Ramvilas vs State Of U.P.
2022 Latest Caselaw 22411 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
High Court of Judicature at Allahabad
 
(Lucknow)
 
************
 
Judgment Reserved on:11.10.2022
 
Judgment Delivered on:22.12.2022
 
Reserved
 

 
Case :- JAIL APPEAL No. - 1152 of 2015
 

 
Appellant :- Ramvilas
 
Respondent :- State of U.P.
 
Counsel for Appellant :- In Person,Vishwas Shukla
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Rajan Roy,J.

Hon'ble Sanjay Kumar Pachori,J.

(Per: Rajan Roy, J.)

1. Heard Shri Vishwas Shukla, learned amicus for the appellant and Shri Shailendra Tripathi, learned A.G.A. for the State.

2. This is an appeal under Section 374(2) Cr.P.C. by the appellant challenging his conviction under Section 302 IPC and the sentence of life imprisonment with fine of Rs. 20,000/- failing which he would have to undergo six months additional imprisonment, vide judgment of the learned Additional Sessions Judge, Court No. 4, Hardoi dated 31.08.2015 passed in Sessions Trial No. 564 of 2012; State Vs. Ram Bilash arising out of Case Crime No. 607 of 2012, under Section 302 IPC, Police Station - Tadiyawan, District - Hardoi.

3. The appellant is in jail.

4. The prosecution story in nutshell is that on 22.08.2012 at about 5.30 a.m. the appellant murdered his wife Santoshi inside the room by inflicting wounds with shovel and knife. The incident was seen by sister of the deceased i.e. PW - 1 Ram Lali and her husband Ram Lakhan - PW - 2. The appellant tried to flee from the scene of crime but was caught by the Villagers and handed over to the Police which reached the spot at about 8.00 a.m. The F.I.R. was lodged at about 8.10 a.m. at Police Station- Tadiyawan, District - Hardoi on a written tehrir by brother of the deceased Shri Keshan (Shri Krishan) on information being received by him through mobile. The inquest was started at 9.00 a.m. on the same date i.e. 22.08.2012 and was completed in the house of the appellant-accused. Postmortem was conducted at 4.55 p.m. on 22.08.2012. The Investigating Officer collected blood stained soil and plain soil from the scene of crime and sent it for forensic examination. The appellant accused was arrested and on his pointing the weapon used in commission of the crime i.e. blood stained shovel and knife, were recovered from the scene of crime. After investigation the Investigating Officer filed charge sheet dated 03.09.2012 in the Court below, cognizance of which was taken by the C.J.M. concerned on 22.09.2012 and trial was committed to the Sessions Court on 17.11.2012. Charges were framed against the appellant-accused on 05.03.2013 and as he denied the same and demanded trial, he was put to trial.

5. The Inquest Report is Exhibit- Ka 3. The F.I.R. is Exhibit- Ka 9. Site Plan pertaining to the crime is Exhibit- Ka. 11. Exhibit- Ka 12 and 13 are the recovery memos pertaining to the aforesaid recovery respectively. The forensic report dated 02.06.2014 and 17.06.2015 are on record.

6. The prosecution produced the following 7 witnesses:-

PW- 1 Shri Krishna is the informant. He is not the eye witness of the crime. PW - 2 Smt. Ramlali is the sister of the deceased, is an eye witness. PW - 3 Ram Lakhan is the husband of PW- 2 is also an eye witness as alleged. PW - 4 Dr. G. K. Maheshwari is the Autopsy Surgeon. PW - 5 Shri C.L. Sachan is the then Sub-Inspector posted at Police Station - Tadiyawan who had got the inquest done and had prepared the inquest report. PW - 6 Shri Rajesh Kumar Mishra is the then Munshi posted at Police Station - Tadiyawan who had recorded the F.I.R. on the written Tehrir of PW - 1. PW - 7 Shri Dharmraj Upadhayay is the Investigating Officer.

7. Statement of the appellant- accused under Section 313 Cr.P.C. was recorded by the trial Court on 01.08.2015 wherein he stated that he had been falsely implicated out of enmity. The trial Court convicted the appellant and sentenced him to imprisonment, as already referred, vide judgment dated 31.08.2015.

