Smt. Rama Devi vs State Of U.P.
2023 Latest Caselaw 2497 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 47
 

 
Case :- CRIMINAL APPEAL No. - 3866 of 2013
 

 
Appellant :- Smt. Rama Devi
 
Respondent :- State of U.P.
 
Counsel for Appellant :- R.R. Singh, A.K. Mishra,Krishna Mohan Tripathi
 
Counsel for Respondent :- Govt. Advocate
 

 
With
 

 
Case :- CRIMINAL APPEAL No. - 3867 of 2013
 

 
Appellant :- Ram Kishore
 
Respondent :- State of U.P.
 
Counsel for Appellant :- R.R. Singh,A.K. Mishra,Krishna Mohan Tripathi,Yogesh Kumar Tripathi
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Shiv Shanker Prasad,J.

(Per- Hon'ble Shiv Shanker Prasad, J.)

1. These Criminal Appeals are directed against the impugned judgment and order dated 14.8.2013, passed by Additional Sessions Judge, Ist, Rampur in Sessions Trial No. 193 of 2010 (State Vs. Ram Kishore and another) arising out of Crime No. 172 of 2010, whereby accused-appellants Smt. Rama Devi and Ram Kishore have been convicted of offence Section 302 and have been sentenced to undergo life imprisonment alongwith fine of Rs.50,000/- for commissioning of offence under Section 302 I.P,C.; in default thereof, they have to further undergo one year additional simple imprisonment, each. As both the appeals are directed against a common judgment and order and have been heard together, they are being decided by this common judgment.

We have heard Mr. Krishna Mohan Tripathi, learned counsel for the accused-appellants and Kumari Meena, learned A.G.A. for the State as also perused the entire material available on record.

2. As per the prosecution case a written report (Ext. Ka-1) was given on 9.2.2010 to the Police Station Tanda, District Rampur, by Pritam Singh (P.W.-1/first informant), who happens to be the brother of the deceased stating that one of his villagers Ram Kishore son of Sri Sohan Singh had enmity with his brother Dharmpal (since deceased) for some reason and they were not on talking terms. On 9.2.2010 when the informant, his brother Mahendra Singh (P.W.-6), Prem Singh (P.W.-3) and Jagan Singh (P.W.-2) were talking to each other at the intersection (Tiraha), while Dharmapal was coming from the shop, situated in the north, after buying some goods and as soon as he came in front of Ram Kishore's house, Ram Kishore called him inside his house and closed the door. After some time, at around 7.30 P.M., Dharmapal's scream was heard by them. On hearing the same, all the four persons including the informant rushed to Ram Kishore's door, but the door was locked from inside and Dharmpal was screaming inside. They broke the door and entered into the house of Ram Kishore. When they reached the northern room of the house, they saw that Dharmpal was writhing from pain. When the first informant asked him as to what has happened, in reply he told that Ram Kishore and his wife namely, Rama Devi stabbed him and that he would not survive any more and saying these words he died. On searching Ram Kishore and his wife, all the four persons including the first informant found that they had already escaped and the dead body of the deceased was lying on the spot.

3. On the basis of the above referred written report a first information report dated 9.02.2010 (Ex.Ka.14) was lodged as Case Crime No. 172 of 2010, under Section 302 against the accused-appellants.

4. After registration of the first information report, P.W.-7, namely, Sub-Inspector Suresh Chandra Sharma reached the place of occurrence. The inquest proceedings were conducted on 10.02.2010, which commenced at 07:00 A.M. and completed at about 8:20 A.M. Pritam Singh (P.W.-1/first informant), Mahendra Singh (P.W.-6), Prem Singh (P.W.-3) and Jagan Singh (P.W.-2) along with one Madanpal were the inquest witnesses. In the opinion of the inquest witnesses, the death of the deceased has been caused due to injuries sustained on the body of the deceased but for ascertaining the exact cause of death, the post-mortem be done. Whereafter the body of the deceased was sealed and sent to Mortuary for post-mortem.

