Allahabad High Court
Rati Ram & Another vs State Of U.P. on 28 February, 2013
Author: Rakesh Tiwari
Bench: Rakesh Tiwari, Anil Kumar Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
RESERVED
Court No. - 35
Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. 4184 of 2008
1. Rati Ram s/o Khushal residents of Suwanshi Khera, P.S.
2. Ram Prasad s/o Mahabir Mahrajpur, District Kanpur Nagar
...............Appellants
versus
State of U.P. ............. Respondent
Counsel for appellant no.1 : Sri S.N. Tripathi, Amicus Curiae
Counsel for appellant no.2 : Sri Pramod Kumar Srivastava and Sri
Shashank Tripathi, Advocate
Counsel for respondent : Sri S.A. Murtaza, Brief Holder and Sri R. Y. Pandey, AGA
Hon'ble Rakesh Tiwari, J.
Hon'ble Anil Kumar Sharma, J.
(By Justice Anil Kumar Sharma) Challenge in this appeal is to the judgment and order dated 12.11.2003 passed by learned Sessions Judge, Kanpur Nagar in S.T. No. 1193 of 2000, under section 302, 307 IPC and S.T. Nos. 1288 of 2000 and 1289 of 2000, under section 25 Arms Act, whereby both the appellants have been convicted under section 302, 307 IPC and 25 Arms Act and each appellant had been sentenced to undergo imprisonment for life, rigorous imprisonment for 7 years and 6 months R.I. respectively. All the sentences were to run concurrently.
2. The facts germane to the appeal are that on 24.05.2000 at 4.00 P.M. complainant Beni Madhav s/o Ram Charan Kewat, r/o village Suwanshi Khera, P.S. Mahrajpur submitted a written report to the police stating that his son Chandra Pal had kept Vanshdei daughter of co-villager Rati Ram, who was earlier married with Sunil of village Mangalpur but she did not go to her matrimonial home. She developed relations with Chandra Pal. On this account Rati Ram and his family were inimical with them and he often threatened Chandra Pal for life. Panchayat was also held in which it was settled that Vanshdei would remain with Chandra Pal but they would not live in the village. However, Chandra Pal continued to reside in the village. About a month ago Rati Ram demanded jewellery of Vanshdei from the complainant and his son Chandra Pal, whereupon they told him to take it from Vanshdei. When demand of jewellery was made by Rati Ram from his daughter Vanshdei, she told him that when her utensils would be brought from Mangalpur then she would return the jewellery. Three days before the incident a dispute has occurred between Rati Ram and Vanshdei on account of jewellery demand, whereupon he threatened both of them. In the intervening night of 23/24.05.2000 the family members of the complainant after taking meals slept. The complainant was sleeping out side the house on a cot while Chandra Pal and Vanshdei were sleeping at the roof on cots. At about 1.00 A.M. the complainant heard the sound of fires. He flashed torch and saw that Rati Ram with his sons Mahesh and Ram Prasad were making their escape good in southern side. The complainant and his son taking torch went at the roof whereupon the accused persons also fired shots upon them but they were not injured. The report further stated that accused persons were seen and identified by other villagers but they could not muster courage to apprehend them. When they went near the cots of Chandra Pal and Vanshdei, they were dead. On account of night and fear the complainant could not lodge the report. On the basis of this report case crime no. 107 of 2000, under section 302, 307 IPC was registered at P.S. Mahrajpur, investigation whereof was taken up by S.O. Lal Mani Verma. He interrogated the complainant and along with SI Rajbansh Tiwari and other police personnels reached at the spot and prepared inquest on the cadaver of both the deceased. The dead bodies of the deceased were sent for post mortem examination in sealed cover along with usual papers. Dr. Bharat Singh conducted autopsy on the dead body of the deceased Chandra Pal on 24.05.2000 at 1.30 P.M. He found that 45-years old deceased was having average built body and his right eye was closed and left eye was lacerated. P.M. staining was present on whole of the back buttock and thigh. Rigor mortis was found on both the extremities. He has noted the following ante mortem injuries in his autopsy notes:
1. Gun shot wound of entry of size 6.0 cm. X 6.0 cm. x through & through on left eye and frontal bone. Margins inverted blackening, tattooing and charring present. Left frontal and left maxilla fractured.
