Ramkesh vs State Of U.P.
2022 Latest Caselaw 4716 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on  25.5.2022
 
Delivered on 31.5.2022
 
Court No. - 46
 

 
Case :- CRIMINAL APPEAL No. - 4992 of 2015
 

 
Appellant :- Ramkesh
 
Respondent :- State of U.P.
 
Counsel for Appellant :- R.R. Tiwari,Lal Chandra Mishra,Satya Dheer Singh Jadaun,Vinay Kumar Pal
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Mrs. Sadhna Rani (Thakur),J.

[ By Mrs. Justice Sadhna Rani (Thakur) ]

The present appeal has been preferred against the judgment and order dated 16.7.2013 passed by the Additional Sessions Judge, Court No. 4, Chitrakoot in S.T.No. 120 of 2012 (State Vs. Ramkesh), under Section 302 I.P.C., police station Raipura District Chitrakoot, convicting and sentencing the appellant u/s 302 I.P.C. for life imprisonment and fine of Rs 10,000/- respectively. In default of payment of fine, the appellant had to undergo additional one year rigorous imprisonment.

The facts germane to this appeal are that on 30.3.2012 at 12.35 p.m. a typed report was submitted by Kamta Prasad son of late Sri Sadal, in police station Raipura, District Chitrakoot, that in the mid night of 28/29.3.2012 at about 2 ''O' clock his son-in-law Ramkesh (appellant) in inebriated condition thrashed his daughter Unji badly and ascertaining to her death tied her with a cot and by pouring kerosene oil set her ablaze. Hearing the screams of her daughter, the villagers doused the fire, by pouring water on it. Thereafter, Ravendra one of the villagers, along with some women of Dalit Mahila Sangthan, took the victim to the District hospital, Sonepur Karvi, in his four wheeler. After receiving a telephonic information, the complainant along with his son Jugal and one Beni Prasad son of Ram Kishor reached at District Hospital, Sonepur Karvi. His daughter was then alive. She narrated him the whole incident that the appellant Ram Kesh thrashed her badly and then after tying her with a cot, set her ablaze, on 29.3.2012 at about 1 ''O' clock. Her statement was recorded by the Naib Tehsildar. On this typed report, a first information report was lodged at case crime no. 36 of 2012, under section 302 I.P.C. at the police station Raipura, District Chitrakoot and the investigation was taken over by S.O. Umesh Kumar Singh, police station Raipura, District Chitrakoot.

The Investigating Officer reached at the spot, took into possession one quarter bottle of country made liquor, two plastic containers with residue kerosene oil and the burnt clothes of the deceased. He also took into the possession the kerosene stained earth in the presence of the witnesses. Memo was prepared in this regard. The inquest was conducted, inquest report and papers related to the inquest were prepared and the dead body was sent for the post mortem on 29.3.2012. The post mortem on the dead body was conducted on 30.3.2012. The statements of the first informant and the other necessary witnesses were recorded and the site plan was prepared by the Investigating Officer Umesh Kumar Singh before he was transferred. After his transfer the investigation was taken up by S.I. Nand Lal Singh on 9.4.2012, who after going through the Case Diary recorded the statements of rest of the witnesses, copied the process of investigation done and the documents prepared in case diary. The statement of the deceased recorded by the Tehsildar Ashutosh Kumar Singh on 27.4.2012 was also copied in the case diary. The recovered materials were sent to Forensic Science Laboratory for chemical examination. After due process under Section 82 and 83 Cr.P.C. on 16.6.2012 the accused / appellant Ram Kesh was arrested, his statement was recorded. At his pointing out the baton used in commission of the crime was recovered in the presence of the witnesses from the house of the appellant. Memo of recovery and site plan of recovery place were prepared. After due investigation, the Investigating Officer filed charge sheet no. 50 of 2012, against the accused appellant, under section 302 I.P.C.

On 28.6.2012, the Investigating Officer prepared supplementary papers nos. 1 and 2 wherein the statement of doctor conducting post mortem was recorded and the report received from FSL was copied. This FSL report along with supplementary papers was submitted in the court.

