Ram Kishore vs State Of Uttarakhand
2024 Latest Caselaw 2132 UK

Uttarakhand High Court

Ram Kishore vs State Of Uttarakhand on 18 September, 2024

                    Reserved on:16.05.2024
                    Delivered on:18.09.2024
     IN THE HIGH COURT OF UTTARAKHAND
                AT NAINITAL
           HON'BLE THE CHIEF JUSTICE MS. RITU BAHRI
                             AND
            HON'BLE SRI JUSTICE ALOK KUMAR VERMA


            CRIMINAL APPEAL No.360 OF 2014
Ram Kishore                                                     ......Appellant
                                    Versus

State of Uttarakhand                                           ...Respondent


Counsel for the appellant            :       Ms. Manju Bahuguna,           Mr.    D.N.
                                             Sharma, learned counsels.

Counsel for the State                :       Mr. J.S. Virk, learned DAG,




JUDGMENT :

(per Ms. Ritu Bahri, C.J.)

The appellant has come up in the appeal

against the judgment 27.09.2024, passed by the learned

Sessions Judge, Udham Singh Nagar, whereby appellant

has been convicted under section 307 of IPC, and

sentenced to life imprisonment and the fine of

Rs.20,000/- has been imposed. The appellant has been

acquitted of the charges under sections 376/511, 504

and 506 of IPC.

2. The case of the prosecution is that on

07.05.2013, at about 4:30 AM, Rakhi daughter of the

complainant went to the toilet on the roof of her house

for defecation, whereby the accused Ram Kishore S/o

Roop Singh, who was already lying in ambush there,

who lives in her neighbourhood, caught hold of her

daughter Ms. Rakhi, with evil intentions and tried to

forcibly rape her. When his daughter protested, Ram

Kishore, with the intentions of killing her, stabbed his

daughter several times with the knife, due to which his

daughter throat was badly cut. On hearing the noise, his

family members and many people from around came,

Ram Kishore ran away from the spot. This was seen by

the complainant Sri Mahendra Singh, father of Ms.

Rakhi, and his wife and elder daughter Mrs. Pinki and

her husband Sri Pushpendra Raghav. Sri Mahendra

Singh, complainant, had made a complaint at Police

Station Kichha, on 07.05.2013.

3. After due investigation, charge-sheet were

framed against accused Ram Kishore, Rambhorse, Man

Singh and Rama Devi under sections 376/511, 307, 504

and 506 of IPC. The allegations against Rambhorse,

brother of Ram Kishore, Man Singh and Rama Devi, was

that they also abused the family members of Ms. Rakhi,

and were beating them with sticks when they left the

place, they went there threatening the family of the

complainant not to take legal action against Ram

Kishore, and if any legal action is taken, they will kill

them along with entire family. On 19.08.2013, the file of

the accused Rambhorse, Man Singh and Rama Devi was

separated by the learned Judicial Magistrate, Rudrapur

and the case of accused Ram Kishore was committed to

the court of Sessions Court for trial. Charges under

sections 376/511, 307, 504 and 506 of IPC were framed

against accused Ram Kishore, and the accused denied all

the allegations and demanded trial.

4. PW-1 Ms. Rakhi, victim, PW-2 Mahendra

Singh, PW-3 Raju Koli, PW-4 Pinky, PW-5 Pushpendra

Raghav, PW-6 SI Avnish Kumar, PW-7 Dr. Vaibhav

Kuchhal and PW-8 HC Rajiv Kumar for oral evidence in

support of their statements on behalf of the prosecution

have been presented.

5. In the form of documentary evidence, the

prosecution report Exhibit A-1, map view Exhibit A-2,

one knife recovered from Fard, Exhibit A-3, police

bloodstain taken from Fard and pieces of plain cement

Exhibit A-4. Fard capture police took Khoonaluda kurta

Exhibit A-5, charge sheet Exhibit A-6, supplementary

medical report Exhibit A-7, chick FIR Exhibit A-4 and

copy of GD Exhibit A-1 were presented and proved and

object exhibits- 1 Knife, seal cloth exhibit-2, kurta object

exhibit-3 and cloth bundle exhibit-4 were presented and

proved.