2. Gun shot would of exit 8.0 cm. X 7.0 cm. margins everted 2.0 cm. posterior to the right ear. Right parietal and right occipital bone fractured.
In internal examination the doctor found 2 oz. semi solid material and both chambers of the heart were empty. In the opinion of the doctor the deceased suffered death about half day before due to shock and haemorrhage as a result of gun shot injury.
3. Dr. Sunil Katyal examined the dead body of the deceased Vanshdei on 24.05.2000 at 1.35 P.M. He found that 25-years old deceased was having thin built body. Rigor Mortis was present in both the extremities. Eyes were closed and mouth was half open. P.M. staining was present on whole of back, buttock and thigh. Doctor found following ante-mortem injures on the person of the deceased:
1. Gun shot wound of entry of size 3 cm x 3 cm right side of back, margins inverted charring present around the wound. Wound is 13 cm below of right shoulder.
2. Wound of exit 4 cm x 4 cm right side lateral side of chest and margins everted.
3. Wound of entry 3 cm x 3 cm back of right upper arm margins inverted 14 cm above right elbow. Charring present around wound.
In internal examination doctor found that 5th and 7th ribs of right side were fractured. Right side pleura and lung were lacerated and left side was pale. Both chambers of the heart were empty. 4 oz semi-digested food was found in the stomach. Her uterus was empty. 36 small pellets with one wadding piece were recovered from the body. In the opinion of the doctor the deceased suffered death about half day before due to shock and haemorrhage as a result of ante mortem injuries.
4. On the spot the Investigating Officer interrogated the witnesses and prepared the site plan. He took samples of plain and blood stained pieces of cement floor from the spot. Four empties 12 bore and live cartridge of 12 bore, one bullet, Tickli and blood stained piece of mattress, bed sheet from cots of both the deceased were also seized through memo. A Bamboo ladder and empty 12 bore was seized by the Investigating Officer near the place of occurrence. Accused Ram Prasad was arrested at 1.00 P.M. on 24.05.2000 and on his pointing out a country made pistol of 12 bore, three live cartridges of 12 bore and blood stained open shirt of the accused was recovered. Accused Ram Prasad took the police in katti at the bank of river Ganga and from there accused Rati Ram and Mahesh were arrested. At the instance of the Rati Ram a country made pistol of 12 bore was recovered. Recovery memo was prepared and weapons were seized. On the basis of the recovery memos cases under section 25 Arms Act were registered against accused Ram Prasad and Rati Ram on 24.05.2000 at 9.05 P.M. The investigation of these cases was entrusted to S.I. Ramesh Chandra Sharma. The torches of the complainant and witness Shri Ram were also seen by the I.O. through memo. The investigation ended in charge sheets against the accused persons. The case property was also sent for examination to Forensic Science Laboratory, Lucknow and its report was obtained.
5. After committal of the cases to the court of Session charges for the offence punishable under sections 302, 307 IPC were framed against both the accused. They were also separately charged for the offence punishable under section 25 Arms Act. The accused abjured their guilt and claimed trial. The case against accused Mahesh s/o Rati Ram was separated on account of his juvenility.
6. In support of its case the prosecution examined the complainant Beni Madhav as PW-1, his son Shri Ram PW-2, Dr. Sunil Katyal PW-3, Dr. Bharat Singh PW-4, Constable Indresh Kumar PW-5, S.S.I. Lalmani Verma PW-6, S.I. Rajbansh Tiwari PW-7, Constable Anis Ahmad PW-8, SI Ram Chandra Sharma PW-9.
7. In their separate statements under section 313 Cr.P.C. both the accused persons have admitted the marriage of Vanshdei with Sunil and her relations living with deceased Chandra Pal. However, they had denied the other part of the prosecution story. The accused-appellants have not adduced any evidence in their defence.