After receiving charge sheet learned Magistrate complied with Section 207 Cr.P.C. and as per the procedure committed the case to the Court of Sessions.

The learned Sessions Judge, Chitrakoot framed the charge under section 302 I.P.C. against the present appellant on 1.12.2012. The appellant denied the charge and prayed to be tried.

The prosecution produced as many as 10 witnesses in support of the charge framed against the appellant. P.W.-1 Kamta Prasad son of Sadal is the first informant who has proved his type written report, P.W.-2 Divli is the sister-in-law of the deceased, P.W.-3 Patiya wife of Shiv Mangal, P.W.-4 Bhaiya Lal son of Babu Lal and P.W.-5 Bhagwan Das are the neighbours of the appellant Ramkesh. P.W.-6 Ashutosh Kumar Singh, the then Naib Tehsildar Karvi has proved the dying declaration of the deceased Unji recorded by him on 29.3.2012. P.W.-7, Dr. Ramakant Chauriha has proved the post mortem report of the deceased prepared by him. P.W.-8, the first Investigating Officer, recorded the statements of the first informant and other witnesses, prepared site plan, took the material recovered from the spot in his possession and prepared memo in this regard, copied all the process of investigation and documents prepared by him in Case Diary. P.W.-9 the second Investigating officer has proved the memo regarding recovery of baton, the murder weapon and the charge sheet submitted by him. This Investigating Officer has also proved the chik- FIR and G.D. prepared by constable Sitaram. P.W.-10 Sub Inspector Bhere Lal has conducted the inquest of the deceased on 29.3.2012 and has proved the inquest report and all the documents related to the inquest prepared by him.

As documentary evidence the prosecution produced typed written report of the first informant as Exhibit Ka-1, dying declaration of the deceased Smt. Unji as Exhibit Ka-2, post mortem report as Exhibit Ka-3, site plan as Exhibit Ka-4, memo of recovery of a quarter bottle of country made liquor, kerosene oil stained earth, burn clothes and two plastic containers as Exhibit Ka-5, memo of recovery of a baton as Exhibit ka-6, chargesheet as Exhibit Ka-7, chik- FIR as Exhibit Ka-8, copy of G.D. as Exhibit Ka-9, inquest report as Exhibit ka-10, challan of dead body as Exhibit Ka-11, photo dead body as Exhibit Ka-12, letter to R.I. as Exhibit Ka-13 and letter to Chief Medical Officer as Exhibit Ka-14.

The prosecution also produced the baton as material Exhibit 1, its cloth as material Exhibit-2, the container as material Exhibit-3, its cloth as material Exhibit-4, another container as Exhibit 5, its cloth as material Exhibit 6, burnt clothes as material Exhibit-7, its cloth as material Exhibit -8, bottle as material Exhibit 9, its cloth as material Exhibit-10, kerosene stained earth as material Exhibit-11, its cloth as material Exhibit-12 and its box as material Exhibit-13 in support of its case.

After the prosecution evidence the statement of appellant / accused was recorded under section 313 Cr.P.C. He denied the truthfulness of the prosecution evidence and took the plea of alibi and stated that two days prior to the incident, he went to Delhi to earn his livelihood. He was not present at his house at the time of the incident. He further stated that there was no electric connection in his house. His wife used to lit earthen lamp in the night, for light. The kerosene oil spilled, as earthen lamp fell and the deceased caught fire. A lady namely Ram Daiya related to ''vanangana' group helped in lodging of the first information report, as the accused was having inimical relations with her son. It is also stated that the ladies of Dalit Mahila Sangthan got his thumb impression in the hospital on a paper, which was not read over to him.

The appellant did not enter into the defence in the trial court. After hearing the rival submissions and going through the record, the learned trial court passed the impugned judgment and order dated 16.7.2013 returning the finding of conviction of the accused under section 302 I.P.C.

