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Allahabad High Court · body

2016 DIGILAW 2904 (ALL)

RAM GOPAL v. STATE OF U. P.

2016-08-23

ARVIND KUMAR TRIPATHI, MUKHTAR AHMAD

body2016
JUDGMENT : (Delivered by Hon. Arvind K. Tripathi, J.) 1. Instant Criminal Appeal has been preferred challenging the impugned order of conviction and sentence dated 26.9.1983 passed by learned VIIth Additional District & Sessions Judge, Bareilly in S.T.No.366/1981 under section 302 read with section 34 of I.P.C. arising out of Case Crime No.389/1981, Police Station Baradari, District Bareilly. 2. The appeal was admitted on 17.11.1983 and the prayer for bail of the appellants was allowed on the same day. As per office report, Ram Gopal, the appellant no.1 has died and the appeal in respect of him stands abated vide order dated 5.1.2016. 3. There is only sole surviving appellant Hasia alias Hansia r/o Kalibari, PS.Baradari, District Bareilly. None appeared on her behalf. Warrant was issued and she was brought before this Court in custody on 11.7.2016. Since she was not in a position to engage any counsel, hence on her request Shri Harish Chandra Tiwari, Advocate was appointed to appear as 'Amicus Curiae' on her behalf. 4. Shri H.C.Tiwari, learned counsel (Amicus Curiae) appeared for the appellant, Shri Virendra Singh Yadav, learned A.G.A. for the State of U.P. We heard the arguments of counsel for the parties and judgment was reserved on 20.7.2016. 5. The brief facts of the prosecution story is that the First Information Report was lodged by Mohan Lal s/o Baburam, Mohalla Siklapur, PS.Baradari, District Bareilly written by one Bhagwat Saran s/o Ram Charan, Mohalla Azamnagar on 21.6.1981 which was registered as Case Crime No.389/1981 under section 307 I.P.C. at 7.30 P.M. The informant Mohan Lal was residing in Mohalla Siklapur, PS.Baradari, Bareilly. His sister Jasoda Devi (deceased) was married to the appellant no.1 Ram Gopal s/o Narain, Mohalla Kali Bari. Thereafter his brother-in-law Ram Gopal married to another lady namely Hasia alias Hansia (appellant no.2). Since then Ram Gopal was in search of opportunity to kill her sister as he wanted to keep only Hansia alone with him in his house. On 21.6.1981 at about 6.00 P.M. his nephew (bhanja) Lalta Prasad s/o of the deceased came to his house and informed that his father was badly beating his mother. Since then Ram Gopal was in search of opportunity to kill her sister as he wanted to keep only Hansia alone with him in his house. On 21.6.1981 at about 6.00 P.M. his nephew (bhanja) Lalta Prasad s/o of the deceased came to his house and informed that his father was badly beating his mother. Immediately he rushed to the house of his sister Jasoda Devi (deceased) and saw that Jhamman Lal of the same Mohalla and his niece (Bhanji) Harpyari were present at the place of the incident and his brother-in-law, Bahnoi Ramgopal and second wife Hansia were badly beating his sister Jasoda Devi, with iron rod and lathi with an intention to kill her. Due to injuries his sister fell down and was crying. He and Jhamman Lal scolded to Ram Gopal and Hansia, then they went from there leaving his sister in injured condition. He brought his sister Jasoda Devi to the Hospital and got her admitted and after getting her admitted in the Hospital came to the Police Station for lodging of the First Information Report. The request was made to register the report and take legal action. The report was scribed by Bhagwat Saran s/o Ram Saran. The chick report was prepared by constable Puland Singh. 6. After the First Information Report was lodged and registered, the investigating officer came at the place of the incident and went to the hospital. Jasoda Devi was examined by the doctor and according to the injury report Ext.Ka.11 only one lacerated wound 3 cm x 5 cm x bone deep right side forehead, 3.5 cm above eyebrow was noted. X-ray was advised. Rest of injuries were deferred as the condition of patient was found very serious. She was admitted in emergency ward and the police was informed. According to opinion, the injuries were caused by blunt object and fresh. During treatment Jasoda Devi expired at 1.45 A.M. in the intervening night of 21/22.6.1981. Postmortem examination was conducted on the body of Jasoda Devi who was aged about 45 years, in District Hospital by Dr. P.K. Bass, Medical Officer, District Hospital. As many as six injuries were noted. Injury No.4 was found dangerous. During treatment Jasoda Devi expired at 1.45 A.M. in the intervening night of 21/22.6.1981. Postmortem examination was conducted on the body of Jasoda Devi who was aged about 45 years, in District Hospital by Dr. P.K. Bass, Medical