Ramesh Chandra Soni vs State
2019 Latest Caselaw 4045 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on : 11.04.2019
 
                    Delivered on : 03.05.2019
 
Court No. - 34
 

 
Case :- JAIL APPEAL No. - 837 of 2008
 

 
Appellant :- Ramesh Chandra Soni
 
Respondent :- State
 
Counsel for Appellant :- From Jail,V.B.Shivhare 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. Accused-appellant- Ramesh Chandra Soni faced trial in Sessions Trial No. 1055 of 2004 (State v. Ramesh Chandra Soni, Case Crime No. 213 of 2004) under Sections 307 and 302 IPC, Police Station Barra, District Kanpur Nagar, which came to be heard and decided by Additional Sessions Judge, Court No.11, Kanpur Nagar, vide order dated 07.02.2006 convicting accused-appellant under Sections 307 and 302 IPC and sentencing him to undergo five years rigorous imprisonment and fine of Rs.1000/- under Section 307 IPC, life imprisonment and fine of Rs. 5000/- under Section 302 IPC. Accused-appellant sought intervention of this Court by filing present Jail Appeal from Jail through Jail Superintendent concerned.

2. Prosecution story in brief is that on 22.07.2004 at about 10:00 AM there was oral altercation between accused-Ramesh Chandra Soni and Lakshmi Shukla @ Choti Bitiya (bhabi of PW-1) about money transaction. Accused -Ramesh Chandra Soni threw Acid upon Lakshmi Shukla @ Choti Bitiya with intention to kill her. When Neetu and Komal (not examined) rushed to rescue their mother, accused threw acid on them too due to which Lakshmi Shukla @ Choti Bitiya and her both daughters sustained injuries. Victim was taken to Hospital for treatment and accused was caught on spot with the help of persons present there and taken to Police Station.

3. PW-1 presented a written report Ex.Ka-1 regarding the incident in the Police Station Barra, District Kanpur Nagar where on the basis of Ex.Ka-1, a chik FIR Ex.Ka-12 came to be registered by PW-7 as case crime no.213 of 2004, under Section 307 IPC against accused. Entry of the case was made in General Diary, copy whereof Ex.Ka-13 is on record.

4. Immediately victim was taken to hospital for treatment. Doctor conducting medical examination found five lacerated wounds and superficial to deep acid burn on part of face, neck, chest, both upper limbs and back of chest etc. However, doctor conducting medico legal examination has not been examined by prosecution.

5. PW-6 commenced investigation, recorded statements of PW-1, victim Lakshmi Shukla @ Choti Bitiya, statements of other witnesses, prepared site plan Ex.Ka-4 on pointing out of PW-2, when received information about the death of Lakshmi Shukla @ Choti Bitiya on 01.08.2004, held inquest over the dead body of deceased in the Mortuary of U.H.M. Hospital, prepared panchayatnama Ex.Ka-2 and other necessary papers relating thereto and converted case into 302 IPC vide General Diary No.38 at 16:30 P.M. on 01.08.2004.

6. PW-5 conducted autopsy over the death body of Lakshmi Shukla @ Choti Bitiya and prepared postmortem report Ex.Ka-3 expressing his opinion that death of victim was possible due to shock and septicemia on account of injury at 10:15 P.M. on 01.08.2004 in U.H.M. Hospital.

7. PW-8, after the conversion of case under Section 302 IPC, commenced further investigation and after completing entire remaining formalities of investigation filed charge-sheet Ex.Ka-16 against accused -appellant under Section 302 and 307 IPC before Chief Metropolitan Magistrate, Kanpur Nagar.

8. Case, being exclusively triable by Court of Sessions, was committed to Session Judge for trial where from it was transferred to Additional Sessions Judge, Court No.10, Kanpur Nagar for trial in accordance with law.

