Ratnesh Das and Others vs State

Surendra Vikram Singh Rathore, J.—Since both these jail appeals i.e. [Jail Appeal No. 223 of 2005-Ratnesh Das V. State] and [Jail Appeal No. 3312 of 2014-Ramu Das V. State] arise out same judgment and order, therefore, the same are being disposed off by a common judgment.

Learned counsel for the appellants, learned A.G.A. for the State were heard. We have perused the material available on record.

Challenge in the instant jail appeals is the judgment and order dated 08.03.2000 passed by Second Additional Sessions Judge, Kanpur Nagar, in Sessions Trial No. 1826 of 1998, arising out of Case Crime No. 316 of 1998, Police Station Swaroop Nagar, District Kanpur Nagar whereby the appellants Ratnesh Das and Ramu Das were convicted for the offence under Section 302 read with Section 34 IPC and were sentenced to undergo imprisonment for life and also with fine of Rs. 5000/- each with default stipulation of further imprisonment for a period of one year.

In brief, the case of the prosecution was that on 03.11.1998 the complainant Girish Kumar lodged an FIR at the Police Station Swaroop Nagar, District Kanpur Nagar that he alongwith his wife Smt. Sulochana Saraff had gone to Khatuji (Rajasthan) on 29.10.1998 leaving behind his mother Smt. Harmukhi Devi and his daughter Km. Parul who was student of B.com (IIIrd year) and also servant Ratnesh Das who was working as such for the last about 8 years. In the bungalow of the complainant, on the ground floor the family of his uncle resides. On 01.11.1998 his servant Ratnesh Das used abusive language in connection with some domestic work then his mother terminated his employment. On 02.11.1998 the complainant and his wife came back from Khatuji (Rajasthan) and in the intervening night of 02/03-11-1998 the complainant and his wife were sleeping in a room and in the adjoining room his mother and his daughter were sleeping. In the night at about 12.30 a.m. some noise of knock at the doors was heard then his mother opened the door thereafter both the accused appellants trespassed into the house and in the electric light the mother of the complainant and his daughter saw that Ratnesh Das and his companion Ramu Das (Bihari) who used to visit Ratnesh Das during course of his employment, both caught hold of the mother of the complainant and pushed her on the double bed and they were saying that this old lady has removed him employment from service and they will teach her a lesson. When the daughter of the complainant made an effort to save her grand mother and raised alarm then hearing alarm and cries of his mother the complainant and his wife got up and went towards the room and saw that Ramu Das was keeping the neck pressed with a saree and Ratnesh Das gave a blow with some pointed weapon on the right scapular region and seeing the complainant they started running away from there and after getting down from the first floor they jumped from the main gate and ran away. They were recognised in the electric light and mother of the complainant died. The complainant prepared the FIR and lodged it at the Police Station Swaroop Nagar which was registered on 03.11.1998 at 2.05 a.m. During investigation the inquest proceedings were conducted and from the place of occurrence a gupti was recovered and its memo was prepared. Blood stained, piece of bed sheet and piece of plain bed sheet were also taken into custody and its memo was prepared. The recovered articles were sent for examination to Forensic Science Lab and according to the report of the Forensic Science Lab dated 09.08.1999 human blood of group ''A'' was found on gupti. On bed sheet also human blood was found. However, the blood on the bed sheet could not be classified.

The postmortem on the body of the deceased was conducted on 03.11.1998 at 1.45 p.m. and following ante-mortem injury was found:--

"(a) Penetrating wound 1.00 cm x 1.00 cm on the right side chest on the lower side 6 cm wound was chest cavity deep.

In the large intestine pasty food and gases and faecal matter was found and in the small intestine semi digested food and gases was found."

In the opinion of the doctor the cause of death was due to shock and ante-mortem injuries.

The defence of the appellants was that they have been falsely implicated in this case and they have admitted that they are residents of Bihar but they have submitted that they have been falsely implicated in this case and they were arrested by the police from their places of residence.