5. The post mortem has been conducted in which cause of death has been found to be shock and hemorrhage as a result of following ante mortem injuries found on the body of the deceased:-

1. Incised wound 4cm x 0.5cm on right side of head 10 cm above right ear.

2. Incised wound 2.5cm x 0.5cm on right side of head 2cm below injury no.1.

3. Incised wound 3cm x 1cm on pinna of left ear.

4. Incised wound 1.5cm x 0.5cm , 1.5cm below left ear.

5. Incised wound 2cm x 1cm on left side neck just below the thyroid cartilage.

6. Incised wound 2cm x 0.5cm on right angle of mandible.

7. Incised wound 3cm x 0.5cm on lower aspect of right angle of mandible.

8. Incised wound 5cm x 2cm on right side of neck just lateral to thyroid cartilage.

9. Incised wound 2cm x 1cm, 1cm below right angle of mandible.

10. Incised wound 3cm x 2cm on right side of neck just lateral to injury no. 8.

11. Incised wound 3cm x 1cm just below injury no. 8.

12. Incised wound 1cm x 0.5cm just below injury no.11.

13. Incised wound 1cm x 0.5cm on right side of neck, 8cm below right ear.

14. Incised wound 2cm x 1cm on right side neck, 9cm below right ear.

15. Incised wound 2cm x 1cm on right side chest, 10cm below right nipple.

16. Incised wound 7cm x 4cm cavity deep, omentum and part of small intestine is pretuding outside of the wound which is 5cm lateral to umblicus on right side of abdomen.

17. Incised wound 2cm x 1cm, 7cm below injury no. 16.

18. Multiple Incised wound in area 14cm x 4cm left side of abdomen just lateral to umblicus.

19. Incised wound 8cm x 1cm muscle deep on palmer aspect of right hand.

20. Incised wound 3cm x 1cm on top of right knee.

21. Incised wound 3cm x 0.5cm on lateral aspect of left hip.

22. Incised wound 2cm x 0.5cm, 5cm posterior to injury no.21.

23. Incised wound 5cm x 2cm on lateral aspect of left thigh above left knee.

24. Incised wound 2cm x 1cm, 3cm posterior to injury no. 23.

25. Incised wound 2cm x 1cm on lateral aspect of left ankle.

6. The Investigating Officer of this case Station House Officer Ganesh Dutt Joshi (P.W.-8) reached the place of occurrence and collected blood stained earth, plain earth, one bed sheet and blood stained clothes from the spot vide Ex. Ka-3.

7. On 10.2.2010, after the arrest of the accused persons, S.H.O. Ganesh Dutt Joshi (P.W.-8) came to the house of the named accused-persons, namely, Ram Kishore and Rama Devi along with them, from where a knife was recovered on the pointing out of accused Ram Kishore. On interrogation, Ram Kishore told that he stabbed the deceased Dharampal by the said knife. Another knife has also been recovered on the pointing out of another accused Rama Devi, which was kept under the granary. On interrogation, Rama Devi has also stated that she stabbed the deceased by the said knife. The police has collected both knives as weapon of assault i.e. ala katla (Exhibit-Ka-11).

8. The Investigation ultimately concluded in terms of Chapter XII of the Code of Criminal Procedure and the charge-sheet was submitted against the accused-appellants on 21st February, 2010 (Exhibit-ka-13). Upon submission of the charge-sheet dated 21st February, 2010, the concerned Magistrate took cognizance and committed the case to the Court of Sessions, wherein charges have been framed under Section 302/34 I.P.C. against the accused-appellants on 24th January, 2011. Charges were read out to the accused-appellants, who denied the accusation and demanded trial.

9. The prosecution in order to establish the charge levelled against the accused-appellants, has relied upon following documentary evidences, which were duly proved and consequently marked as Exhibits:

"Written report dated 9.2.2010 has been marked as Exhibit-Ka-1; F.I.R dated 9.2.2010 has been marked as Exhibit-Ka-14; Site plan dated 10.2.2010 has been marked as Exhibit-Ka-12; recovery memo of Blood Stained & Plain Earth dated 10.2.2010 has been marked as Exhibit-Ka-3; Recovery Memo of two knives dated 10.2.2010 has been marked as Exhibit-Ka-11; Post mortem report dated 10.2.2010 has been marked as Exhibit-Ka-4; Panchayatnama dated 10.2.2010 has been marked as Ex. Ka.-5; Charge Sheet dated 21.2.2010 has been marked as Ex. Ka.-13 and Forensic Science Lab Report dated 21.2.2010 has been marked as Exhibit-Ka-19."

