Ram Naresh (In Jail) vs State of U.P.

D.K. Trivedi, J.—The present criminal appeal is directed against the judgment and order dated 20.12.1995 passed by Vth Additional Sessions Judge. Lakhimpur Kheri, convicting Appellant Ram Naresh u/s 302, I.P.C. and sentencing him for imprisonment for life.

It is an admitted fact that deceased Anup Ram was the real brother of Appellant Ram Naresh. A report was lodged by Smt. Ram Beti wife of Anup Ram (deceased). The Appellant as well as P.W. 1 Ved Prakash, and P.W. 2 Har Dayal are real brothers of deceased Anup Ram. It is said that all the brothers of deceased Anup Ram used to live in village-Kashipur, P. S. Pasgawan, district Lakhimpur Kheri. According to the prosecution case, on 28.6.1993 at about 6 a.m., Anup Ram was cutting ''Patawar'' and his wife was collecting the said ''Patawar''. Appellant Ram Naresh came out behind the ''Patawar'' armed with spade and caused spade blow on the head of Anup Ram (deceased). Anup Ram (deceased) then fell down receiving the injuries and became unconscious. Smt. Ram Beti then raised an alarm and on hearing the alarm, several persons including the brothers of the deceased who were working in nearby fields, reached there and caught hold of accused Ram Naresh with the help of the two constables. It is said that the two constables also reached there and they also caught hold of accused Ram Naresh just after the incident along with spade. Thereafter Smt. Ram Beti went to the police station Pasgawan and lodged a report (Ext. Ka-5) on the same day, i.e., 28.6.1993 at about 9.15 p.m. The distance of the police station from the place of the incident is about 4-1/2 Kms. Accused Ram Naresh was also handed over along with the said ''spade'' to the police at the time of lodging of the F.I.R. P.W. 4 Amrit Lal, constable registered the case at the police station. A memo Ext. Ka-4 was also prepared in respect of the blood-stained spade. Thereafter, the case was investigated and finally a charge-sheet was submitted by the police against accused Ram Naresh.

As deceased Anup Ram was in an injured condition, therefore, he was sent to P.H.C., Pasgawan immediately by P.W. 4 constable Amrit Lal. He was medically examined by P.W. 6 Dr. Shiv Prakash Gautam on 28.6.1993 at about 9.50 p.m. It is said by P.W. 6 Dr. Shiv Prakash Gautam that Anup Ram was dead when he reached P.H.C. but in spite of this, the doctor examined the injuries of Anup Ram. Thereafter, P.W. 7 Dr. S. Prakash conducted autopsy on the dead body of deceased Anup Ram on 29.6.1993 at 4 p.m. and the doctor found the following ante-mortem injuries on the dead body of deceased Anup Ram:

(1) Incised wound 16 cm. x 2 cm. x at the top of the head. It is bone deep 3 cm. above left ear pinna and 8.5 cm. above right ear pinna. Margin sharp, spindle shape tapening at both the ends. Scalp bone cut through and through and part of brain coming out.

On internal examination, the doctor found that the stomach of the deceased contained 100 Gms. of food material and small and large intestines were full of gas and faecal matters. According to the doctor, the death of the deceased was caused due to coma on account of injury No. 1. The post-mortem report is Ext. Ka-7.

The prosecution in support of its case, examined as many as seven witnesses, out of them P.W. 1 Ved Prakash, P.W. 2 Har Dayal, P.W. 3 Roshan Lal and P.W. 5 Smt. Ram Beti are the witnesses of fact. P.W. 1 Ved Prakash and P.W. 2 Har Dayal are real brothers of accused Ram Naresh and they did not support the prosecution case and, therefore, they were declared hostile. P.W. 3 Roshan Lal is also resident of the same village Kashipur but he also did not support the prosecution case and, therefore, he was also declared hostile. However, all the three eyewitnesses stated that Anup Ram was killed at about 6 p.m. P.W. 4 Amrit Lal, Constable proved the registration of the case as well as other entries made in the G.D. P.W. 6 Dr. Shiv Prakash Gautam examined injured Anup Ram at the P.H.C. Pasgawan. P.W. 7 Dr. S. Prakash conducted autopsy on the dead body of deceased on 29.6.1993 at about 4 p.m.

On the other hand, the accused denied the prosecution case and stated that he has been implicated in this case due to enmity. The learned Vth Additional Sessions Judge. Lakhimpur Kheri, after scrutinizing the evidence on the record, came to the conclusion that the prosecution has successfully proved the guilt of the accused-Appellant beyond reasonable doubt and, therefore, he convicted and sentenced the accused-Appellant as mentioned above.

The accused-Appellant aggrieved by the said judgment and order filed an appeal from Jail. As the Appellant is not represented by any counsel, therefore, we appointed Sri Vivek Kshottri, Advocate, of this Court as amicus curiae to argue the case.