8. Learned amicus Shri Vishwas Shukla, who has argued the appeal on behalf of the appellant, submitted that all the three witnesses i.e. PW - 1, PW - 2 and PW - 3 are related and interested witnesses. There are no independent witness to support the prosecution case. PW - 2 and 3 who claim to be eye witnesses did not lodge the F.I.R. themselves instead it is the PW- 1, who resided 8 kilometers away, who lodged the F.I.R. PW - 3's testimony in any case is not reliable, as, he did not support the prosecution case in examination-in-chief. There is no recovery of weapon of crime in terms of Section 27 of the Indian Evidence Act. For all these reasons he submitted that the prosecution has failed to prove the case against the appellant beyond reasonable doubt, therefore, the appeal is liable to be allowed.

9. On the other hand Shailendra Tripathi, learned A.G.A. submitted that the defence has not been able to impeach the credibility of the eye-witness PW - 2 and the same has remained intact throughout which itself is sufficient to convict the appellant. Her testimony is supported by medical evidence on record. PW - 3 has also supported the prosecution case in the cross-examination, therefore, the examination-in-chief is of no relevance. It is a day light murder and guilt of the appellant is proved beyond reasonable doubt based on the evidence on record. The trial Court has rightly convicted and sentenced the appellant, therefore, the appeal needs to be dismissed.

10. The case at hand is one of direct evidence, however, before considering the ocular evidence we may refer to the postmortem report, according to which, following ante-mortem injuries were detected by the Autopsy Surgeon on the body of the deceased:-

"AMI

1- I.W.6.00 x 1.5 cm Rt. side scalp bone deep bone found cut.

2- I.W. 1.5 cm. x 1.00 cm. Rt. side fore head adjacent to Rt. eye brow underlying bone #d.

3- Stab wound (◊) 1.5 cm x 1.5 cm over manubrium sternum underlying bone found #d and artery & veins found lacerated & underlying tissue found torned & aorta found lacerated and blood present in the underlying tissues, tracheal region lacerated.

4- Stab would 1.0 cm. x 0.5 cm. Rt. side chest just below to inj. no. 3."

11. The cause of death as mentioned in the postmortem report was Shock & haemorrhage due to ante-mortem injuries. The probable time of death is mentioned therein as about half day earlier.

12. PW-4 the Autopsy Surgeon has proved the postmortem report and has supported the prosecution case. In his cross examination he has inter alia stated that food in the stomach of the deceased had been digested. There was some fecal matter and gas in the intestine. Rigor mortis had set in the hands and neck and had started setting in the lower parts of the body. The death of the deceased could have been possible 12 hours earlier. He denied the suggestion that death could have occurred in the night preceding the postmortem at around twelve-one in the night. He has opined that injury no. 1 and 2 were possible by a sharp weapon. Injury no. 3 and 4 were possible by a pointed weapon such as knife or spear.

13. The inquest report Exhibit- Ka 3 also mentions about the injuries on the body of the deceased which broadly tally with the injuries mentioned in the postmortem report. The opinion of the 'Panchas' expressed therein is of murder by the deceased's husband. PW - 2 and 3 the eye witnesses to the crime have signed the Inquest Report. So has the informant PW -1. The position of the body of the deceased is mentioned in the inquest report, according to which, head of the deceased was towards the East and legs were towards the West, a fact which is corroborated from the testimony of the PW - 2 and the Investigating Officer also.

14. The scene of crime is amply proved from the evidence on record including the testimony of PW - 2 and other evidence such as the Inquest Report and testimony of the Investigating Officer PW -7 and the Forensic Report pertaining to the blood stained soil and plain soil and site plan prepared by the Investigating Officer.

15. As per the Forensic Report dated 02.06.2014 and 17.06.2015 blood was found on the knife and shovel which was disintegrated but human blood was found on the blood stained soil.

16. In view of the above, it is amply proved that it is a case of culpable homicide amounting to murder i.e. the deceased was murdered and her body was found in the house/room of the appellant-accused. The appellant was the husband of the deceased. The only question to be considered is as to whether he had murdered his wife or not.

