Court No. 47 Reserved on 21.08.2018 Delivered on 05.09.2018 Case :- CRIMINAL APPEAL No. - 6619 of 2008 Appellant :- Ramesh Chandra Respondent :- State Of U.P.
Counsel for Appellant :-S.K. Srivastava, Dushyant Kumar, Mahesh Kumar, S.K. Pandey, Narendra Kumar Singh Counsel for Respondent :- Government Advocate
Hon'ble Ram Surat Ram (Maurya),J. Hon'ble Umesh Chandra Tripathi,J.
1. Heard Sri Narendra Kumar Singh, for the appellant and Sri I.P. Srivastava, A.G.A. 1st, for State of U.P.
2. Ramesh Chandra (the appellant) has filed this appeal, from his conviction and sentence passed by Additional Session's Judge/Special Judge (S.C/S.T. Act), Farrukhabad, dated 17.09.2008, in S.T. No. 185 of 1991, State vs. Ramesh Chandra (arising out of Case Crime No. 598 of 1989, under Section 302 IPC, P.S. Kotwali, district Farrukhabad), convicting the appellant under Section 302 IPC and awarding sentence of imprisonment for life with fine of Rs. 10000/-, along with default stipulation.
3. On the complaint (Ex-Ka-1) of Mahesh Chandra (PW-1), FIR (Ex-Ka- 2) of Case Crime No. 598 of 1989, under Section 302 IPC, was registered at P.S. Kotwali, Farrukhabad, on 17.08.1989 at 14:15 hours, against Ramesh Chandra, by Head Moharrir Sukhram Singh (PW-3). It has been stated in the complaint that Smt. Bitoli Devi and Ram Beti aged about 13 years, mother and sister of the informant respectively, were at her house. At about 12:30 PM, when the informant was playing card at the house of Rajendra Prasad near his house, his sister Ram Beti went to ease in his maize field near the village. His mother had seen Ramesh son of Chhote Lal Jatav, following his sister towards maize field. After sometime, they heard hue and cry of his sister towards the field, on which he, Rajendra son of Raghubar Dayal, Dinesh son of Prahlad and Jagdish son of Ram Swarup went towards the field, running. Then they found that seeing them, Ramesh Jatav was coming out from the field and fleeing towards the road after causing injury to his sister. They chased Ramesh but could not apprehend him. When they went to his sister then found that there was injury on front side of her neck, from which the blood was oozing. She was breathing in unconscious condition. They soon proceeded to take her to hospital but on reaching the road, she died. Ramesh Jatav used to keep evil eyes upon his sister due to which he had committed murder of his sister. Dead body of his sister was kept at his house. After lodging report, action be taken in accordance with law.
4. After registration of FIR, In-charge Inspector J.P. Sharma (PW-8) started investigation on 17.08.1989. He copied the check FIR in case diary. He came to the house of the informant, where dead body of Km. Ram Beti was lying. He recorded statements of the informant Mahesh Chandra and witnesses Rajendra, Dinesh, Jagdish and Smt. Bitoli. He made spot inspection and prepared site-plan (Ex-Ka-12). He took into possession blood stained earth, plane earth and broken bangles from the spot and got prepared its recovery memo (Ex-Ka-10) from SI Babau Upadhyay. SI Babau Upadhyay (PW-4) conducted Inquest of Km. Ram Beti (Ex-Ka-5) on 17.08.1989 during 15:30 to 16:30 hours. He prepared and sent photo lash, letters etc. to the authorities for conducting postmortem (Ex-Ka-6 to Ka-8). After completing investigation, he submitted charge sheet (Ex-Ka-13), against the appellant, on 03.09.1989, on which cognizance was taken.
5. Dr. O.P. Gangwar (PW-7) conducted autopsy of the dead body of Km. Ram Beti on 18.08.1989 at 14:10 hours and prepared postmortem report (Ex- Ka-11), in which following ante-mortem injuries were noted:-
(i) Multiple incised wounds - 8 in numbers, over front and right lateral side of neck, upper part, in an area of 9cm x 5cm, measuring from 4cm x 1.5 cm to 1cm x 0.2 cm, depth from muscle to cartilage, margins clean-cut, right angles of it are sharp, transversely and obliquely placed.