Officer, District Hospital. As many as six injuries were noted. Injury No.4 was found dangerous. Injury No.1 was found lacerated wound 2 cm x 1 cm x muscle deep on right side forehead, 3 cm above root of nose, No.2 abraded contusion 1 cm x 1 cm on outer angle of right eyebrow, No.3 Contusion 4 cm x 2 cm on the right side head, 5 cm above right ear, No.4 Contusion 6 cm x 4 cm on the left side, 4 cm above left ear, No.5 Contusion 6 cm x 4 cm on the back of left side of chest 5 cm below scapula, No.6 abrasion 1 cm x 1 cm on the back of left elbow joint Haemotoma present, all below scalp. Left side skull bone pressed fracture in temporal bone. Membrane and brain congested. The cause of death was head injury and coma due to head injury. The postmortem examination report was exhibited as Ext.Ka 17. 7. From place of the incident blood stained and simple piece of cemented floor was taken for sample into two separate containers. Broken bangles were also collected from the place of the incident as Ext Ka.9 and kept in container by the Sub Inspector. Samples were sent to the Forensic Science Laboratory and as per report blood stains were found on the pieces of cemented floors, dothi and petikot. Panchayatnama was prepared. Statement of the witnesses were recorded by the Investigation Officer. After death the case was converted under section 302 I.P.C. and after completing investigation and formalities, charge sheet was submitted by the second Investigating Officer Man Singh Sirohi, PW-12. The charges were framed by the 5th Additional District & Sessions Judge, Bareilly under section 302 I.P.C. on 4.12.1981. The accused appellant denied the charges and pleaded to be tried. 8. The prosecution to prove its case examined as many as 15 witnesses. The charges were framed by the 5th Additional District & Sessions Judge, Bareilly under section 302 I.P.C. on 4.12.1981. The accused appellant denied the charges and pleaded to be tried. 8. The prosecution to prove its case examined as many as 15 witnesses. PW-1 Mohan Lal, the informant, brother of the deceased Jasoda Devi, PW-2 Har Pyari, daughter of the deceased, PW-3 Jawala Singh who prepared panchyatnama in the hospital, Ext.Ka.3-4, The dead body was kept in sealed cover and the same was sent to the mortuary through constable Manohar Lal, PW-6, Ext.Ka.6 requesting him for postmortem examination on the body of the deceased Jasoda Devi and second Investigating Officer Man Singh took up the investigation next day on 22.6.1981, PW-4 Ram Autar Arun, the then Sub Inspector, PS Baradari before whom the First Information Report was lodged and chick report was prepared and he started investigation, PW-5 Sahadat Ali, Formasist who proved the injury report, prepared by Dr. Rajiv Agrawal, PW-6 the then Moharir who carried the dead body to the mortuary, PW-7 Din Das Ward Boy proved the death of Jasoda Devi at 1.45 P.M. in the intervening night 21/22.6.1981, PW-8 Head Moharir Ram Chandra Singh proved chick report and G.D. entry which was prepared by the then constable Puland Singh, PW-9 Dr. P.K. Boss the then Medical Officer, District Hospital who conducted the postmortem examination on the body of the deceased Jasoda Devi, PW-10 Sishupal Singh who was moharir in malkhana, kept the sample and deposited the same, PW-11 constable M.A. Beg, who carried the sample of pieces of cemented floor, bundle of clothes, keel of the deceased, broken bangles and bichhua of the deceased from Malkhana, PS. Baradari and deposited the same in Sadar Malkhana, PW-12 Sub Inspector, Man Singh Sirohi, the second Investigating Officer who took up the investigation, next day on 22.6.1981 and submitted the charge sheet against the appellants under section 302 I.P.C., PW-13 constable Puland Singh who prepared chick report, PW-14 Om Pal Singh who carried three sealed bundles related with the case and placed before the Chief Medical Officer, PW-15 Dr. Rajiv Agrawal who examined Jasoda Devi when she was brought in injured condition on 21.6.1981. 9. Rajiv Agrawal who examined Jasoda Devi when she was brought in injured condition on 21.6.1981. 