Ramesh Chand vs State of U.P.

Surendra Singh, J.—Challenge in this appeal is the judgment and order dated 4.8.1982 passed by V Additional Sessions Judge, Agra in Sessions Trial No. 68 of 1982 (State v. Ramesh Chand), convicting and sentencing the appellant under section 302 IPC for life imprisonment.

THE FACTS

An incident is said to have taken place on 16.8.1981 at about 1300 or 1330 hours. In this incident one Kamala Devi (deceased), daughter of informant died on 16.8.1981.

Ram Ji Lal (informant) lodged the FIR on the same day at about 21:30 hours at the Police Station Loha Mandi, District Agra under sections 302 IPC vide Case Crime No. 493 of 1981. The distance of the police station from the place of incident is 1 km.

The allegations as contained in the FIR are as follows :

� Kamala Devi (deceased) was married with the accusedappellant, Ram Chand. The marriage was solemnized about 10 years prior to the incident.

� For some time appellant treated his wife properly but later on finding that she was incapable of bearing a child, he started illtreating her. Consequently, she left the matrimonial house and started living with her parents. She remained with her parents for petty long time. A Panchayat was held and the appellant offered before the Panches to treat his wife properly and promised that she would be allowed to lead a life of honour in future.

� Resultantly, Smt. Kamala Devi trusted the accusedappellant and he again started living along with him in her matrimonial house. On 15.8.1981, the deceased visited her parental house on the auspicious occasion of Raksha Bandhan but due to fear of the accusedappellant, she could not muster courage to stay at her parents house and, therefore, she returned back the same day along with accusedappellant.

� On 16.8.1981 at about 13:00 to 13:30 hours, it is said that accused started beating her with kicks and fists. On account of which the deceased cried for help which attracted witnesses, namely, Madan Lal, Ganga Prasad and few others of the village. The deceased received injuries and fell down on the ground near the machine which was installed for doing some limework. Thereafter the accusedappellant finding that she was dead, even then he took her to the medical college where she was declared to be dead.

� Ram Ji Lal, father of the deceased who resided in Mohalla Tajganj, Agra went to his daughter''s matrimonial house to know about her welfare. Reaching there he was left a mute with shock. He noticed that his daughter was lying dead. The crowd which assembled there had informed that the deceased, Kamala Devi was mercilessly beaten to death by accusedappellant.

The informant, Ram Ji Lal got prepared a written report Ext. Ka1 of the incident from one Kanti Lal on the basis of which the Chkk report Ext. Ka3 was prepared by the Head Moharrir Ram Das who registered the case in the G.D. Ext. Ka4.

The investigation of the case was initially entrusted to Sri R.S. Solanki (PW 7) who commenced investigation with effect from 16.8.1981. He interrogated Ram Das and informant, Ram Ji Lal. Thereafter he proceeded to the scene of occurrence and prepared inquest report Ext. Ka6. He sent a letter Ext. Ka10 to C.M.O. He further sealed the dead body and dispatched it for postmortem through constables Zafar Uddin and Pati Ram on 17.8.1981. The witnesses Madan Lal, Ganga Prasad as well as other persons residing in the neighbourhood were interrogated by him. Thereafter, he prepared siteplan Ext. Ka11.

Thereafter S.O. Sri Vyasdev Shirotriye, PW 6 took investigation w.e.f. 19.8.1981 he interrogated witnesses Raj Pal Singh. On the conclusion of the investigation, he submitted chargesheet Ext. Ka5 against accusedappellant.

The case was committed to the Court of Sessions and was numbered as ST No.68 of 1982.

Sessions Judge framed charge on 5.5.1982 under section 302 IPC against the accused.

Among others, the prosecution filed the following documents:

� FIR (Ex Ka1);

� Postmortem report (Ex Ka2);

� Chick FIR (Ex Ka3);

� Chargesheet (Ex Ka5);

� Inquest report (Ex Ka6);

� Photo Lash (Ex Ka7);

� Challan Lash (Ex Ka8);

� Siteplan (Ex Ka11);

� Statement of Ganga Prasad (Ex Ka12);

The defence has also submitted the extract of statement of one Prakash Chand which is Ex Kha1.

In order to cement the charge, the prosecution examined the following witnesses;

� Ram Ji Lal (PW1): Informant;

� Dr. M.K. Rawat (PW2): Doctor, conducted the postmortem;

� Madan Lal (PW3);

� Gangra Prasad (PW4);

� Ram Dash (PW5): Head Moharrir

� Vyas Deo, (PW6): SHO, the second I.O.

� Rajendra Singh Solanki (PW7): First I.O.

The statement of accused was recorded under section 313 Cr.P.C. on 21.7.1982. He denied his involvement in the incident. He stated that he was implicated in the present case due to suspicion and with ulterior motive. Since the appellantaccused abjured the charge, therefore, trial proceeded against him.

The V Additional Sessions Judge, Agra vide his judgment dated 4.8.1982 convicted the appellant under section 302 IPC and the appellant was sentenced to imprisonment for life. Hence this appeal.

POINTS FOR DETERMINATION

We have heard Sri Sita Ram Vishwakarma, Counsel for the appellant and Sri V.K. Mishra, learned AGA for the State. Following points arise for determination in this case.

(i) Whether the appellant participated in the incident?

(ii) If the answer to the preceding point is in affirmative then what offence has he committed?

(iii) If the appellant is guilty then what punishment should be awarded to him?