In order to prove its case, the prosecution has examined PW-1, Constable Virendra Pal Singh who has prepared the chik report and G.D. of this case, PW-2 Dr. A.K. Nigam, who had conducted the postmortem on the body of the deceased Smt. Harmukhi Devi, PW-3 Girish Kr. Sarraf, the complainant and an eye witness of this incident. PW-4 Km Parul, grand daughter of the deceased who is also an eye witness of this incident, PW-5 S.I. Jagdish Prasad, the Investigating Officer of this case.

No evidence in defence was adduced on behalf of the appellants.

After appreciating the evidence on record, the trial court convicted the appellants as above. Hence the instant appeals.

Submission of the learned counsel for the appellants was that in this case there is delay in lodging the FIR. The police station was only at a distance of 500 meters from the place of occurrence but the FIR was lodged after a gap of about one and half hour. He has also submitted that the appellants after coming out of the room went on the ground floor and thereafter they jumped the main gate and ran away but the failure of the two families who were residing in the bungalow shows that none of them had seen the incident due to which the accused persons could not be apprehended while going out of bungalow. He has further submitted that the complainant made absolutely no effort to seek police help by dialing No. 100 and no injury on the neck of the deceased was found. He has also submitted that keeping in view the position of the stomach content and evidence of the witnesses it appears that the incident has not taken place at the time as alleged by the prosecution. He has also submitted that according to the case of the prosecution the accused persons were arrested in front of the postmortem house where they were standing and they made no effort to leave the city and this conduct of the accused persons shows that they were innocent. He has also submitted that in the inquest report there is no mention regarding recovery of the gupti which is alleged to be the weapon of offence. It is submitted that all these factors were not property considered by the learned trial court.

Learned Additional Government Advocate has submitted that the accused persons could not furnish any reason as to why they have been falsely implicated in this case. There is direct eye witness account of the complainant and his daughter who have seen the incident in the light of the electricity. Their evidence stands corroborated by the medical evidence and merely on the basis of stomach contents no conclusive finding regarding time of death can be made. Judgment of learned trial court is well reasoned and needs no interference.

The first point to be considered is the FIR. In this case the incident has taken place at 12.30 a.m. and the FIR of this case was lodged after one hour and thirty minutes after the incident. The complainant PW-3 has submitted that when he saw his mother then she was breathing so he called the doctor who came after five minutes and by the time doctor could reach his house his mother expired. The complainant has stated that thereafter he prepared the FIR and lodged the same at the police station. A person who himself has seen the brutal murder of his mother his mental status cannot be compared with the mental status of a man working in ordinary circumstances. So the submission of the learned counsel for the appellants that the complainant did not dial No. 100 to call the police has absolutely no substance. When the complainant himself decided to lodge the FIR at the police station then there was absolutely no occasion to dial No. 100. Within a short period of one and half hour. FIR was lodged. During this period the doctor was called but the deceased died. The complainant must have taken sometime to regain his coolness to write the FIR and thereafter the FIR was lodged only after one and half hour of the occurrence. So in our considered opinion there was absolutely no delay in lodging the FIR. The submission of the learned counsel for the appellants on this point has no substance particularly keeping in view the fact that the appellants could not furnish any reason for their false implication. In our considered view virtually the FIR was lodged promptly.

A prompt F.I.R. lends credence to the prosecution case because a prompt F.I.R. eliminates all the chances of cooking up of a false story. Hon''ble the Apex Court in the case of Meharaj Singh (L/Nk.) Vs. State of U.P., while emphasizing the importance of recording a prompt FIR the Supreme Court observed in para 12 as under:--

"FIR in a criminal case and particularly in murder case is a vital and valuable piece of evidence for the purpose of appreciating evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye witnesses if any. Delay in lodging FIR often result in embellishment, which is a creature of an afterthought. On the account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version of exaggerated story."

In Thulia Kali Vs. The State of Tamil Nadu, the Supreme Court observed as under:--

"...first information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the standpoint of the accused."