6. The statement of the accused was recorded

under section 313 of CrPc, and he denied the allegation

of the prosecution. However, did not lead any other

evidence in his defence. The trial court examined the

statement made by PW 1 Ms. Rakhi, victim, who

admitted in her main examination that she could not

identify the attacker and when she saw the accused, she

said he was not the boy who had committed the crime

with her. However, the Court proceeded to examine the

statement, keeping in view, that it was the victim who

had given the statement, but the lower court examine

the statement of the PW 1 Ms. Rakhi, and held that it

was not possible that 4:30 AM in the morning any

person could come to the toilet built on the roof of the

house, unless he is called. However, this witness in the

cross-examination admitted that when the police had

taken up her statement regarding the incident she has

told them that she has recognized the accused Ram

Kishore by his voice and had named Ram

Kishore/appellant as the attacker. The witness also

stated that when she was attacked snatching continued

for long time and she kept protesting. As per

investigation done by the prosecution Ms. Rakhi, was in

love with Ram Kishore and she was to get married on

12.05.2013, and as per the investigation carried out, the

accused had love affair with Ms. Rakhi, and that is why

she has called him at her house at 4:30 AM in the

morning. The fact that she was kept protesting when

snatching was going on, the lower court observed the

fact that she was to get married, she had called him at

the roof top of her house, and as per the averment

snatching continued for a long time, the time spent

during snatching before she was attacked by a knife was

spent by her explaining to the accused the reasons that

she was to get married and she could not forward her

love relationship. Since this snatching continued for

about 10 to 15 minutes and the incident took place in

the month of May at 4:30 Am in the morning it was not

possible that she could not have recognized the accused.

7. As per the version given by Mrs. Pinki, elder

sister of the victim PW 4 stated that Ram Kishore lived

in "Galla Mandi Kichha" 3 to 4 house away from her

maternal house. On the date of the incident at 4:30 AM

in the morning, she, her mother and her husband were

sleeping in the living room when she heard her younger

sister Ms. Rakhi, shouting from the terrace. She saw

Ram Kishore cutting Ms. Rakhi, throat with the big knife.

When she started running towards Ms. Rakhi, Ram

Kishore threatened her. When she screamed, her

mother, brother and younger sister came up and then

Ram Kishore pushed Ms. Rakhi, throat and jumped onto

our roof in the light of the street light. Ms. Rakhi, has

seen and recognized, she told her to take her down, and

thereafter she was taken for treatment to Government

Hospital. After first aid given, she was referred to the

Sushila Tiwari Hospital, Haldwani, where Ms. Rakhi,

injuries were treated. In her cross-examination PW 4

Mrs. Pinky, also stated that her marriage took place. Ms.

Rakhi, was her sister and incident occurred on

07.05.2013 at 4:30 AM in the morning, when they had

gone to the terrace they saw Ram Kishore and Rakhi,

and he was holding the knife on the Rakhi's neck. Ram

Kishore, remained there for two minutes after they

reached the terrace. Ram Kishore silt in the neck of Ms.

Rakhi and ran away crossing the boundary of their

house. Ram Kishore house is 4th house from their house.

After Ram Kishore committed this incident, the

complaint has been made to his family members and his

mother started abusing her.

8. As per the statement given by PW 4 Mrs.

Pinky, she fully supported the incident. PW 5 Pushpendra

Raghav, husband of Mrs. Pinky PW 4 and PW 2 Sri

Mahendra Singh, complainant, have also given their

statement, and supported the prosecution case.