1st POINT : The Appellant Participated In The Crime.

To prove its case the prosecution examined Ram Ji Lal (PW 1). He is father of the deceased. He deposed that his daughter was married with the accusedAppellant who illtreated her and had developed intimacy with another girl and he used to assault his daughter at regular intervals. He has further stated that the accusedappellant planned to marry with another girl and his inclination to her culminated into this incident. He is not an eyewitness of the incident but he gave statement about motive and had lodged FIR.

Dr. M.K. Rawat (PW2) conducted postmortem examination on 17.8.1981 at 30.30 pm and prepared postmortem report Ex Ka2 and had found the following injuries on the body of the deceased :

(i) Incised wound 1/2" x 2/10" x bone deep left side head near outer end left eye brow.

(ii) Traumatic swelling 21/2" x 21/2" x left side head 2" above left ear.

PW 2 stated that injuries sustained by the deceased were caused by stick with some pointed nail (Keel) fixed therein. He admitted that the said injuries could have been caused by fall over lime chakki wherein a sharp pointed nail was fitted.

Madan Lal (PW3) was another prosecution witness of fact. He deposed that the accusedappellant assaulted the deceased Kamala Devi in his presence by stick having pointed nail fixed in it. He further admitted that the accusedappellant and his servant Raj Pal took Kamala Devi to the medical college for the treatment but there she was declared dead.

Ganga Prasad (PW 4) is another witness of fact. He testified that he did not see the incident. He has been declared hostile during the crossexamination.

Vyas Dev Shivrotri (PW 6) and R.S. Solanki (PW 7) are the Investigating Officers.

The statement of accusedappellant Ramesh Chand was also recorded under section 313 Cr.P.C. wherein he had admitted in his statement that Smt. Kamala Devi was his legally wedded wife and she did not bear any child but he denied that she was not being treated properly by him. He has further stated that he accompanied his wife on 15.8.1981 and brought her back from her Maika. He further stated that the deceased Kamala Devi used to have fits at regular intervals and at about 5 or 6 pm on the fateful day she had another fit of same kind as a result of which she fell down on the machine and sustained fatal injury. He took her to the hospital to provide medical aid but despite his effort she died. Soon after the incident, the informant was informed through his brother. He further stated that he entrusted cash, ornaments and other belongings to the informant and seeing that his daughter was dead, he got an opportunity to misappropriate the amount and other belongings handed over to him and thereby lodged the report against the accusedappellant with false and incorrect allegations.

Indisputably, there is overwhelming and uncontroverted evidence that the deceased Smt. Kamala Devi was married to the accused. It is also established by the record that she did not bear any child and she did not die a natural death. Now the only question which remains is as to whether it was a deliberate murder or culpable homicide not amounting to murder.

2nd and 3rd POINTS: Appellant Guilty under section 304, Part II IPC

The prosecution, in order to prove motive, has examined Ram Ji Lal (PW 1). He is not an eyewitness, though he has lodged the FIR. He admitted that he did not lodge any complaint against accusedappellant earlier. His statement is extremely improbable and against normal human conduct obviously for the reasons that he did not file any report/complaint nor did file any suit for judicial separation or divorce despite the fact that he knew about the alleged plight of his daughter.

The prosecution had produced two witnesses of fact. One of them was eyewitness, Ganga Prasad (PW 4) who did not support the prosecution version. He was declared hostile and the prosecution was left with deposition of Madan Lal (PW 3) only. Admittedly, he is a chance witness. He claimed that while going to his sister''s house, he was attracted by the shrieks and cries of the deceased and he saw that the appellant was beating the deceased with kicks and fists and simultaneously struck a danda blow on her head. He did not repeat the blow.

Indisputably, the deceased was transported to the hospital by the accused appellant himself with the help of his servant Rajpal and others soon after the incident. The accusedappellant remained present along with the deceased all the time from the time of incident. His conduct does not appear to be pathetic. The weapon used and the manner of the assault by the accusedappellant must be taken into consideration.

Dr. M.K. Rawat (PW2) conducted the postmortem on the dead of the deceased. He has deposed that injury No. (2) is on the head of the deceased and ;was cause of her death. He admitted that both injuries could be caused by single blow. He also admitted that both the injuries could be caused by falling over the lime chakki.

The ocular testimony of Madan Lal (PW 3) does not find complete corroboration from the medical report. Reading of the FIR and oral evidence show that one blow was given on the head of the deceased. There is no evidence of premeditation to commit the murder. It appears that danda blow was given due to erratic aberration in the heat of passion upon a sudden quarrel without taking undue advantage. When the facts are considered in the light of prosecution evidence, the conclusion, in our opinion, is that the appellant is guilty of an offence under section 304, Part II IPC, rather than of an offence under section 302 IPC and ten years'' rigorous imprisonment would be suffice to meet the ends of justice.

CONCLUSIONS:

Our conclusions are as follows:

(i) The appellant had participated in the incident and is guilty,

(ii) The conviction of the appellant is altered from section 302 IPC to section 304, Part II IPC.

(iii) He is awarded ten years'' rigorous imprisonment.

ORDER

In view of our conclusion, the appeal against the judgment and order dated 4.8.1982 passed by V Additional Sessions Judge, Agra in Sessions Trial No. 68 of 1982 (State v. Ramesh Oiand) is partly allowed. The appellant is on bail. His bail is cancelled. He will be taken into custody forthwith to serve out remainingjpart of his sentence.