Ram Lakhan vs State of U.P.

Alok K. Singh, J.—This criminal appeal has been preferred against the judgment and order dated 22.05.2004 passed by Additional Sessions Judge/ F.T.C., Balrampur in S.T. No. 91/2000 (Crime No. 169 of 2000) whereby appellant Ram Lakhan has been convicted u/s 302 I.P.C. and sentenced to undergo life imprisonment and to pay Rs. 1000/- as fine, in default of payment of fine to further undergo rigorous imprisonment for six months.

The prosecution story in brief is that the village Chowkidar Nasir Ali submitted a written report (Ext. Ka-1) on 22.05.2000 at Police Station Patchpedwa, saying that in the intervening night of 21/22-05-2000 on the occasion of the Barahi of the grandson of Ram Achal Srivastava a dance was being performed by a prostitute at the door of appellant. The appellant in drunken stage was giving money/rewards to the prostitute which was objected by his wife Smt. Kalawati. Thereupon he got angry and fired at his wife by his country made pistol due to which she died on the spot. After registration of the case the investigation was proceeded with. The body of the deceased was inquested upon, the spot inspection was made and then a site plan was prepared. Blood stained and plain earth was also collected from the spot and was duly sealed. The body of the deceased was sent for post mortem examination through Constable Dhruv Narain alongwith relevant papers. Statements of witnesses were recorded and at the pointing out of appellant Ram Lakhan on 26.05.2000 at about 2.50 P.M. the weapon of assault i.e. country made pistol and cartridges were recovered and the recovery memo was prepared. Finally, the charge-sheet was submitted u/s 302 I.P.C. The appellant denied the charges u/s 302 I.P.C. and claimed trial.

In order to prove its case the prosecution examined Nasir Ali, the village Chowkidar who proved his written report as Ext. Ka-1, PW-2 Sabir who proved the inquest report Ext. Ka-2, PW-3, Sawari, who gave an eye witness account, PW-4, Ram Murat, who proved the memo Ext. Ka-5 and PW-5, Suresh Kumar Soni, son of the deceased who also gave an eye-witness account. PW-6, Vijay Bahadur Singh, Investigating Officer who proved the investigation and PW-7 Dr. R.P. Maurya, Senior Pathologist who proved the post mortem report. PW-8 Head Constable Vikramjeet Upadhyay proved chik F.I.R. (Ext. Ka-11) and G.D. Ext. Ka.16.

In his statement u/s 313 Cr.P.C. the appellant said that the evidence has been wrongly given against him due to enmity and at his pointing out no alleged weapon of assault was recovered. About his own son PW-5, Suresh Kumar Soni, he said that when he failed to get his property entered in his name he gave false evidence against the appellant. Regarding his wife he said that she was killed when she tried to save her husband i.e. the appellant when some rioters of the village attacked him. In defence only a marksheet of Junior High School has been filed.

The lower court below considered the entire prosecution evidence on record and found it to be worth relying and credible. It also found the medical evidence in consonance with the ocular evidence and finally therefore convicted the appellant in the manner stated above.

Having heard the learned Counsel for the appellant, learned Additional Government Advocate and carefully gone through the entire lower court record this matter entails discussion in the following manner:

Nasir Ali, the village Chowkidar, the first informant and also witness of fact (PW-1) has reiterated the entire prosecution case and also proved the F.I.R. which he got transcribed by the son of one Rajendra Sonar and lodged it at the police station concerned at 4.05 A.M. in the early morning.

This witness himself saw the appellant firing at his deceased-wife and thereby killing her on the spot. He even identified the clothes which the lady was wearing at that time such as Saree (Ext.-2), Blouse (Ext-3) and Peticoat (Ext-4) containing blood stains alongwith broken bangles Ext-5. He categorically denied the suggestion made by the defence that in that village some Muslims were having enmity with the appellant and at the time of incident those persons had raided the house of the appellant and fired at him but it struck his wife while she was trying to save him. The lower court found this witness to be independent, true and worth relying and rightly so.