9. As per the version given by them, it was

mother who reached terrace first and thereafter the

sister and her husband came and this fact was also

admitted by the victim Ms. Rakhi. The Investigating

Officer PW6 SI Avnish Kumar, appeared and gave the

details of the registration of FIR No.141 of 2013, under

sections 376/511, 307, 504 and 506 of IPC. After

inspecting the place of incident, he prepared a map,

which is Exhibit A-2. The knife used in the incident was

recovered from the roof of the house of the accused

Khoonaluda Singh in Old Galla Mandi. There was a blood

on it. In the presence of Raju Koli, Vikram and Mahendra

Singh, the knife was sealed and signature of the witness

was taken on the fard. Copy of the fard is Exhibit A-3.

Pieces of cement and blood was taken in the separate

plastic boxes and sealed in separate white clothes and

the fard was prepared in the presence of the witnesses

Exhibit A-4. The statement of the witnesses Ms. Anita,

Mrs. Pinky, Ms. Shikha @ Gudiya and Sri Pushpendra

Raghav, were recorded on 11.05.2013. The statement

was recorded on 12.05.2013, in the presence of Majruba

Rakhi, her mother, Mrs. Anita, who was admitted in the

ENT ward of Sushila Tiwari Hospital, Haldwani, and

recorded the statement of the witness Chandu Yadav on

17.05.2013. On 19.05.2013 the statement of the

witness Sonu was recorded and blood stain kurta worn

by Ms. Rakhi at the time of the incident was obtained in

the presence of the complainant and thereafter

chargesheet was sent to the Court Exhibit A-6.

10. The prosecution witness PW 6 proved the

entire evidence. PW 7 Dr. Vaibhav Kuchhal, appeared

and has stated that injury on Ms. Rakhi, was inspected

by him, the patient was fully conscious and speaking.

The patient had 10cm stitched wound on the neck which

was stitched externally. The throat muscle has cut up to

the thyroid cartilage in the wound, the would was

stitched again and treated again. As per the medical

report paper no. 3A/26, given his opinion Exhibit A7, the

injury on the patient neck is possible to have occurred

on 07.05.2013 around 4:30 to 5 AM and the injury

caused by the sharp weapon like a knife is possible

to come.

11. Further PW 4 Head Constable Rajeev Kumar,

has also deposed with regard to the investigation carried

out.

12. The court below taking the statements of PW 4

Smt. Pinky and PW 5 Pushpendra Raghav, held that

there was no reason to implicate the accused, and in this

backdrop, there was no occasion to disbelief the

prosecution evidence. The version given by the victim

PW 1 Ms.Rakhi, was an attempt made as she was having

a love affair with the accused/appellant and it was for

this reason she called him on the terrace four days

before she get married and her denial that it was not the

accused, who committed the incident did not create a

doubt in the prosecution version. In her cross-

examination, she had admitted that she had recognized

Ram Kishore by his voice and he was forcing himself

upon her. The incident took place at 4:30AM in the

morning and it was not possible that the

attacker/accused could not be recognized identified by

Ms. Rakhi, PW 1. Keeping in view the evidence given by

PW 4 Smt. Pinky and PW 5 Pushpendra Raghav, coupled

with the medical report, the injury on the victim was

held to be caused by the sharp weapon like knife and

even the knife was recovered during investigation.

13. Since there was no evidence with respect to

the commission of the offence under sections 376/511 of

IPC, the appellant has rightly been acquitted with

respect to the injury caused, which was 10cm would on

neck with the knife. The offence under section 307 of

IPC was made out and the appellant has been convicted

for ten years' under section 307 of IPC. With respect to

the offence under section 307 of IPC, there is substantial

evidence which does not require re-appreciation with

respect to the wound around the neck, which was

caused by the accused and even the Medical Officer

found that this would had been caused by cut up to the

thyroid cartilage. Cutting the neck with the knife

automatically proved that the accused had an intention

to kill the victim and it was a very grievous injury, in the

backdrop, the appellant has been rightly been convicted

under section 307 of IPC.