Similarly in Kishan Singh (D) through LRs. Vs. Gurpal Singh and Others, the Supreme Court held that "Prompt and early reporting of the occurrence by the informant with vivid details gives assurance regarding truth of its version. In case there is some delay in recording the FIR the complainant must give an explanation for the same. Undoubtedly, delay in lodging FIR does not make the complainant''s case improbable when such delay is properly explained."

Hon''ble the Apex court in the case of Nanhey Vs. State of Uttar Pradesh, has held that a prompt F.I.R. eliminates the chances of cooking up of a false story.

Next submission of the learned counsel for the appellants was that the accused persons could not be arrested on the spot has also no substance because in such circumstances how the family members would react differs from person to person. When in front of the family members two persons caused the murder and they were running away then in such circumstances only a very daring person can dare to chase the culprits. Apart from it, we cannot ignore the facts that it is nowhere the case of the prosecution that in the meantime family members of his uncles family living on the ground floor also came out from their rooms. According to the evidence of the prosecution, only one male member i.e. the complainant himself was present in the house. Apart from him, only his own daughter and his wife were present in the house. So in such circumstances if the complainant could not dare to chase two accused persons then such conduct cannot be said to be unnatural and the same cannot be taken to be a ground to discard his otherwise reliable testimony.

Learned counsel for the appellants has laid great stress on the point that in the postmortem report no mark of any injury was found on the neck of the deceased which shows that the complainant and the witnesses have not seen the occurrence. Perusal of the FIR shows that the complainant has only mentioned in his FIR that this would not mean that by putting a knot of saree around the neck the deceased was strangulated. PW-3 in his evidence has given the similar statement, likewise PW-4 Km. Parul has also given an eye witness account of the incident and has stated that Ramu Das pressed the neck with saree and Ratnesh Das caused injury with a pointed weapon on the right side of abdomen of her grand mother. Perusal of the postmortem report shows that third and fourth ribs were fractured and right lung was lacerated wind pipe and respiratory system were also filled with blood and both chambers of heart were empty. It is true that the doctor has not found any injury on the neck of the deceased. But this incident has taken place in a very sudden manner when PW-4 was present she raised alarm. Therefore the accused persons might have made an attempt to strangulate but because of the arrival of the complainant, instead of strangulating her with saree they caused injury with a gupti which proved fatal. So in the peculiar facts of this case simply because no mark of injury was found on the neck of the deceased, cannot be held to be sufficient to discard the otherwise reliable direct evidence of the inmates of the house i.e. PW-3 and PW-4. This incident has taken place inside the house of the complainant so the inmates of the house are the most natural witnesses and they have supported the case of the prosecution. Appellants could not furnish any reason as to why they have been falsely implicated in this case.

Learned counsel for the appellants has also submitted that in view of the evidence of PW-3 and PW-4 the position of the contents of stomach rules out the time of occurrence as alleged by the prosecution but law is settled on the point that where the ocular testimony of witnesses is wholly relaible then the same has to be given priority in comparison to the medical evidence. Apart from it, it has been held by the Hon''ble Apex Court that the contents of stomach of the deceased are not always determinative test and no absolute rule of useful application can be made out in this regard. On this point reference may be made on the pronouncement of Hon''ble Apex court in the case of Jitender Kumar Vs. State of Haryana, and reference may also be made to the pronouncement of Hon''ble Apex Court in the case of Bhim Singh Vs. State of Haryana, .

It is a matter of common experience that the time given by the witnesses for taking food by the deceased was not exactly accurate because these are such minor things that no one takes notice of it. At which time the deceased took her meals, no one remembers, because by that time they had no prior notice or knowledge that such incident shall happen and they shall be cross-examined on all these points. So the witnesses in such circumstances, has a tendency to reply all such question put to them in cross examination only on the basis of their guess work which results into minor contradictions. This conduct of the witness cannot be said to be abnormal, because they consider that in case they fail to reply each and every questions put to them then their woeful tale shall not be believed by the Court.

