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2018 DIGILAW 1507 (ALL)

Ram Prasad Alias Dhamalu v. State of U. P.

2018-07-07

SIDDHARTH

body2018
JUDGMENT & ORDER : Siddharth, J. This Jail Appeal has been filed against the judgment and order dated 31.1.2012 passed by the Additional Sessions Judge, Court No. 1, Siddharth Nagar in Sessions Trial No. 228 of 2010, State v. Ram Prasad alias Dhamalu, under Section 304, IPC, P.S. Itwa, District Siddharth Nagar, whereby court below has convicted the accused-appellant under Section 304, IPC and sentenced to undergo rigorous imprisonment for a period of ten years. In default of payment of fine the accused-appellant has been directed to undergo further rigorous imprisonment of ten months. 2. Heard Shri. Rajesh Kumar Singh, learned amicus curiae for the appellant and Mrs. Alpana Singh, learned A.G.A. for the State. 3. The prosecution case is that on 5.7.2010 one Buddha Sagar lodged first information report at P.S. Itwa, District Siddharth Nagar stating that accused-appellant caused knife blow to his father at about 8.00 p.m. yesterday, which has resulted into his death today. There was no dispute between his father and accused-appellant prior to this incident. When his father was returning from the house of Jagdish, then, the accused-appellant was hiding in the corner of the gali and he inflicted knife blow. At the time of incident Haridwar Yadav, Kapil Dev and the informant were present. On the basis of this report Case Crime No. 652 of 2010 was registered and after panchnama of the dead body it was sent for postmortem. Investigating Officer prepared the site plan and recorded the statement of the witnesses. On the basis of the evidence collected, charge sheet was filed before the concerned magistrate. On 12.1.2011 charges were framed against the accused-appellant under Section 304, IPC by the Additional Sessions Judge, Siddharth Nagar, the accused denied the charges and sought trial. 4. Pw-1 Buddha Sagar supported the prosecution case. He proved the first information report, inquest report and his signatures thereon. Shri. Haridwar, PW-2 proved the prosecution case and stated that as soon the deceased reached the corner of his house, the accused-appellant started inflicting knife blows on him. PW-3 is the clerk of the police station and he has proved lodging of the report by the first informant by producing carbon copy of the report. PW-4 is Dr. Om Prakash Singh. He found one knife injury towards left of the navel of the deceased of size 2 cm. PW-3 is the clerk of the police station and he has proved lodging of the report by the first informant by producing carbon copy of the report. PW-4 is Dr. Om Prakash Singh. He found one knife injury towards left of the navel of the deceased of size 2 cm. He found the punctured wound in the small intestine and heamorrhage resulting into loss of blood from the internal organs. PW-5, Shri. Surya Prasad Guatam is the Investigating Officer and he proved the documents prepared by him. The statement of accused under Section 313, Cr.P.C. was recorded and he denied the entire evidence of the prosecution and stated that he has been implicated due to enmity. Accused-appellant did not produce any witness in his support. The trial court after going through the evidence found that from the statement of the witnesses, PW-1 & PW-2, it is clear that the accused-appellant is their neighbour and it was not difficult for them to identify him even in the night and their statements were believed and the defence argument that such an injury can be caused by falling on pointed object, was not accepted to be convincing by the court below and the accused-appellant was convicted and sentenced. 5. It has been argued by learned counsel for the appellant that there is no recovery of knife alleged to be used in the crime by the appellant and there is no motive of the crime on record. It has been further argued that the incident took place at 8.00 p.m. in the night, but there is no source of light mentioned and PW-2 has admitted in his statement that on the date of incident there was no supply of electricity and therefore, the prosecution has failed to prove that the accused-appellant was identified. It has been further argued that as per the prosecution case, PW-1 & PW-2 were present when the accused-appellant caused knife injury to the deceased, but they did not raise any alarm. As per the post-mortem report, death of the deceased took place about 1-1/2 to 2 days prior to the alleged incident, but in the first information report it has been alleged to have taken place in the previous night. As per the post-mortem report, death of the deceased took place about 1-1/2 to 2 days prior to the alleged incident, but in the first information report it has been alleged to have taken place in the previous night. As per the prosecution case the deceased was subjected to repeated knife blows and only one injury has been found on his body near navel and no other injury has been found on his body. There is no explanation on record why the first information report was lodged at 1.00 p.m. on 5.7.2010 when the incident took place at 8.00 p.m. on 4.7.2010. 