Patna High Court
Naresh Ram vs The State Of Bihar on 10 December, 2018
Equivalent citations: AIRONLINE 2018 PAT 2191
Author: Rakesh Kumar
Bench: Rakesh Kumar, Arvind Srivastava
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No. 586 of 2013
Arising Out of PS. Case No.-76 Year-2009 Thana- Bibhutipur District- Samastipur
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Naresh Ram son of Mr. Sonelal Ram, resident of village- Baso Kubauli, P.S.-
Bangra, District- Samastipur.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
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Appearance :
For the Appellant : Sri Ajay Kumar Thakur, Advocate
Mr. Md.Imteyaz Ahmad, Advocate
Mr. Nilesh Kumar, Advocate
Mr. Pravin Kumar, Advocate
Mr. Udbhav, Advocate
For the State : Sri Ajay Mishra (A.P.P.)
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CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
and
HONOURABLE MR. JUSTICE ARVIND SRIVASTAVA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAKESH KUMAR)
Date : 10-12-2018
The present appeal under Section 374 (2) of the Code
of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.")
has been preferred by the sole appellant against the judgment of
conviction and sentence passed in Sessions Trial No. 198 of 2010
(arising out of Bibhutipur P.S. Case No. 76 of 2009) by Sri
Shivdhyan Singh, learned Adhoc Additional District & Sessions
Judge 3rd, Samastipur (hereinafter referred to as "Trial Judge").
By judgment dated 23-04-2013, the sole appellant was convicted
for commission of offence under Sections 376 & 302 of the
Patna High Court CR. APP (DB) No.586 of 2013 dt.10-12-2018
2/19
Indian Penal Code, 1860 (hereinafter referred to as "I.P.C."). By
order dated 29-04-2013, the appellant under Section 376 of the
I.P.C. was directed to undergo imprisonment for life and to pay a
fine of Rs. 2,500/- (two thousand five hundred). In default of
payment of fine, he (appellant) was directed to further undergo
simple imprisonment for one year. Under Section 302 of the
I.P.C. by the same order i.e. order dated 29-04-2013, the
appellant was sentenced to undergo imprisonment for life and to
pay a fine of Rs. 2,500/- (two thousand five hundred). In default
of payment of fine, he was directed to further undergo simple
imprisonment for one year. Both the sentences were directed to
run concurrently.
2. Short fact of the case is that on 14-03-2009 at 8:30
AM, the Sub-Inspector of Police B.D.Ram (not examined) of
Bibhutipur Police Station recorded fardbeyan of Meera Devi
(P.W.8). The said fardbeyan was recorded near the door of the
house of informant in village - Khoksaha. In the said fardbeyan,
the informant stated that on 12-03-2009 at 6:00 PM (evening) the
son-in-law of informant's sister namely Naresh Ram (appellant),
resident of village - Baso Kubauli, P.S. - Bangra (Tajpur),
District - Samastipur had come to the house of informant and
stayed there. In the meanwhile, the appellant Naresh Ram started
Patna High Court CR. APP (DB) No.586 of 2013 dt.10-12-2018
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talking with her daughter-in-law namely Juli Devi (deceased). In
preceding night i.e. on 13-03-2009 at 10:00 P.M., all members of
her family had taken meal, however; her daughter-in-law was not
interested to take meal, then the son-in-law of her sister took all
effort so that daughter-in-law may take meal. Thereafter, her
daughter-in-law took meal. Subsequently, the informant slept in
her room and her son Anil Ram (P.W.1) and appellant (Naresh
Ram) slept on verandah. Suddenly, at about 3:00 in the morning,
she (informant) heard the sound of gagging and thereafter, she
saw that the appellant (Naresh Ram) was lying on her daughter-
in-law and pressing her mouth and neck. Her daughter-in-law
was in a naked condition. The informant thereafter raised hulla
and then, the appellant leaving daughter-in-law started fleeing
away. The informant's daughter-in-law, in semi unconscious
condition, moved and fell down and died. On hulla, Naresh Ram
(appellant) was surrounded by the villagers in maize field and he
was apprehended. After arrival of the police, Naresh Ram
(appellant) was handed over to the police. At the time of catching
hold of Naresh Ram (appellant), the appellant also received some
injuries. The informant claimed that her daughter-in-law Juli
Devi was administered some intoxicant by the appellant and
thereafter, she was raped and by pressing neck, she was killed.