9. Trial Court framed charge against accused-appellant under Section 302 and 307 IPC on 25.04.2005 which reads as under:-

"मै ए० के० गुप्ता, अपर सत्र न्यायाधीश, न्यायालय कक्ष सं० 10, कानपुर नगर आप रमेश चन्द्र सोनी पर निम्न आरोप आरोपित करता हूँ-

प्रथम- यह कि दिनांक 22.7.2004 को समय प्रातः दस बजे मकान नं० एस-60 शिवनगर थाना बर्रा कानपुर नगर में वादी राममिलन की भाभी लक्ष्मी पर जान से मारने की नियत व इस ज्ञान से तेजाब डाला, जिससे उसकी मृत्यु दिनांक 1.8.04 को तेजाब से जलने के कारण हो गयी। इस प्रकार आपने उसकी साशय हत्या की। तथा ऐसा अपराध कारित किया जो की धारा 302 के अधीन दण्डनीय अपराध है। तथा इस न्यायालय के प्रसंज्ञान में है।

द्वितीय- यह कि आपने उपरोक्त दिनांक, समय व स्थान में वादी की भाभी श्रीमती लक्ष्मी पर तेजाब डाला तथा जब उसे बचाने के लिये वादी की भतीजी नीतू व कोमल दौड़ी तो आपने उन पर भी इस ज्ञान व विश्वास के साथ तथा ऐसी परिस्थितियो में जान से मारने की नीयत से तेजाब डालकर चोटे पहुचायी, कि यदि उनकी इससे मृत्यु हो जाती तो आप हत्या के दोषी होते। तथा इस प्रकार आपने भा०दं० सं० की धारा 307 के अधीन दण्डनीय अपराध कारित किया जो इस न्यायालय में प्रसंज्ञान में है।

एतद् द्वारा आपको निर्दिष्ट किया जाता है कि आपका विचारण उक्त आरोपो में इस न्यायालय द्वारा किया जाये।"

"I, A.K. Gupta, Additional Sessions Judge, Court Room No. 10, Kanpur Nagar, do hereby charge you, Ramesh Chandra Soni, with the following offences:

First: That on 22.07.2004 at 10 am, at House No. S-60, Shiv Nagar, PS Barra, Kanpur Nagar, you, the accused, poured acid on complainant Ram Milan's sister-in-law (Bhabhi) Lakshmi with the intention to kill her knowing that this act of yours may cause her death, as a result of which she died on 01.08.2004 on being scorched with the acid. In this way, you have murdered her intentionally and committed such an offence which is punishable 302 of IPC and is within cognizance of this court.

Second: That on the aforesaid date, time and place, you, the accused, poured acid on complainant Ram Milan's sister-in-law (Bhabhi) Lakshmi, and when complainant's niece (Bhatiji) Neetu and Komal ran to save her, you caused injuries on them by pouring acid on them as well with the intention to kill them having knowledge that under such circumstances that if this act of yours causes their deaths, you would be guilty of murder. In this way, you have committed an offence punishable u/s 307 of IPC, which is within cognizance of this court.

Hence, it is hereby directed that you be tried by this court for the said offences."

(English Translation by Court)

10. In support of its case, prosecution examined as many as nine witnesses out of whom PW-1 Ram Milan Shukla, PW-2 Pooja Shukla, PW-3 R.S. Bajpai, PW-4 Indrasen Shukla are witnesses of fact and PW-5 Dr. Iqbal Ahmad, PW-6 Sub Inspector Surya Prakash Yadav, PW-7 H.C. Shiv Charan Verma, PW-8 Inspector Ashok Kumar Shukla and PW-9 Constable Sageer Ahmad are formal witnesses.

11. Statement of accused under Section 313 Cr.P.C. was recorded by Court explaining entire evidence and other incriminating facts and circumstances. Accused claimed false implication in the present case and denied prosecution story in toto, produced himself as DW-1 in defence.

12. We have heard Sri Vinay Saran, learned Amicus Curiae for appellant, Sri Nikhil Chaturvedi, learned AGA for State and perused the record carefully.