6. The site plan prepared by the police does not conforms to statement of the witnesses. 7. Per contra learned A.G.A. has argued that non-recovery of the knife is immaterial once the eye witnesses have proved the incident. He has argued that the motive of the crime is not necessary to be proved and once the witnesses have proved the incident, the motive looses its significance. The absence of source of light is immaterial because the accused-appellant and PW-1 are related and a known person can be identified even without the presence of source of light. The statement of PW-2 that there was no electricity supply in the village on that date may be mistake on the part of the witness. The witnesses PW-1 & PW-2 did not raise alarm since they started running after the accused-appellant and they could not get time to make alarm and only because of non-making of alarm their testimony cannot be disbelieved. Since, there was no public witness at that time, therefore, no public witness was produced by the prosecution. The delay in the FIR was caused because of the time consumed in the treatment of the deceased prior to his death. The site plan prepared by the Investigating Officer is in accordance with the statement of the witnesses and there is no anomaly in the same. 8. After considering the rival contentions it is clear that there is no clear motive of the crime proved by the prosecution on record. It is proved from the record that the prosecution and the accused-appellant are closely related and PW-1 has only stated that there was no enmity between his father, the deceased and the accused-appellant and therefore, why he caused the incident, has not been explained by the prosecution. It is proved from the record that the prosecution and the accused-appellant are closely related and PW-1 has only stated that there was no enmity between his father, the deceased and the accused-appellant and therefore, why he caused the incident, has not been explained by the prosecution. PW-2 has stated in his examination-in-chief that accused-appellant had a suspicion that his wife left him because of the deceased, however, he has not elaborated on this in his cross examination and has stated therein that he does not knows whether the wife of the accused-appellant has left him or not. Therefore, the motive, which was tried to be built by the prosecution, has not been proved. 9. The post-mortem on the body of the deceased was conducted on 6.7.2010 and therefore, the argument of the learned counsel for the appellant that the time of death mentioned in the postmortem report of 1-1/2 to 2 days earlier, is correct since the death took place in the evening of 4.7.2010. 10. The site plan prepared by the Investigating Officer does not appear to be incorrect and it is in accordance with the statement of the witnesses. 11. The argument is regarding inflicting of only presence of one blow on the body of the deceased while PW-1 & PW-2 have stated that accused-appellant started causing knife blows to the deceased, which is not proved from the evidence on record. 12. There is no evidence on record that there was any motive for causing the crime and whatever motive has been shown, has not been proved. From the record it also appears that the accused-appellant has no criminal history prior to the incident in dispute and he is in jail since 5.7.2010. He has preferred this Jail Appeal through the Jail Superintendent, Siddharth Nagar and has undergone eight years of sentence out of ten years awarded to him. 13. This appeal is allowed in part and the accused-appellant is directed to be released on the basis of sentence already undergone by him. The impugned judgment and order of the trial court dated 31.1.2012 stands modified accordingly. 14. Office is directed to communicate this order to the court below for compliance and to return the lower court record along with copy of this judgment forthwith. Certified copy of the judgment be supplied to the learned counsel for the appellant without any delay. 15. The impugned judgment and order of the trial court dated 31.1.2012 stands modified accordingly. 14. Office is directed to communicate this order to the court below for compliance and to return the lower court record along with copy of this judgment forthwith. Certified copy of the judgment be supplied to the learned counsel for the appellant without any delay. 15. Shri. Rajesh Kumar Singh, learned amicus curiae for the appellant is directed to be paid Rs. 10,000/- as his fees for assisting the Court and disposal of this appeal. Order accordingly.