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2018 DIGILAW 321 (ALL)

RAM SEWAK v. STATE OF U. P.

2018-02-07

RAJESH DAYAL KHARE, RAJIV JOSHI

body2018
JUDGMENT Hon’ble Rajiv Joshi, J.—This criminal appeal has been filed by the appellant Ram Sewak against the judgment of conviction and order of sentence dated 31.1.2007 passed by Additional Session Judge, Fast Track Court No. 1, Agra in Session Trial No. 47 of 2006 (State v. Ram Sewak and another) arising out of Case Crime No. 336 of 2005, convicting and sentencing the appellant to undergo life imprisonment for the offence under Section 302 IPC. 2. As per the prosecution case, the First Information Report was lodged by the Rautan Singh @ Shaitan Singh son of late Rajpat on 6.11.2005 at about 20:25 hrs with regard to the incident dated 10/11.10.2005 with the averments that the first informant is engaged in making the idols at Alwar and when he came on the Diwali festival, his sister Kamlesh told him that on 11.10.2005 in the night, Ram Sewak (appellant) and co-accused Bhola Ram have committed the murder of his father by strangulating him with the rope and both of them have threatened to kill her in case, she tells anyone about the incident, therefore, she did not tell anybody about the incident due to fear. When the first informant reached home, she narrated the entire story. 3. The First Information Report was lodged on 6.11.2005 at 20:25 hrs against the appellant and the co-accused Bhola Ram under Section 302 IPC registered at Police Station Jagdishpura District Agra with regard to the incident, which have taken place on 10/11.10.2005. 4. Prior to the registration of the aforesaid First Information Report, the accused appellant Ram Sewak moved an application on 11.10.2005 at about 8:10 am at police station Jagdishpura District Agra with the averments that his father Rajpat Prajapati has committed suicide on the night of 10/11.10.2005 by strangulation and his body is lying on the cot at home. The said report was entered in GD No. 22 dated 11.10.2005. Thereafter Panchnama was prepared, which was signed by the Panch witnesses and the body was handed over to the constable for carrying it to the mortuary for post-mortem. The autopsy was conducted on the person on the deceased by Dr. The said report was entered in GD No. 22 dated 11.10.2005. Thereafter Panchnama was prepared, which was signed by the Panch witnesses and the body was handed over to the constable for carrying it to the mortuary for post-mortem. The autopsy was conducted on the person on the deceased by Dr. P.P. Pathak (PW-3) on 11.10.2005 at 4 pm, who found the following injuries at the person of the deceased: ^^¼1½ xys esa QUns dk fu'kku 33 lsŒehŒ xq.kk 4 lsŒehŒ xnZu ds pkjks rjQ Fkkejy dkjVksyst ds 2 lsŒehŒ ls Åij ls lh/kh rjQ xnZu ds Åij xnZu ds ihNs o cka;h rjQ gksdj FkkbjkbM dkVyst rFkk nksuksa rjQ fdukjksa ij 2 lsŒehŒ dk xSi FkkA ¼2½ psgjs ij cka;h rjQ cka;h vka[k ds uhps 5 lsŒehŒ xq.kk 3 lsŒehŒ dh ,fj;k esa [kqjlVsa FkhA ¼3½ [kqjlV 3 lsŒehŒ xq.kk 1 lsŒehŒ cka;s psgjs ij cka;h rjQ vka[k dh HkkSag ls 3 lsŒehŒ okgj dh vksjA ¼4½ [kqjlV 1 lsŒehŒ xq.kk 1 lsŒehŒ cka;s dku ijA ¼5½ [kqjlV 3 lsŒehŒ xq.kk 2 lsŒehŒ cka;s dku ds ihNs dh rjQA** The cause of death was recorded due to Asphyxia as a result of strangulation. 5. After registration of First Information Report, the investigation was carried out and the I.O. recorded the statement of witnesses and after collecting relevant material, concluded the investigation and submitted the charge-sheet against the accused-appellant as well as co-accuesd Bhola Ram before the concerned Magistrate, who committed the case to the Court of Sessions for trial. 6. Session Court framed the charges against the appellant-Ram Sewak and co-accused Bhola Ram under Section 302 IPC on 21.3.2006, however, the appellant and the co-accused did not plead guilty and claimed to be tried. The trial was registered as Session Trial No. 47 of 2006 (State v. Ram Sewak and another) arising out of Case Crime No. 336 of 2005 under Section 302 IPC, Police Station Jagdishpura, District Agra in which as many as six prosecution witnesses were examined. 7. PW-1 Rautan Singh is the son of the deceased as well as first informant, PW-2 Km. Kamlesh, daughter of the deceased, who is the eye-witness of the incident, PW-3 Dr. P.P. Pathak, who conducted the post-mortem of the deceased, PW-4 Prem Singh, who is the witness of the recovery memo, PW-5 Raj Bahadur Singh, Head Moarrir, who prepared the chik F.I.R and PW-6, Investigating Officer of the case. 8. Kamlesh, daughter of the deceased, who is the eye-witness of the incident, PW-3 Dr. P.P. Pathak, who conducted the post-mortem of the deceased, PW-4 Prem Singh, who is the witness of the recovery memo, PW-5 Raj Bahadur Singh, Head Moarrir, who prepared the chik F.I.R and PW-6, Investigating Officer of the case. 8. After the conclusion of the prosecution evidence, statement of the accused has been recorded under Section 313 Cr.P.C in which he stated that he has been falsely implicated by his brother with the intention not to give him any share in the property. 