10. The prosecution has also adduced oral testimony of following witnesses:-

"P.W.-1/ informant, namely, Pritam Singh; P.W.-2, namely Jagan Singh; P.W.-3, namely Prem Singh; P.W.-4, namely, Jamuna Devi, wife of the the deceased, P.W.-5, namely, Dr. R.K. Sharma, who conducted the post-mortem of the deceased; P.W.-6, namely, Mahendra Singh, P.W.-7 S.I., Suresh Chandra Sharma, who prepared the Panchayatnama and sealed the dead body; P.W.-8 S.H.O. Ganesh Dutt Joshi, the Investigating Officer.

11. On the basis of material so collected and produced by the prosecution during trial incriminating material were put to the accused-appellants for recording their statements under Section 313 Cr.P.C. The accused-appellants have stated that the statements of the prosecution witnesses are incorrect. They have been falsely implicated in the present case due to ulterior motive. The accused-appellant Ram Kishore has stated that a dispute between his wife Rama Devi and himself arose 2 years ago and due to the said dispute, she left his house and went to her maternal house. Accused-appellant also lived outside in connection with his work. At the time of incident he was not living in his house. Accused-appellant has further stated that since the deceased Dharampal was a domineering, quarrelsome and angry man, he had disputes with many people of the village, although he had no dispute with the deceased Dharampal. He has also denied the illicit relationship between his wife Rama Devi and the deceased Dharampal. He has further stated that since the deceased Dharampal had dispute from various persons, some one else killed the deceased Dharampal and kept his dead body in his house by breaking the door of his house as the same was locked. The accused-appellants have stated that they have not committed any crime and they have been falsely implicated in the present case and in support of the said plea the defence has produced Jhandu Singh (D.W.-1), who happens to be the neighbour of the accused-appellants.

12. The trial court has recorded a finding that P.W.-6 Mahendra Singh is an eyewitness of the incident. In his cross-examination, there is no reason to doubt his credibility. The statement of P.W.-6 has also been corroborated by the post-mortem report of the deceased (Exhibit- Кa-4), in which there are 25 cut wounds of a knife, which are said to be possible at the time of the incident. The recovery of weapon of assault is fully reliable under Section 27 of the Evidence Act in view of the disclosure made by the accused. The accused-appellants have admitted to kill the deceased by the recovered knives. The accused-appellant could not discharge the burden of proof of Section-106 of the Evidence Act since the dead body was found in their house, which the witnesses saw. After recording the aforesaid finding the trial court has held that the murder of the deceased has been committed by the accused-appellants by stabbing and the incident is not possible to be done by any person other than the accused-appellants. The trial court has come to the conclusion that the prosecution has been able to prove the guilt of the accused-appellants beyond reasonable doubt under Section 302 I.P.C. and has accordingly convicted the accused-appellants and sentenced them to undergo life imprisonment along with fine. It is against this judgment of conviction that both the appeals have been preferred.

13. Learned counsel for the accused-appellants has submitted that most of the prosecution witnesses have turned hostile, therefore, the prosecution case has no legs to stand. Further submission is that since the prosecution has not been able to prove the source of light, therefore, the testimony of the prosecution witnesses is not reliable. Next submission is that the recovery of Ala Katal (two knives) is manipulated, hence the recovery of the same is doubtful, as Jagan Singh, who is the witness of recovery of Ala Katal (two knives) has not supported the recovery memo. The other witnesses of recovery have not been produced to support the said recovery memo. It is further submitted that there is inconsistency in the statement of P.W.-6, as per prosecution, who is a star witness. Learned counsel for the accused-appellants also submits that P.W.-6 in his statement has stated that at the time of incident, he was standing at cross-road (Tiraha) to offer his services for work for the next day but no one came. Ordinarily and generally, laborers stand at cross-roads (Chauraha) or at a particular place early in the morning to do labor work and not in the evening and if a person has to get the labor work done for the next day also, then he informs the laborer on the same day after the work is over in the evening. Therefore, not only the presence of P.W.-6 at the place of occurrence is doubtful but also his statement is not trustworthy. He next submits that both the accused-appellants Ram Kishore and Rama Devi have not committed the alleged offence. Due to disputes between husband and wife i.e. Ram Kishore and Rama Devi, the accused-appellant Rama Devi had started living at her maternal place two years prior to the incident and the accused-appellant Ram Kishore also started to live outside for doing job/work and his house was locked at the time of incident as both the accused-appellants stayed outside. The said fact has also been supported by the D.W.-1 in his statement.