Patna High Court CR. APP (DB) No.586 of 2013 dt.10-12-2018
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The said fardbeyan was read over to her and after finding it
correct, she put her L.T.I. on the bottom of the fardbeyan. Her
son Anil Ram (P.W.1) also put his signature on the fardbeyan as
identifier.
3. On the basis of said fardbeyan, a formal F.I.R., vide
Bibhutipur P.S. Case No. 76 of 2009, was registered on
14-03-2009at 11:30 AM against sole appellant. The appellant was arrested on the same date i.e. on 14-03-2009. During investigation, accusation against the appellant was found true and as such, on 21-03-2009 chargesheet was submitted against the sole appellant under Sections 376 & 302 of the I.P.C. and on 17-06-2009, the learned Additional Chief Judicial Magistrate, Samastipur took cognizance of the offence and the case was committed to the court of sessions on 16-03-2010. Accordingly, it was numbered as Sessions Trial No. 198 of 2010. On 22-06-2010, charge against sole appellant was framed under Sections 376 and 302 of the I.P.C.
4. The prosecution, to establish its case, examined altogether 12 witnesses. Out of 12 witnesses, P.W.1 Anil Kumar Ram (son of informant and devar i.e. brother-in-law of deceased) and P.W.8 Meera Devi (informant and mother-in-law of deceased) were examined as eye-witnesses to the occurrence, Patna High Court CR. APP (DB) No.586 of 2013 dt.10-12-2018 5/19 whereas P.W.2 Bhanu Ram, P.W.3 Ram Kishore Ram (both co- villagers), P.W.6 Viseshwar Ram (uncle of the deceased) and P.W.11 Laxmi Ram (father of the deceased) were examined as hearsay witnesses. Mother of the deceased namely Reshma Devi was examined as P.W.4 and father-in-law of the deceased namely Ram Gulam Ram was examined as P.W.9. P.W.10 Umesh Rai is the formal witness, who proved formal F.I.R., which is marked as Ext.6. P.W.12 Ram Pukar Paswan i.e. chowkidar, who produced cloths of the appellant, which were marked as Material Ext.1. The doctor, who conducted post-mortem examination on the dead body of deceased namely Dr. A.V.Sahay, was examined as P.W.7 and he proved the post-mortem report, which was marked as Ext.5. The investigating officer Md. Sanovar Khan was examined as P.W.5 and he proved fardbeyan, which was marked as Ext.4, endorsement on fardbeyan as Ext.2, inquest report Ext.1/2, production-cum-seizure list of cloths of deceased as Ext.3/4 and production-cum-seizure list of cloths of appellant as Ext.3/5.
5. After examination of the prosecution witnesses, the evidences and circumstances, brought on record during the trial, were explained to the appellant and on 26-02-2013, his statement under Section 313 of the Cr.P.C. was recorded, in which, he Patna High Court CR. APP (DB) No.586 of 2013 dt.10-12-2018 6/19 (appellant) claimed to be innocent, however; no defence witness was examined in the case.
6. Sri Ajay Thakur, learned counsel appearing on behalf of the appellant, after placing entire evidence, has argued that the prosecution has not been able to establish its case beyond all reasonable doubt. He submits that the prosecution case has been demolished from the medical evidence. He submits that it is case of the prosecution that while the informant saw, the appellant pressing neck of the deceased, the deceased got up and thereafter, in semi unconscious stage was fell down and died, however; the medical evidence does not support the prosecution case. He submits that had it been a case of throttling or strangulation, the death was instantaneous and in that event, there was no reason for movement of the victim after the occurrence. He has further argued that during the trial, none of the prosecution witness has come forward to support the prosecution case that immediately after the occurrence, which occurred at 3:00 AM, on hulla any of the witness arrived. He further submits that none of the villagers has come forward that he apprehended the appellant from the maize field.
