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2013 DIGILAW 1847 (ALL)

STATE OF U. P. v. RAM PRASAD

2013-07-15

DHARNIDHAR JHA, PANKAJ NAQVI

body2013
Pankaj Naqvi, J. The present government appeal is directed against the Judgment of acquittal dated 14.1.1986 passed in Sessions Trial No. 269 of 1985 by the learned Sessions Judge, Rampur by which he acquitted solitary accused of the charge under Section 302I.P.C. This Court had also dismissed the appeal against acquittal by an order dated 25.10. 1990 which order was challenged before the Supreme Court in Criminal Appeal No. 68 of 1996 and the matter was remanded back for reconsideration by this Court by Judgment of the Supreme Court dated 18.1.1996. This is how we have heard this appeal and are disposing of the same by the present Judgment. It is not disputed that the deceased Paniya was married to the solitary accused Ram Prasad and on the date of occurrence, i.e., 29.9.1985 she was residing with the respondent in his house. It is also not disputed that her dead body was found lying on a cot covered with a quilt and further that she had been killed by being strangulated to death. The prosecution allegation was that the solitary accused Ram Prasad was doubting chastity of his wife and used to pick up quarrel with the deceased for that reason very off and on. It appears that in the chain of such quarrels, he overpowered the deceased, while she was lying in the cot, sat on her chest and while the deceased was attempting to wriggle herself out of the clutches of the accused and also the mother of the accused was also attempting to pull the accused out, He succeeded in strangulating the deceased. Some of the neighbors were attracted after picking up the cries of the deceased as also those of the mother of the accused and one such onlooker, i.e., Shyam Lal lodged the written report on the basis of which Kisraul police station case no. 106 dated 29.9.1985 was drawn up. The investigation was initiated during which course, a huge number of persons were examined by the police who also held inquest upon the dead body and sent it for autopsy to Dr. T.N. Gupta, P.W. 5, who ( P.W. 5) found, as may appear from his evidence and the post mortem report ( Ex. 106 dated 29.9.1985 was drawn up. The investigation was initiated during which course, a huge number of persons were examined by the police who also held inquest upon the dead body and sent it for autopsy to Dr. T.N. Gupta, P.W. 5, who ( P.W. 5) found, as may appear from his evidence and the post mortem report ( Ex. Ka-1), ante mortem injuries on the dead body which were found by him during autopsy which was conducted on the dead body of the deceased Paniya Devi on 30.9.1985 in connection with the above noted police case. The ante mortem injuries were as follows:- ( i) cut of tip and both alae of nose with lacerated margins. ( ii) Abraded contusion 2cmx5cm over front of neck in mid line at the level of adam's apple. There were multiple contused abrasions present on either sides of the neck with crescentric marks ( nail marks) and the underlying contusions and muscles of the neck were found containing extra vacation of blood, specially under the finger nail marks ( iii) There were multiple abraded contusions over front of chest wide spread between both breasts. ( iv) Abrasion measuring 6c.m.x 4c.m. on dorsum of left foot. ( v) Abraded contusions 3cm x 2cm on the top of left shoulder which were opined to be the teeth marks in an elliptical crescent. In the opinion of P.W. 5 the death of deceased had been caused on account of strangulation and the abrasions specially that at serial no. 5 was on account of teeth bite and others were caused by nail bite on account of the struggle the deceased had made so as to freeing herself in an attempt to get away from the clutches of the respondent. The doctor was further stating in his cross-examination that had he found the tongue protruding out, he must have mentioned the same in his report and that none of the rib bones had been found fractured while the bones of the neck were found fractured. The doctor was further stating in his cross-examination that had he found the tongue protruding out, he must have mentioned the same in his report and that none of the rib bones had been found fractured while the bones of the neck were found fractured. On perusal of the post mortem report, specially the description of the injuries recorded by P.W. 5 in it, leaves no manner of doubt that in order to achieve his goal, the respondent had strongly caught hold of the neck of the deceased and the nail marks, which were on the either side of the neck, could have occurred only when the lady was attempting herself to wriggle out of his clutches and the serious attempt of the respondent in finally killing her appears from the fact that he had bitten at the shoulder of the lady so that she was completely immobilized and finally killed. This appears from the evidence of P.W.5. The oral evidence support to the prosecution story comes from P.Ws. 1 and 2. They have stated that they were sitting on a chabutara and were enjoying hukka together when they heard some sounds coming out of the house of the respondent accused and they went there and found that in the khaprail-house of the accused, the deceased Pania Devi was lying in a cot and the accused was sitting over her and was pressing her neck. The accused was also stating that he shall kill the deceased and his mother was attempting to save the lady by pulling the accused out. Both the witnesses had stated that as soon as they arrived there they shouted and chased the accused when he left. The solitary ground upon which the whole prosecution case was thrown out by the learned trail judge was that there was no reason explained in