17. PW - 1 is not the eye witness but he has proved lodging of the F.I.R. on the written Terir given by him as also the receipt of information about the death of his sister on his mobile at his house and of having rushed to the scene of crime thereafter. PW - 6 has also proved lodging of F.I.R. on the written Tehrir given by PW - 1 at about 8.10 a.m. on 22.08.2012.

18. The incident occurred at about 05.30 a.m. The F.I.R. was lodged at 08.10 a.m. same day. The distance from the scene of crime to the police station is about 14 kilometers, therefore, the F.I.R. has been lodged promptly. Consequently, there was no scope of embellishment or false implication therein. PW - 1 has mentioned the position of the deceased's body in the cross-examination as head being towards the East and legs towards the West which is corroborated by other evidence such as the inquest report and other ocular evidence including that of the Investigating Officer and PW - 2.

19. PW - 2 the sister of the deceased is an eye witness. In her examination-in-chief she has categorically stated that incident had occurred 8-9 months ago at 5.30 a.m. She was going to relieve herself in the morning and called her younger sister i.e. deceased. There was shouting going on in her house. She has stated that the appellant, who was present in court, was injuring the deceased with shovel and knife. He had hit the deceased with the shovel on her head. The knife was used to hit her on the head and chest. Her sister died there and then. Her husband i.e. PW - 3 reached the spot. Thereafter, the villagers also came. The Police came at about 9.00 a.m. The appellant-accused ran away from the scene of crime. The police took possession of the shovel and the knife from the scene of crime. The F.I.R. had been lodged by her bother i.e. PW - 1. In cross-examination she has reiterated her stand in examination-in-chief and has supported the prosecution case. The defence has not been able to dislodge her testimony in cross-examination. She stated that her house is adjacent to the house of the appellant-accused. Her husband was at the shop at the time of the incident. The shop is located about 15-20 steps towards the West. The crime was committed at about 5-5½ a.m. She has reiterated having seen the appellant hitting the deceased with shovel and knife. She has vividly described commission of crime by the appellant in the following words:-

"ogk¡ ns[kk fd jke foykl us QkoM+k ekj fn;k fQj pkdw ekjkA pkdw jke foykl ds gkFk esa Fkk lCth okyk Fkk ;k dksbZ vkSj pkdw Fkk eq>s ugh ekyweA xokg us vius gkFk ds b'kkjs ls crk;k fd mlds iwjs gFksyh vkSj Å¡xyh rFkk ,d nks bap T;knk FkkA

Objection By Court :- vUnkt ls xokg }kjk crk;k x;k pkdw yxHkx 6&7 bap dk jgk gksxkA

---------------------------------

esjh cgu dks QkoM+k esjs lkeus ekjk tc esjh cgu fxj xbZ rHkh jke foykl Hkkx x;k rc eSa ?kj ds vUnj xbZA esjs lkeus FkksM+k cgqr rM+ih FkhA nks feuV ckn ej xbZ FkhA"

20. She has further stated that the deceased had received total four injuries, one from the shovel and three from the knife. The clothes of the deceased and bed were wrenched in blood. Possession of the bed roll had been taken by the Police. The appellant had run away but was caught by the villagers and handed over to the Police.

21. The testimony of PW - 2 has remained intact even in cross-examination. No doubt, she is sister of the deceased but considering the fact that her house is situated just by the side of the appellant's house, her presence at the scene of crime would be natural, especially as, in the morning she had woken up and was going to relieve herself in the fields. There is nothing unnatural in her testimony. There are no such inconsistencies as would make us disbelieve her. Her testimony is corroborated by medical evidence which has already been discussed hereinabove. It is a day light murder and PW - 2 is its eye-witness. In view of the above, merely because PW - 2 is a witness related to the deceased, her testimony can not be discarded as she is not an interested witness and her presence at the scene, is natural.