7. It has further been argued by learned counsel for the appellant that though, informant as well as P.W.1 in their Patna High Court CR. APP (DB) No.586 of 2013 dt.10-12-2018 7/19 evidence have stated that at the time of occurrence, they saw the deceased in naked condition, however; while preparing inquest report, it was noticed that there were clothes on the body of the deceased, which includes blouse, saree and saya. According to Sri Thakur, this suggests that no force was applied on the deceased. Besides this, it has been argued that it is not the case of the prosecution that any of the cloth of deceased was torn, whereas, it was case of the prosecution that force was applied while committing rape and killing the deceased. Learned counsel for the appellant has also argued that despite the fact that the cloth of the appellant was seized, but no report of Forensic Science Laboratory was brought on record to suggest as to whether the cloth, which the appellant was wearing at the time of occurrence, was having any mark or not. On aforesaid ground, it has been argued that it was a fit case for acquittal, however; the learned Trial Judge has incorrectly passed the judgment of conviction and sentence, which requires interference.
8. Sri Ajay Mishra, learned Addl. Public Prosecutor has vehemently opposed the appeal. He submits that law is settled on the point that if there is any inconsistency in between the oral evidence and the medical evidence, preference is to be given on the oral evidence, if the oral evidence is otherwise credible. He Patna High Court CR. APP (DB) No.586 of 2013 dt.10-12-2018 8/19 submits that the informant, who is none else but mother-in-law of the deceased, herself had stated that after hearing sound of gagging, she woke up and went inside room, where her daughter- in-law was sleeping, and saw that this appellant was lying over her and he was pressing her neck. Similarly, P.W.1 Anil Kumar Ram (younger brother of the husband of the deceased) had deposed during the trial and in their evidence, though they were thoroughly cross-examined, nothing could be extracted to create any doubt.
9. Sri Ajay Mishra, learned Addl. Public Prosecutor further submits that the oral evidence has also been supported by the medical evidence. By way of referring to post-mortem report i.e. Ext.5 as well as evidence of P.W.7 Dr. A.V.Sahay, Sri Mishra has argued that on the person of the deceased, several injuries suggesting using force were found. On the cheek of the deceased, there was mark of teeth, on the thigh of the deceased, there were bruises and other facts have been disclosed in the post-mortem report, which categorically suggests that before killing, some force was applied. During trial, two eye-witnesses have categorically stated regarding committing offence by this appellant. The medical evidence, which has been brought on record, corroborates the prosecution case. It has been argued that Patna High Court CR. APP (DB) No.586 of 2013 dt.10-12-2018 9/19 it is true that witnesses, who apprehended the appellant in the maize field, had not come forward, but merely on the ground of non-examination of such witnesses, in a case of credible eye- witness, no benefit can be granted to the appellant. On aforesaid ground, he submits that there is no requirements for interference with the impugned judgment of conviction and sentence.
10. Besides hearing learned counsel for the parties, we have minutely examined entire evidence. Before proceeding, it would be necessary to firstly examine the evidence of the informant.
