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2017 DIGILAW 1249 (ALL)

RAM DAYAL v. STATE OF U. P.

2017-05-11

ARVIND KUMAR MISHRA I, BALA KRISHNA NARAYANA

body2017
JUDGMENT : 1. Heard Sri Shashwat Shukla, learned counsel for the appellant, Sri Awadesh Narayan Mulla, Sri Saghir Ahmad, Kumari Meena, learned AGAs and Smt. Manju Thakur, brief holder for the State. 2. This appeal has been preferred by appellant no.1, Ram Dayal and appellant no.2, Bhanu Pratap against the judgement and order dated 21.08.1989 passed by Ist Additional Sessions Judge, Allahabad in S.T. No. 302 of 1988, State Vs. Ram Dayal & Another, u/s 302 I.P.C. r/w Section 34 I.P.C., P.S.- Mohabbatpur Painsa, District- Allahabad. 3. The brief facts of the case are that on the basis of written report (Ext.Ka.1) lodged by informant Shiv Sahai at P.S.- Mohabbatpur Painsa, District- Allahabad on 28.12.1987 at about 10:35 A.M. in respect of an incident which had taken place on 28.12.1987 at about 8 A.M. Case Crime No. 84 of 1987 u/s 302 I.P.C was registered against A1 Ram Dayal and A2 Bhanu Pratap u/s 302 I.P.C. Check F.I.R. (Ext.Ka.3) and the relevant G.D. Entry were also prepared. 4. In the written report, it was alleged by the informant Shiv Sahai that A1 Ram Dayal was his real brother while A2 Bhanu Pratap was his real nephew and deceased Shiv Kali was his wife. On the date of the incident, deceased Shiv Kali was making cow dung cakes on the kachcha roof of her hut. It was further alleged in the written report that the house of A1 Ram Dayal is adjacent to the informant's house; both houses have separate exits. The roof of Kedar Nath's house is also contiguous to the informant's house which can be accessed through a bamboo ladder. On the date of the incident when the informant was feeding his cattle, he heard the accused abusing his wife Shiv Kali to which she objected, on which A1 Ram Dayal exhorted A2 Bhanu Pratap to finish her as she was the root cause of all the disputes. On the date of the incident when the informant was feeding his cattle, he heard the accused abusing his wife Shiv Kali to which she objected, on which A1 Ram Dayal exhorted A2 Bhanu Pratap to finish her as she was the root cause of all the disputes. On hearing the exhortation of A1 Ram Dayal, the informant Shiv Sahai climbed up on the roof by the ladder and saw A2 Bhanu Pratap inflicting lathi blow on Shiv Kali's right hand on which she tried to run away but fell down on the roof of Kedar Nath's house, then A1 Ram Dayal wielded 4 or 5 pharsa blows to his wife Shiv Kali and then both the appellants started advancing menacingly towards the informant on which he jumped from the roof top raising cries for help and immediately returned with Kedar Nath, Ram Dularey and Dharm Raj. But on his return, he found that his wife Shiv Kali had already died and a lot of blood was spilled all over the place. In the F.I.R., it was further alleged that the incident was preceded by an altercation which had taken place at the tube-well between the appellants and Shiv Sahai and his wife Shiv Kali regarding sharing of water for irrigating their fields and A1 Ram Dayal had abused deceased Shiv Kali and the incident was the fallout of the aforesaid altercation. The written report (Ext.Ka.1) of the incident was scribed by one Dharm Raj on the dictation of P.W.1 informant Shiv Sahai. After the registration of it's case, investigation was entrusted to P.W.5 S.I. Hargovind Sahu who immediately reached the place of occurrence and after holding inquest, prepared the inquest report (Ext.Ka.5) and other related documents namely police form 30 (Ext.Ka.6), photo nash (Ext.Ka.7), form 13 challan nash (Ext.Ka.8), letter addressed to R.I. (Ext.Ka.9), two letters addressed to C.M.O (Ext.Ka.10 and Ka.11). Thereafter, he got the dead body of the deceased Shiv Kali sealed and dispatched to District Hospital for conducting postmortem. 5. The postmortem on the cadaver of the deceased was conducted by P.W.4 Dr. A.K. Nigam on 29.12.1987 at about 4 P.M. who also prepared her postmortem report which is on record as (Ext.Ka.2). The postmortem report of the deceased shows following injuries on her dead body:- 1. Abrasion 1-1/2” x 1” of her middle left upper arm 2. 