14. Had it been the grievous injury, the conviction

could have been converted to an offence under section

326 of IPC, however, keeping in view, the report of the

Dr. Vaibhav Kuchal, PW 7, and the medical report

Exhibit A7

Quantum of Punishment

15. The appellant has been convicted for the

offence under Section 307 of IPC, which reads as

under:-

"307. Attempt to murder.--Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to 1 [imprisonment for life], or to such punishment as is hereinbefore mentioned. Attempts by life-convicts.--4 [When any person offending under this section is under sentence of 1 [imprisonment for life], he may, if hurt is caused, be punished with death.]"

16. As per the above said section 307 of IPC, the accused can be punished with the imprisonment of either description for a term which may extend to ten years. However, the quantum of punishment to be awarded for the offence under section 307 of IPC, has to be examined by the Hon'ble Supreme Court in the judgment reported in 2022 (4) SCC 735, "Vasudev Vs. State of Madhya Pradesh", the Hon'ble Supreme Court observed that in order to attract Section 307 of IPC, the prosecution has to prove whoever does any act, with the intention or knowledge, which may cause death and in furtherance to the said intention and knowledge, he was doing an act towards it. The Hon'ble Supreme Court was examining the above said provisions under section 307 of IPC, where it has reiterated that the evidence, which the prosecution has to led is to show

that the accused had an intention or knowledge to cause death.

17. In the case before the Hon'ble Apex Court is that when the Police had gone to arrest the accused from his house, he started firing on the police party, and as per the evidence given by one of the persons from the Police Party, the firing would done in the air, and it was not done towards police officer, and there was no evidence led that accused has done firing on the police party, and in this backdrop the requisite intention and knowledge for attracting section 307 of IPC was not proved.

18. In another judgment reported in 2020 (17) SCC 518, "Suryakant Baburao @ Ramrao Phad Vs. State of Maharashtra and others", the Hon'ble Apex Court held that the Court are bound to impose sentence which commensurate with the gravity of the offence, the Court has to keep in mind that not only the views and right of the accused but also keeping in mind the view and interest of the victim in society at large, and in this backdrop reasonable proportion has to be maintained between the gravity of the offence and the punishment. Inadequacy of the sentence will lead to sufferance of the victim and the community at large.

19. The Hon'ble Supreme Court affirmed the findings given by the trial court whereby conviction was made to six years and the High Court affirmed the conviction under section 307 of IPC but reduce the punishment to five years, on appeal, and the Hon'ble

Supreme Court convicted the accused for six years. The Hon'ble Supreme Court held that the gravity of the offence cannot be diluted as it would not be in the interest of the victim and the society at large. In the facts before the Hon'ble Apex Court is that Accused no.1 Devraj had taken out a pistol from his waist and fired one shot at PW 6 Chandrakant on his chest. Appellant nos.2 and 3, who were alleged to be holding stick and stone in their hand, appellant no.1, had fired bullet from his pistol, which hit on the left knee of PW 7, the injured were taken to the Hospital and were given treatment, and thereafter, after investigation the accused were charge-sheeted under sections 307, 323 and 506 read with 34 of IPC. The trial court had convicted the accused no.1, for seven years. However, the High Court reduced the conviction to five years. The Hon'ble Supreme Court confirm the conviction up to six years in paragraph nos.11 to 15 of the judgment. In paragraph nos.11 to 15, which reads as under:-

"11. While considering the quantum of sentence, the courts are expected to consider all relevant facts and circumstances of the case, in particular, nature of injuries caused in the occurrence and the weapon used which will have bearing on the question of sentence and the Courts are bound to impose sentence commensurate with the gravity of the offence. Considering the nature of injuries caused to PW- 6-Chandrakant i.e. gun shot wounds in the chest and the opinion of Doctor that the injuries caused to PW-6 are capable of causing death, in our view, the High Court was not right in reducing the sentence of first accused-Devraj.