11. The informant (mother-in-law of the deceased) was examined as P.W.8. In her evidence, she stated that in the night on the date of occurrence, in her house, besides her daughter-in- law (deceased), her son Anil Ram (P.W.1) and appellant Naresh Ram were present. The appellant Naresh Ram was son-in-law of her sister and he had stayed in her house. Her daughter-in-law was sleeping inside the room. Her son Anil (P.W.1) and Naresh (appellant) were sleeping separately in verandah. About 3:00 in the morning, this witness heard screaming of her daughter-in-law, then, she went inside the room and saw that Naresh Ram (appellant) was lying over the body of her daughter-in-law. He was pressing her neck and mouth and committing rape. She tried Patna High Court CR. APP (DB) No.586 of 2013 dt.10-12-2018 10/19 to pick up her daughter-in-law. She (deceased) got up and fell down. She (informant) tried to apprehend Naresh (appellant), but he fled away. Villagers after chase apprehended him. The cloth of her daughter-in-law below the waist i.e. saree and saya were separated and on the neck of her daughter-in-law, there was sign of scratch. On the next date in the morning at about 8:00, police arrived at her house and to police, she explained all the things. Police recorded her fardbeyan and explained to her. It was recorded in presence of her son Anil (P.W.1). Thereafter, she put her L.T.I. on the fardbeyan and her son Anil put his signature. Police took Naresh Ram in its custody and carried to police station. The police had carried 'Saya' and 'Saree' of her daughter- in-law and also jeans pant of appellant was seized and dead body was sent for post-mortem examination. She identified the appellant in dock. In her cross-examination, she stated that in between Naresh Ram and her daughter-in-law, there was good relation. Again, she reiterated that after hearing sound, she entered into the room of her daughter-in-law. While she entered, the deceased was alive. In the room, there were Naresh and her daughter-in-law. After seeing her, Naresh (appellant) fled away. Despite the fact that she was cross-examined, nothing could be extracted to create doubt on her evidence.
Patna High Court CR. APP (DB) No.586 of 2013 dt.10-12-2018 11/19
12. Similarly, P.W.1 Anil Kumar Ram, who was also eye-witness to the occurrence, in his evidence stated that in the night of the occurrence, he was sleeping on verandah. His HkkHkh (Bhabhi) i.e. deceased Juli Devi was sleeping inside. Naresh Ram (appellant) was also sleeping on verandah, where this witness was sleeping. His mother was sleeping in another room. About 3:00 AM in the morning, he heard the screaming of his Bhabhi, then he woke up and entered into the room and saw that the appellant (Naresh Ram) was lying over the body of his Bhabhi and he was pressing her neck and mouth. While his mother entered into the room, Naresh Ram (appellant) started fleeing away. In the meanwhile, Bhabhi after coming out from the room fell down in verandah. While Naresh Ram was fleeing, he was chased and thereafter, he was apprehended. His Bhabhi died on verandah itself. At that very time, on the body of his Bhabhi, there were no clothes. Thereafter clothes were put by his mother. He stated that he had noticed injuries on the nose of his Bhabhi and on one another place. He further stated that he had produced clothes, which his Bhabhi was wearing at the time of occurrence i.e. Saree and Saya and he had produced the same before the police and police had prepared paper, on which, he put his signature. His signature was identified. This witness was also Patna High Court CR. APP (DB) No.586 of 2013 dt.10-12-2018 12/19 cross-examined, however; on going through his evidence in cross-examination, we do not find anything to examine the evidence of this witness with doubt.
13. P.W.2 Bhannu Ram is co-villager and hearsay witness. In his presence, seizure of clothes of deceased as well as jeans pant of the appellant was prepared, on which, he put his signature. He stated that in the morning of the date of occurrence, at 7-8 AM, he heard hulla, which was coming out from the house of Ram Gulam i.e. husband of the informant and father-in-law of deceased. Then, he went inside the courtyard and saw that dead body of daughter-in-law was lying on the verandah. It was the dead body of the wife of Amarjeet Ram. He inquired from the wife of Ram Gulam (informant), thereafter, he was informed by the informant that Naresh Ram (appellant) had committed rape and pressed the neck and also administered poison. In his presence, seizure list was prepared in respect of clothes of deceased as well as jeans pant of the appellant. This witness was given suggestion in the cross-examination that the appellant was having illicit relation with the wife of Amarjeet Ram i.e. deceased of the present case, however he shown ignorance about such fact, otherwise, nothing could be extracted in his evidence to create doubt.