13. Learned Counsel for appellant took us through the record and advanced submission in the following manner:-

A. There is no motive to commit the crime.

B. Motive alleged by prosecution is not sufficient for which accused may be inclined to assault Lakshmi Shukla @ Choti Bitiya and her daughters by throwing acid upon them.

C. Prosecution story, as produced, is not natural and evidence of PWs. 1, 2, 3 and 4 is not natural, and inspires no confidence.

D. Injured has not been produced form the side of prosecution, presumption under Section 114 (g) of Evidence Act, 1872 goes against prosecution.

E. There are so many contradiction in the statement of PWs rendering prosecution case doubtful.

F. Prosecution could not establish its case beyond reasonable doubt.

G. Trial Court failed to appreciate entire evidence with care and cautious and without application of mind it convicted accused-appellant.

14. Per contra learned AGA supported impugned judgment and order and submitted that presence of accused on spot is admitted by him and established by prosecution. PW-2 and 3 supported prosecution case, hence there is no scope of suspicion in prosecution case. Trial Court has rightly convicted accused and appeal is liable to be dismissed.

15. Although time, date, place and manner of injuries as established by prosecution has not been challenged by defence but according to Advocate for appellant he is not responsible for the present crime and he has been falsely implicated.

16. In his statement as DW-1, accused-appellant deposed that at the time of incident he himself and one tenant Indersen Shukla along with his family used to live in the respective portion of the same house. He used to carry on a shop of Chat (Chat ki Dukan ) and give left over goods (chat/relish) to the children of Indersen Shukla, therefore, wife of Indersen addressed him as uncle and he also treated her as daughter. On the fateful day he returned to his house and saw PW-2 Pooja Shukla and Indersen in compromising position when victim Lakshmi Shukla @ Choti Bitiya had gone to take vegetables. On opening the door Indersen came out of his room and requested him not to disclose this incident to his wife and his brother. He further deposed that at about 09:30 P.M. on 22.07.2004, he saw that Indersen and his wife (victim) were quarreling with each other. He tried to settle the quarrel then Indersen threw acid on him and PW-2 Pooja Shukla threw acid on victim. Thereafter both of them ran away by saying that Ramesh Chandra Soni poured acid on victim and other injured. On scream of Indersen, persons of same vicinity came there and caught him and took to Police Station. He further deposed that he was innocent and did not throw acid upon victim and her children. In this way, presence of accused at the time of incident on spot and his arrest from there was admitted by accused himself. According to medical report, he was found injured with acid which also shows that he was present at the time of incident although he did not admit to be involved in the incident.

17. Thus from the evidence of PWs 1, 2, 3 and 4 and statements of accused himself; time, date and place and nature of injuries found on the person of victim as narrated by prosecution is fully established.

18. Only question remains for consideration is "whether accused is responsible for committing offence under Sections 302 and 307 IPC throwing acid on victim and her daughter and Trial Court rightly convicted him or not".

19. Now we may proceed to consider, briefly, the evidence of prosecutions.

20. PW-1, Ram Milan Shukla, happens to be Dewar of deceased, deposed that his Bhabhi deceased (Lakshmi Shukla @ Choti Bitiya), his wife Pooja Shukla, nieces Neetu and Komal were present in the house at 10:00 AM on the fateful day; accused Ramesh Chandra Soni came to house and told victim that her husband has taken money from him; there was oral altercation between accused and victim; then accused threw acid on the victim; Neetu and Komal rushed to save her; then accused threw acid on them; victim, Komal and Neetu also sustained acid injuries; and accused was caught on the spot with the help of neighbours. Injured persons were taken to hospital for treatment where during course of treatment victim Lakshmi Shukla @ Choti Bitiya succumbed to acid injuries. Witness admitted in cross examination that at the time of incident he was in factory. He received information in factory. Admittedly PW-1 is not eye witness.