9. After prosecution closed its evidence the statement of the accused appellants Ram Gopal and Hasia were recorded under section 313 Cr.P.C. They denied the allegations and charges and submitted that they were falsely implicated in the case. Further stated that in fact Har Pyari, PW-2, daughter of the deceased had developed illicit relation with a boy which was not liked by the deceased Jasoda Devi, hence some altercation took place in between them. When she (appellant) tried to intervene, she was also assaulted. Smt. Bhagwati was also present there. Further stated that the appellant Ram Gopal was not present at the time of incident. From defence two witnesses were examined. DW-1 Anil Kumar clerk State Bank of Bikaner and Jaypur to prove that one Om Prakash, one of the alleged witness of panchayatnama was in fact present on duty in the bank where he was class-IV employee. Scribe of the First Information Report namely Bhagwat Saran was examined as DW-2. According to him, his marriage was performed with Bhagwati eight years ago and at the time of marriage his both mother-in-laws Jasoda Devi and Hansia were present and participated in the marriage ceremony. They had cordial relations. After the incident he was in sadar hospital when he was called by Ganeshi Mama, the brother of Mohan Lal. He stated that he wrote the First Information Report on the dictation of the sub inspector, thereafter Ganeshi Mama put his thumb impression on the report, whose name was referred and mentioned as Mohan Lal. Paper and pen were provided by the inspector for writing the report. He also stated that Har Pyari, his sister-in-law PW-2 had illicit relation with one Lalta Prasad and after her statement was recorded in the court, she went to the house of Lalta Prasad and started living with him as wife. She also gave birth to a male child. 10. After hearing the argument of counsel for the parties and going through record, the trial judge held the appellants guilty for committing murder of Jasoda Devi and they were convicted and sentenced for life imprisonment vide impugned judgment dated 26.9.1983. Being aggrieved against which the present appeal was preferred. 11. She also gave birth to a male child. 10. After hearing the argument of counsel for the parties and going through record, the trial judge held the appellants guilty for committing murder of Jasoda Devi and they were convicted and sentenced for life imprisonment vide impugned judgment dated 26.9.1983. Being aggrieved against which the present appeal was preferred. 11. Shri Harish Chandra Tiwari, learned counsel appearing as Amicus Curiae challenged the impugned judgment on the ground that none of the witnesses of fact examined by the prosecution were present at the place of the incident. PW-1 Mohan Lal was not present at the place of the incident. According to prosecution case he was informed by Lalta Prasad, minor son of Jasoda Devi (deceased), sister of the informant. After getting information he rushed to the place of the incident and as per averment his house was at a distance of 50-60 steps away from the house of the deceased. However, according to his averment and statement of PW-2 Har Pyari, daughter of the deceased, when Ram Gopal, the appellant no.1 (dead) and Hasia, appellant no.2 started beating to the deceased Jasoda Devi then Har Pyari, sent Lalta Prasad (son of the deceased) who was aged about 10-12 years old to inform Mohan Lal, brother of the deceased Jasoda Devi. When he came to know, he reached and saw that the appellants were beating with kick- fist and by saria (iron rod) and lathi, Ram Gopal was having saria and the appellant assaulted with lathi. In the injury report only one lacerated wound was noted and in the postmortem examination report six injuries were noted. (1) lacerated wound and 2 to 5 contusion which appear to be unnatural that the appellants continued to assault to her, during that period when Lalta Prasad went to the house of informant and thereafter the informant reached at the place of the incident. Lalta Prasad, son of the deceased was not examined by the prosecution. 12. From a perusal of the injury report it is clear that the injured Jasoda Devi was brought by Smt. Bhagwati, elder daughter and she was examined at 6.00 P.M. on 21.6.1981 by Dr. Rajiv Agrawal. Had Mohan Lal, PW-1 and Har Pyari, PW-2 were present, they might have tried to save her and got her admitted in the hospital for medical aid. Rajiv Agrawal. Had Mohan Lal, PW-1 and Har Pyari, PW-2 were present, they might have tried to save her and got her admitted in the hospital for medical aid. It also shows that Mohan Lal was also not present at the place of the incident. According to opinion of the doctor injury no.4 was fatal and dangerous to life and due to injury no.4 death was possible which might have been caused by lathi. He also submitted that according to prosecution case Jhamman Lal, brother of the appellant no.1 Ram Gopal was present who was not examined. However, there was no attempt either by PW-1 or by Jhamman Lal to save Smt.Jasoda Devi who was first wife of the appellant no.1 Ram Gopal and the appellant no.2 Hasia is second wife of Ram Gopal. Smt. Jasoda was brought by Smt. Bhagwati and she was got admitted in the hospital at 6.00 P.M. According to PW-7 Dharam Das, Ward Boy, District Hospital and record, she died at 1.45 A.M. in the intervening night of 21/22.6.1981. However, there was no effort to record her statement. 