The judgment and order dated 16.7.2013 of the trial court has been assailed on the ground that the impugned judgment and order is illegal and against the weight of evidence. None of the prosecution witnesses of fact has supported the prosecution case and all of them had been declared hostile. The sentence awarded is too severe. The trial court did not consider the gravity and material facts of the case and without considering the defence version and without application of mind, the impugned judgment and order had been passed, which is arbitrary, improper and unjust as well as against the provisions of law. The prosecution has failed to assign any specific motive for committing the crime by the appellant. The appellant was not present at the spot at the time of incident. He has not committed any offence and is innocent. He is languishing in jail since long. He is the only earning member of his family, hence, the prayer is made to set aside the impugned judgment and order, while allowing the appeal.

Per contra the learned A.G.A. argued that the appellant is a drunkard person. After taking liquor he often used to harass and thrash his wife. On the day of incident also, in inebriated condition, he first thrashed his wife with baton (danda) and later on after pouring kerosene, set her on fire. Though the witnesses of fact have not fully supported the prosecution case, but their evidence cannot be discarded in total. On record there is dying declaration of the deceased which was proved by P.W.-6 Ashutosh Kumar Singh, the Naib Tehsildar. The medical evidence also supports the prosecution case. The recoveries made from the house of the appellant also prove his guilt, hence, the prosecution had fully established the charge against the appellant. The trial court had rightly convicted and sentenced the appellant.

If we go through the charge framed against the appellant, under section 302 I.P.C. there is the allegation that under the effect of liquor, the appellant thrashed his wife with a baton and after pouring the kerosene set her on fire which led to her death in the hospital.

So far as the first argument of the learned counsel for the appellant that the prosecution witnesses had not supported the prosecution version, from the record it is evident that the prosecution had produced five witnesses of fact, wherein P.W.-1 is the first informant. He is the father of the deceased who lived in another village and had come only on hearing the news of burning of his daughter. So admittedly he was not an eye witness. In his examination-in chief though he has stated that when they reached the hospital at 8.00 a.m. his daughter was not speaking though she was alive. The victim died one hour after they reached the hospital. Before him, Naib Tehsildar and the police had reached there. The first informant had proved his written complaint by stating that ladies of Dalit Mahila Sangthan got his thumb impression over a typed complaint. He has proved his thumb impression on the complaint. Though he has stated that he did not get this complaint typed. The contents of the complaint are denied by him, in his examination-in-chief, but on the basis of the acceptance of his thumb impression over the written complaint it had been exhibited.

The first informant had been declared hostile by the Trial Court and in the cross examination by the State counsel, he had replied that his son-in-law, the present appellant was a cronic alcoholic and after taking liquor he often used to beat his daughter. Previously also when the appellant had harassed his daughter, he made a complaint in the police station, Raipura, but neither any step was taken by the police concerned on that application nor the appellant had left taking liquor. He further stated that as on the date of the incident, he was not present at the place of the incident, so he cannot say that whether on that night, the appellant had taken liquor or not. He had denied his statement under section 161 Cr.p.C. in the cross examination and stated that when they reached the hospital at around 8.00 a.m., the victim was then unconscious. She was being treated and after that she died. The deceased had not deposed before the Naib Tehsildar or any other officer in his presence, as she was unconscious and unable to speak. He also stated that before this incident his daughter had never complained him about the fact of being thrashed at the hands of her husband under the effect of the liquor. He also stated that he never saw his daughter being beaten by her husband. In the cross examination also, he had refuted the contents of the first information report.

So far as the statements of rest of the witnesses of fact are concerned, P.W.-2, the sister-in-law of the deceased, stated that she used to live in a separate house. Hearing the noise from the house of the victim, she reached there but did not witness the appellant Ram Kesh coming out of the room of the deceased. She never saw her brother-in-law, the present appellant, thrashing the deceased in inebriated condition or pouring kerosene oil or setting her on fire. She also stated, in her cross examination, that the deceased used to lit earthen lamp and on the date of the incident the earthen lamp was lying on floor. Its oil was spilled all over, which caught the fire.