14. Per contra, learned A.G.A. submits that though most of the prosecution witnesses have turned hostile but the statement of the star witness i.e. P.W.-6 is consistent and reliable and there was definite motive for the accused-appellants to commit the offence. Learned A.G.A. therefore, urges that in the circumstances, the conviction and sentence awarded to the accused-appellant by the court below merits no interference.

15. We have examined the respective contentions urged by the learned counsels for the parties and have perused the records of the present appeal including the lower court records.

16. The only question which requires to be addressed and determined in this appeal is whether the conclusion of guilt arrived at by the trial court and the sentence awarded is legal and sustainable in the eyes of law and suffers from no infirmity and perversity.

18. P.W.-1, who has lodged the F.I.R. has turned hostile. P.W.-1 is the brother of the deceased, who in his testimony has clearly stated that he does not know as to who killed the deceased and how. The accused-appellants have no role in the murder of his brother. He had not lodged any report regarding the murder of his brother Dharampal, nor had he got scribed any written report by Madanpal. He was not present at the cross-road (tiraha) on the fateful day. He came to know about the murder of his brother from the people of the village. He has not supported his statement recorded under Section 161 Cr.P.C. during the course of investigation. He has emphatically denied the charge that the accused persons have killed his brother. P.W.-1 and has thus been declared hostile.

19. The prosecution has also produced the evidence of Jagan Singh son of Sri Baburam (P.W.-2), who also has turned hostile and stated that he has no information about the relationship between Rama Devi and Dharmapal. He further stated that he does not know how Dharampal died because he had gone to another village on the fateful day. He has also not supported his statement recorded under Section 161 Cr.P.C. He has further denied that the police has recovered the knives (ala katla) in his presence.

20. P.W.-3 has also been declared hostile. P.W.-4, namely, Jamuna Devi, wife of the deceased has stated that she was married to the deceased three years ago. She did not know about the relationship between her husband Dharampal and accused appellant- Rama Devi. But in her cross-examination she has stated that on the date of the incident she had gone to her maternal home, Chahapura. Her brother-in-law Pritam Singh informed her about her husband's murder. Her husband Dharampal and accused-appellant Ram Kishore had no enmity with each other. He used to get angry very quickly and used to often quarrel with the people of the village.

21. Dr. R. K. Sharma, who has conducted post mortem has also been produced as P.W.-5, who has proved the post mortem report and has stated that the post mortem was conducted by him and he found the cause of death to be shock caused due to profuse bleeding from ante mortem injuries. In the cross-examination he has specifically stated that the vocal cord of the deceased was cut, this vocal cord is the one from which the sound comes out of the mouth. He has further stated that from injury no. 4 to 14, it is possible for a person to die instantly since a lot of blood must have come from these wounds.

22. P.W.-6, namely, Mahendra Singh, brother of the deceased stated that Rama Devi is the wife of Ram Kishore. Deceased Dharampal had illicit relations with Rama Devi. Ram Kishore used to have a grudge against Dharmapal regarding this issue and they were not on talking terms. On the date of the incident he along with his brother, Pritam Singh, Jagan Singh and Prem Singh were standing at the cross-road (tiraha) behind Jagan Singh's house and were talking each other. His brother Dharampal was bringing goods from the shop from the north. When Dharampal reached in front of Ram Kishore's home, accused called him inside the house and closed the door. At that time it was 7:30 P.M. in the evening. Dharampal's voice was heard from Ram Kishore's house that save him. All four people rushed towards Ram Kishore's main door and saw from the hole in the door that Ram Kishore and Rama Devi were assaulting Dharampal with knives; lamp was lightening inside the room; the incident was clearly visible in light of lamp from the hole of the door. Both the accused were having knives. He has further stated that they broke open the door, entered inside the house. Ram Kishore and his wife Rama Devi were coming out from the room on the north of the house, Dharampal was writhing due to injuries. Dharampal told them that the accused-appellant had stabbed him by knives and he would not be able to survive and saying this he died. While they were talking to Dharampal, the accused persons fled away.