22. As regards testimony of PW - 3, in examination-in-chief he did not support the prosecution story. The examination-in-chief was recorded on 10.09.2013 wherein he has categorically stated that he had not seen the appellant hitting/ murdering the deceased and that he had reached the scene of crime subsequently after hearing shouts and when he reached the scene of crime the deceased was lying dead. Even on query by the Court he responded by saying that he reached 5 minutes after the incident. He also stated that he had not seen the appellant running away from the scene of crime. In this context we may refer once again to the testimony of PW - 2, as, she has narrated the commission of crime and has also stated that her sister died consequent to the wounds inflicted by the appellant and, thereafter, she has stated that her husband i.e. PW - 3 reached the scene of crime and that her husband was at the shop at the time of the crime which was situated about 15-20 steps towards the West. She has also stated in her cross-examination that her husband reached the scene of crime 5 minutes after she had reached there, therefore, this also indicates that PW - 3 was not present when the crime was being committed. In any case, the testimony of PW - 3 himself, as recorded in examination-in-chief, does not support the prosecution case. Almost a month after recording of the examination-in-chief, his cross-examination took place by the defence on 08.10.2013. In that cross-examination he has supported the prosecution case, however considering the inconsistent stand of the PW - 3, especially the fact that being a prosecution witness he did not support the prosecution case as regards he being an eye-witness to the crime in his examination-in-chief, his testimony as an eye-witness is not reliable but of course he reached the scene of crime subsequently and whatever has been stated by him based on his subsequent arrival at the scene of crime, is acceptable, as, his presence on the spot can not be said to be unnatural as his house is situated adjacent to the appellant's house, and his shop is also nearby. PW - 3 has stated that he had informed the brother-in-law i.e. the informant PW -1 through his mobile. The PW- 1 has also stated receiving information from mobile at his house, therefore, this part of PW - 3's testimony is acceptable. He has also mentioned about injuries on the head and neck of the deceased and recovery of the shovel and knife from scene of crime.

23. PW-7 Investigating Officer has proved recovery of shovel and knife from the scene of crime, therefore, even though no public witness of such recovery has been examined, there is no reason to disbelieve his testimony in this regard, especially as, such recovery is also proved by the statement of PW - 2 and PW -5. He has also proved the recovery of blood stained soil and plain soil from the scene of crime. No doubt, there is discrepancy with regard to the date of arrest of the appellant. According to the PW - 2, the appellant was handed over by the villagers to the Police on 22.08.2012 itself, but, according to the Investigating Officer, he was arrested on 23.08.2012, but, this by itself does not materially affect the prosecution case considering the weight of reliable and credible ocular evidence which is supported and corroborated by medical evidence already discussed hereinabove.

24. Based on the ocular evidence of PW - 2 which has not been impeached by the defence and is supported by medical evidence in the form of postmortem report which has been proved by testimony of the Autopsy Surgeon i.e. PW - 4, we are of the opinion that it is proved beyond reasonable doubt that the appellant-husband murdered his deceased wife on 22.08.2012 at 05.30 a.m. The Doctor has clearly opined that the injuries are such as could be caused by a sharp weapon such as knife. The motive is not of much significance in a case of direct ocular evidence. PW - 2 has stated in his testimony that appellant used to beat up his wife often and he was a cranky person.

25. We have gone through the judgment of the trial Court and except for the reliance placed on the testimony of PW - 3 as being an eye-witness which we do not find to be credible, we are of the view that for the reasons discussed hereinabove the trial Court has rightly convicted and sentenced the appellant to life imprisonment under Section 302 IPC. Subject to above, we affirm the judgment of the trial Court dated 31.08.2015 and the sentence imposed by it. The appellant is already in jail. The appeal fails and is dismissed.

26. Learned Amicus Shri Vishwas Shukla, who argued the appeal on behalf appellant, shall be paid Rs. 25,000/- by the High Court for his services.

27. Let the Lower Court Records along with certified copy of this judgment be sent to the trial Court and the C.J.M. concerned for necessary action.

28. A copy of this judgment shall also be sent to the appellant who is lodged in jail.

(Sanjay Kumar Pachori,J.)             (Rajan Roy,J.)
 
Order Date :- 22.12.2022
 
R.K.P./Santosh