroborated from the statement of PW-1. He has also corroborated the prosecution version that PW-2 along with one other witness was following the deceased closely behind him and he had seen that deceased was being beaten by the accused and PW-2 had come to his rescue with his companion and the accused was apprehended on the spot and whereafter he was taken to P.S. by informant as well as PW-2 and others to lodge F.I.R.

24. PW-4 has stated in examination-in-chief in accordance with the prosecution version that on 22.1.2015 at 11:10 am, the occurrence happened. On the date of occurrence on the talk for getting the Adhar card issued and to go for that to the house of Pradhan, he on the date of the incident started going to the house of Gram Pradhan, where his uncle (deceased) Ram Vilas and Raj Narain were also going. He and Raj Narain were together while his uncle Ram Vilas was going little ahead of them and as soon as his uncle Ram Vilas reached near the house of Faujdar, accused Ramesh started causing blows by danda on the head of Ram Vilas by which he fell down. As soon as he fell down, he went running there along with Raj Narain and caught hold of Ramesh. After getting information of this occurrence, his father Rajendra Prasad (informant) and many villagers reached there who caught hold of Ramesh and all of them came to P.S. Alinagar, where his father lodged the F.I.R.. His uncle died on the spot. The Investigating Officer had taken his statement to whom he has narrated the entire story.

25. In cross-examination, this witness has stated that I.O. had taken his statement the next day of occurrence wherein he had told him that Ramesh had made repeated blows, although, he had not counted them but he might have made 10 to 12 blows which he had seen with his own eyes. He could not tell as to in which parts of the body, the deceased had received injuries. The deceased was proceeding ahead of him about 20 paces. On the date of incident, he was not doing majdoori because he had to get Adhar card issued. It was winter season when occurrence took place at about 10:11 am. For how long the deceased was beaten, he does not know. It is wrong to say that accused Ramesh had thrown water upon the deceased Ram Vilas and that he, Ram Vilas, Satvant and Raj Narain were beating the accused Ramesh and during this incident, somebody had made a lathi blow on the head of Ram Vilas by which he died and he got the accused implicated falsely on account of election rivalry.

26. This witness is also eye-witness of the occurrence as is evident from his testimony mentioned above. He was accompanying the other eye-witness PW-2, who had tried to save the deceased but because of lathi blows, the deceased had already died. He has clearly stated that although he does majdoori but on the date of incident, he had not gone for the same because he was to get issued Adhar card on the said date. We do not find any infirmity in the statement of this witness and believe that he was present on the spot and has witnessed the occurrence. His version and the version of the other above mentioned eye-witnesses are in corroboration of each other. We are also find that the place of incident has been shown by 'A' in the site plan Ext. Ka-13 by the Investigating Officer which is on the Kharanja and on the eastern side of it is house of Parmanand while on the western side is house of the accused which is in accordance with what was stated by the I.O. and the same also stands corroborated by the above mentioned eye-witnesses, hence the place of incident is proved.

27. Dr. Sanjay Kumar Singh PW-5 has stated in examination-in-chief that on 22.1.2015 at about 4:15 pm, he conducted post-mortem of the deceased Ram Vilas S/o Shankar Ram, aged about 36 years, R/o Rewsa, P.S. Alinagar, District Chandauli, whose dead body was brought by constable Tarkeshwar Gupta and home-guard Ram Bali in sealed condition in the mortuary of District Hospital Chandauli and had identified the same. He had found following ante-mortem injuries on his person.

(i) Crushed injury over face of bleeding, right eye-crushed, left side black, nasal bleeding present.

(ii) Face crushed, right side half face crushed.

(iii) Left side face swelling with eye depressed.

(iv) Lacerated face over forehead. Both eyes were black with blood present all over the face.

(v) Parietal bone was found broken and right side parietal bone was also found broken.

He has proved his report which is Ext. Ka-5.

28. In cross-examination, this witness has stated that the Investigating Officer has not taken his statement. The kind of injuries which the deceased suffered cannot be caused by falling. The deceased would have died about half day prior to conducting the post-mortem. The said injury could have been caused by assaulting with hard object. The deceased might have taken food 5-6 hours before his death as lot of quantity of half digested food was found. Heart was congested. On the left side of his face, there were abrasions but it was difficult to say whether they were due to laceration. He denied the suggestion that he did not conduct the post-mortem properly and prepared the same with a view to giving the benefit to the prosecution.

29. It is apparent from the statement of this witness that he has found the deceased to have died about the same time which the prosecution has alleged. It is also evident from the statement that the injuries which were found on his person could have been caused by hard object. As per the prosecution case the accused is said to have assaulted the deceased by danda which is a hard object and therefore it cannot be ruled out that the said injury would have been caused by the danda which the accused was wielding.

30. In view of above analysis, we find that on the date of incident, the accused had assaulted the deceased by danda who was proceeding for the house of village Pradhan for getting his Adhar card issued and the said occurrence has been witnessed by PW-1, PW-2 and PW-3, who are eye-witnesses and despite the fact that they are close relatives of the deceased, we do not find any infirmity of their testimonies because the law is that testimonies of related witness should not be discarded merely on the ground of their being relatives, rather the same would mandate that the trial court should scrutinize their evidence meticulously. It is also clear that the injuries which have been found upon the person of the deceased by the doctor (PW-5), stand corroborated by the statements of eye-witnesses. Therefore, upon having evaluated their evidence meticulously, we find that these witnesses were present and have seen the occurrence. The learned trial court does not appear to have made any mistake in appreciation of the evidence on record, the same is found to be in accordance with the prosecution evidence. The appeal deserves to be dismissed lacking merit but looking to the facts and evidence on record, we are of the view that this occurrence does not appear to have been given effect to by premeditated mind to cause murder of the deceased as the injuries were caused to the deceased by a small danda and there appears to be some sudden provocation on account of which the accused appears to have assaulted the deceased by the said danda. Hence, instead of holding the accused guilty under Section 302 IPC, we would prefer to hold him guilty under Section 304 (II) IPC and would like to reduce sentence of the appellant from life imprisonment to ten years rigorous imprisonment and fine of Rs. 10,000/- and in default of payment of fine, two months additional imprisonment. We order accordingly. The appeal is partly allowed.

31. The accused is already in jail. The period for which the accused-appellant had already in jail shall be adjusted against the said sentence.

32. Let a copy of this judgment be transmitted to the trial court for ensuring compliance of this judgment in accordance with law.

33. Smt. Seema Pandey, learned Amicus Curiae, who has assisted this Court commendably in deciding the appeal, he shall be paid an amount of Rs. 5,000/- for the same.

(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.)

Order Date :- 28.2.2019/A.P. Pandey