5. The postmortem on the cadaver of the deceased was conducted by P.W.4 Dr. A.K. Nigam on 29.12.1987 at about 4 P.M. who also prepared her postmortem report which is on record as (Ext.Ka.2). The postmortem report of the deceased shows following injuries on her dead body:- 1. Abrasion 1-1/2” x 1” of her middle left upper arm 2. Incised wound 1-1/2” x 1/2” on the top of the left shoulder x muscle deep 3. Incised wound 1-1/2” x 1/2” x bone deep back of the left ear 1/2” below to incised wound, inside bone fractured 4. Incised wound 2-1/2” x 1” x bone deep x 1- 1/2” below the injury no.2 (lower part of the occipital bone) 5. Incised wound 3/4” x 1/6” x muscle deep just below an angle of left mandible 6. Incised wound 1” x 1/6” x skin deep on the left side of middle part of neck 7. Incised wound 3” x 1/2” x bone deep on the right parietal region x 3” above the right ear, inside bone fractured 8. Incised wound 2-1/2” x 1/2” x muscle deep on top of the right shoulder 9. Incised wound 2-1/2” x 1/2” x bone deep on the occipital region, left side 4” on top of the right ear, back 2 fractures Internal Examination:- 6. Occipital and parietal bone were fractured. Membranes of brain were congested and lacerated. Stomach was empty. Large intestine was half-filled. Bladder was empty. 7. According to P.W.4 Dr. A.K. Nigam, deceased had died as a result of shock and haemorrhage due to antemortem injuries about 1-1/2 days before. The Investigating Officer P.W.5 S.I. Hargovind Sahu, after completing the investigation, submitted charge-sheet (Ext.Ka.17) against appellants u/s 302 I.P.C. before Chief Judicial Magistrate, Allahabad. Since the offence mentioned in the charge-sheet was triable exclusively by the Court of Sessions, Chief Judicial Magistrate, Allahabad committed the case for trial of the accused to the Court of Sessions Judge, Allahabad where it was registered as S.T. No. 302 of 1988, State Vs. Ram Dayal & Another and made over for trial to the Court of Ist Additional Sessions Judge, Allahabad who on the basis of material on record and after hearing the prosecution and the accused on the point of charge, framed charge u/s 302/34 I.P.C. against both the appellants. Both the appellants denied the charge and claimed trial. 8. Ram Dayal & Another and made over for trial to the Court of Ist Additional Sessions Judge, Allahabad who on the basis of material on record and after hearing the prosecution and the accused on the point of charge, framed charge u/s 302/34 I.P.C. against both the appellants. Both the appellants denied the charge and claimed trial. 8. The prosecution in order to prove its case examined as many as 5 witnesses, of whom P.W.1 informant Shiv Sahai and P.W.2 Kalui were examined as eye witnesses of the occurrence while P.W.3 Ram Prakash, P.W.4 Dr. A.K. Nigam and P.W.5 Hargovind Sahu were produced as formal witnesses. 9. The appellants in their statements recorded u/s 313 Cr.P.C. denied the prosecution case and alleged false implication at the behest of informant with the object of grabbing their property. A1 Ram Dayal further stated that he was residing in District- Allahabad at the time of occurrence and he came to the village after receiving the information. 10. Learned Ist Additional Sessions Judge, Allahabad, after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the entire evidence on record, both oral as well as documentary, convicted both the appellants and sentenced them to imprisonment for life u/s 302/34 I.P.C. 11. Hence, this appeal. 12. Sri Shashwat Shukla, learned counsel for the appellant has vehemently submitted that none of the eye witnesses had seen the occurrence which as per the F.I.R. had taken place on the roof of the house of Kedar Nath and after the dead body of Shiv Kali was discovered, the written report (Ext.Ka.1) of the incident was prepared after due deliberation with the object of falsely implicating the appellants who are father and son and the elder brother and nephew of P.W.1 informant Shiv Sahai and who had become inimical towards them on account of pendency of civil litigation. He next submitted that as per the prosecution case, apart from P.W.1 informant Shiv Sahai and P.W.2 Kalui, several other villagers including Dharm Raj, Ram Dularey, Kedar Nath had descended on the place of occurrence but none of them were produced by the prosecution as witnesses which strangely chose to examine only P.W.1 informant Shiv Sahai and P.W.2 Kalui, husband and daughter of the deceased who are not only inimical towards the accused but also highly interested in seeing the appellants convicted for having allegedly committed the murder of the deceased and hence it was not at all safe for the trial court to have convicted the appellants on the basis of the testimony of highly interested and partisan witnesses. 