Patna High Court CR. APP (DB) No.586 of 2013 dt.10-12-2018 13/19
14. P.W.3 Ram Kishore Ram is yet another witness and also signatory to the inquest report and seizure list of the cloth of the appellant. He further stated that this appellant was apprehended by the villagers.
15. Reshma Devi (mother of deceased) was examined as P.W.4. She stated that at the time of occurrence, her daughter was in her in-laws' house and on the date of occurrence in the morning at 04:00 AM, while she was in her house, she got telephonic information that her daughter was killed and this witness was called to see her daughter. Then she along with her husband went to the in-laws house of her daughter. On way, she got information that dead body was put on a vehicle standing near the police station. Then she reached the police station. She stated that she had noticed mark of pressing on the neck and blouse of deceased was torn. She further stated that she got information that the killer was already apprehended.
16. P.W.6 Viseshwar Ram stated that he was not knowing about the occurrence, but he stated that he had seen mark on the neck of deceased.
17. P.W.9 Ram Gulam Ram (husband of the informant and father-in-law of the deceased) stated in his evidence that the night, on which his daughter-in-law was murdered, he was in Patna High Court CR. APP (DB) No.586 of 2013 dt.10-12-2018 14/19 Dalsingsarai and on the next date at 12:00 noon, he came back, then he got information about the occurrence, however he was not knowing as to who had committed rape and who killed his daughter-in-law, since he was in Dalsingsarai.
18. P.W.10 Umesh Rai is the formal witness and he had proved only formal F.I.R., which was marked as Ext.6.
19. P.W.11 Laxmi Ram (father of the deceased) is the hearsay witness and stated that he was informed by his cousin niece that Juli was murdered, then he went to the village Khoksaha, where he came to know that the dead body was carried to police station, then he saw the dead body and he noticed that neck of the dead body was swollen. He stated that in the year, 2008 he had solemnized marriage of his daughter with Amarjeet Ram (son of Ram Gulam Ram). He stated that one day prior to the occurrence, he had sent his daughter with his nephew Raghu Ram to her in-laws house. He further stated that Naresh Ram was son-in-law of lk<w (sarhoo) of his le/kh (samdhi) and since last two days from the date of occurrence, Naresh Ram was staying in the house of his le/kh (samdhi), however; he had not stated that he had seen anything.
Patna High Court CR. APP (DB) No.586 of 2013 dt.10-12-2018 15/19
20. P.W.12 Ram Pukar Paswan is the chowkidar, who had produced clothes of the appellant, which was marked for identification as Material Ext.1.
21. P.W.7 Dr. A.V. Sahay on 14-03-2009 was posted as Medical Officer in Sadar Hospital, Samastipur and on the same date, he conducted post-mortem examination on the dead body of the deceased and noticed following facts:-
"Tooth bites on left cheek and temple about 10 to 12 in number over an area (½" long) of about 4½" x 3"
size (triangular).
Ulcer on right side of bridge of nose at the level of eye.
2 abrasions - one lateral to the nasal fold of skin R side.
The other on lateral angle of R lip.
Bruises on both thighs inner (medial) aspect. Size of bruise:- 4½" x 2½" Right thigh 4" x 2" Left thigh.
Both labia majora contain multiple bruises.
Ulcer on inner surface of right linius minora. Small amount of liquid found on the inside of vagina.
Vaginal swab taken and being sent for pathological exam.
Following viscera have been preserved and are being sent for chemical analysis:-
Liver, lungs, spleen, kindly, heart, stomach, loop of small intestines.
Caused by - a ligature.
(soft cloth like substance) Time since death - within forty eight hours. Cause of death - Due to asphyxia resulting from strangulation."
He also proved the post-mortem report, which was marked as Ext.5.
Patna High Court CR. APP (DB) No.586 of 2013 dt.10-12-2018 16/19
22. On examination of the evidence of this witness (doctor i.e. P.W.7) as well as on examination of the post-mortem report, it is evident that force was applied on the deceased and this was the reason that on the cheek, tooth bite was noticed and on the neck, there was mark and on thigh also, there were bruises. This corroborates the oral evidence of P.W.1 and P.W.8, who were examined in support of the prosecution as eye-
witnesses.