P.W.-3 is the neighbour of the deceased. She has also stated that when after hearing the noise she reached at the spot, she saw the deceased in the burnt condition. She could not say whether the appellant thrashed his wife under the effect of liquor or not. She also did not witness the appellant setting the deceased on fire, after pouring kerosene on her.

In the cross examination, she only admitted that Ravendra took the deceased, in his four wheeler, in the burnt condition to the Government hospital. She also denied of having given any statement under section 161 Cr.P.C.

P.W.-4 Bhaiya Lal is also a neighbour of the deceased. In his cross examination, he had completely denied witnessing any incident or deposing before the police. In the cross examination, he stated that two days prior to the incident Ramkesh, the present appellant, had gone out of the village and that he was not present in the village. P.W.-4 further stated that the appellant was not a habitual drunkard.

P.W.-5 Bhagwan Das son of Budhwa is also a neighbour of the deceased and the present appellant. He also denied witnessing the incident and his statement under section 161 Cr.P.C. He has specifically stated that the appellant used to work in district Satna and in relation to his livelihood, he was out of station prior to the incident. A lady of the same village was attached to Mahila Samakhya. The present appellant and the son of that lady had some altercation two days prior to the incident. Due to that enmity, after the incident, that lady collected the ladies of Mahila Samakhaya and got the forged report registered against the appellant. Apart from these five witnesses of fact, witness P.W.-6 to 10 are the formal witnesses, who in their evidence had proved the proceedings conducted by them and the documents prepared by them.

It is true that all the five witnesses of fact i.e. P.W.-1 to P.W.-5 had been declared hostile by the trial court. In our opinion the testimony of the witnesses as a whole is meant for the court to assess and appreciate qua a fact. Therefore, not only the specific part in which the witness has turned hostile but the circumstances under which it happened, can also be considered.

It is well within the power of the court to make an assessment being a matter before it and to come to the correct conclusion. In this connection, the paragraph 81 of the decision in C. Muniappan Vs. State of T.N. (2010) 9 SCC 567 is worth placing reliance.

"81. It is settled legal proposition that;

"6...... the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof."

In State of U.P. Vs. Ramesh Prasad Mishra (1996) 10 SCC 360, the Apex Court held that evidence of a hostile witnesses would not be totally rejected if spoken in favour of prosecution or the accused but require to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of prosecution or defence can be related upon.

Thus, the evidence of hostile witness can not be discarded as a whole. The relevant part thereof which is admissible in law, can be used by the prosecution or the defence. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to the conclusion as to whether the residuary evidence is sufficient to convict the accused.

Thus, in the light of above judgements when the statement of P.W.-1 is read he admitted that his son-in-law, the present appellant was a habitual drunkard and after taking liquor he often used to thrash his daughter, the victim. On this portion of the statement of P.W.-1 he had not been cross examined so this portion of the statement can be relied upon. It has also come in the statement of P.W.-1 that when he reached at the hospital his daughter was alive, though she was unconscious and was not speaking. This statement of P.W.-1 is belied by his assertion in the report Exhibit Ka-1 wherein he has stated that in the hospital his daughter narrated the whole incident that the present appellant first thrashed her and then after pouring the kerosene oil set her on fire. In the hospital the injured was conscious or not in this connection the statement of P.W.-6 Naib Tehsildar is to be looked into.

So far as the statement of P.W.-2 is concerned, though she has stated that she did not witness the incident., but she has nowhere stated in her statement that her brother-in-law i.e. the present appellant was out of station on the date of incident, rather she has only stated that she did not witness the present appellant coming out of the room of the deceased. Had the present appellant been out of station that day, she would have very well stated this fact in her statement but the absence of this assertion in her statement that the present appellant was out of station on the date of incident goes in favour of the prosecution.

Rest of witnesses of fact i.e. P.W.-3 to 5 have outrightly denied the fact of witnessing the incident.