8. The learned trial court after hearing the parties has convicted and sentenced both the appellants as indicated earlier. Aggrieved the appellants have come up in appeal.
9. We have heard learned counsel for the parties at length and perused the original record of the case carefully.
10. Learned counsel for the appellant assailing the impugned judgment of the trial Court has argued the following points before us:
i)that the F.I.R. is ante-timed;
ii)that there was no motive for the accused to kill his own daughter and the alleged motive is too weak to commit double murders;
iii)that there was no light at the scene of occurrence and the prosecution witnesses have no opportunity to see and recognize the real assailants;
iv)that the manner of assault is not proved as there are material contradictions in the testimony of witnesses of fact;
v)that the police has fabricated recovery of illicit fire-arm and ammunition against the accused-appellants, so the charge u/s 25 Arms Act is not proved against any of them.
Per contra learned AGA has contended that there is no inordinate delay in reporting the crime to the police; that there was strong motive for accused Rati Ram to eliminate his own daughter and her husband because they have contacted marriage against his wishes and have also not obeyed the command of panchyat held for the purpose; that the witnesses of fact have seen the incident in the light of torches and the accused who were co-villagers of the complainant have also attempted to kill them so there was no question of any misidentification of any of the accused and that the prosecution has proved its case against the appellants beyond all reasonable doubt, so the appeal sans merits and is liable to be dismissed.
11. The incident in question took place on 24.5.2000 at 1.00 a.m. and the place of incident is the house of the deceased, which is situated at a distance of 4.0 Kilometres from police station Maharaj Pur, vide check report Ex.Ka-4. The written report of the incident had been submitted by complainant Beni Madhav PW-1 (father of deceased Chandra Pal), who is also an eye witness of the incident the same day at 4.00 a.m. in police station Maharaj Pur. The complainant has stated in his deposition that on account of fear he did not go to the police station for lodging the report and after getting the report written in the village he had gone to police station in the morning. In cross-examination he has admitted that he is totally illiterate. He did not get the report written from his son because there were two dead bodies in the house. He has denied the suggestion that the report was dictated by the sub-inspector of police. The complainant has admitted that he is chaukidar of P.S. Maharajpur for 40-45 years and he lives in police station, but has stated that in the night of incident he was at home. Effort was made to confuse the witness during cross-examination, but he has stood the test of cross-examination successfully. HC Indresh Kumar PW-5 has also testified about registration of the case on the basis of written report of the complainant on 24.5.2000 at 4.00 a.m. He has stated that he has prepared check report Ex. Ka-3 and entered the case in G.D. Report no. 6 at 4.00 a.m., copy whereof had been proved as Ex.Ka-4. He has denied the suggestion that the report was lodged much later. SSI Lal Mani Verma PW-6, the then Station Officer of P.S. Maharajpur has also stated that on 24.5.2000 the case crime no. 107/2000 u/s 302/307 IPC was registered in his presence, he took over the investigation and after interrogating the writer of check report and the complainant he proceeded for the spot. He dictated the inquest reports to SI Pratap Singh. The inquest reports of both the deceased and other related papers have been proved by this witness as Ex. Ka-5 and Ka-6. The inquest of deceased Chander Pal and Smt. Vansdei were prepared at 6.00 a.m. and 7.15 a.m. respectively. The copy of check report and GD were sent along with inquest report and cadaver of both the deceased for autopsy. The crime no. and sections of the offence have been noted on these reports. There is variation in the distance between the village of incident and the police station in check report and inquest reports of the deceased. In check report it is 4.0 Kms. Whereas in the inquest reports this distance has been noted as 5.0 Kms. However, SSI Lalji Verma PW-6 had given plausible explanation for this discrepancy, by stating that in check report the distance is noted on the basis of Register no. 8, while he has noted the actual distance covered by him. This variation is not significant as the investigation of the case has begun soon after the registration of the case. In these circumstances, we find that the report of the crime was promptly given to the police, and the report is not ante-timed at all.