We have heard the learned Counsel for the parties and have gone through the record carefully.

As pointed out above, three of the eye-witnesses namely, P. W. 1 Ved Prakash, P.W. 2 Har Dayal and P.W. 3 Roshan Lal did not support the prosecution case and they were declared hostile. However, all the three eye-witnesses aforesaid clearly stated that Anup Ram was killed in the evening. In these circumstances, there remains the testimony of P.W. 5 Smt. Ram Beti who lodged the F.I.R. immediately, just after the incident and also supported the prosecution case. P.W. 5 Smt. Ram Beti is the widow of deceased Anup Ram. She clearly stated that Anup Ram (deceased) was cutting Patawar and she was collecting the same at the time of the incident. She further stated that Ram Naresh came out behind the ''Patawar'' with a spade and gave a spade blow on the head of the deceased (Anup Ram). The doctor who conducted the autopsy on the dead body of the deceased also found incised wound on the head of the deceased. This fact supports the testimony of P.W. 5 Smt. Ram Beti that accused Ram Naresh gave a spade blow on the head of the deceased. She further stated that she raised an alarm and on hearing the alarm, several persons including brothers of the deceased reached there and chased the accused and caught hold of the accused along with spade with the help of the two constables. Thereafter, she lodged a report at P. S. Pasgawan at 9.15 p.m. and handed over accused Ram Naresh to the police at the time of lodging of the F.I.R. She also handed over the blood-stained spade to the police. The police prepared a memo Ext. Ka-4 in respect of the said spade at the police station itself and this fact also corroborates the testimony of P.W. 5 Smt. Ram Beti immediately after the incident, lodged the report at the police station Pasgawan giving details of the incident and she mentioned the facts in great detail which also further find support from her testimony as well as medical evidence. Just after lodging of the F.I.R., deceased Anup Ram was sent to P.H.C. Pasgawan, where he was attended by P.W. 6 Dr. Shiv Prakash Gautam who stated that Anup Ram was brought at P.H.C. Pasgawan at about 9.30 p.m. but Anup Ram was found dead. The fact that Anup Ram was brought to P.H.C. at about 9.15 p.m. also shows that the F.I.R. was lodged as alleged by the prosecution. Therefore, the statement of P.W. 5 Smt. Ram Beti is consistent and nothing from her cross-examination came out on which basis it can be said that she is not telling the correct facts. In her examination-in-chief, she stated that about 3 years before the incident, the accused (Ram Naresh) had teased her and, therefore, she as well as deceased Anup Ram had lodged a report of that incident and also scolded the Appellant. She was cross-examined in great detail but there is nothing in her cross-examination on which basis, it can be said that there was any reason to falsely implicate the accused. P.W. 1 Ved Prakash admits that in the evening, he was in his field and the cattle were grazing and further his brother Har Dayal was scraping the grass. He further stated that Ram Naresh did not assault him (Anup Ram) with spade but he has not given any explanation as to who killed the deceased specially when he admits his presence on the spot. All the abovenamed three eye-witnesses were declared hostile but atleast they supported the prosecution case to the extent that Anup Ram was killed in the evening. In view of the facts stated above, the testimony of P.W. 5 Ram Beti is above-board and is reliable testimony. It is settled law that the sole testimony of a witness is sufficient to convict a person and in these circumstances, we find no illegality in the conviction of the Appellant. The presence of P.W. 5 Smt. Ram Beti is not disputed and she is a natural witness. There is no reason to show as to why she will implicate the accused who is her real ''Dewar'' excluding the real culprit. The testimony of P.W. 5 Smt. Ram Beti is supported by other circumstances of the case including the fact that just after the incident; the accused-Appellant was handed over to the police along with the blood-stained spade. The testimony of P.W. 5 Smt. Ram Beti further finds full support from the medical evidence and in these circumstances, we are of the opinion that the sole testimony of Smt. Ram Beti is sufficient to prove the guilt of the Appellant beyond reasonable doubt.

Lastly, the learned Counsel for the Appellant contended that in any case, the present case does not fall within the category of murder and the case falls u/s 304(1), I.P.C. In support of his contention, he pointed out that the Appellant is admittedly the real brother of the deceased Anup Ram. He had no intention to kill the deceased because he was not armed with any deadly weapon. According to him, the spade is an agricultural implement and it appears that in the field something might have happened at the time of the incident and then, the Appellant gave one spade blow on the head of the deceased. He further contended that the fact that the Appellant did not repeat the blow also supports the fact that the Appellant had no intention to kill the deceased.

We are unable to accept this contention of the learned Counsel for the Appellant.