9. The prosecution has produced PW-1 Rautan Singh, who lodged the First Information Report and stated in his examination-in-chief that he is engaged in making idols at Alwar and used to reside there. It is further stated by the PW-1 that his elder brother Ram Sewak was resided at village Alwatiya and his younger brother Khushi Ram was resided at Nagla Galar, where he used to work for bakery. It is further stated that at the time of incident, his father Rajpat and his younger sister, Kamlesh was at their home and his brother Ram Sewak, the accused, approached his father and pressurised him that the house owned by him be transferred on his name. On this, his father told him that he will first do the marriage of his daughter Kamlesh. It is further stated that on the night of 10/11.10.2005 Ram Sewak, the appellant and co-accused Bhola Ram came at their house and committed murder of his father by strangulating with the rope. At the time, her sister Kamlesh was at home, who witnessed the entire incident. It is further stated by the PW-1 in his examination-in-chief that he returned to his home on the Diwali festival, then his sister told him that her father was murdered by the appellant Ram Sewak and co-accused Bhola Ram by strangulating him. It is also stated in the examination-in-chief by the PW-1 that his sister Kamlesh also told him that accused persons threatened her to kill in case, she tells anyone about the incident. PW-1 further stated that his sister told him that one day prior to incident, the appellant came at her house where he met the deceased and wanted that the house be partitioned. PW-1 further stated that his sister told him that one day prior to incident, the appellant came at her house where he met the deceased and wanted that the house be partitioned. It is further stated by the PW-1 that his sister Kamlesh for the first time told about the incident and prior to that she did not tell about the same to anybody due to fear. Thereafter, the First Information Report was lodged, which was written by the Prem Singh, PW-4. It is further stated by the PW-1 in his examination-in-chief that he recorded his statement before the I.O with regard to the said incident. 10. PW-1 has been subjected to cross-examination in which he stated that he lodged the First Information Report in 10th month of 2005 and was residing at Alwar since four month prior to the date of incident. He further stated that there are injuries on the body of the deceased, which was told by her sister. Further his sister also told him about the post-mortem, which was conducted on 11.10.2005. It is further stated that he has three brothers and all the three brothers are residing separately. The name of elder brother is Ram Sewak (the appellant), he was the second one and his third brother is Khushi Ram. It is further stated that in the house, his father and sister is used to reside. It is also stated that the informant had sold the house of his father before three months from the date of recording of his statement on 25.5.2006. He further stated that when his sister told him about the incident, he reported the same by lodging the First Information Report. It has also been stated at the time of incident that he was not present at the spot and his statement was recorded by the concerned I.O after one month from the date of incident. He denied that he falsely implicated his brother in order to grab the property. 11. PW-2 Km. Kamlesh has been examined and in her examination-in-chief, she recorded that her father was murdered and the murder took place in the night. It is further stated that the appellant Ram Sewak is her real brother and Bhola Ram is the friend of Ram Sewak. 11. PW-2 Km. Kamlesh has been examined and in her examination-in-chief, she recorded that her father was murdered and the murder took place in the night. It is further stated that the appellant Ram Sewak is her real brother and Bhola Ram is the friend of Ram Sewak. She further stated that she has not said that her father was strangulated by appellant-Ram Sewak and co-accused Bhola Ram and she did not tell his brother that the appellant and the co-accused strangulated her father with the help of rope. She further stated that the police did not ask her with regard to the murder of her father and when her father was murdered, her brother was at Alwar, Rajasthan. Later on, he came home during Diwali festival. Subsequently, she was declared hostile on the request of D.G.C. (Criminal). 12. In the cross-examination of P.W.