Ram Chander Naie and Another vs State Of U.P.

Shiv Shanker, J.—Instant criminal appeal has been preferred against the judgment and order dated 10.1.1997, passed by Additional Sessions Judge, Ist, Sonbhadra in Sessions Trial No. 24 of 1995, State v. Ram Chander and Prabhawati Devi, thereby convicting and sentencing the Appellants u/s 302, I.P.C. read with Section 34, I.P.C. for life imprisonment.

Prosecution case in nutshell is that P.W. 1 Nagendra Prasad Jaiswal, son of Rajaram Jaiswal got the F.I.R. registered on 30.11.1994 at 12.15 p.m. regarding occurrence dated 30.11.1994 at about 10.30 a.m. in the concerned Police Station, Chopan district Sonbhadra against both the above Appellants by stating that one Bhola, son of Rachik Naie of his village served at Lucknow. His sons namely Ramdhani and Ram Chander (present Appellant) also lived with him at Lucknow. Appellant Ram Chander was a man of criminal nature. He used to roam in the village showing knife to the people and claimed to be a goonda of Lucknow. Ram Chander accused had demolished ''Mend'' of the field of informant ten days prior to the incident, due to which, the informant had scolded him at that time. Consequently he became angry. One day before the occurrence at about 8 a.m., Ram Chander and his mother Prabhawati Devi (both Appellants) had arrived at the house of informant and his wife Smt. Sheela Devi was abused on the ground that they were defamed by her, upon which they were scolded by her and Ram Chander (Appellant) was beaten with slippers (chappals) two times by her. Thereafter, both the Appellants went away from there abusing informant''s wife and giving threatening to face dire consequences within 24 hours. It is alleged that on 30.11.1994 at about 10 a.m., Smt. Sheela Devi, (deceased) alongwith her daughter Km. Archana (P.W. 3), Km. Sangeeta, daughter of Baijnath and Smt. Reeta daughter of Bhola Gupta had gone to take the bath in the river Durhul. At about 10.30 a.m. the informant and Tribhuvan (P.W. 2), and Tulsi Prasad (P.W. 4) of his village were also going to take bath in the said river and when they reached near the river, they saw that Ram Chander Appellant was assaulting and inflicting knife injuries to Smt. Sheela Devi and his mother Prabhavati Devi was catching hold hairs and hands of the deceased. On this, they challenged both the accused persons. Thereafter, they fled away from there towards the east through the path-cover of hill. When they reached at the ghat of river, they saw that wife of informant had died due to sustaining injuries and her dead body was lying in pool of blood. All the three girls were weeping and they told that both the accused persons had killed the deceased. They also told that when they wanted to run away from there, the Appellant Ram Chander had extended threatening not to go anywhere otherwise they would also be killed. Thereafter, several persons also assembled there after the incident.

After leaving the dead body of deceased at the place of occurrence, the informant lodged the F.I.R. Ext. Ka-1 against the above accused persons and investigation of this case was entrusted to S.O. Sri B. L. Nirmal who reached at the place of incident and prepared the inquest report etc. Ext. Ka-5, Exts. Ka-6 to Ka-9. After sealing the dead body, it was entrusted to the concerned constable for conducting autopsy.

The Investigating Officer took blood stained and simple earth from the place of incident and the same was sealed in separate containers and its fard Ext. Ka-10 was prepared. One saree, one peticote, a pair of havai chappal and one sabundani etc. of deceased were lying there which were taken into possession and were sealed in a bundle and its fard Ext. Ka-11 was prepared. On 1.12.1994, accused Ram Chander and Prabhawati Devi were arrested by the police. At the time of arrest, the accused Ramchander was wearing an open blood stained shirt of tericot and one baniyan which were taken into possession and were sealed in one bundle and its fard Ext. Ka-12 was prepared.

Thereafter, Ram Chander accused admitted his guilt after his arrest and blood stained knife was also recovered at his pointing out which was thrown in the back side of the hill. The said knife was sealed in one bundle and its fard Ext. Ka-13 was prepared.

P.W. 7 Dr. S. B. Singh conducted autopsy on the dead body on 1.12.1994 at about 11 a.m. the following ante-mortem injuries were found on the person of deceased:

(1) Incised wound 3 cm. x 1/2 cm. x bone deep on left side of head 5 cm. above the left ear, margin regular cleancut oblique direction.

(2) Punctured wound 3-1/2 cm. x 1/2 cm. x 6-1/2 cm. on left side of neck related to left clavicle 4-1/2 cm. outer to the inner end of left clavicle in supra clavicle space lung incised.

(3) Punctured wound 1, 1/2 cm. x 1/2 cm. x 1, 1/2 cm. on left side of abdomen just below the last rib margin cleancut regular transverse direction.