Law is settled on the point that the evidence of every witness has to be taken as a whole. Where it inspires full confidence, there would not be any illegality or irregularity in recording conviction on the basis of such evidence.

Last submission of the learned counsel for the appellants was that factum of the recovery of gupti does not find place in the inquest proceedings. But in our considered opinion this is no ground to discredit the evidence of the witnesses because the scope of inquest is extremely limited which is confined to the ascertainment of cause of death. The inquest report normally does not contain the manner in which the incident took place nor the names of the eye witnesses as well as the names of accused persons nor any other thing which were recovered from the place of occurrence. Basic purpose of holding the inquest is to report the cause of death i.e. suicidal, homicidal, accidental or otherwise.

On this point reference may be made to the pronouncement of Hon''ble Apex Court in the case of Guiram Mondal Vs. State of West Bengal, and has observed in para 12 as under:--

"The inquest report normally would not contain the manner in which the incident took place or the names of eye witnesses as well as the names of accused persons. The basic purpose of holding an inquest is to report regarding the cause of death, namely, whether it is suicidal, homicidal, accidental etc. Reference may be made to the judgments of this Court in the case of Pedda Narayana and Others Vs. State of Andhra Pradesh, and in the case of Amar Singh Vs. Balwinder Singh and Others, ."

Reference may also be made to the pronouncement of Hon''ble Apex Court in the case of Surendra Pal and Others Vs. State of U.P. and Another, . Apart from it separate recovery memo of gupti has been prepared on the same day and in the site plan also, the place wherefrom gupti was recovered has also been shown. So simply because its recovery does not find place in the inquest report would not be of any help to the appellants.

So far as the submission that the appellants were arrested by the police in front of postmortem house is concerned, it has no substance. On the basis of this fact the submission was that such conduct was unnatural. They would have left the city. But we are not convinced with this submission. How an accused would react after incident would differ from person to person. No straight jacket formula can be laid down regarding such post event reaction. What were the other circumstances which compelled the appellants to remain present there were known to the appellants only. They might be waiting for some one to meet or to get some financial help to go away from the city. So this ground can not be a ground to discard the case of the prosecution.

We have considered the evidence of PW-3 the complainant Girish Kumar Sarraf and also PW-4 Km. Parul and after going through their evidence in its entirety and taking it as a whole we are of the considered view that their evidence does fall within the category of wholly reliable and the same stands corroborated by the medical evidence as disclosed by PW-2 Dr. A.K. Nigam. The evidence of eye witnesses also stands corroborated by the fact that human blood of Group ''A'' was found on the gupti which was recovered from the place of occurrence and which was the weapon of offence and also human blood was found on the piece of bed sheet on which the dead body of the deceased Smt. Harmukhi Devi was lying. After perusing the entire evidence and the impugned judgment we are of the considered view that the learned trial court has rightly appreciated the prosecution evidence and has convicted the appellants.

Appellants are residents of Bihar and they could not furnish any valid reason for their false implication. Apart from it, in the instant case mother of the complainant has died. Mother of the complainant and grand mother of the PW-4 Km. Parul has been murdered. It is unbelievable that these persons would falsely implicate any other person sparing the real assailants. As discussed earlier they are most natural witnesses and their evidence is wholly reliable which stands corroborated by the other attending circumstances and a prompt first information report also. So in our considered view the learned trial court has not committed any illegality or irregularity in convicting the appellants.

In view of the discussion made above, these jail appeals deserve to be dismissed and are hereby dismissed. Appellant Ratnesh Das is on bail. His bail is cancelled. He shall be taken into custody forthwith to serve out his remaining sentences as inflicted by the trial court. Appellant Ramu Das is in custody. He shall serve out his sentence. Period of detention already undergone by the appellants shall be set off in their sentence in accordance with the provision of Section428 Cr.P.C.

Office is directed to communicate this order forthwith to the court concerned to ensure compliance and to send back the lower court record.