12. The question of awarding sentence is a matter of discretion for the courts and has to be exercised on consideration of facts and circumstances of the case. Though the court has discretion in awarding the sentence, it should be

commensurate with the gravity of the offence. The court has to record brief reasons to explain the choice of sentence. In State of Punjab v. Bawa Singh (2015) 3 SCC 441, the Supreme Court in para (16) held as under:-

"16. ....... undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment. Meagre sentence imposed solely on account of lapse of time without considering the degree of the offence will be counterproductive in the long run and against the interest of the society."

13. In Ravinder Singh v. State of Haryana (2015) 11 SCC 588, it was held as under:-

"11. The question of sentence is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases. The law courts have been consistent in the approach that a reasonable proportion has to be maintained between the seriousness of the crime and the punishment. While it is true that a sentence disproportionately severe should not be passed that does not clothe the court with an option to award the sentence

manifestly inadequate. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime."

14. In Sevaka Perumal and another v. State of Tamil Nadu (1991) 3 SCC 471, it was held as under:-

"10. ......undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats. If the courts did not protect the injured, the injured would then resort to private vengeance. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc."

15. Considering the nature of the injuries caused to PW-6- Chandrakant and PW- 7-Suryakant and the facts and circumstances of the case, the trial court convicted accused No.1-Devraj under Section 307 read with Section 34 IPC and sentenced him seven years rigorous imprisonment with a fine of Rs.15,000/-. When the trial court has exercised its discretion in imposing seven years of sentence of imprisonment, the High Court ought to have kept in view the weapon used by accused No.1 and the nature of injuries caused to PW-6-Chandrakant and the opinion of the Doctor. The courts must not only keep in view the right of the accused, but must also keep in view the interest of the victim and society at large. The courts have been consistent in approach that a reasonable proportion has to be maintained between the gravity of the offence and the punishment. While it is true that the sentence imposed upon the accused should not be harsh, inadequacy of sentence may lead to sufferance of the victim and the community at large. So far as the first accused-Devraj is concerned,

the High Court was not right in reducing the sentence of imprisonment imposed upon first accused. As pointed out earlier, the High Court reduced the sentence of imprisonment from seven years to five years and increased the fine amount to Rs.25,000/- and part of the said fine amount was ordered to be paid as compensation to the injured PW-6- Chandrakant and PW-7- Suryakant. Since the enhanced compensation was paid by accused No.1 which is said to have been withdrawn by injured- victims, for conviction under Section 307 read with Section 34 IPC, the first accused-Devraj shall undergo rigorous imprisonment for six years and six months."

20. The facts of the present case the victim Ms. Rakhi, who had appeared as PW 1, had admitted in her main examination that she could not identify the attacker and after seeing the accused in the Court, she says that he was not the one, who had committed the crime with her. The lower court proceeded to examine the other evidence i.e. the evidence given by the PW 4 Smt. Pinky and PW 5 Sri Pushpendra Raghav, who had identified the accused when they went up to the terrace and show him jumping from the terrace. The house of the accused is 4th house away from the house of the victim, and as per the Investigating Officer, the victim and Ram Kishore/appellant were having love affair and it was Ms. Rakhi, who was to get married after four days of this incident. PW 1 Rakhi, did not identify accused, however, in her cross-examination this witness admitted that when the Police has taken her statement regarding this incident, she had told them that she had recognized the accused Ram Kishore by his voice, and had named the Ram Kishore as the attacker.

21. Keeping in view that the incident took place in the 1st week of May, 2013, at 4:30 AM in the morning, at that time, there is a bright light and the fact that she did not recognized the accused when he was there for 10 to 15 minutes, was not accepted by the lower court. The above fact clarifies one thing that despite being attacked by the knife causing injury on her throat by the knife, the victim. Despite being attacked by giving injury on her throat, PW 1 Ms. Rakhi, did not identify him when she appeared as main witness as PW 1. Hence, the court has rightly observed that attempt was being made by Ms. Rakhi to convince the accused Ram Kishore to accept the fact that she was going to get married to some one after four days and she could not carry forward the love relationship, she was in a mental conflict and in this backdrop, and further she never identified him while appearing as PW 1. This is one aspect of the matter with regard to the evidence given by the victim PW 1 Ms. Rakhi.