(4) Punctured wound 1, 1/2 cm. x 1/2 cm. x 6-1/2 cm. on left side of chest 3-1/2 cm. medial to the left neeple, margin cleancut regular piercing in 4th intercortal space, pericardium and (Right vertical) about 15 ml. black blood present in pericardium and heart.

(5) Incised wound 2 cm. x 1/2 cm. x bone deep on upper part of outer side of left upper arm, 3 cm. below the left shoulder joint, margin cleancut regular, oblique direction.

(6) Incised wound 1 cm. x 1/2cm. x muscle deep on upper part of back of left upper arm 3 cm. below the apex of left axilla. Vertical direction.

(7) Punctured wound 2 cm. x 1/2 cm. x 5-1/2 cm. in left side of back of chest 3-1/2 cm. above the left angle of scapula, margin cleancut, regular transverse direction, medial to the medial margin of left scapula, enter the 4th uprooted space of left side of lung.

(8) Punctured wound 2 cm. x 1/2 cm. x 5 cm. on rt. side of back of chest 3 cm. above the inferred angle of rt. scapula margin cleancut, regular, transverse direction, bleeding present also bleeding present in Inj. No. 7.

(9) Punctured wound 2-1/2 cm. x 1/2 cm. x 7 cm. left side of back 8 cm. above and behind the Anterior Superior iliac spine margin cleancut, regular, perforate the upper end of left kidney back clotted blood present vertical direction.

(10) Punctured wound 2 cm. x 1/2 cm. x muscle deep on left gluteal region, margin regular cleancut 11 cm. below and behind the left anterior iliac spine, oblique direction.

(11) Punctured wound perforating 2-1/2 cm. x 1/2 cm. x through and through in front of left palm web between left thumb and left index finger, margin cleancut, regular and inverted showing root of entry 2 cm. x 1/2 cm. x through and through on back palm between left thumb and left index finger (phalinx 3 1/2 cm. below the left wrist joint, margin cleancut, regular averted showing and out of Exit.

Clothes etc. of the deceased were also sealed in one bundle and the same were entrusted to the concerned constable who carried the dead body of deceased for the post mortem.

After concluding the investigation, the charge-sheet was submitted against both the accused persons in the Court.

After commitment of the case to the Court of Session, the Sessions Judge framed the charge for the offence punishable u/s 302, I.P.C. read with Section 34, I.P.C. against both accused persons, who pleaded not guilty and claimed to be tried. They have stated in their statements recorded u/s 313, Cr. P.C. that all the prosecution witnesses have given evidence against them due to enmity and they have been falsely implicated in this case by the concerned police.

Thereafter, prosecution examined P.W. 1 Nagendra Prasad Jaiswal, P.W. 2 Tribuwan, P.W. 3 Km. Archana Jaiswal, P.W. 4, Tulsi Prasad, P.W. 5 B. L. Nirmal (S.O.), P. Ws. Chunni Lal (C.N. 351) and P.W. 7 Dr. S. B. Singh.

No oral or documentary evidence has been adduced on behalf of accused persons in their defence.

After considering the submissions made by the learned Counsel on behalf of both the parties and perusing the whole evidence on record, both the above accused persons were convicted for the charge levelled against them and awarded sentence as mentioned above. Feeling aggrieved, they have filed the present appeal.

Heard Sri N. K. Rastogi, learned Counsel for the Appellants and learned A.G.A. Sri A. N. Mulla as well as perused the whole evidence on record.

Learned Counsel for the Appellants contended that the F.I.R. was lodged ante time. The same could not be lodged within the stipulated time in the concerned police station. Therefore, no reliance can be placed upon it.

There was also no immediate motive for the present Appellants to commit the murder of deceased.

The presence of prosecution witnesses at the time of occurrence is doubtful as P.W. 1 alongwith other witnesses P.W. 2, P.W. 3 and P.W. 4 have been shown to be eye-witnesses of this incident in the F.I.R. as well as his statement, recorded u/s 161, Cr. P.C. but P.W. 1 has deposed in the Court that he did not see the incident and he reached at the place of occurrence after getting information. Therefore, P.W. 1 was not present admittedly at the place of occurrence at the time of incident and presence of other witnesses P.W. 2, P.W. 3 and P.W. 4 has also become suspicious at the time of incident. It is further contended that eye-witnesses have stated in their deposition that knife blows were being given to the deceased in the river when she was taking bath, where as on the other hand, it was not the case of prosecution as the dead body was lying near bank of river. One witness also stated that assailants had gone towards south after incident. It is also not the prosecution case.

P.W. 1 further stated that the deceased had gone to river after attending natural call in the morning but medical evidence reveals that she had not eased herself at the time of death as gases and faecal matter were present in the small intestine which shows that the incident had taken place some time early in the morning and none had seen the incident and the Appellants have been falsely implicated in this case due to enmity.

