Ratna vs State
2023 Latest Caselaw 4306 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Reserved on 09.12.2022
 
Delivered on 10.02.2023
 
In Chamber
 

 
Case :- CRIMINAL APPEAL No. - 998 of 1996
 
Appellant :- Ratna
 
Respondent :- State
 
Counsel for Appellant :- Akhilesh Srivastava,Rajesh Kumar Singh (Mc)
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Anjani Kumar Mishra,J.

Hon'ble Chandra Kumar Rai,J.

Heard Shri Rajesh Kumar Singh, Amicus Curiae for the sole appellant, Ratna and Shri Pankaj Saxena, learned AGA for the State.

The appeal is directed against the judgment and order dated 11.04.1996 passed by the Xth Additional Sessions Judge, Aligarh in Sessions Trial No.860 of 1993 under Section 302, 394, 412 IPC, Police Station Banna Devi, District Aligarh, whereby the appellant has been convicted under Sections 302, 394 IPC and sentenced to life imprisonment for the offence under Section 302 IPC and for the offence under Section 304 IPC, he has been sentenced to seven years rigorous imprisonment. Both the sentences to run concurrently.

The first information report lodged by one Pappi was that one Ram Babu and two other persons came to her house on 07.03.1993 at about 9 p.m. Ram Babu is also a rickshaw puller working with her husband and is also her distant nephew. On that date and time, her husband was not at home having gone to his maternal uncles place. On the asking of Rambabu, the first informant was cooked food for the three persons. After having this food, they lay down in the courtyard. At this time, the mother-in-law of the first informant was sleeping in a room adjacent to the court yard while the first informant alongwith her children went to sleep on the roof. At about 02.30 a.m., the first informant woke up on account of a slight drizzle, when she heard the sound of her mother-in-law and went to investigate. Her mother-in-law was lying on cot and was being held by the appellant and two others. On a hue & cry being raised by the informant, three persons escaped but were seen by some of the neighbours, who had arrived on the spot in the light from the electric pole. The first informant came back to the room and found her mother-in-law dead. She also discovered that the gold ornament and silver ornaments worn by her mother-in-law had been looted away by the accused, two unknown persons mentioned in the first information report were found to be Satto and Ratna. All three were convicted by the trial Court.

The other two appellant, namely, Ram Babu and Satto are dead and the Appeal No.748 of 1996 filed on their behalf have been ordered to abate.

The prosecution in order to prove its case examined as many as 14 prosecution witnesses.

PW-1, Pappi, the first informant and the daughter-in-law of the deceased.

PW-2, Chunni Lal is the neighbour of the first informant and her husband, Pappu. He was produced to prove the fact that three accused were present in the house of the first informant at about 9 to 9.30 p.m. and were seen by this witness when he came looking for her husband and had been informed that Pappu had gone to his maternal uncles house.

In his cross-examination, he has further stated that he had heard cries of the first informant at 2.30 a.m. and went to her house. An electric bulb was burning on the pole in front of the house of the first informant and in its light, he has seen three accused emerging from the house of the first informant and was informed that the accused had taken away the ornaments worn by the deceased. He had identified the accused in test a identification parade in jail. The unnamed accused were not known to him. He knew only Ram Babu, who was a rickshaw puller and a frequent visitor to the house of the first informant. He has also stated that his house is adjacent to that of the first informant. Upon hearing the shouts, he and Raghunandan, the scribe of the first information report, were the first to reach the house of the appellant.

During cross-examination on behalf of the appellant, Ratna, this witness has expressed ignorance that Ram Babus' grand daughter is married to his parental grand son. He has also stated that only a wall separates his house to that of the first informant. On the night of the incident, Chetan had some work with the husband of the informant and the witness had accompanied Chetan to the house of the first informant. They had called out for the husband of the informant and were informed that he was not at home. Therefore, they entered the gallery, which is at about 2 to 3 steps long, to inquire as to where the husband of the first informant had gone. He had seen that three accused were ran away from the place of the occurrence. He has denied the suggestion that he has deposing falsely at the behest of the first informant. He has expressed ignorance about the place of residence of appellant, Ratna.

PW-3, Pappu s/o Miththu is the husband of the first informant. He has stated that he was not at home on the date of incident as he had gone to his maternal uncle's house on account of his death. The accused had taken away the gold and silver ornaments of his mother, after killing her. These ornaments were identified by him in Court.

During cross-examination on behalf of the appellant, Ratna he stated that Ratna, todia (silver ornaments) was being worn by his mother for the last 25 years. He has identified the todia worn by his mother from among other similar items. He has denied the suggestion that the ornaments had recovered from the accused belonged to his wife and had been planted as 8 evidence against the accused to implicate them.