(ii) Abrasions - 3 in numbers, in an area of 8cm x 3.5cm, on the right side of face and neck, measuring from 3.5cm x 1cm to 1.5cm x 0.5cm.
In the internal examination, thyroid cartilage were cut, both chambers of heart were empty, right neck vessels were cut, stomach contained semi-digested food, mucus and blood 200gm., small intestine contained pasty matter, gas at places, large intestine contained fecal matter and gases at some places. According to the Doctor, cause of death "shock and hemorrhage, as a result of ante-mortem injuries". As a special note, "two vaginal smears slides prepared and sent to District Hospital".
6. The appellant was arrested on 18.08.1989. At the time of arrest, some injuries were seen on his body. Dr. M.P. Agrawal (PW-5) examined his injuries on 18.08.1989 at 6:30 PM and prepared injury report (Ex-Kha-1), in which following injuries were noted:-
No injury mark present on the body, C/o pain in abdomen. General condition was fair. Pulse rate was 80 per minute and blood pressure was 120/70 mmHg.
7. On committal, the case was registered as S.T. No. 185 of 1991, in which IIIrd Additional Session's Judge framed charges against the appellant on 22.02.1993. In order to prove the charges, the prosecution examined Mahesh Chandra (PW-1), the informant and an eye witness, Smt. Bitoli (PW- 2), the mother of the deceased, Head Moharrir Sukhram Singh (PW-3), to prove check FIR, SI Babau Upadhyay (PW-4) to prove Inquest of the deceased and recovery memos, Dr. M.P. Agrawal (PW-5), to prove injury report (Ex-Kha-1) of the accused, Dinesh Chandra (PW-6) an independent witness, who was declared hostile by the prosecution, Dr. O.P. Gangwar (PW- 7), to prove postmortem report of Km. Ram Beti and Inspector J.P. Sharma (PW-8), Investigating Officer.
8. All the incriminatory materials and facts were put to the accused, under Section 313 CrPC. He denied the materials and facts and stated that Mahesh had taken Rs. 3500/- as loan from him, which was due upon him. Before the incident some altercation had taken place between him and Mahesh on demand of money given to him. Due to this enmity and with an intention to grab his money, the informant Mahesh has falsely implicated him in this case. He examined Soberan Singh (DW-1) who was Pradhan of village Masaini, who has stated that 10-15 days prior to this incident a quarrel had taken place between Mahesh and Ramesh in respect of money taken by Mahesh.
9. Additional Session's Judge, after hearing the parties, by the impugned judgment held that this was a day light murder. From statements of Mahesh Chandra and Smt. Bitoli (PWs-1 and 2), it is proved that when they reached at the place of occurrence after hearing hue and cry of the deceased, they found Ramesh assaulting Km. Ram Beti. After seeing the witnesses, Ramesh ran away from the spot. While running, he was chased by Mahesh but could not be apprehended. On these findings, he convicted the appellant under Section 302 IPC and sentenced as mentioned above. Hence, this appeal has been filed.
10. The counsel for the appellant submitted that death of Km. Ram Beti occurred due to cut injury on her throat on 17.08.1989. From Inquest (Ex-Ka- 5) it is proved that her dead body was kept at drawing room of the informant. The real assailant was not known. Mahesh Chandra (PW-1) had taken Rs. 3500/- as loan from the appellant, which was due upon him. Some quarrel had taken place between Mahesh and the appellant on demand of money given to him, 10-15 days prior to the incident. This fact relating to quarrel was proved by Sobaran Singh (DW-1) who was Pradhan and an independent witness. Due to this enmity and with an intention to grab his money, Mahesh Chandra has falsely implicated the appellant in this case. The place of occurrence is alleged to be the maize field of the informant, where it is alleged that the deceased had gone to ease. At the place of occurrence, neither lota of the deceased was found nor any trace of easing was found. The deceased was a young girl of 16 years old. Before any misbehaviour was committed to her, she might have resisted it and in that connection maize crop must have been ruined/broken on the spot, but Investigating Officer did not find that maize crop was ruined on the spot. So far as taking blood stained earth from place of occurrence is concerned, it was not sent for serelogical examination to prove that any blood was found in the earth or not. As such date, time and place of occurrence are not proved. Incident is alleged to have taken place at 12:30 hours in noon. At that time according to FIR version, Rajendra son of Raghubar Dayal, Dinesh son of Prahlad and Jagdish son of Ram Swarup were on the spot along with the informant. It was not possible for the appellant to run away from the spot. Apart from family member of the deceased, Dinesh Chandra (PW-6), was also present, who according to the informant was playing card with him in the room of Rajendra and came on the spot after hearing hue and cry of the deceased, but Dinesh Chandra (PW- 6) did not support the prosecution version and was declared hostile. The conviction of the appellant based upon testimony of highly interested and inimical witnesses is illegal and liable to be set aside.