We further would go through the statement of P.W.-6 , the Naib Tehsildar, who is the star witness of this case, he has proved the dying declaration of the deceased. He stated that on 29.3.2012 when he was posted as Naib Tehsildar in Tehsil Karvi, on the order of the Sub Divisional Magistrate, Chitrakoot, he had recorded the dying declaration of Smt.Unji, the wife of Ramkesh (the present appellant). Before the statement of the deceased the Medical Officer had given the certificate that Smt. Unji the wife of Ram Kesh, was mentally alert during dying declaration. He has stated that he recorded the statement (dying declaration) of the deceased in question-answer form and whatever she replied, he noted down word by word and after recording the statement he had taken thumb impression of the deceased Unji Devi on the statement and this statement was sent to the Chief Judicial Magistrate the same day i.e. on 29.3.2012. This witness has proved this statement as Exhibit Ka-2 and has specifically stated that in the reply of his question that how she got burnt ? she replied that her husband Ram Kesh, the appellant, was beating their children in the morning, and as she intervened, he abused her and after pouring kerosene he set her on fire. She specially mentioned the time of incident as 1 ''O' clock in the mid night. The deceased stated that after setting her on fire her husband fled away. Her brother-in-law Chunnu( the husband of P.W.-2) had brought her to the hospital. In reply to the question whether her husband usually used to beat her, she had replied in affirmative and stated that her husband was a habitual drunkard and he often used to beat her. She has specifically denied the fact that any other family person apart from her husband used to beat her. About the time, in his cross-examination P.W.-6 stated that the certificate of the doctor was given at 8.05 hours, then he recorded the statement and the statement was completed at 8.30 a.m. The date and time, along with the thumb impression of Smt. Unji (the deceased) are present on her statement. This witness further stated that the brother-in-law of Smt. Unji was found looking after her in the hospital. This witness has nowhere been suggested by the defence counsel that Smt. Unji was unconscious and she never gained consciousness to give her statement. In reply of the suggestion of the defence counsel, P.W.-6 stated that it was wrong to say that the ladies of Mahila Samakhya got the mustard oil applied on the lips of the injured so that she could be able to speak. This dying declaration which is admissible under Section 32 of the Evidence Act, has been proved by Naib Tehsildar, the P.W.-6 and is marked as Exhibit Ka-2, and has fully corroborated the version of first information report.

The statement of P.W.-7 Dr. Rama Kant Chauriya is also on record, wherein he found 68% burn on the person of the deceased and the cause of death was anti-mortem burn injuries. Though this doctor, in his cross examination, had given a vague answer that due to burn she might have unconscious and in the state of unconsciousness she might not be able to speak. But in our opinion, in reply to this vague statement of doctor there is a clear statement of P.W.-6 Naib Tehsildar, who after getting the certificate of the Medical Officer, finding the deceased alert, recorded the statement of victim and had proved this statement of the deceased before the trial court.

In the corroboration of this dying declaration the statement of P.W.- 1 is found to be uncontroverted on the fact that son-in-law of the P.W.-1 i.e. the present appellant was a habitual drunkard and after taking liquor he used to thrash his wife, the daughter of the first informant.

It is also argued by the learned counsel for the appellant that the appellant was out of station on the date of the incident. So he cannot be said to be liable for the incident. For the first time on the record, it has come in the statement of the appellant under section 313 Cr.P.C. that two days prior to the incident, he had gone to Delhi in relation to his livelihood. Though no documentary evidence had been placed by the appellant in this regard.

When we go through the statement of P.W.-5 Bhagwan Das in this regard, he has stated that the appellant used to work in district Satna and with regard to his livelihood only, he had gone out of station since many days prior to the incident. Thus, while the appellant has stated in his statement under section 313 Cr.P.C. that he had gone to Delhi in relation to his livelihood two days prior to the incident, P.W.-5 stated that the appellant used to work in Satna District and with regard to this work he was out of his house since many days prior to the incident. These statement are contradictory, while the appellant states that he had gone to Delhi and that too two days prior to the incident. P.W.-5 states that the appellant was out of station since last many days, prior to the incident, regarding his livelihood in Satna.