PW-4, Head Constable, Rakshpal Singh has proved the chick FIR, which was marked as Ext. K-2 as also the consequent GD entry, which entry was made at 5-10 a.m.

During cross-examination, he has stated that only two persons had come to the police station at 5-10 a.m, namely, the first informant Pappi and Natru s/o of Chhote Lal. He has denied the suggestion that GD entry was made much later or anti time.

PW-5, Rameshwar Sahai Gautam is the pairokar of the police station Banno Devi, District Aligarh. He had brought the recovered items from the police station for their identification before the Court of the Magistrate. After the identification, the items were sealed and he had deposited them in Malkhana.

PW-6, Pramod Kumar, Constable carried the body of the deceased for post-mortem and handed it over to the Doctor at 3.45 p.m. on 11.07.1993.

During cross-examination, he has stated that the inquest was prepared in his presence when the police personnel reached the spot, the body was in the room but had been taken out for the purposes of inquest. It had been lifted from the cot along with the bed sheet covering the cot but he is unaware of any broken bangles on the bed sheet. Only body had been sealed in his presence and no other item.

PW-7, Dr. V.S. Agnihotri conducted the autopsy on the body of the deceased, which had been brought by constable Pramod Kumar and Basudeo Singh. He has proved the postmortem report and has stated that the following injuries were found on the body of the deceased -

1. Scratch 5 cm x 0.2 cm in front of the abdomen 1.3 cm right of the novel.

2. Scratch 4.5 cm x 0.2 cm above the injury no.1. There was no internal injuries. Stomach contained 6 ounce of semi digested food.

Since, the cause of death could not be determined, the viscera was preserved.

During cross-examination, he has stated that the injuries on the stomach of the deceased could not have been caused by pressing the stomach by hand and necessarily had to be caused by a hard object.

During cross-examination on behalf of Ratna, he has stated that the state of the body was one of a natural death or otherwise.

PW-8, Sub Inspector, I.P. Singh has proved the memo prepared regarding the recovery of one country made pistol of 315 bore from the accused, which was alleged to have been used to fire at him. This recovery was made on 14.07.1993 at 11.30 p.m. while the witness was on patrol duty. He has stated that the country made pistol 315 bore and a cartridge was recovered from Ram Babu and for which from the left trouser packet one gold earring was recovered. The silver todi was recovered from co-accused Ratan Singh along with a knife from his right hand trouser pocket. The recovered items were sealed and a memo was prepared. He has also stated that since the ornaments recovered from the accused pertained to case under Section 302 IPC, the faces of the accused were covered. On a question by the court, he has stated that only one cartridge was recovered and the memo prepared, with the consent of three accused, copy of the memo was of one of them, namely, Ratna, the appellant. He does not remember the distance between the police station and the house of the Ratna and has also denied the suggestion that the entire recovery and the recovery memo is fabricated.

PW-9, G.N. Sarvheen, retired Deputy Collector had conducted the test identification parade of the accused in District Jail, Aligarh. The persons asked to identify the accused were by the first informant, Pappi, Raghunandan and Chunni. The first informant rightly identified Ratna, the appellant in this appeal while Chunni identified all the three accused correctly. The identification note prepared was marked as Exb. K-5A. He has also stated that along with the accused about 10 persons similar in appearance were part of the test identification parade. All visible identification marks of the accused have been covered. Similar covers were put on all other persons in the test identification parade.

During cross-examination, he has stated that he had not taken the statement of the witnesses. The identification was made first Pappi then by Raghunandan and lastly by Chunni, who do not belong to one family. The first informant had failed to identify the third accused at the time of the identification parade. The accused were wearing the same clothes, they have wearing at the time of arrest. During the identification parade, all precautions had been taken.

PW-10, M.R. Dhiman, the Sub Divisional Magistrate, Ghaziabad has stated that on 28.07.1993, he was posted at SDM, Kol, District Aligarh and the identification of the items recovered from the accused was conducted by him. The items were obtained in sealed condition from police station, Banna Devi. The sealed items were opened and each item was placed with similar items. The ornaments were rightly identified by the first informant as also her husband. The items were first identified by Pappi and subsequently by her husband.

PW-11, Shri Jaipal Singh, the Investigating Officer has stated that the case was registered in his presence and he got the inquest prepared by Sub Inspector, A.K. Singh. The statements of the first informant, Chetan, Chunni and Raghunandan were recorded and he prepared the site plan on 16.07.1993. He recorded the statement of S.I., Ashok Kumar, Head Constable Ranbir Singh, Constable Ombrat and examined the spot where the accused were arrested and items were recovered from them. He prepared the site plan, which was marked as Exb. K-8. On a question by the Court, the witness stated that he had not seen the recovered items. They were received by him in sealed condition and were sent to court for identification in the same condition. These items were also returned back in sealed condition.