23. The investigating officer Md. Sanovar Khan was examined as P.W.5. He had proved formal F.I.R., which was marked as Ext.4, endorsement on fardbeyan as Ext.2, inquest report Ext.1/2, production-cum-seizure list of clothes of deceased as Ext.3/4 and production-cum-seizure list of the appellant as Ext.3/5. In his evidence, he deposed that on 14-03-2009, he was posted as officer in-charge in Bibhutipur Police Station and in the morning at 06:30 AM, Chowkidar Krishna Paswan (not examined) on mobile gave him an information that daughter-in-law of Ram Gulam namely Juli Devi was murdered in the village Khoksaha and as per information, accused was already apprehended. To verify this fact, this witness with other armed force and police officials visited the house of the informant and thereafter, Sub-Inspector Patna High Court CR. APP (DB) No.586 of 2013 dt.10-12-2018 17/19 B.D.Ram recorded fardbeyan of the informant and inquest was also prepared by Sub-inspector B.D. Ram, on which, witnesses Anil Kumar (P.W.1) and Ram Kishore Ram (P.W.3) put their signature. Thereafter, he took up the investigation. He also received clothes of the victim, which were produced by P.W.1 before the police and production-cum-seizure list was prepared. Thereafter, he took the appellant Naresh Ram in his custody, who was already apprehended by the villagers and kept in the house of the informant. Thereafter, he inspected the place of occurrence, which fact was described in the paragraph-5 of his evidence. During investigation, he also recorded re-statement of the witnesses and also statement of other witnesses. In cross- examination, he accepted that the clothes of the victim or appellant, though were seized, were not sent for chemical examination.
24. On examination of entire evidence, we are of the considered opinion that there is no infirmity in the judgment of conviction and sentence. The occurrence was seen by two witnesses i.e. P.W.1 younger brother of the husband of the deceased, namely Anil Kumar Ram and P.W.8 Meera Devi (mother-in-law of the deceased). In the evidence of both the witnesses, there is consistency and there is no reason to raise any Patna High Court CR. APP (DB) No.586 of 2013 dt.10-12-2018 18/19 doubt on their evidence. The oral evidence has been supported with the medical evidence, which fact has been reflected in the evidence of P.W.7 Dr. A.V. Sahay and also post-mortem report, which indicates that against the deceased, force was used and death has occurred due to Asphyxia.
25. So far as submission of Sri Thakur, learned counsel for the appellant that in such cases, there was every reason for instantaneous death of the deceased, we are of the opinion that on such trivial discrepancy that the injured immediately fell down and died, those submissions are required to be noticed only for its rejection. Learned counsel for the appellant though has tried to develop a case, as if, the occurrence had taken place in otherwise manner than it was projected by the prosecution, in view of specific ocular evidence supported with the medical evidence, there is no reason to place any reliance on such submission.
26. After going through the entire evidence, we are of the considered opinion that the learned Trial Judge has committed no error in passing the judgment of conviction and sentence, rather the prosecution has established its case beyond all reasonable doubt and as such, there is no reason to interfere with the judgment of conviction and sentence.
Patna High Court CR. APP (DB) No.586 of 2013 dt.10-12-2018 19/19
27. Accordingly, the judgment of conviction dated 23-04-2013 and order of sentence dated 29-04-2013 passed by learned Adhoc Additional District and Sessions Judge - 3 rd, Samastipur in Sessions Trial No. 198 of 2010 (arising out of Bibhutipur P.S. Case No. 76 of 2009) is approved and appeal stands dismissed.
(Rakesh Kumar, J.)
( Arvind Srivastava, J.)
Anay
AFR/NAFR AFR
CAV DATE NA
Uploading Date 17.12.2018
Transmission Date 17.12.2018