The statement of P.W.-2 is also noteworthy, wherein she stated that she did not see the appellant coming out of the room of the deceased Smt. Unji Devi on the date of incident. Had the appellant been out of station that day, P.W.-2 would have stated that the appellant was out of station on the date of incident, but her statement that she did not witness the appellant coming out of the room of Smt. Unji makes it clear that the appellant was present at the spot at the time of incident.

Thus, the contradictory statement of the present appellant under section 313 Cr.P.C. and the statement of P.W.-5 and 2 Bhagwan Das and Devli, respectively, prove the argument of the learned counsel for the appellant to be wrong.

Though it is also argued that there is no motive of the incident, in our opinion, the above discussion shows that as the appellant was a drunkard person and in the effect of liquor he used to beat his wife. On the fateful day also he was under the effect of liquor, he first thrashed his wife and then after pouring kerosene oil set her on fire.

From the spot the Investigating Officer had recovered one quarter (bottle) of country made liquor, kerosene oil stained earth, burnt clothes of the deceased and two plastic containers having residue kerosene in both of them. Though it is admitted fact that the deceased caught fire due to kerosene but as the case of the prosecution is that the kerosene was poured by the present appellant on the deceased, while the defence is that Smt. Unji was sleeping and the burning lamp fell on her, which caught fire. From the memo of recovery, which has been proved by the Investigating Officer as Exhibit Ka-5, it is clear that no lamp was recovered by the Investigating Officer from the spot, rather he has recovered two containers having residue kerosene oil in both of them. As P.W.-8, stated that from the spot he had recovered one quarter bottle of country made liquor, burnt clothes and two plastic containers in the presence of two witnesses. In his cross-examination, he has admitted that the bottle of the country made liquor was empty and he has clearly refuted the suggestion of the learned counsel for the defence that it was a glass bottle which was being used as a lamp after pouring the kerosene in the same.

The FSL report is also on record wherein in the burnt clothes of the deceased, the kerosene oil was found. It is the admitted case of the parties that Smt. Unji died because her kerosene oil stained clothes caught fire, so FSL report has no way helped to any of the parties.

It is also argued by the learned counsel for the appellant that as per the prosecution the deceased was first beaten with a baton and then she was set on fire. No mark of injury is found on her person. In our opinion, when there was 68% burn on the person of the deceased, according to doctor P.W.-1, the skin on the body of the deceased was burnt and redness was seen, in such condition the marks of beating with a baton can not be said to be possibly visible, so this argument of the learned counsel for the appellant also fails.

Thus, from the above discussion, it is clear that though all the witnesses of fact have been declared hostile, but on the basis of uncontroverted portion of the statements of P.W.-1 and P.W.-2, the dying declaration of the deceased, the statement of Naib Tehsildar, the doctor and that of Investigating Officer proving the recovery memo, the prosecution has successfully proved the guilt of the appellant.

Admittedly, the incident took place within the four walls of the house of the deceased where the husband / the present appellant used to live with the deceased.

So as per section 106 I.P.C. of the Evidence Act, the onus lies on the accused appellant to prove the fact that the incident of burning of his wife was accidental. The fact that how the fire broke out was specifically within the knowledge of the appellant being the only person present in the house at the time of breaking of fire. There is no evidence on record from the appellant side to discharge this burden, so after being proved by the prosecution that the appellant is accused of thrashing and then setting her wife on the fire the appellant is found to have failed to discharge the onus on him of proving the fire to be accidental by felling of the earthen lamp. He has also failed to prove his plea of alibi.

Thus, in totality of all facts and circumstances of the case, the prosecution has succeeded in proving the case beyond reasonable doubt. We are of the considered opinion that the conviction of the appellant under section 302 I.P.C. and sentence for life imprisonment with fine of Rs. 5000/- with default stipulation awarded by the trial court is fully justified.

The impugned judgment and order of the Trial Court dated 16.7.2003 is hereby confirmed. The appeal is dismissed.

Certify this judgment to the court below.

The trial court record shall be transmitted back forthwith.

The compliance report be furnished to this Court through the Registrar General, High Court, Allahabad within one month.

Order Date :-31.5.2022

Gss