21. PW-2, deposed that on the fateful day at about 10:00 AM, she heard scream of victim, rushed to her room which was closed from inside, saw from window that accused Ramesh Chandra Soni was assaulting victim with stone (Sil ka Batta) then she raised alarm that Ramesh Chandra Soni was assaulting victim (her Jethani) whereupon PW-3 Reva Shanker Bajpai, Shivkaran and other neighbours (not examined) came there, since door was closed from inside, Reva Shanker Bajpai broke the window, in the meantime accused opened the door from inside, she entered into room and saw that there was head injury and acid over the body of victim who was speaking and conscious, there were also acid injuries to her nieces. On seeing the incident, she informed her husband and her Jeth Indersen Shukla on telephone. Victim was taken to Ursula Hospital for treatment where during course of treatment she succumbed to injury.

22. PW-3 Reva Shanker Bajpai happens to be neighbour of deceased, deposed that at about 10:00 AM on 22.07.2004, he heard scream of PW-2. He along with Shiv Shanker Singh went to the house of Lakshmi Shukla @ Choti Bitiya; door was closed from inside; he saw from window that accused Ramesh Chandra Soni was assaulting Lakshami Shukla @ Choti Bitiya with stone; he knocked the door and broke window; then accused opened the door from inside; they went into the room and found victim injured and there was acid injuries on her and all three girls were also injured with acid injuries; they caught the accused and took out of room and the injured persons were taken to Hospital and accused was taken to Police Station concerned.

23. PW-4 supported the prosecution story. He himself admitted that he came to know about the incident on telephone. He is not an eye witness.

24. Thus only PW-2 and PW-3 have supported prosecution story as eye witnesses. They withstood lengthy cross-examination but no major contradiction could be brought on record through the same. Even otherwise in statement under Section 313 Cr.P.C. and in defence evidence accused himself admitted his presence on spot. Evidence of PW-2 and PW-3 prove implicity of accused in commission of crime.

25. The objection that witnesses are related, we find ourselves unimpressed with the argument advanced by learned Counsel for appellant for the reason that PW-2 is natural and reliable witness and PW-3 is independent. Even accused did not suggest, why he (PW-3) is giving false statement against him.

26. Admittedly, PW-2 is Dewarani of deceased. She has established presence of accused on the fateful day in the house in which Lakshmi Devi @ Choti Bitiya was seriously injured and ultimately succumbed to injuries.

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

"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)."

28. 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 the actual culprit and make allegation against an innocent person that too his own real son. However, in such a case Court has to adopt a careful approach and analyse the evidence to find out that whether it is cogent and credible evidence.

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

30. 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.

31. In Sachin Kumar Singhraha v. State of Madhya Pradesh in Criminal Appeal Nos. 473-474 of 2019 decided on 12.3.2019 Hon'ble Supreme Court has observed that the Court will have to evaluate the evidence before it keeping in mind the rustic nature of the depositions of the villagers, who may not depose about exact geographical locations with mathematical precision. Discrepancies of this nature which do not go to the root of the matter do not obliterate otherwise acceptable evidence. It need not be stated that it is by now well settled that minor variations should not be taken into consideration while assessing the reliability of witness testimony and the consistency of the prosecution version as a whole.

32. 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 lacuna 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.

33. 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.

34. In Lokesh Shivakumar v. State of Karnataka, (2012) 3 SCC 196, the Supreme Court 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."

35. Here it is noteworthy to mention that as per statement of PW-2 and PW-3, Neetu and Komal are said to be injured in incident caused by the accused-appellant but admittedly they were neither medically examined nor produced before Court. Only oral evidence of PW-2 and PW-3 is relied in support thereof. Prosecution has failed to explain why other injured, namely, Komal and Neetu were not examined, if they were seriously injured. We failed to understand how and why Trial Court did not consider this important aspect and convicted appellant under Section 307 IPC without any sufficient evidence.