-2, she stated that she did not know how her statement was recorded under 161 Cr.P.C. and reiterated the fact that she never told her brother about the murder of her father. She also stated that it is wrong to say that her father was murdered by his brother Ram Sewak, the appellant and Bhola Ram, the co-accused by strangulation with the help of rope. She also denied the suggestion that she is not telling the truth as the appellant Ram Sewak is her real brother. She further stated that she is residing with Rautan Singh, the informant. 13. P.W.-3 Dr. P.P. Pathak, is the person who conducted the autopsy of the deceased and stated in his examination-in-chief that he conducted post-mortem of the deceased Rajpat on 11.10.2005 and further stated that there were four injuries on the body of the deceased which he mentioned in the post-mortem report. He further stated that the cause of death of the deceased is due to strangulation and was done about 3-4 days prior to the date of post-mortem. P.W.-3 did not cross-examined by the defence side. 14. P.W.-4 Ram Singh is the witness of the recovery memo and stated in his examination-in-chief that in the noon of 7.11.2005, the investigation officer alongwith other police personnels with the accused Ram Sewak came at the Village and at the instance of Ram Sewak, the appellant, the rope was recovered, which was in the polythene bag. 14. P.W.-4 Ram Singh is the witness of the recovery memo and stated in his examination-in-chief that in the noon of 7.11.2005, the investigation officer alongwith other police personnels with the accused Ram Sewak came at the Village and at the instance of Ram Sewak, the appellant, the rope was recovered, which was in the polythene bag. He also admitted his signature on the recovery memo, which was stated to be filled up in presence of P.W.-4. The said witness was also cross-examined. He clearly stated that he was eye-witness of the recovery and in his presence, the rope was recovered at the instance of accused-appellant Ram Sewak. 15. P.W.-5 Raj Bahadur Singh, Head Moarrir, who is posted at concerned police station and had written the First Information Report of the informant and his examination-in-chief is formal in nature. 16. P.W.-6 Sanjeev Chauhan, who is Investigating Officer of the case stated that he visited the spot after registration of First Information Report on 6.11.2005. He further stated with regard to the said incident, a report has been lodged by the accused-appellant Ram Sewak on 11.10.2005 to the effect that his father has committed suicide. He further stated that on 6.11.2005 alongwith chik report of Panchnama, post-mortem report and alongwith case diary, he recorded the statement of first informant and subsequently, he alongwith other police personnels went to the spot and recorded the statement of eye-witness namely Km. Kamlesh, who told him that at the night of 10/11.10.2005 at about 12:00 hours, his elder brother Ram Sewak, the appellant and co-accused Bhola Ram came at her house where the Bhola Ram was standing in the Courtyard while the accused-appellant Ram Sewak murdered his father by strangulating with the help of rope, who was sleeping on the cot. It is further stated that when Kamlesh heard the noise, she saw the entire incident from the window as she was inside the room. 17. P.W.-6 further stated that he prepared the site plan which is Ex. Ka-8 and proved the same. He further stated that on 7.11.2005 the accused was arrested and their statement was also recorded. The said witness also stated that they have recovered the rope at the instance of Ram Sewak, the appellant at about 12:35 hrs in the presence of public witnesses and prepared the recovery memo. 18. P.W. 6 was cross-examined by the defense counsel. 19. He further stated that on 7.11.2005 the accused was arrested and their statement was also recorded. The said witness also stated that they have recovered the rope at the instance of Ram Sewak, the appellant at about 12:35 hrs in the presence of public witnesses and prepared the recovery memo. 18. P.W. 6 was cross-examined by the defense counsel. 19. The trial judge on the basis of the aforesaid evidence adduced during the course of the trial has come to the conclusion that it was the appellant, Ram Sewak, who had committed the offence of murder of Rajpat and has held him guilty for offence under Section 302 I.P.C. and sentenced him to undergone the life imprisonment. The other co-accused Bhola Ram has been acquitted by the trial judge as no evidence found against him. 20. Feeling aggrieved by the said judgment of the trial Court, this appeal has been preferred by the appellant-Ram Sewak. 21. We have heard Mrs. Archana Singh, learned counsel for the appellant, Sri Vinod Kant, learned Additional Advocate General assisted by learned A.G.A. for the State and perused the material on record. 