13. Counsel for the appellants further submitted that the statement of Har Pyari was recorded after 21-22 days so there was delay in recording her statement. There was no recovery of lathi and saria. The statement of the witnesses were recorded on 13.7.1981. According to Investigating Officer PW-12 Man Singh, he searched the witnesses for recording their statements. 14. According to defence version and statement of PW-1 Ram Gopal, marriage with Hasia was performed 10-12 years before the incident. On the same day at 9.00 P.M. he was arrested from the hotel which was in the same house. The Distance in between the place of the incident and house of Mohan Lal and Ganesh was about more than one kilometre. However, according to defence case and statement of DW-2 Bhagwat Saran (scribe of the First Information Report) Bhagwati and Har Pyari, PW-2 were present in the house. The appellant Ram Gopal was not present there. PW-2 Har Pyari, daughter of the deceased Jasoda Devi had illicit relation with one boy. She wanted to go along with him which was opposed by the deceased Jasoda devi. The appellant Ram Gopal was not present there. PW-2 Har Pyari, daughter of the deceased Jasoda Devi had illicit relation with one boy. She wanted to go along with him which was opposed by the deceased Jasoda devi. Due to that some altercation took place and she was assaulted by PW-2 Har Pyari DW-2, further stated that he wrote the First Information Report on direction of the Sub Inspector and signed on that. He is also son-in-law of Ram Gopal and the deceased Jasoda Devi. His marriage was performed eight years ago and at the time of marriage, both mother-in-laws namely Jasoda Devi and Hasia (appellant no.2) were present. Both performed Kanyadan, hence the existence of the First Information Report itself become doubtful. However, the trial court failed to appreciate the defence version. Though the prosecution failed to prove its case beyond reasonable doubt, the prosecution story was found suspicious, however, the appellants were held guilty, hence the impugned judgment of conviction and sentence is liable to be set aside. 15. Learned Government Advocate submitted that except minor contradiction and negligible discrepancy there is no major contradiction to affect the merit of the case. The witnesses whose statement are reliable, have supported the prosecution case. PW-1 Mohan Lal, informant is brother of the deceased. After getting information through Lalta Prasad, son of the deceased. According to him the distance from his house was about 50-60 steps away from place of the incident and after getting information he rushed to the house of the deceased. She was immediately taken to the hospital and after admitting Jasoda in the hospital Mohan Lal, PW-1 went to lodge the First Information Report. As per evidence and statement of PW-1 and PW-2 the deceased was legally married wife of Ram Gopal, appellant no.1 (since dead) and the appellant no.2 Hasia is second wife. Due to that quarrel used to take place in between the husband and wife and even he used to slap her. Her husband Ram Gopal also used to threat her to kill. On the date of incident i.e. in the evening of 21.6.1991 at about 5.00 P.M. both the appellant Ram Gopal and Hasia stated that the appellants were beating to the deceased Jasoda. The appellants assaulted with kick-fist and saria and lathi. Her husband Ram Gopal also used to threat her to kill. On the date of incident i.e. in the evening of 21.6.1991 at about 5.00 P.M. both the appellant Ram Gopal and Hasia stated that the appellants were beating to the deceased Jasoda. The appellants assaulted with kick-fist and saria and lathi. Injury No.4 was found dangerous to life and death was possible due to that injury which was caused by lathi. The appellant no.2 was having lathi and appellant no.1 Ram Gopal assaulted with saria. Merely on the delay in recording the statement the prosecution story cannot be disbelieved because in the present case both the witnesses are reliable witnesses. Their presence are not doubtful. PW-2 is daughter of the deceased and PW-1 Mohan Lal, is brother of the deceased. There was no reason of false implication. The incident took place in the house of the appellants though according to defence case the appellant no.1 was not present in the house but no reliable evidence was placed whether he was present at the time of incident or not? However, deference made the allegation against PW-2 Har Pyari, daughter of the deceased and