During cross-examination, he has stated that there exists an electric pole in front of the house of the first informant, although, he had not shown it in the siteplan. He had not seen the kerosene lamp burning in the courtyard in the evening on the date of incident. He had seen the dead body but had not seen broken bangle pieces. He had examined the witnesses in the house of the first informant. He had prepared the siteplan of the place of arrest of the accused on the pointing out by S.S.I, Indrapal Singh, which spot was adjacent to a graveyard, which has a three feet high wall.

PW-12, Ashok Kumar Singh conducted the inquest and has proved the inquest report.

During cross-examination, he has stated that he had reached the place of occurrence at 6 a.m. The dead body was lying on a cot. The deceased had bangles in both her hands but her ears and feet were bare. There was no in injuries on the ear.

During cross-examination on behalf of Ratna, the appellant, he has stated that he has not mentioned the crime number on the inquest report, which had been prepared on the directions of the investigating officer, although, he had a copy of the first information report was with him at the time of inquest. The crime number was also not mentioned on the challan lash. He has denied the suggestion that at the time of inquest, the first information report had not been lodged or that the case was registered after completion of the inquest.

PW-13, Sri Pal Singh, Head Constable has stated that the accused were brought to the police with their faces covered. The items recovered from them had been sealed and were deposited in the malkhana. The accused were put in lock up with their faces covered. The accused had also been instructed to keep their faces covered. At 1.30 p.m. on 15.07.1993, the accused were taken out from the lock up with their faces covered and were sent to jail along with constable Ram Kumar Gautam and Head Constable Chandra Mohar Gautam. The accused had their faces covered at the time of being lodged in the police station and till the time they were lodged in jail. The itemes that he received were in sealed condition. He has denied the suggestion that Ram Babu was arrested on 10.07.1993 form the morturary.

PW-14, Constable, Ram Kumar Gautam has stated that he along with Home Guard Chandra Mohan took the accused at 1.30 p.m. on 15.07.1993 and lodged them in jail. The accused had their faces covered at that time. Nobody was giving opportunity to see their faces during the period the accused were in his custody.

In his statement under Section 313 Cr.P.C., the appellant Ratna has denied that he was in the house of the first informant on 10.07.1993 at 9 p.m. The question No.4, the appellant is for his comment regarding the prosecution case that the accused were seen by Chunni Lal and Chetan at 9 a.m. in the house of the first informant. He gave an evasive reply that he does not know anything about the incident. Question No.7, put to the appellant is that it has come in the evidence that the mother-in-law of the first informant, who was aged about 70 years was lying in a room, which had no doors. The reply is that this is a wrong. He has also denied all other incriminating circumstances put to him.

He has also stated that he was arrested from the police and put in lock up and that he has been implicated in the case on account of enmity.

On the basis of the evidence aforesaid, the appellant has been convicted as noticed above.

The contention of learned amicus curiae appearing for the appellant is that as per prosecution case, the appellant and other two co-accused (since deceased) were seen pressing and holding the deceased and that when a hue and cry was raised, they ran away. It is contended that this prosecution case is not supported by the medical evidence.

The second contention is that no source of light has been disclosed, wherein the first informant could have seen the accused holding the deceased as in the prosecution case.

It is next contended that it is unnatural that the first information report has been lodged by the first informant without waiting for the return of her husband.

The last submission is that death has occurred due to poisoning and there is nothing on record to link the accused to the poison that may have been administered to the deceased. The prosecution has not been alleged or let any evidence to show that any poison was administered by the accused. It is stated that the prosecution has failed to prove its case beyond reasonable doubt. The appellant is therefore, liable to be acquitted.

Learned AGA on the other hand submitted that the incident is alleged to have taken place at 2.30 a.m. while the first information report has been lodged by the first informant with the allegation of loot and murder at 05.10 a.m. The first information report is therefore, prompt a one. The accused were seen and identified by neighbour in the street light. It has also been proved by the investigating officer that there exists an electric pole in front of the house of the first informant.

Referring to page 6, the post mortem report, it has been contended that the abrasion or scratches on the body of the deceased are consistent with forcibly administration of poison.

It is next contended that the accused have never challenged their presence on the scene of the occurrence. In any case, they were seen running away.

He has referred to page 20 of the paper book, the cross-examination of the first informant, who has stated that a kerosene lamp was burning in the courtyard and that in front of her house exists an electric pole from which, a bulb was hanging and that its light spread also inside the house.