36. In the present case, it is fully established that Smt. Lakshmi Shukla was seriously injured by accused in her house. The medical evidence shows that death of victim might have occurred due to shock and septicemia on account of burn injuries by acid, as alleged by prosecution, therefore, there cannot be any hesitation to come to conclusion that accused caused death of victim by throwing acid on her body.

37. The next issue is to "whether incident occurred due to premeditated act?"

38. Oral evidence of PWs as well as other circumstances also point towards the complicity of the appellant in commission of crime. The nature of injuries suffered by deceased and attributable to burn injuries by appellant. We find that Trial Court has justly analyzed the evidence to record finding about complicity of appellant in commission of crime.

39. Noteably the evidence on record plainly establishes that suddenly incident took place on demanding money by accused-appellant. There is no shred of evidence much less even a remote suggestion that appellant had assaulted Lakshmi Devi @ Choti Bitiya with intention to cause her death. It has also come in evidence that accused-appellant, being a good family relation, used to visit her house to provide left material of his chat shop prior to this incident also.

40. Controversy in this appeal boils down to the nature of offence and sentence to be awarded in that behalf. As aforesaid, evidence on record, as held by Trial Court is that appellant caused burn injury of acid to deceased on the fateful day to which she succumbed. Thus, it is a case of homicidal death. However, there is no evidence that injuries inflicted by appellant were with an intention to cause murder of victim. On the other hand, evidence does not clearly indicates that appellant caused injuries to victim with any premeditation. It appears that whole incident took place suddenly and, in the heat of passion on demanding money from deceased, (as stated by prosecution), who ignored, resultantly appellant got enraged and committed offence.

41. Taking into account the events as unfolded, it leaves no manner of doubt that appellant had no intention to cause death of victim. The incident happened without any premeditation and appellant inflicted burn injuries of acid to victim who succumbed to injuries later on.

42. Taking overall view of the matter, the fact of the present case warrant invocation of exception 4 to Section 300 of IPC. It is a case culpable homicide not amount to murder in as much as incident happened suddenly on account of demanding money from victim and oral altercation between them. There was no premeditation and act done by appellant appears to be in the heat of passion, without appellant taken any undue advantage or acted in a cruel manner. Nature of injuries caused by appellant, it is a well established position by itself, cannot be decisive factor.

43. In Surain Singh v. State of Punjab, (2017) 5 SCC 796, Court has restated settled legal position about the purport of exception 4 to Section 300 of IPC. Even in that case, accused had repeatedly assaulted deceased with a Kripan and caused injuries resulting into death. After restating legal position, Court converted the offence to one under Section 304 Part-II instead of Section 302 IPC.

44. Keeping in view, the nature of injuries noticed by PW-5, it is difficult to accept that accused-appellant intended to cause death of victim or that injuries were so dangerous that they would in all probability cause death.

45. Accordingly, we partly allowed Jail Appeal filed by accused-appellant-Ramesh Chandra Soni and modify impugned judgment of Trail Court. Accused-appellant is held guilty for offence under Section 304 IPC in place of 302 IPC.

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

47. 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 of 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].

48. 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, the accused-appellant is convicted and sentenced under Section 304 IPC to undergo rigorous imprisonment for a period of ten years with fine of Rs. 5,000/-. In default to pay fine, he shall undergo further imprisonment for two months. Accused-appellant is acquitted of charge under Section 307 IPC. He shall be entitled to set off under Section 428 Cr.P.C.

49. Lower Court record along with the copy of this judgment be sent immediately to Court and Jail Superintendent concerned for necessary compliance and to apprise the accused forthwith. Compliance report be also submitted to this Court.

50. Before parting we provide that Sri Vinay Saran, learned Amicus Curiae for appellant who assisted the Court very diligently, shall be paid counsel's fee as Rs. 10,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad, to him without any delay and, in any case, within one month from the date of receipt of copy of this judgement.

Order Date:-03.05.2019

I.A. Siddiqui