13. He further submitted that as far as A2 Bhanu Pratap is concerned, even if the entire prosecution case as spelt out in the F.I.R. and later testified by the two witnesses qua the manner of assault is accepted to be gospel truth, the offence if any, committed by A2 Bhanu Pratap does not travel beyond Section 323 I.P.C. as according to the prosecution case, A2 Bhanu Pratap was armed with a lathi and he had struck a single blow to the deceased Shiv Kali on her right arm and P.W.4 Dr. A.K. Nigam who had conducted the postmortem on the dead body of the deceased, had in his testimony tendered before the trial court opined that the injury no.1 which was in the form of an abrasion could have been caused either by the weapon assigned to A2 Bhanu Pratap or on account of the deceased falling on a hard surface. There is no evidence on record that injury no.1 could have either caused the death of the deceased or could be considered as grievous and admittedly apart from the alleged single blow, A2 Bhanu Pratap had not wielded any other blow to the deceased and his case is clearly distinguishable from that of A1 Ram Dayal. F.I.R. in this case is ante-timed. He lastly submitted that such being the state of evidence, neither the recorded conviction of the appellants nor the sentence awarded to them can be sustained and are liable to be set aside or at least modified qua A2 Bhanu Pratap. 14. F.I.R. in this case is ante-timed. He lastly submitted that such being the state of evidence, neither the recorded conviction of the appellants nor the sentence awarded to them can be sustained and are liable to be set aside or at least modified qua A2 Bhanu Pratap. 14. Per contra Sri Saghir Ahmad, learned AGA appearing for the State has submitted that the prosecution case stands fully proved from the evidence of P.W.1 informant Shiv Sahai who has fully supported the prosecution case as spelt out in the F.I.R. whose evidence has been fully corroborated by P.W.2 Kalui on all material points pertaining to the occurrence. The ocular version finds full corroboration from the medical evidence on record. The conviction of the appellants recorded by the trial court is based upon cogent evidence and the sentence awarded to them is supported by relevant considerations. There is no merit in this appeal and the same is liable to be dismissed. 15. We have heard learned counsel for the parties at great length and have examined the entire evidence on record. The two questions which arise for our consideration in this appeal are, whether the prosecution has been able to prove its case beyond all reasonable doubts or not against the appellants; and if it is found that prosecution case stands proved against the appellants beyond all reasonable doubts whether the recorded conviction of A2 Bhanu Pratap is liable to be modified and converted to one u/s 323 or 324 I.P.C. and the sentence of life imprisonment awarded to him palliated to a lesser sentence. 16. The record shows that the incident had taken place at 8 A.M. on 28.12.1987 on the rooftops of the houses of Kedar Nath and Shiv Sahai. 