11. We have considered the arguments of counsel for the parties and examined the record. Incident is alleged to be have taken place on 17.08.1989 at 12:30 PM and FIR was lodged at 14:15 hours on the same day. Distance of police station from the place of occurrence is four KM. After lodging FIR, Investigating Officer J.P. Sharma (PW-8) came to Police Out-post Qadari Gate within whose limit, the occurrence had taken place. He took SI Babau Upadhyay (PW-4) from Police Out post and visited the spot, on official jeep. SI Babau Upadhyay (PW-4) conducted Inquest of Km. Ram Beti (Ex-Ka-5) on 17.08.1989 during 15:30 to 16:30 hours. Inspector J.P. Sharma (PW-8) made spot inspection and prepared site-plan (Ex-Ka-12) on 17.08.1989. He took into possession blood stained earth, plane earth and broken bangles from the spot and prepared its recovery memo (Ex-Ka-10). Dr. O.P. Gangwar (PW- 7) conducted autopsy of the dead body of Km. Ram Beti on 18.08.1989 at 14:10 hours and prepared postmortem report (Ex-Ka-11). According to him also death of Km. Ram Beti had occurred on 17.08.1989 at about midday. FIR was lodged promptly. The police visited the spot without any undue delay and conducted the preliminary investigation promptly, which does not create any doubt. Thus, date and time of occurrence is proved.
12. So far as place of occurrence is concerned, Mahesh and Smt. Bitoli (PWs-1 and 2) stated that on 18.08.1989 at about 12:30 PM, Km. Ram Beti went to ease in his maize field near the village. At that time, the informant was playing card at the house of Rajendra Prasad near his house. After sometime, they heard cries of Ram Beti from the field, on which Mahesh, Rajendra son of Raghubar Dayal, Dinesh son of Prahlad and Jagdish son of Ram Swarup went towards the field, running. Smt. Bitoli also went towards the field from her house. Then they found that Ramesh was assaulting Ram Beti in maize field and on seeing them, Ramesh fled away from the field towards the road. They chased Ramesh but could not apprehend him. When they went to his sister then found that there was injury on front side of her neck, from which blood was oozing. She was breathing in unconscious condition. They soon proceeded to take her to hospital but they could reach on the road, she died. Thereafter, dead body was kept at his house. Dinesh Chandra (PW-6) also stated that when they were playing card at midday of 18.08.1989 at the room of Rajendra, some one had informed them that Ram Beti was lying dead at maize field, when they reached the maize field then found dead body of Ram Beti there. Inspector J.P. Sharma (PW-8) made spot inspection and prepared site-plan (Ex-Ka-12). He recovered blood stained earth, plane earth and broken bangles from the maize filed and prepared its recovery memo (Ex-Ka-10). From these evidence, place of occurrence is also proved. It was natural for Mahesh to took out Ram Beti from the place of occurrence as when he reached on the spot, she was breathing. If Investigating Officer has not recovered lota from maize field or noticed that crop was ruined, then on its basis, entire evidence cannot be disbelieved.