Referring to page 22 of the paper book, learned AGA has further submitted that during cross-examination, the suggestion given to PW-1 are only with regard to the form of identification of the items and articles allegedly recovered from the accused. No suggestion has been given as regards the presence of the accused on the scene of occurrence. PW-1 has also not been cross-examined nor any question put her as regards the presence of the accused. Therefore, the presence of the accused on the scene of occurrence is proved as is the source of light. Therefore, the onus shifted upon the accused in view of Section 106 of the Evidence Act, which burden has not been discharged by them. He has also submitted that PW-2 in his testimony has clearly stated that he saw the accused running away from the house of the deceased and first informant. The presence of PW-2, Chunni Lal has also been proved. It is also submitted that PW-1 in her testimony stated that she went to the police station with Nanua, which is consistent with the GD entry. Moreover, PW-9 has proved the test identification parade wherein the accused were rightly identified. The prosecution has thus proved its case beyond reasonable doubt. The two persons not named in the first information report have also been duly identified during this identification parade conducted in jail and despite extensive cross-examination no illegality could be pointed out in the manner in which, the test identification parade had been conducted.

It has lastly been submitted that the reply to question no.7 in the statement under Section 313 Cr.P.C. given by the appellant would reveal that this answer could be given by the persons was actually present on the scene and could not be given by one who was never present on the scene of occurrence.

In rejoinder, learned counsel for the appellant has referred to siteplan prepared by the Investigating Officer to reiterate that the source of light, an electric pole said to exist in front of the house of the first informant has not been shown therein. Therefore, the source of light wherein the accused are alleged to have been seen, recognized and subsequently identified, cannot be accepted.

The first contention of learned counsel for the appellant is that the prosecution case is that the first informant seen the accused pressing and holding the deceased on her cot and the same is not borne out by the medical evidence, namely, the post mortem report is of no consequence. The body would have to be held even to remove the jewellery that was worn by the deceased pressing and holding of the body would also be required in the case poison was administered and was actually administered by the accused. In this connection, it would be relevant to note that during cross-examination, the Doctor has not been questioned as to how long the poison administered to the deceased would have taken effect and caused death. Under the circumstances and in our opinion, nothing remains turns upon the argument that is being raised on behalf of the appellant.

The second contention is that there was no source of light and therefore, it is sought to be contended that the first informant could not have seen and identified the accused. Although, it is the case of the prosecution that a kerosene lamp was burning in the courtyard and in its light, the accused were seen and identified by the first informant. Even if, it not believed that a lamp was burning inside the house, the fact remains that it has been proved by the testimony of the prosecution witness as also by the investigating officer that an electric bulb on an electric pole on the door of the first informant's house was burning and that in its light, the accused were seen escaping from the house of the first informant at around 2.30 a.m. The prosecution case in this regard and the statement of the witnesses, especially PW-1 and PW-2 is consistent. This fact of an electric light has also been stated by the investigating officer in his cross-examination. Therefore, even if it is accepted that there was no source of light inside the house, light at the entrance is established and the persons seen in this light have been identified in the test identification parade. No explanation has been offered by the accused, as to why, they ran away from the house of the first informant at about 2.30 a.m. especially when their presence in the house of the first informant is proved by evidence on record.

Neither any argument has been raised nor there exists any defect in the procedure adopted for conducting the test identification parade, wherein the appellant has been clearly identified being one of the two unknown persons mentioned in the first information report. Therefore, even the second argument of counsel for the appellant does not help the defence.

The third contention raised is that the first information report was lodged by the first informant without waiting for her husband to return is an argument, which cannot in any case, cast any doubt on the prosecution case, especially when the first information report has been promptly lodged. Under the circumstances, the argument of learned counsel for the appellant, cannot be in any way detract from the first information report's version.

It is no doubt true that there is no evidence to connect the appellant with the administration of poison to the deceased. However, the fact remains that the jewellery worn by the deceased, which was removed at the time of or prior to her death has been recovered from the custody also on the appellant. This jewellery recovered from the accused has been identified by the first informant and also her husband from amongst other similar items. No illegality has been pointed out during course of argument as regards the procedure adopted for conducting its identification parade from amongst similar jewellery.

Consequently and since the recovery of the jewellery of the deceased from the accused has been proved and cannot be faulted with in any manner, we find substance in the contention of learned AGA that once the source of light is established and the jewellery items recovered from the accused were identified as belonging to the deceased and the accused were identified in a test identification parade by the eye witnesses, the burden to explain the incriminating circumstances shifted upon the accused but they have failed to discharge this burden. Under the circumstances, the conviction of the appellant cannot be faulted with.

For the foregoing reasons, the appeal is found to be without merit and is hereby, dismissed.

His bail bonds are cancelled. He shall be taken into custody forthwith for serving out the sentence awarded.

Let the lower Court Record along with a copy of this judgment be transmitted to the Court below immediately, for compliance.

Rs.7500/- be paid to Shri Rajesh Kumar Singh, Amicus Curiae his services rendered for assisting this Court.

Order Date :- 10.2.2023

RKM