The other witness of fact is PW-5, Suresh Kumar Soni, who is none other than the son of the convict-appellant himself. He has also supported the entire prosecution version by saying that at the time of occurrence his mother was sitting on a chair alongwith other women while his father was sitting at 4-5 paces in front of her. When his father started giving rewards to the prostitute his mother objected saying that she has 4-5 children and if the prostitute is rewarded like this what they will eat? Then his father started abusing her and also asked her to go to home. He also slapped her 4-5 times. But his mother did not go from there and his father continued to give rewards to the prostitute. Then he was again forbidden by his mother. Then his father beat her with Chappals 4-5 times and after taking out Katta he threatened and asked her to go home otherwise he will kill her. At this, his mother said that she will go only if he also goes home with her. Then suddenly the country made pistol was fired which struck his mother on the face and she died. His father ran away from there. In cross-examination he told that after death of his mother his father developed illicit relations with another woman. About the source of light he deposed that at the place of occurrence there was sufficient light of patromax. He denied that any quarrel ever took place in the village on the issue of temple or mosque. He denied the suggestion that he is deposing because his father has refused to get his name entered on the land. The learned court below has rightly observed that there is no reason as to why this witness who happens to be the own son of the appellant will leave the real culprit and implicate falsely his own father for the murder of his mother. The court below also observed that it did not find any material contradiction or any inconsistent statement in his evidence. Therefore he found the statement of this witness to be trustworthy and worth relying and rightly so.

Sabir, PW-2, did not fully support the prosecution version and as such he was declared hostile. Nevertheless, he has corroborated that the deceased had received fire arm injury on her face and was lying on the place of occurrence when he reached after hearing the noise of firing. He also identified his signature on the inquest report Ext. Ka-22. Another witness Sawari PW-3 has also corroborated the prosecution story to the extent that the convict-appellant and his wife were quarrelling in respect of award which was being given by the appellant to the dancing girl. She also corroborated the availability of patromax light on the place of occurrence. Although she did not specifically said to have seen the appellant firing with his country made pistol at his wife but she has corroborated the other facts and circumstances of the occurrence in support of the aforesaid two witnesses of fact. Coming to PW-4, Ram Murat it may be observed that he did not support the prosecution case and was declared hostile. But he also corroborated the fact that the dance was being performed by the prostitute and that the wife of the appellant had received fire arm injury and in his presence the Investigating Officer had sealed the body and had obtained signatures. But he refused to have witnessed the recovery u/s 27 Cr.P.C. of the country made pistol.

Sri Vijay Bahadur Singh, the Investigating Officer PW-6 has deposed regarding recovery of the weapon of crime i.e. country made pistol at the pointing out of the appellant and also the memo of blood stained and plain earth Ext. Ka-5, Spot map Ext. Ka-12 and country made pistol and cartridges Ext-7. A point of objection was raised from the side of the defence that the Investigating Officer did not take into possession the chair on which the lady was sitting. According to the court below it was nothing but a carelessness on the part of the Investigating Officer. At the pointing out of the defence counsel it was also found that blood stained and plain earth and blood stained clothes and country made pistol and cartridges were not sent for obtaining report of the Ballistic Expert. This was again found to be carelessness on the part of the Investigating Officer. But it did not create any doubt on the truthfulness of the prosecution story which has been duly proved by the intact evidence of at least two witnesses of fact i.e PW-1, Nasir Ali, Village Chowkidar and appellant''s son PW-5, Suresh Kumar Soni who is the star witness of this case. It was also pointed out before the court below that the dead body of the deceased was found on a cot while she is said to had been sitting on a chair. In this regard the learned court below observed that it is a matter of common knowledge that normally when a person is injured, his body is placed on a cot so that she may get some respite and may be taken from one place to other conveniently. In respect of country made pistol the court below found that a report of Armour Expert has also been placed on the record showing that it was in working condition. In respect of slackness or carelessness on the part of the Investigating Officer it is needless to say that even if the Investigation is defective it has no insignificance particularly when ocular testimony is found to be credible and cogent. The law is settled on the point that in case of defective investigation the court has to be circumspect in evaluating the evidence. But it has no right to acquit the accused person solely on account of that defect. To do so would tantamount to playing into hands of the Investigating Officer if the investigation is designedly defective.

The court below has also considered the arguments advanced on behalf of the defence regarding alleged delay in lodging of the F.I.R. and found that the distance of place of occurrence from the police station was about 10 kilometers. The incident took place at 11.30 P.M. in the night and the report was lodged at 4.05 A.M. in the early morning by the village Chowkidar. It has not come from anywhere that Chowkidar had gone on some vehicle. Considerable time was consumed in getting the report transcribed immediately after this anticlimax happening took place in the village and then he covered a distance of 10 kilometers either on foot or on a cycle. In all he consumed about four and half hours which was quite understandable. It has also not come from cross examination of any of the witnesses that firstly police came on the spot to make inspection and then only report was lodged as suggested. Therefore no substance was found in these arguments and we also subscribe to the same view.