22. Learned counsel for the appellant contends that the incident took place on 10/11.10.2005 in the mid-night regarding which information was given to the police by the appellant himself and the First Information Report was lodged on 6.11.2005 at 20:25 hrs. Learned counsel for the appellant has drawn attention of this Court to Ex. Ka-1, which is the F.I.R, lodged by the Rautan Singh son of the deceased Rampat, wherein it has been stated that the incident was narrated to the first informant by his sister namely Km. Learned counsel for the appellant has drawn attention of this Court to Ex. Ka-1, which is the F.I.R, lodged by the Rautan Singh son of the deceased Rampat, wherein it has been stated that the incident was narrated to the first informant by his sister namely Km. Kamlesh, who saw the incident of murder of her father by the appellant and his friend namely, Bhola Ram but the appellant has threatened his sister Kamlesh that if she informed about the incident to anyone, she will also face the same fate and on account of aforesaid fear, she did not tell anyone but it was only when first informant came to the village during the festival, she narrated the incident to him which resulted into lodging of the F.I.R. It is also argued that according to the prosecution version, the sole eye-witness is Kamlesh, daughter of the deceased, who used to live with the deceased and has further drawn attention of this Court to the statement of PW-1 Rautan Singh, wherein he has stated that he was staying at Alwar for the past two-three months and was engaged in making idols and it was during Diwali, he came to his village, thereafter, he was informed by his sister Kamlesh that the appellant and his friend Bhola Ram had committed the murder of his father and also Kamlesh did not inform anyone about the incident on account of fear and threat given by the appellant. Learned counsel for the appellant has further drawn attention of this Court to the statement of PW-2 Kamlesh, who is the sole eye-witness, wherein she had stated that she has not informed PW-1 about the said incident and subsequently, she was declared hostile. Learned counsel for the appellant also referred to the statement of Doctor PW-3, who had conducted the post-mortem of the deceased on 11.10.2005 at about 4:00 pm, according to which, death was caused 3-4 days back, therefore, it was argued that the medical evidence does not corroborate with the prosecution version. Learned counsel for the appellant has further drawn attention of this Court to the recovery of rope, which is alleged to have been used for commission of alleged offence and is recovered on the pointing of the appellant from the open field and reference in this regard has been drawn to Ex. Learned counsel for the appellant has further drawn attention of this Court to the recovery of rope, which is alleged to have been used for commission of alleged offence and is recovered on the pointing of the appellant from the open field and reference in this regard has been drawn to Ex. Ka-3, which is the recovery memo made from the field of Sunder Singh son of Chandra Jat. It is thus argued that no such recovery has been made and there is no independent witnesses of the alleged recovery, which was alleged to have been made from the open field and therefore, no reliance can be placed upon the same. 23. It is lastly argued that apart from Prem Singh, who was recorded as PW-4, there is no other witnesses of panchnama has been examined, who conducted the panchnama and therefore, the same too belies the prosecution story. 24. On the contrary, it has been argued by Sri Vinod Kant, learned Additional Advocate General assisted by learned AGA that the information regarding the alleged incident was initially given by the appellant to the police, who had initiated legal process and the motive of alleged incident which is shown to be of property dispute as the deceased had refused to transfer the property in-question in the name of the appellant. It has also been argued that PW-2 the sole eye-witness was a girl of 14 years at the time of alleged incident and she was threatened by the appellant and therefore, the statement given by her in the Court is under threat. It is thus contended that the findings recorded by the trial Court suffers from no legal infirmity and calls for no interference by this Court. Thus, the judgment and order passed by the trial Court is liable to upheld by this Court. 25. We have considered the rival submissions of the parties and perused the record. 26. The appellant Ram Sewak vide application on 11.10.2005 at 8:10 am informed the police station Jagdishpura to the effect that his father has committed suicide on the intervening night of 10/11.10.2005 at his house and his dead body lying over the cot. The said report was recorded at GD No. 22 dated 11.10.2005. 27. The question is whether the deceased has committed suicide or he was murdered by the appellant by strangulating with the help of rope. 28. The panchnama Ex. The said report was recorded at GD No. 22 dated 11.10.2005. 