Learned A.G.A. has submitted that Appellants are named in the F.I.R. which has been lodged promptly. All the witnesses have supported the prosecution case, which stands corroborated from the post mortem report of the deceased. This is the case of a broad day light murder. There is no reason for false implication of Appellants in this case and trial court has rightly convicted the Appellants.

So far as the first contention of ante-timing the F.I.R. is concerned, F.I.R. Ext. Ka-1 was lodged within one hour and forty five minutes after covering a distance of 18 kilometres. P.W. 1 has stated in his deposition that distance of river Dulhur was about half kilometer from his house. He reached there from his house after getting information of murder of his wife. After seeing dead body of his wife, he came back to his house and prepared written report Ext. Ka-1 and proceeded to concerned police station and submitted the same. Therefore, he could easily reach to the concerned police station within one hour and forty five minutes after covering such distance.

P.W. 6 Constable Chunni Lal proved chick F.I.R. Ext. Ka-16 but he was not cross-examined on behalf of Appellants. Even no suggestion was given to this witness regarding ante-timing the F.I.R. Therefore, testimony of P.W. 1 and P.W. 6 reveals that F.I.R. is not ante-timed and it was lodged promptly against both the Appellants regarding broad day light murder of deceased. In such circumstances, reliance can be placed upon such F.I.R. Therefore, this contention of learned Counsel for the Appellants has no force.

So far as the next contention regarding presence of prosecution witnesses at the time of incident is concerned, P.W. 2, P.W. 3 and P.W. 4 have been examined on behalf of prosecution and they have claimed to be eye-witnesses of this incident and they have stated in their testimony that the Appellant Ramchander committed murder of deceased by causing knife injuries on her person at the bank of Durhul river. Minor discrepancy has come in the cross-examination of P.W. 3 Km. Archana. At one place she has stated that the incident had taken place in the south of river whereas in another sentence, she has stated that occurrence took place at the north side of bushes. P.W. 2 admitted in cross-examination that the deceased was assaulted near the water of river from where she could not run away and fell down in the river. P.W. 4 has stated in his cross-examination that incident took place in the middle of river in north side of its water. Therefore, it shows that marpeet took place towards north side of water of river. It does not mean that marpeet took place in middle of its water. The area of flowing the water and its both side is called the river. It has not been clarified from the witnesses in the cross-examination that she has fallen down in the water of river or she was beaten in the water of river. Even then, such minor contradiction cannot make the presence of eye-witnesses to be suspicious.

P.W. 2 and P.W. 4 are independent witnesses of the same locality of the deceased as well as Appellants. No sufficient reason has been given on behalf of Appellants as to why they have given evidence against them. It has been stated by the Appellants in their statements recorded u/s 313, Cr. P.C. that they have given evidence against them due to enmity. Enmity has been shown only with P.W. 1 and P.W. 3 who were husband and daughter of deceased but enmity with P.W. 2 and P.W. 4 has not been shown anywhere on behalf of Appellants. In such circumstances why these witnesses would give evidence against the Appellants falsely without any reason. It is not expected from independent witnesses that they will implicate innocent person without any enmity after leaving real culprits.

P.W. 2, P.W. 3 and P.W. 4 have categorically stated that Ramchander (Appellant) gave knife blows continuously upon the body of deceased at the time of incident. There is no material contradiction and discrepancy in their testimony regarding manner of assault and manner of causing injuries on the body of deceased.

P.W. 1, who is husband of deceased, has not claimed himself to be eye-witness of this incident in his testimony, while he had shown himself also to be eye-witness in his F.I.R. This also shows that he has given truthful evidence in the Court.

It has been observed in case of Pooran Singh Vs. State of Uttarakhand, that:

(B) Criminal P.C. (2 of 1974), Section 154-F.I.R.-Object of lodging an F.I.R. is only to set the criminal case in motion F.I.R. lodged by informant is not the encyclopedia of facts of incident. There is no requirement of law for mentioning names of witnesses in F.I.R.

Merely on basis of the statement of P.W. 1 in Court, the presence of P.W. 2, P.W. 3 and P.W. 4 cannot be deemed to be suspicious at the time of occurrence. All the three witnesses have deposed that P.W. 1 had also reached at the place of occurrence after the incident.

Dead body of deceased was found lying at the bank of the river Durhul by the side of water. All the witnesses have supported that the incident took place near the water of the said river. There is no material contradiction regarding place of incident. Wrong direction can be narrated by the lapse of time of incident.

Testimony of P.W. 1, P.W. 2, P.W. 3 and P.W. 4. is also corroborated by the medical evidence as the post-mortem report of deceased reveals that 11 incised wounds and punctured wounds were found on the person of deceased. This also shows that the Appellant Ramchander had caused knife injuries by giving several blows with intent to commit the murder of deceased and above ante-mortem injuries were found sufficient in ordinary course of nature to cause the death of the deceased. After sustaining injuries, she died on the spot. The contention of learned Counsel for the Appellants that there is conflict in oral and medical evidence has got no force.