12. Motive for the crime has been noted by the complainant in his written report itself. He has stated that earlier Vansdei daughter of accused Rati Ram was married with Sunil Kumar, but she did not stay in her matrimonial home and after returning back to the village she started living with deceased Chander Pal and both developed relations, which was not liked by accused persons and they bore enmity with the complainant's family. It has been further noted in the report that panchyat was also held in which it was decided that Chander Pal would keep Vansdei, but he will not reside in the village, but he did not obey. This motive has also been proved by the complainant through his testimony by further stating that about a month before the incident Rati Ram has demanded his jewellery from him, Vansdei and Chander Pal and three days before the occurrence a scuffle took place between them and Rati Ram threatened them with dire consequences if the jewellery is not returned. It is significant to note here that accused Rati Ram in his statement u/s 313 CrPC in answer to question no. 1 has admitted the factum of keeping Vansdei by Chander Pal and their marriage. In the country side marriage of man and woman of the same village is not considered good rather it is prohibited. Thus, we find that it is a case of 'honour killing' where the father of the young lady along with his other associates had not only killed his daughter but has also eliminated her husband. We are benefited with the observations of the Apex Court, wherein it was said-
"The motive of the crime which has already been mentioned above. In our country unfortunately `honour killing' has become common place, as has been referred to in our judgment in Arumugam Servai Vs. State of Tamil Nadu Criminal Appeal no. 958 of 2011(@SLP(Crl) No.8084 of 2009) pronounced on 19.4.2011.
Many people feel that they are dishonoured by the behaviour of the young man/woman, who is related to them or belonging to their caste because he/she is marrying against their wish or having an affair with someone, and hence they take the law into their own hands and kill or physically assault such person or commit some other atrocities on them. We have held in Lata Singh vs. State of U.P. & Anr. (2006) 5 SCC 475, that this is wholly illegal. If someone is not happy with the behaviour of his daughter or other person, who is his relation or of his caste, the maximum he can do is to cut off social relations with her/him, but he cannot take the law into his own hands by committing violence or giving threats of violence."
In the facts and circumstances of the case, we find that the motive for the accused to commit the murders of Vansdei and Chander Pal is fully established.
13. Learned counsel for the appellants has vehemently argued that there was no light at the scene of occurrence and the prosecution witnesses have no opportunity to see and recognize the real assailants. However, this argument too has no force. In the written report itself the complainant has stated that in the light of the torch he had seen the accused persons scaling down from the roof and making their escape good from the spot after the incident. The investigating officer has seen the torches of complainant and witnesses Ram Charan and Sri Ram on 11.6.2000 through memo Ex. Ka-16. Both the witnesses of fact examined in the case have also testified about use of torches by them at the time of incident. The accused persons and complainant are residents of the same village, so they very well knew each other from before and they can be recognized in dim light as well. The visible capacity of urban people who are acclimatized to fluorescent light is not the standard to be applied to villagers whose optical potency is attuned to country made lamps. Visibility of villagers is conditioned to such lights and hence it would be quite possible for them to identify men and matters in such lights. It has also come in evidence of PW-1 and PW-2 that the accused have also fired shots on them in order to kill, but they did not sustain any injury, so it is not a case where the accused persons were seen by the witnesses from back side while they were running from the spot. Thus we find that there was sufficient light for the witnesses to see and recognize the accused persons, who were residents of their village.