In respect of recovery of weapon of assault i.e. country made pistol though witness Ram Lakhan did not give full support but on the basis of the cogent and reliable evidence of the Investigating Officer the court below found it to be duly proved vide Ext. Ka-13. Even if the recovery of weapon of assault at the pointing out of the convict u/s 27 Cr.P.C. is disbelieved then also the complicity of the convict-appellant in the killing of his wife has been duly proved on the basis of cogent and credible evidence adduced by the prosecution as discussed hereinabove.

The learned Counsel for the appellant submitted before us that on account of his being under heavy intoxication and due to sudden and grave provocation by the deceased wife the appellant may be convicted only u/s 304 I.P.C. In this regard the relevant description of the conversation between husband and deceased wife as told by their son PW-5, Suresh Kumar Soni may be looked into which is extracted hereinbelow:

esjs firk bZuke nsus yxs rc esjh ekW us jksdk rc esjs firk xkyh nsdj fQj cSB x;s esjh ekW us dgk fd pkj cPps gSa bZuke nksxs rks D;k [kk;saxsA rc esjs cki us xkyh&xqIrk nsdj pkj&ikWp gkFk ekjdj esjs ekW dks ?kj esa tkus ds fy, Hkxkus yxsA esjh ekW ugha x;hA esjs firk fQj bZuke nsus yxsA rc fQj MSMh vk;s pkj&ikWp gkFk ekjk rFkk dV~Vk fudky dj eqWg ij j[k fn;k vkSj Mjokdj dgk fd ?kj esa pyh tkoksa ojuk nkx nwWxkA rc esjh ekW cksyh rqe Hkh ?kj esa pyks rc tk�Wxh rc MSMh xqLls esa gks x;s vkSj dgk pyh tkvks ugha rks nkx nsaxsA brus esa dV~Vk py x;hA fQj esjh ekW ej x;hA

From a careful perusal of the aforesaid description it clearly comes out that the appellant did not cause the death of his wife under any sudden or grave provocation. His wife did not utter any such language or any offending words to cause sudden and grave provocation and from entire evidence on record it also does not appear from anywhere that either he was under heavy intoxication due to consuming liquor on his own or the appellant was made to consume liquor at the behest of somebody else with some ulterior motive due to which he committed crime. Rather it has come in the evidence of his son that his father was a habitual drunker and on that day also he was drunk. But his long conversation with his wife as also his conduct suggests that he was in perfect senses and also aware of the consequences of his acts. Due to his inflated ego he intentionally and knowingly fired from a close range on her wife''s face to kill her. It has also come in evidence that immediately after the incident he ran away from the place of occurrence which also shows that he was in perfect senses and in order to save himself he ran away from the scene. Further the degree of intoxication was not being proved and from the conversation held between the husband and wife as mentioned hereinabove and from his entire conduct it cannot be said that the appellant was out of his sense and unable to comprehend his action. Therefore the intention and knowledge of the accused was clearly evident and he was conscious and fully capable of understanding the consequences of the act as immediately after the incident he not only ran away from the place of occurrence but also after covering a considerable distance he concealed the weapon of offence alongwith cartridges which were subsequently recovered by the Investigating Officer at his pointing out. We, therefore, regret in not accepting this argument and we are fortified in our view by the principle laid down by Hon''ble the Apex Court in the case of Shankar Jaiswara v. State of West Bengal reported in 2007 C L J 3271 and another case of Bablu Hussain v. State of Rajasthan reported in 2007 C L J 1160 which have been cited before us by the learned Additional Government Advocate.

In view of the above discussion we do not find any blemish in the judgment in question rendered by the learned court below and therefore the conviction of the appellant u/s 302 I.P.C. for life imprisonment and payment of Rs. 1000/- as fine, in default six months additional rigorous imprisonment deserves to be upheld. Accordingly the appeal is dismissed and the conviction and sentence of the appellant u/s 302 I.P.C. are hereby upheld. The appellant is in jail. He shall serve out the sentence awarded to him by the trial court.