appellant no.1, that she was having love affairs and illicit relation with a person, on which the deceased raised objection and some quarrel took place in which she was assaulted by PW-2 Har Pyari and Bhagwati, the elder daughter of the deceased. The appellant no.2 Hasia tried to intervene, hence she also received injuries but the fact that Har Pyari was having illicit relation, subsequently she went alongwith him and gave birth to a child, was not proved by the defence. It appears that in defence false story was set up without any reliable evidence to support the same. Learned A.G.A. further contended that though DW-2 Bhagwat Saran, son-in-law of the appellant no.1 has not supported the prosecution case who is scribe of the First Information Report but it appears that due to pressure and influence of his father-in-law he has not supported the version of the First Information Report. 16. So for as Jhamman Lal, brother of the appellant no.1 is concerned, he was present at the place of the incident but being brother of the appellant no.1 if he did not appear as prosecution witness merely on this ground also prosecution story has not to be disbelieved. 16. So for as Jhamman Lal, brother of the appellant no.1 is concerned, he was present at the place of the incident but being brother of the appellant no.1 if he did not appear as prosecution witness merely on this ground also prosecution story has not to be disbelieved. The prosecution case proved by PW-1 and PW-2 is also corroborated by the medical report. 17. Learned A.G.A. submitted as per version of the DW-1, PW-1 was not Mohan Lal rather he was Ganeshi, elder brother of Mohan Lal but there was no effort or any application on behalf of the defence to prove this fact that PW-1 who appeared as Mohan Lal was in fact not Mohan Lal rather he was Ganeshi, elder brother of Mohan. Merely on this defence version, prosecution story has not to be disbelieved. 18. Hence the appeal being devoid of merit is liable to be dismissed. 19. Considered the submissions of counsels for the parties and perused the records. 20. Admittedly the appellant no.1 Ram Gopal (since dead) was married to the deceased Jasoda Devi. According to prosecution case about two and half years back he remarried with Hasia appellant no.2 and since then he was in search of opportunity to remove and kill Smt.Jasoda and quarrel used to take place in between them. The First Information Report was lodged and registered by Mohan Lal, brother of the deceased Smt. Jasoda Devi. According to version of the First Information Report, on 21.6.1981, informant got information through his Bhanja (Lalta Prasad), son of the deceased Jasoda Devi at about 6.00 P.M. that his father was badly beating to his mother. Immediately he rushed to the house of his sister Jasoda Devi and saw that Jhamman Lal, brother of Ram Gopal (appellant no.1) and niece Har Pyari PW-2 present at the place of the incident and his brother appellant no.1 and his second wife Hasia were beating with iron rod (saria) and lathi. His sister Jasoda Devi had fallen down on the floor and was crying. When Jamman Lal and informant scolded them, then they left the house leaving the injured Jasoda Devi. Thereafter he took her to the hospital and after admitting in the hospital he went to lodge the First Information Report at the Police Station Baradari, District Bareilly which was written by Bhagwat Saran. 21. When Jamman Lal and informant scolded them, then they left the house leaving the injured Jasoda Devi. Thereafter he took her to the hospital and after admitting in the hospital he went to lodge the First Information Report at the Police Station Baradari, District Bareilly which was written by Bhagwat Saran. 21. The prosecution did not examine either Jhamman Lal, brother of Ram Gopal and Bhagwat Saran, scribe of the First Information. Subsequently Bhagwat Saran was examined as defence witness (DW-2) who has not supported the version of the First Information Report. According to him he was married to Bhagwati, elder sister of Har Pyari, PW-2, daughter of the deceased Jasoda Devi and the appellant no.1 eight years ago. There was good relation in between them, even Kanyadan of Bhagwati was performed by both the mother in-laws namely Jasoda Devi and Hasia, (the appellant no.2.). According to him Harpyari has illicit relation with a person. According to defence version of the appellant no.1 Ram Gopal who is father of Har Pyari, PW-2 she had illicit relation with a person with whom she wanted to marry and there was objection raised by her mother Jasoda Devi (deceased). 