16. The record shows that the incident had taken place at 8 A.M. on 28.12.1987 on the rooftops of the houses of Kedar Nath and Shiv Sahai. The written report (Ext.Ka.1) of the incident which was lodged by P.W.1 informant Shiv Sahai clearly indicates that while the deceased and her daughter P.W.2 Kalui were making cow dung cakes on the roof of the informant's house and the informant was feeding his cattle, he heard the voice of A1 Ram Dayal exhorting A2 Bhanu Pratap to finish Shiv Kali as she was the root cause of all disputes on which informant immediately climbed up on the roof of the house by using a ladder and saw A2 Bhanu Pratap inflicting lathi blow on the right arm of the deceased and thereafter A1 Ram Dayal dealt repeated pharsa blows on her on which she fell down on the roof. When the appellants started advancing towards the informant, he jumped from the roof to get help and by the time he returned with other villagers, his wife had already died. The prosecution in order to establish the guilt of the appellants had examined P.W.1 informant Shiv Sahai and P.W.2 Kalui as eye-witnesses of the occurrence. Before evaluating the evidence of the two witnesses of fact for the purpose of ascertaining whether the same inspires confidence and appears to be truthful, it would be necessary to deal with the preliminary objection of the learned counsel for the appellants with regard to the admissibility of the evidence of P.W.1 informant Shiv Sahai and P.W.2 Kalui who are close relatives of the deceased and hence highly interested and inimical towards the accused. The aforesaid issue is no longer res integra and stands settled by a catena of decisions of the Apex Court. The law is that the testimony of a witness cannot be discarded merely on the ground of his being a relative or inimically disposed towards the accused. If after a careful scrutiny and evaluation of the testimony of such witness, the Court comes to the conclusion that he has given a cogent version of the incident, then the evidence of such witness cannot be discarded merely on the ground of his being related to the deceased. If after a careful scrutiny and evaluation of the testimony of such witness, the Court comes to the conclusion that he has given a cogent version of the incident, then the evidence of such witness cannot be discarded merely on the ground of his being related to the deceased. The only care which has to be taken while evaluating the testimony of the interested witnesses or the witnesses inimically disposed is that it should be scrutinized with utmost care and caution. 17. We now proceed to evaluate the testimony of both the eye-witnesses on the touchstone of the aforesaid principle. P.W.1 informant Shiv Sahai, the husband of the deceased in his examination-in-chief recorded before the trial court has fully supported the prosecution case as spelt out in the F.I.R. as regards the time, place, manner of assault and the perpetrators of crime. P.W.2 Kalui, who is the daughter of the deceased, has also in her evidence recorded before the trial court fully corroborated the testimony of P.W.1 Shiv Sahai on all material points relating to the occurrence. Both the witnesses were subjected to gruelling cross-examinations by the defence, but the defence counsel failed to elicit or extract anything from them which may render the testimonies of the two eye witnesses either untrustworthy or untruthful. 18. The prosecution case is that A1 Ram Dayal had inflicted several pharsa blows to the deceased while A2 Bhanu Pratap had dealt a single lathi blow to her on her right arm. The prosecution case as spelt out in the F.I.R. and as testified by two witnesses of fact finds full corroboration from the medical evidence on record. The postmortem report of the deceased which is on record as (Ext.Ka.2) indicates that as many as 9 ante-mortem injuries were found on the dead body of the deceased of which 8 were incised wounds while the antemortem injury no.1 which was in the form of an abrasion was attributable either to lathi or to the deceased falling on a hard surface as deposed by P.W.1 Shiv Sahai to P.W.4 Dr. A.K. Nigam. 19. Thus, upon a wholesome appraisal of the facts of the case and a critical evaluation of the evidence on record, we find that the prosecution has been able to prove its case against the appellants beyond all reasonable doubts. 20. A.K. Nigam. 19. Thus, upon a wholesome appraisal of the facts of the case and a critical evaluation of the evidence on record, we find that the prosecution has been able to prove its case against the appellants beyond all reasonable doubts. 