13. So far as the motive of the incident is concerned. Mahesh and Smt. Bitoli (PWs-1 and 2) stated that 10-12 days prior to the incident, Ramesh tried to molest Ram Beti and besieged to commit rape, on which she had made complaint to her mother and brother. Then he scolded Ramesh due to which he was keeping enmity. Ramesh took plea that Mahesh had taken Rs. 3500/- as loan from him, which was due upon him. Before the incident some altercation had taken place between him and Mahesh on demand of money given to him. Due to this enmity and with an intention to grab his money, the informant Mahesh has falsely implicated him in this case. He also examined Soberan Singh (DW-1) who was Pradhan of village Masaini, who has stated that 10-15 days prior to this incident a quarrel had taken place between Mahesh and Ramesh in respect of money taken by him.
Ramesh in his statement under Section 313 Cr.P.C. has disclosed his occupation as “labourer”. In 1989, it was not easy for a labourer to give loan of Rs. 3500/- to another person as for a labouer, it was a big amount. No evidence has been adduced in respect of giving loan. From statement of Soberan Singh (DW-1), it is proved that 10-15 days prior to this incident a quarrel had taken place between Mahesh and Ramesh, which is case of the prosecution also. Statement of Sobaran Singh (DW-1) that quarrel had taken place, in respect of money is hearsay and not admissible in evidence. From postmortem report it is proved that Ram Beti was a young girl of 16 years age. The motive as given by the prosecution, is proved.
14. Mahesh (PW-1) in his statement has stated that his mother Smt. Bitoli and sister Ram Beti, who was unmarried, were at her house. On the date of incident at about 12:30 PM, when he was playing card at the room of Rajendra Prasad near his house, along with Rajendra, Dinesh and Jagdish. His sister Ram Beti went to ease in his maize field. Ramesh also followed Ram Beti. He heard cries of his sister. On which he, Rajendra, Dinesh and Jagdish went towards the maize field, running. Then found that Ramesh was assaulting his sister. When Ramesh saw them then he fled towards the road in west. His sister Ram Beti was lying there in injured condition. They chased Ramesh but could not apprehend him. When he saw his sister then found that she was breathing in unconscious condition and injury was no her neck. They soon proceeded to take her to hospital but they could reach up to the road and she died. They brought the dead body to his house.
15. Smt. Bitoli (PW-2) is mother of the deceased. She stated that Ram Beti was aged about 13 years. Ramesh the accused was her neighbourer. On the date of incident at about 12:30 PM, she was at her house. His daughter Ram Beti went to ease in her maize field. When she reached the house of Ramesh then Ramesh also followed her. She heard cries of Ram Beti at her house that “Hai Daiya Mar Dala”. She went to her maize field, running. Her son Mahesh, Rajendra, Jagdish and Dinesh were ahead to her. When she reached at her maize field then found that Ram Beti was lying there in injured condition and blood was oozing from the injury. The accused Ramesh was there. She saw Ramesh, while assaulting. On seeing them, Ramesh fled away towards west and could not be apprehended. Her son proceeded to take Ram Beti to hospital but they could reach up to the road and she died. They brought the dead body to his house.
From statements of Mahesh and Smt. Bitoli (PWs-1 and 2), the prosecution case is fully proved. Presence of the witness at the places where they had alleged, was natural. This was a day light incident. It has come in the evidence that the maize crops were about 3 feet in height. Any young man can be seen and recognized even from long distance, while running. There is nothing in their cross-examination to disbelieve them.
16. So far as non-production of public witness, is concerned, Dinesh Chandra (PW-6) has also stated that on 18.08.1989 at about 12:30 PM dead body of Ram Beti was found in her maize filed. Supreme Court in Sadhu Saran Singh v. State of U.P., (2016) 4 SCC 357, held that in these days, civilized people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from the court as they find it distressing and stressful. Though this kind of human behaviour is indeed unfortunate, but it is a normal phenomena. We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of absence of independent witness as long as the evidence of the eyewitness, though interested, is trustworthy.
17. In view of the aforesaid discussions, the appeal has no merit and is dismissed. The conviction and sentence passed by Additional Session's Judge/Special Judge (S.C/S.T. Act), Farrukhabad, dated 17.09.2008, in S.T. No. 185 of 1991, State vs. Ramesh Chandra (arising out of Case Crime No. 598 of 1989, under Section 302 IPC, P.S. Kotwali, district Farrukhabad), is upheld. The appellant is in jail. He shall serve the sentence.
Order Date: - 05.09.2018 Jaideep/-