14. Now as regards manner of assault we have the testimony of the PW-1 and PW-2, who are no doubt father and son and closely related to both the deceased, but considering the time of incident and place of occurrence their presence on the spot cannot be doubted as both the deceased were killed while they were sleeping on the roof of their house. Both the witnesses have seen and recognized the assailants while making their escape good after killing both the deceased. Undoubtedly these witnesses have not seen the accused persons actually firing shots on the deceased, but it does not make any adverse effect on the prosecution story and the involvement of accused persons in the crime, because they were seen by these witnesses soon after the incident and they also shot fires on these witnesses. PW-1 has stated in cross-examination that all the three accused have not covered their faces. PW-2 Shri Ram has corroborated the deposition of his father about the manner of incident. He has stated that after hearing report of fires he and his father woke up and by flashing torch they saw that Rati Ram, Ram and Mahesh were climbing down in south from the roof and when they reached at the roof, the accused persons fired shots on them, but they were not hurt. He has stated that many persons have gathered after hearing sound of fires and the accused persons also fired shots on them while they were leaving the spot and on reaching the roof they found that both the deceased have died. The testimony of these witnesses of fact fully find support from the medical evidence. Both the deceased have sustained fire arm injuries. Deceased Chander Pal was fired shot on his face. Blackening, tattooing and charring were present on the entry wound and his left frontal and maxilla bones were fractured. This entry wound had a corresponding exit wound on back side of head and his right parietal and occipital bones were found fractured. Another deceased Vans Dei had sustained two gun shot wounds of entry and an exit wound. The size of exit wounds of both the deceased is bigger than the respective entry wounds. The autopsy on the cadaver of both the deceased was conducted by two different doctors on 24.5.2000 at about 1.30 p.m. Dr. Sunil Katyal PW-3 had examined the dead body of Vans Dei while autopsy on the cadaver of Chander Pal was conducted by Dr. Bharat Singh PW-4. They have categorically stated that both the deceased could have suffered death about half day before. Half day means 12 hours, so the time of death of the decased comes to about 1-1.30 a.m. on 24.5.2000, which perfectly match with the prosecution story. No doubt both the doctors have stated that the time of death could be 4 or 5 a.m., but it would not adversely affect the prosecution story, because the doctor's opinion about the time of death cannot always be definite unless the deceased breathed last in the hospital. Thus, we find that there is no contradiction in the eye witness account of the incident and the medical evidence led by the prosecution.
15. All the three accused named in the FIR were arrested by the police on 24.5.2000 and both the appellants got one country made pistol 12 bore each and live cartridges to the police the same day and on the basis of recovery illicit arms and ammunition separate cases u/s 25 Arms Act were registered on the same day. Learned counsel for the appellants has vehemently argued that the police has fabricated recovery of illicit fire-arm and ammunition against the accused-appellants, so the charge u/s 25 Arms Act is not proved against any of them. SSI Lal Mani Verma PW-6 and SI Rajvansh Tiwari PW-7 have proved the arrest of both the appellants and the recovery of arms and ammunition at their instance. According to PW-6 accused Ram Prasad was arrested at about 1.00 p.m. outside village Rajau Khera and he got recovered a country made pistol and three live cartridges 12 bore as also a blood stained shirt from village Suvanshi Khera. After completing formalities regarding arrest and recovery of the aforesaid articles, the police proceeded with accused Ram Prasad at the bank of Ganga and from its Katri accused Rati Ram and Mahesh were arrested and at the pointing out of accused Rati Ram a country made pistol 12 bore and one cartridge 12 bore was recovered at about 4.40 p.m. on 24.5.2000. Sri Verma PW-6 has proved the arrest of both the accused-appellants and recovery of illicit fire arms and ammunition as also these articles in the Court. The above recovery from respective accused has been attested by public witnesses Shiv Lal and Suresh and their thumb impressions find place on both the memos of recovery Ex. Ka-12 and Ka-13.