28A. It was submitted by the learned Counsel for the Appellants that time of death as stated by P.W. 5 is doubtful as faecal matter was present in small intestine. It is worthwhile to mention here that time of death of deceased cannot be determined merely on the basis of contents of stomach or intestines. It depends upon digestion process of the person. The incident had occurred in the end of the month November. It was the winter season. Generally people would not go to take bath in the river early in the morning. Testimony of eye-witnesses cannot be discarded merely on the basis of the contents of intestine, because their evidence is reliable and trustworthy and it inspires confidence.

So far as the next contention of absence of immediate motive is concerned, this is the case of direct evidence and in such type of cases, absence or weakness of motive loses significance. Moreover, motive has been alleged that Appellant Ramchander was having illegal connection with the daughter of Sitaram whose house was situated near the said river and this fact was disclosed by the deceased in the village, upon which Ramchander and his mother had arrived at the house of deceased Smt. Sheela Devi one day before the incident, who was abused on the ground that she was defaming them. Therefore, they were scolded by the deceased and she gave two blows of chappals upon Ramchander. Thereafter, both the Appellants returned from there by giving threatening of dire consequences within 24 hours. Later on deceased was killed within 24 hours. Therefore, immediate motive is also established against the Appellant for committing murder of deceased.

It is worthwhile to mention here that the Appellants were arrested on the next day of the incident. Appellant Ramchander was wearing blood stained clothes at the time of his arrest and blood stained knife was also recovered at his pointing out. Such recovery has been proved by P.W. 5. S.I. B. L. Nirmal. Chemical examination report reveals that human blood was found in the recovered clothes of the Appellant Ramchander, although this question was not asked from him in the statement recorded u/s 313, Cr. P.C. by the trial court. However, Appellant Prabhawati Devi was also arrested with the Appellant Ramchander by the Investigating Officer, but no blood stains were found on the clothes of the Appellant Prabhawati Devi. The role of catching hold the hairs and hand of the deceased by the Appellant Prabhawati Devi has been attributed. But the story of catching hold the hands of deceased is falsified by the post-mortem report, as ante-mortem injuries No. 5, 6 and 11 were on the left arm and hand of the deceased. Therefore, benefit of doubt can be extended to the Appellant Smt. Prabhawati. The deceased sustained 11 sharpedged weapon injuries. When the Appellant Prabhawati was catching hold the deceased at the time of causing injuries, certainly stains of blood of deceased should have come in her clothes. In absence of recovery of blood stained clothes of Appellant Prabhawati, her presence at the time of occurrence and participating in the crime becomes doubtful.

It has been observed by the Apex Court in case of Animireddy Venkata Ramana and Ors. v. Public Prosecutor (LXI61) 2008 ACC 703: 2008 (2) ACR 1335 (SC), that Maxim "falsus in uno, falsus in omnibus"-has no applicability in India. It has also been observed in decisions of Apex Court in The State of Punjab Vs. Jagir Singh, Baljit Singh and Karam Singh, and Lehna Vs. State of Haryana, , that "it is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence of some of the witnesses has been found to be deficient."

Inquest report of deceased reveals that she was wearing sari, petticoat and blouse at the time of incident which were blood stained. Another saree, petticoat, chappal and sabundani etc. of her were also recovered near dead body of deceased. Therefore, it shows that the deceased had carried other clothes for wearing after taking bath but she was murdered before taking bath. In such circumstances, it cannot be inferred that the clothes of deceased were changed after her murder. Women always go to the river for taking bath alongwith another clothes, so that they could change clothes after taking bath. Therefore, it was also natural that other clothes were taken by the deceased for wearing at the river and the same were recovered near dead body of deceased. Therefore, clinching truthful evidence has come against the Appellant Ramchander that he only committed murder of deceased by causing knife injuries on her dead body and participation of the Appellant-accused Prabhawati Devi in catching hold the deceased is doubtful. Thus, the trial court has not committed any error or illegality in convicting the Appellant Ramchander, but conviction of the Appellant Smt. Prabhawati Devi is not sustainable.

In view of discussions made above, this criminal appeal is partly allowed. Setting aside the conviction and sentence of the Appellant Smt. Prabhawati Devi, she is hereby acquitted of the charge levelled against her by giving benefit of doubt. She is on bail. Her bail bonds are hereby cancelled and sureties are discharged.

Appeal against Appellant Ramchander is hereby dismissed. His conviction and sentence recorded by the trial court vide impugned judgment and order are affirmed. The trial court will send the Appellant Ramchander to jail to serve out the sentence after getting him arrested.

Record of lower court be transmitted to the concerned trial court alongwith copy of this judgment for its compliance. The compliance report be submitted to this Court at the earliest.