23. In his cross-examination, this witness stated that the deceased Dharampal had no illicit relationship with Rama Devi. About two years prior to this incident, Dharampal used to visit Ram Kishore's house. Ram Kishore also used to come to Dharampal's house. Both of them used to sit and eat together. Till the incident, the relationship between them was normal. He further stated that two years before this incident, there was an altercation between the two, but he was unable to tell when the altercation had taken place. He also stated that two years before the incident, Rama Devi had gone to her maternal home. On the day of the incident, they were standing at the cross-road (Tiraha) for getting work for the next day. When Dharampal went ahead with the goods from the shop, Ram Kishore's house was lying on the way, so he went to his house. After entering in the house of accused screams of Dharampla were heard within two or three minutes. They went to Ram Kishore's house immediately after hearing the scream. On reaching there they saw through the peep-hole in the door; they made noise but the door was not opened. He jumped over the wall and reached inside the house and opened the door from inside and then other persons namely Pritam, Jagan and Prem Singh could come inside the house. He has specifically stated that knives were lying near the dead body.

24. P.W.-7 S.I. Suresh Chandra Sharma, who has prepared the inquest report and got the dead body of the deceased sealed and sent for post-mortem, has stated that on 10.2.2010 he along with S.O. Ganesh Dutt Joshi and other police personnel were taken to the place of occurrence by the accused-appellants i.e. Ram Kishore's house. The accused persons went inside the room in his house. Accused Ram Kishore himself climbed on top of the cot and took out a blood-stained knife from the storage shelf (taand). It was disclosed that he had killed Dharampal with this knife, and the accused Rama Devi gave a knife kept in the house, which had blood on it, saying that she had killed Dharampal with this knife. Both the knives were taken into custody by the police, stitched in different cloths. He has further stated that they reached the place of occurrence at 10:00 P.M. in the night and they have conducted the panchayatnama in the morning. They have not searched the placed of occurrance in the night because it was dark and they had only torches.

25. P.W.-8, S.I. Ganesh Dutt Joshi, S.H.O., P.S. Kemri, District Rampur, who has recorded Nakal Tahrir Hindi, Nakal Rapat Kyami and also recorded the statement of informant Pritam Singh in the CD. He stated that he along with other police personnel took the accused-appellants to the place of occurrence i.e. his house and after stopping the jeep in front of the house, the accused Ram Kishore climbed on the cot and took out a knife from the storage shelf (tand) at 17-15 hours and disclosed it to be used in the murder.

26. On careful examination and evaluation of the oral as well as documentary evidence brought on record, we find that most of the prosecution witnesses have turned hostile at the stage of trial except the testimony of P.W.-6, who is stated to be star prosecution witness and relying upon the same and other evidence, the trial court has convicted the accused-appellants.

27. On careful scrutiny of the statement of P.W.-6 referred to above, we find that there is material contradiction and inconsistency in the statement of P.W.-6. In his examination-in-chief he has stated that the deceased Dharampal had illicit relations with accused-appellant- Rama Devi due to which her husband Ram Kishore (accused-appellant) used to have a grudge against Dharmapal and they did not talk to each other, whereas in his cross-examination he has stated that the deceased Dharampal had no illicit relationship with Rama Devi. Till the incident, the relationship between these two were cordial. He has further stated that two years before this incident, there was an altercation between the deceased and accused-Ram Kishore. He has also stated that two years before the incident, Rama Devi had gone to her maternal home, meaning thereby that at the time of incident accused Rama Devi was not present at the place of occurrence. He further stated that when he reached the place of occurrence along with other people he saw from the peep-hole of the door that Ram Kishore and Rama Devi were stabbing Dharampal by knives, there was lamp inside the room and the light of the lamp was clearly visible from the door. Both the accused were having knives. He has further stated that they have broken the door and entered into the house, whereas in his cross-examination, P.W.-6 has stated that they saw through the peephole in the door, after that they made noise and when the door did not open, he jumped over the wall and reached inside the house and after reaching inside, he opened the door from inside and then other persons namely Pritam, Jagan and Prem Singh came inside the house. However, P.W.-8 Sub Inspector Ganesh Dutt Joshi in his cross-examination has stated that during the course of investigation, none of the prosecution witnesses including P.W.-6 has disclosed to him that on opening the door of the accused-appellants by P.W.-6, they entered into their house. P.W.-8 has also stated that during the course of investigation, he has seen the broken door of the main gate of accused-appellants. From the aforesaid contradictory statements of the prosecution witnesses, it is not clear as to how and in what manner, after seeing the incident from peephole of the door of the house of accused-appellants, the prosecution witnesses including P.W.-6 have entered into the house.