respect of the injury which was found on the nose tip of the deceased and further the cutting of nose must have caused bleeding and neither the Investigating Officer nor any witness stated that blood was found either on the person of the deceased or on the cloth which was spread over it. It is true that the doctor had said that the tip of the nose was cut and further that both alae were also lacerated, but there is no mention that the tip was so cut as to cause bleeding. It is true that the doctor had said that the tip of the nose was cut and further that both alae were also lacerated, but there is no mention that the tip was so cut as to cause bleeding. We have all reasons to note that the cutting of the tip of nose might be on account of attempts of the accused to overpower the deceased completely, but we find no description of dimension of the injury as it was not of such nature as to lead to bleeding and thus,there was no question of blood falling anywhere either on the person of the deceased or on the cloth spread on the cot. In our opinion, the reason upon which the whole prosecution story was rejected by the trial Judge was not fitting in with appropriateness and indicated that the approach of the trial judge on marshaling of facts and appreciating evidence was not only perverse, but something against the oral support of the prosecution story which was coming from two witnesses, like, P.Ws. 1 and 2. The learned trial court was not probably considering one of the most important aspects and circumstances of the case that the lady had been killed in the house of the accused, that the accused was married to her, and that he was doubting her chastity and, on previous occasions, had also picked up quarrels with her on that account and, lastly, he eliminated. her If the learned trial Judge, had taken pains to consider the provisions of section 106 of the Evidence Act, he could not have considered the trivial circumstance of the cut wound on the nose as much convincing as to reject the whole prosecution story. We have already noted that the description of injury no. 1 which was so heavily weighing upon the wisdom of the learned trial judge was such which could hardly raise an inference that it could be an injury which could cause bleeding to any person. There were many abrasions and crescentric marks found by the doctor so much so caused by teeth bite on the shoulder of the deceased as were not causing any bleeding to the deceased. There were many abrasions and crescentric marks found by the doctor so much so caused by teeth bite on the shoulder of the deceased as were not causing any bleeding to the deceased. This was yet another aspect of prosecution evidence which appears seriously missed by the learned trial judge that if a teeth bite was not causing bleeding, how could a mere cut, which may have been induced by scratch from nail, could be enough for bleeding. The approach, in our opinion, of the learned trial judge was perverse besides being unreasonable and that approach had resulted in completely illegal and unlawful acquittal of the accused who had a serious burden upon him to explain his special knowledge as to how his wife, who was living with him in his house, was murdered-if not by him by some persons who could be an outsider, specially when the lady had been married to the accused only three months prior to the occurrence. We find that the mother did not come to support the prosecution case though the prosecution story and evidence stated that she was present there and she was attempting to pull the accused out, while he was sitting on the chest of the deceased, in an attempt to save her. If she would not have been a mother, who always have a feeling of seeing her son secured from the gallows, we believe, she must have definitely come out to support the prosecution story. What we find finally from appreciation of evidence is that the Judgment of acquittal was completely perverse which had resulted in an unlawful acquittal. We set aside the Judgment of acquittal on the reasons we have just noted and convict the accused of offence under Section I.P.C. for murdering his wife. The accused did not appear in spite of best efforts made by the court so that we could have heard on merits of the appeal and finally on sentence in spite of that we have considered some of the circumstances of the case and we want to note them down which could be mitigating the sentence in such a serious case. The man was having prejudice towards the lady who was supposed by him to be unchaste and this was one reason which was probably moving him to kill the lady. The man was having prejudice towards the lady who was supposed by him to be unchaste and this was one reason which was probably moving him to kill the lady. In addition to the above, the occurrence had taken place on 29.9.1985, i.e., some 28 years back and, at this moment of time, it would not be proper to inflict the maximum sentence, specially when he had an order of acquittal in his favour which is being upset by us after about 27 years of filing of the present appeal by the State of Uttar Pradesh. We, as such, sentence him imprisonment for life and also impose a fine of Rs.5,000/- and in case of default in paying of fine, he shall have to suffer rigorous imprisonment for a further period of six months in lieu thereof. Let a copy of this Judgment be transmitted to the learned Sessions Judge, Rampur immediately who shall take all steps for getting the convict accused Ram Prasad arrested so that he is committed to custody for serving out the sentence. If any let or hindrance is caused or found on the part of police, he shall exercise all his powers to deal with the officers and he shall be free to punish them properly. Government appeal is allowed.