20. The next question which needs our attention is that whether on the basis of the evidence on record and the role attributed to A2 Bhanu Pratap, the recorded conviction of A2 Bhanu Pratap is liable to be converted to one u/s 323 I.P.C. and the sentence of life imprisonment awarded to him palliated to lesser period of imprisonment. We find that P.W.4 Dr. A.K. Nigam, who had conducted the postmortem on the dead body of the deceased has in his cross-examination on page 49 of the paper book opined that the injury no.1 found on the dead body of the deceased may have been caused as a result of her falling on the roof. Thus, a doubt is created whether A2 Bhanu Pratap could be held to be author of the antemortem injury no.1 found on the dead body of the deceased. But in view of the consistent testimony of both the eye-witnesses that A2 Bhanu Pratap had wielded a lathi blow to the deceased, we hold him to be the author of the antemortem injury no.1. But since there is no evidence showing that the antemortem injury no.1 was either fatal or grievous or that he had dealt repeated lathi blows to the deceased or exhorted A1 Ram Dayal to commit the murder of the deceased or helped or aided him in any manner in causing pharsa injuries to the deceased, we are of the view that the recorded conviction of A2 Bhanu Pratap u/s 302 I.P.C. cannot be maintained as it is not proved by any cogent evidence that he had any intention to kill the deceased. His participation in the entire incident is confined to causing single lathi blow on the right arm of the deceased which was an independent act and was not done in furtherance of any common intention to commit the murder of the deceased. The F.I.R. of the incident was lodged on 10:35 A.M. at P.S.- Mohabbatpur Painsa which is situated at a distance of about 7 kms. from the place of the occurrence. The F.I.R. of the incident was lodged on 10:35 A.M. at P.S.- Mohabbatpur Painsa which is situated at a distance of about 7 kms. from the place of the occurrence. Thus, F.I.R. in this case had been promptly lodged and there does not appear to be any inordinate delay in lodging the same. There is nothing on record which may prompt us to infer that the F.I.R. was not registered at the time mentioned in the check F.I.R. Hence, we do not find that there was any scope for the informant to have held any discussions or deliberations with the object of falsely implicating the appellants before lodging the written report of the incident. We find that the F.I.R. in this case was promptly lodged and accordingly possibilities of the introduction of coloured version or concocted story as a result of deliberations are ruled out. The F.I.R. of the present case is thus prompt. The commencement of the inquest on the dead body of the deceased at 12:20 P.M. and its conclusion at 2 P.M. is another indication of the fact that the F.I.R. could not have been ante-timed. 21. In view of the foregoing discussion, the recorded conviction of A2 Bhanu Pratap is converted from Section 302/34 IPC to one u/s 323 IPC and the sentence of life imprisonment awarded to him by the trial court is palliated to the period of imprisonment already undergone by him which is about three months. A2 Bhanu Pratap is on bail. He need not surrender. His personal bond is cancelled and his sureties discharged. He will comply with Section 437-A of Cr.P.C. 22. However, considering the nature of the injuries caused by A1 Ram Dayal to the deceased which proved to be fatal and upon an holistic view of the facts and circumstances of the case and a critical evaluation of the evidence on record qua A1 Ram Dayal, we find that the trial court committed no error, illegality, infirmity or perversity in convicting him and sentencing him to imprisonment for life u/s 302 I.P.C. However, the conviction of A1 Ram Dayal is converted to one u/s 302 I.P.C. He is also on bail. He shall be taken into custody forthwith and sent to jail for serving out the remaining part of his sentence. 23. The appeal stands allowed in part. He shall be taken into custody forthwith and sent to jail for serving out the remaining part of his sentence. 23. The appeal stands allowed in part. The impugned judgement and order stands modified to the extent indicated herein above.