22. According to DW-2 Bhagwat Saran, scribe of the First Information Report, First Information Report was not dictated by PW-1 rather it was dictated by S.I. (Daroga Ji), hence this story that PW-1 saw the incident appears to be doubtful. There are six injuries noted by the doctor in postmortem examination report and according to the version of the First Information Report and the statement of PW-1, the appellants started beating at about 5.00 P.M. with kick fist and iron rod saria and lathi and when PW-1 got information at 6.00 P.M., then he rushed to the place of the incident. Hence if the versions of PW-1 and PW-2 are correct that Jasoda was beaten by kick fist, saria and iron rod continuously for more than one hour but she had sustained only six injuries, out of which injury no.1 was found dangerous to life which was cause of death and other injuries were simple in nature. The cause of death was due to head injury and coma. The cause of death was due to head injury and coma. Injury No.4 noted as contusion 6 cm x 4 cm on the left side head, 4 cm above left ear, hence it appears that PW-1 reached at the place of the incident subsequently and he did not see who assaulted the deceased Smt. Jasoda Devi. Apart from that, from a perusal of the injury report and statement of Dr. Rajiv Agrawal, the then Medical Officer, Jasoda Devi was brought by daughter Smt. Bhagwati, wife of DW-2 Bhagwat Saran who is scribe of the First Information Report. The statement that she was taken to the hospital by PW-1 appears to be incorrect. The presence of Bhagwati was not shown in the First Information Report or in the statement at the place of the incident and even she was not examined from the side of the prosecution, who is elder daughter of the deceased. The deceased was got admitted by her in the hospital by Bhagwati, hence it appears that she was present at the place of the incident and hence immediately Jasoda Devi was taken to the hospital and got admitted her in the hospital. According to defence case also Bhagwati was present in the house and as per information given to her husband Bhagwat Saran, quarrel took place in between PW-2 Har Pyari and the deceased Jasoda. The appellant no.1 was not present at the time of incident in the house. He came to know regarding the incident subsequently. It appears that he was not aware that he was named in the First Information Report and the allegation was made against him because in the same night he was apprehended from the hotel by the police. The hotel was being run in the house. The scribe has not supported the prosecution case. The statements of the witnesses were recorded on 13.7.1981 though the incident took place on 21.6.1981. 23. There was no recovery of saria, lathi even the statement of Har Pyari was recorded after 21 days. Smt.Jasoda Devi was got admitted in the hospital at 6.00 P.M. She died at 1.45 A.M. but her statement could not be recorded during this period, even Lalta Prasad, son of the deceased was not examined by the prosecution as witness whose presence was shown at the place of the incident. Smt.Jasoda Devi was got admitted in the hospital at 6.00 P.M. She died at 1.45 A.M. but her statement could not be recorded during this period, even Lalta Prasad, son of the deceased was not examined by the prosecution as witness whose presence was shown at the place of the incident. According to defence, the distance of the house of appellant No.1 was more than one kilometer. Apart from that according to prosecution case Jhamman Lal, brother of the appellant no.1 and Har Pyari-PW-2 were present at the place of the incident, Lalta Prasad, minor son was also present and when Jasoda Devi was being beaten by the appellant, no one tried to save her and such conduct appears to be unnatural. 24. In view of the facts and circumstances and in view of the above noted discussions, the prosecution story which have not been supported even by the scribe of the First Information Report, is doubtful. The prosecution failed to prove its case beyond reasonable doubt. 25. The incident is of the year 1981. The appeal is of the year 1983. In view of the facts and circumstances the sole surviving appellant no.2 Hasia is entitled for the benefit of doubt. Hence the impugned judgment and order of conviction and sentence dated 26.9.1983 passed by learned VIIth Additional District & Sessions Judge, Bareilly in S.T.No.366/1981 under section 302 read with section 34 of I.P.C. arising out of Case Crime No.389/1981, Police Station Baradari, District Bareilly is hereby set aside. The appellant is on bail, hence her bail bonds and sureties are hereby discharged. 26. Accordingly this appeal is hereby allowed. We appreciate the assistance provided by Mr. H.C. Tiwari (Amicus Curiae) and learned A.G.A.