27. The question is whether the deceased has committed suicide or he was murdered by the appellant by strangulating with the help of rope. 28. The panchnama Ex. Ka-4 was prepared in which neither any rope nor any material, which was alleged to have been used for committing suicide has been recovered. The dead body of the deceased was found lying over the cot in the open Courtyard. Therefore, the aforesaid circumstances and the evidence does not proved the fact that the deceased has committed any suicide. 29. It is admitted that the accused was died on the intervening night at about 12:00 hrs on 10/11.10.2005 and the First Information Report was lodged on 6.11.2005 by the informant Rautan Singh, PW-1. The circumstances for lodging the First Information Report on 6.11.2005 has been explained by the prosecution witness PW-1, the informant by stating that he was at Alwar at the time of alleged incident and when he came on Diwali festival, then his sister Kamlesh told him that at the intervening night of 10/11.10.2015, the appellant and co-accused Bhola Ram have committed murder of her father by strangulating him with the rope and threatened to kill her in case, she tells anybody about the incident and the First Information Report was lodged after she narrated entire story, when the informant reached at home. Therefore, there is no delay in lodging First Information Report under the aforesaid circumstances. 30. The post-mortem was conducted on 11.10.2005 at 4:00 pm in which several ante-mortem injuries were found and the Doctor is of the opinion that the cause of death is due to ‘Asphyxia’ as a result of strangulation. Merely, the fact that the Doctor PW-3 stated in his statement that the death was caused 3-4 days back and the same does not corroborate the prosecution version is not acceptable and liable to be ignored that the prosecution case of death by strangulation has totally corroborated with the post-mortem report, which clearly shows that it is not a case of suicide but the deceased has been murdered with the help of rope and on account of said strangulation, he was died. 31. 31. Admittedly, the body of the deceased was found lying over the cot on the place of incident and circumstances clearly shows that it is not a case of suicide as alleged/reported by the appellant Ram Sewak, even nothing has been brought during the evidence that the appellant Ram Sewak had ever informed about the death of his father to the first informant and hold any rituals after the death of his father. The prosecution has clearly established the motive of the appellant as he want his share in the property, which his father, deceased has refused to give. 32. In the statement of PW-2 Km. Kamlesh, she clearly stated that her father was murdered in the night and she merely stated that she has not seen the appellant and Bhola Ram, co-accused committing the murder and even she did not told the same to her brother, the informant, PW-1. Although, in the statement recorded under Section 161 Cr.P.C before the police, she specifically stated that her father was murdered by his brother, the appellant by strangulation with the help of rope. There is also no occasion or motive of the PW-1, the informant to falsely implicate his brother, the appellant in the murder of his father. The PW-2 was a minor girl at the time of incident and statement given by her in the Court is under fear or threat. 33. So far as the recovery is concerned, the statement of PW-4 Prem Singh, the independent witness was recorded and in whose presence, the rope was recovered at the instance of appellant. The said fact has also been apparent from the statement of I.O, PW-6. The panchnama has been conducted by the investigating officer, who had proved the same in his statement recorded as PW-6. Since, the panchnama was conducted on 11.10.2005 in the presence of accused and the same has not been denied and therefore, there is no necessity to examine any witness of the panchnama, which has been conducted prior to lodging the First Information Report. 34. Since, the panchnama was conducted on 11.10.2005 in the presence of accused and the same has not been denied and therefore, there is no necessity to examine any witness of the panchnama, which has been conducted prior to lodging the First Information Report. 34. Thus, from the entire evidence led during the course of the trial, the prosecution has established its case beyond the reasonable doubt and the findings recorded by the trial Court are based on critical analysis of the evidence, which could not be said to be perverse and illegal and therefore, the finding of conviction recorded against the appellant is upheld and sentence awarded to him is confirmed. The appeal having no force is liable to be rejected. 35. The criminal appeal is hereby dismissed. The conviction and sentence imposed upon the appellant-Ram Sewak vide impugned judgment and order dated 31.1.2007 is hereby confirmed. 36. A copy of this judgment alongwith the trial Court record be sent to Sessions Judge, Agra for necessary compliance. 37. Judgment be certified and place on record.