28. P.W.-6 has stated that at the time of incident, in the light of lamp, which was lightening, he saw the commissioning of offence by the accused-appellants from peephole of the door along with others, but the Investigation Officer has not recovered any lamp from the place of incident nor produced the same during the course of trial. P.W.-7 Sub-Inspector Suresh Chandra in his cross-examination has stated that there was no source of light at the place of occurrence except the torch light. Therefore in absence of any light having been found and recovered from the place of occurrence it is impossible for any witnesses including P.W.-6 to see the incident from peephole of the door which occurred in darkness i.e. 07.30 p.m.

29. P.W.-6 has admitted that due to illicit relationship between the deceased and the accused-appellant Rama Devi (wife of accused-appellant Ram Kishore), they did not talk to each other. If that was so why will accused-appellant Ram Kishore invite the deceased Dharampal to his house and why will the deceased go to his house? What was the occasion for the deceased to go to the accused-appellants on the date of incident has not been borne out from the evidence.

30. Though the prosecution has tried to provide the motive for commissioning of the murder of the deceased as being the illicit relationship between the deceased and the accused-appellant Rama Devi but the said motive has not been proved from the statements of the prosecution witnesses including P.W.-6 and other evidence brought on record. In the examination-in-chief, P.W.-6 has although stated that there was illicit relationship between the deceased and accused-appellant but in the cross-examination, P.W. 6 has stated that there was no illicit relationship between the deceased and the accused-appellant Rama Devi. The other prosecution witnesses of fact have turned hostile. Therefore, on the basis of contradictory statement of P.W.-6, the prosecution has failed to establish the motive in the facts of the present case against the accused-appellants.

31. The recovery of two knives i.e. Ala Katal which is alleged to have been recovered on the pointing out of the accused-appellants is also doubtful. The prosecution has failed to substantiate as to how and in what manner such recovery has been made on the pointing out of the accused-appellants. Apart from the above, Jagan Singh (P.W.-2), who happens to be the witness of recovery of such knives (Ala Katal) has not supported the recovery memo. Even otherwise, the other witnesses of the recovery memo have not been produced during the course of trial. Interestingly, P.W.-6 has stated that nearby the body of the Dharampal the Knives were lying. It is surprising that when the knives were already present nearby the dead body of the deceased Dharampal how could the prosecution claim that the knives (Ala Katals) to have been recovered on the pointing out of the accused-appellants, separately. The recovery memo thus is not reliable.

32. The trial court although has referred to the testimony of P.W.6 and has relied upon the recovery but the evidence on record, in that regard has not been carefully examined. We hold that prosecution has not been able to establish the guilt of the accused-appellants beyond reasonable doubt. The accused-appellants in the facts of the present case are clearly entitled to the benefit of doubt.

33. Consequently, both the appeals succeed and are allowed. The judgment and order of conviction and sentence dated 14.8.2013 passed by Additional Sessions Judge, Kach Sankya 1 Rampur in Sessions Trial No. 193 of 2010 (State Vs. Ram Kishor and another) arising out of Case Crime No. 172 of 2010 against the accused appellants, is reversed. The accused-appellants are held entitled to benefit of doubt.

34. The accused appellants, namely, Rama Devi and Ram Kishore, who are reported to be in jail since 14th August, 2013 and 10.02.2010, respectively shall be released forthwith, unless she is wanted in any other case on compliance of Section 437-A Cr.P.C.

35. Let a copy of this judgment be sent to the Chief Judicial Magistrate, Rampur henceforth, who shall transmit the same to the concerned Jail Superintendent for release of the accused-appellants in terms of this judgment.

                             (Shiv Shanker Prasad, J.)    (Ashwani Kumar Mishra,J.) Order Date: 24.1.2023
 
Abhishek Singh