According to the prosecution case as disclosed in the F.I.R. as well as P.W. 5 Smt. Ram Beti, the deceased Anup Ram was cutting ''Pat war'' at the time of the incident. According to the prosecution case, the Appellant armed with spade came out from the ''Pat war'' and immediately gave one-spade blow on the head of the deceased. There is nothing on the record to show that any altercation or any Ors. thing happened at the time of the incident. The fact that the Appellant came out suddenly with a spade and gave one ''spade'' blow on the head of the deceased, itself shows that he came with an intention to give a spade blow to the deceased. The doctor who conducted the autopsy on the dead body of the deceased, has clearly mentioned that the scalp bone was cut through and through and part of brain was coming out, while describing the internal examination of the dead body, the doctor further mentioned that both of the parietal and temporal bones were cut through and through. The nature of injury itself shows that the spade blow was so forceful that the whole of the skull was fractured. The injury itself shows that the same was sufficient to cause death of the deceased. In the cross-examination nothing has been suggested to the witnesses including P.W. 5 Smt. Ram Beti as to whether any altercation or anything took place between the deceased and Appellant Ram Naresh or not? Even the accused in his statement u/s 313, Code of Criminal Procedure has not given any reason for giving such blow to the deceased. In the absence of any cogent evidence, it is not possible to believe that something might have happened on the spot and then accused picked up a spade and gave one spade blow to the deceased.

On the other hand, as pointed out above, the accused came on the spot with a spade with an intention to assault the deceased. The nature of the injury itself shows that the force of the spade blow was so strong that the whole skull of the deceased was fractured.

In the case of Virsa Singh Vs. The State of Punjab, , the Hon''ble Supreme Court clearly propounded a law that even in a case �of single blow, the case will fall u/s 302, I.P.C. observing as follows:

"The prosecution must prove the following facts before it can bring a case u/s 300 "thirdly" ; First, it must establish, quite objectively, that a bodily injury is present ; Secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say that it was not accidental or unintentional, or that some Ors. kind of injury was intended.

Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type, just described, made up of the three elements set out above, is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."

In the instant case as pointed out above, the accused came on the spot with a spade and inflicted injury on the head of the deceased. The said injury cannot be said to be accidental. On the other hand, it is proved that the accused came on the spot with an intention to inflict particular bodily injury. In our opinion, the accused intended to inflict the said injury which is on the head of the deceased causing fracture of skull and therefore, it is proved that the accused-Appellant intended to cause severe injury and therefore, this case falls u/s 302, I.P.C. The Hon''ble Supreme Court further reiterated the principles laid down in the case of Virsa Singh (supra) in the case of Jai Prakash v. Delhi Administration (30) 1993 ACC 755.

On the other hand, the learned Counsel for the Appellant relying upon a case decided by this Court; Ram Nain v. State of U. P., 1995 LCR 48, in which this Court acquitted the accused from the charge u/s 302, I.P.C. and convicted him u/s 304(1), I.P.C. submitted that even accepting the prosecution case, the present case may be a case for conviction u/s 304(1), I.P.C. and not u/s 302. I.P.C. but we find that the facts of the aforesaid case are quite different than the facts of the present case. In the case o! Ram Nain (supra), the accused met the deceased accidentally and there was no prior intimation that the deceased would be met accidentally. The weapon used was lathi but looking into the facts and circumstances that the accused had no prior information that the deceased would pass by this way and would meet accidentally, this Court took a view that as the accused had no prior information, therefore, the case will fall u/s 304(1), I.P.C.

The learned Counsel for the Appellant further placed before us the case of Gulzar Husain v. State of U.P. 1993 SCC 384. in which the Hon''ble Supreme Court altered the conviction of the accused from u/s 302, I.P.C. to u/s 304(1), I.P.C. No doubt, in the case of Gulzar Husain (supra) the accused gave a single knife blow but the facts are quite different than the facts of the present case. In the case of Gulzar Husain (supra) it is clearly pointed out by the Apex Court that the doctor who examined the deceased could not be able to say about the dimension of the injuries at the time of the trial and the doctor who conducted the post-mortem examination was not produced. In the absence of these facts, the Apex Court took a view that it is not possible to ascertain whether the accused intended to cause death by giving knife blow or not? In the instant case, as pointed out above, the accused came on the spot with a spade and gave a spade blow on the head of the deceased. The force of the blow was so strong that the whole skull was fractured and the injury itself shows that the same was sufficient to cause death in the ordinary course of nature.

Therefore, the learned Vth Additional Sessions Judge, Lakhimpur Kheri, has committed no illegality in passing the order of conviction u/s 302, I.P.C. against the accused-Appellant.

Accordingly, the present criminal appeal has no force and is hereby, dismissed. The conviction and sentence awarded by the Vth Additional Sessions Judge, Lakhimpur Kheri, against the accused-Appellant are hereby, confirmed. Appellant Ram Naresh is in Jail. He is directed to serve out the sentence awarded by the Vth Additional Sessions Judge, Lakhimpur Kheri, in accordance with law.