16. Both the police personnel namely SSI Lal Mani Verma PW-6 and SIU Raj Bansh Tiwari PW-7 have been extensively cross-examined by the defence counsel, but nothing adverse could be elicited from their cross-examination which may create doubt about the recovery of fire arms and ammunition from both the appellants. No doubt none of the two public witnesses have been examined by the prosecution during trial, but that would not create any dent in the prosecution story because both the witnesses are residents of village Suvanshi Khera and as such they belong to the village of accused persons, who could be easily won over by them. Further it was a family issue of complainant and accused Rati Ram and no outsider of the village would indulge in their internal matter. The testimony of police personnel cannot be rejected merely because they belong to police department. Their testimony should be treated in the same manner as testimony of any other witness. There is no principle of law that without corroboration by independent witnesses, the testimony of a police personnel cannot be relied on. The presumption that a person acts honestly applies as much in favour of a police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good reasons. The defence is required to lay a foundation by way of cross-examining the police witnesses for discarding their testimony. In the latest case of Govindaraju @ Govinda Vs. State by Sriramapuram P.S. And anothers 2012 (78) ACC 545 (SC) the Apex Court has illuminatingly highlighted the principles for appreciating evidence of police officials in criminal trials. The Hon'ble Court has observed as under:
15.Therefore, the first question that arises for consideration is whether a police officer can be a sole witness. If so, then with particular reference to the facts of the present case, where he alone had witnessed the occurrence as per the case of the prosecution. It cannot be stated as a rule that a police officer can or cannot be a sole eye-witness in a criminal case. It will always depend upon the facts of a given case. If the testimony of such a witness is reliable, trustworthy, cogent and duly corroborated by other witnesses or admissible evidences, then the statement of such witness cannot be discarded only on the ground that he is a police officer and may have some interest in success of the case. It is only when his interest in the success of the case is motivated by overzealousness to an extent of his involving innocent people; in that event, no credibility can be attached to the statement of such witness.
16. This Court in the case of Girja Prasad (supra) while particularly referring to the evidence of a police officer, said that it is not the law that Police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption applies as much in favour of a police officer as any other person. There is also no rule of law which lays down that no conviction can be recorded on the testimony of a police officer even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. If such a presumption is raised against the police officers without exception, it will be an attitude which could neither do credit to the magistracy nor good to the public, it can only bring down the prestige of the police administration.
17.Wherever, the evidence of the police officer, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form the basis of conviction and the absence of some independent witness of the locality does not in any way affect the creditworthiness of the prosecution case. The courts have also expressed the view that no infirmity attaches to the testimony of the police officers merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. Such reliable and trustworthy statement can form the basis of conviction. Rather than referring to various judgments of this Court on this issue, suffices it to note that even in the case of Girja Prasad (supra), this Court noticed the judgment of the Court in the case of Aher Raja Khima v. State of Saurashtra AIR 1956 SC 217, a judgment pronounced more than half a century ago noticing the principle that the presumption that a person acts honestly applies as much in favour of a police officer as of other persons and it is not a judicial approach to distrust and suspect him without good grounds therefor. This principle has been referred to in a plethora of other cases as well. Some of the cases dealing with the aforesaid principle are being referred hereunder.
18. In Tahir v. State (Delhi) [(1996) 3 SCC 338], dealing with a similar question, the Court held as under:-
6. ... .In our opinion no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case."
19. The obvious result of the above discussion is that the statement of a police officer can be relied upon and even form the basis of conviction when it is reliable, trustworthy and preferably corroborated by other evidence on record."
In view of the above principles, we find that the defence could not bring out any material by way of cross-examination from PW-6 or PW-7 or by adducing any evidence in defence for fabricating recovery of illicit arms and ammunition from the accused-appellants. Thus the last contention of the learned counsel for the appellants has no force.
17. No other point has been argued before us.
18. In view of what has been said and done above, we find that the prosecution has successfully proved its case beyond all reasonable doubt against both the accused-appellants and the learned trial Court has not at all erred in returning guilty verdict against each of them. They have been awarded appropriate sentence on each count. The appeal sans merit and is accordingly dismissed.
19. A sum of Rs.2,100/- be paid to Sri Shailendra Nath Tripathi, Amicus Curiae by the State within a month for arguing the appeal on behalf accused-appellant Rati Ram.
20. Both the accused-appellants are in jail and would serve out the remaining part of their sentence.
21. Let certified copy of the judgment be sent to the Court concerned and the Chief Metropolitan Magistrate, Kanpur Nagar for ensuring compliance, which should be reported within 4-weeks.
(Anil Kumar Sharma, J) (Rakesh Tiwari, J)
February 28, 2013
KCS/-