22. The second point, which has to be examined is that as per the medical/supplementary medical report, at page 9 of the lower court record dated 07.05.2013, the victim had been assaulted by sharp cutting weapon by her neighbour on 07.05.2013 at 4:30 AM in the morning, the patient was conscious and had a 10C sutured horizontal laceration present over mid neck and the laceration involve strapmuscle deep up to thyroid cartilage.

23. The accused Ram Kishore, in the present case was 21 years of age, when this incident took place, and keeping in view that they had an emotional love

relationship and were emotionally attached to each other an attempt was made by Ms. Rakhi, PW 1, not to identify him before the court. As per the evidence given by PW 4 Mrs. Pinky, elder sister of the victim Ms. Rakhi PW 1, the accused Ram Kishore, lived 3 to 4 house away from the house of Ms. Rakhi, and on the date of the incident at 4:30 AM in the morning when they heard the voice of Ms. Rakhi, they when to upstairs, they show Ram Kishore was holding and cutting the throat of Ms. Rakhi with big knife, after other family members reached, he ran away from the terrace. Same evidence was given by her husband PW 5 Pushpendra Raghav. There has been recovery of the knife from the roof of the house of the accused, which was used by the accused. The knife had a handle of about four inches long and was made of red plastic, and had 5 inches wide white metal on it. There was a blood on it. In the presence of Raju Koli, Vikram and Mahendra Singh, the knife was sealed. Signatures of the witnesses present were taken on the fard, which was Exhibit A3.

24. Hence, one fact can be concluded that even though the accused had gone to meet the victim on the roof with the knife early in the morning, had he an intention to kill her, he would have killed her, he would not spent 10 to 15 minutes. The injuries given by him keeping in view that he had gone to meet Ms. Rakhi, on the roof top four days' before the wedding ceremonies that he did not want to close the love relationship with the victim and he was in anger, and at the same time after giving such grievous injuries PW 1 did not identify him while appearing as PW 1, however, while giving her statement under section 161 of CrPC, she admitted that

she could not see the accused but the voice was of the Ram Kishore. Being the month of May, early morning there is a sufficient light, in which she could have identified the accused, at the same time, when her real sister Mrs. Pinky and brother-in-law came on the roof top, they identified the accused immediately and they also informed the police that the accused used to stay 3 to 4 houses from the house of the victim, and they were known to each other. Hence, the victim has also not given any evidence that the accused had an intention to kill her.

25. Keeping in view the above said evidence, a reference can be made to the judgment reported in 2020 (17) SCC 518, "Suryakant Baburao @ Ramrao Phad Vs. State of Maharashtra and others", where the police had gone to arrest the accused from his house and on seeing the police party, the accused Devraj A1, had taken out the pistol and fired one shot at PW 6 on his chest and fired another bullet from his pistol which hit on the left knee of the PW 7. The Hon'ble Supreme Court convicted the accused keeping in view the gravity of the offence for 6 years under section 307 of IPC.

26. In the present case, the accused has been convicted for life and keeping in view the facts of the present case where the victim Ms. Rakhi, herself has not identified the accused whereas at the same time her real sister and brother in law had identified the accused as it was early morning in May, and they identified the accused.

27. Another facts in the present case is that the victim PW 1 Ms. Rakhi, was having a love affair with the accused/appellant, and she had called him on the terrace before she got married, and merely because she had denied that it was not the accused who had given injuries did not create a doubt in the prosecution version. In her cross-examination, she had admitted that she had recognized Ram Kishore by his voice and he was forcing himself upon her.

28. Keeping in view the above facts, the conviction under section 307 of IPC is being upheld. However, the conviction of life is being reduced to conviction for ten years.

______________ RITU BAHRI, C.J.

___________________ ALOK KUMAR VERMA, J.

NR/