Radhey Shyam vs State Of U.P. on 21 October, 2016

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Allahabad High Court

Radhey Shyam vs State Of U.P. on 21 October, 2016

(Delivered by Hon'ble Arvind Kumar Mishra,I J.) Heard Sri Dileep Kumar assisted by Sri Rajrshi Gupta, learned counsel for the appellant, Sri A.N. Mulla assisted by Sri Saghir Ahmad, Sri J.K. Upadhyay, Km. Meena, Mrs. Manju Thathur, learned AGA's for the State.

By way of instant Criminal Appeal preferred by the appellant- Radhey Shyam, challenge has been made to the judgment and order of conviction dated 25.06.2011 passed by Additional Sessions Judge, Court No. 3, Basti, in Sessions Trial No.23 of 2010 State Vs. Radhey Shyam and another, arsing out of Case Crime No.279 of 2009, under sections 498-A, 302, 328 I.P.C. and Section 3/4 Dowry Prohibition Act, Police Station Walterganj, District Basti, whereby appellant has been sentenced to life imprisonment coupled with fine Rs.5,000/- with default stipulation prescribing additional imprisonment for six months. By he same order the appellant has been acquitted of charges for the offences under Sections 328, 498-A, I.P.C. and 3/4 Dowry Prohibition Act.

Amplitude of factual chronology of this appeal culminating into judgment and order of conviction dated 25.o6.2011, as discernible from the record appears to be that first informant Uday Shanker resident of village Pakri Bhikhi, Police Station Walterganj, District Basti, lodged written report at police station Walterganj at 6.10 A.M. on 12.05.2009 with the allegations that first informant wedded his daughter (Radhika) to appellant Radhey Shyam, resident of village Aama (Tinich) Bazar, District Basti in the year 2004. After marriage ceremony was performed, 'Bidai' ceremony took place, whereafter, appellant Radhey Shyam, his mother, elder brother Gauri Shanker, younger brother Ram Avtar, and father Mithai Lal perpetrated cruelty on informant's daughter by beating and abusing her. The first informant visited house of in-laws of his daughter, for bringing his daughter back home on the occasion of marriage of his brother's son, but they used to abuse and some times gave beating to him also. The informant was under impression that after a child is born out of their wedlock, everything would be set right and due to this the informant kept quiet. On the occasion of marriage ceremony of informant's brother's son, when the informant contacted appellant's on telephone they raised demand for colour television, Almirah, Fridge, Cooler and Rupees one lac cash. However, on the earnest request, the appellant's sent informant's daughter with him. When the marriage ceremony of son of the informant's brother was over, the appellant came to the house of informant in the morning of 11.5.2009 and demanded balance money and articles. Disgruntled by the non-fulfilment of above demand, appellant went to the informant's daughter and took the child in his lap from his wife went atop of roof and administered some poisonous substance to the child due to which some froth gushed out from his mouth. She (Radhika) saw the child, snatched the child from him and came to the informant whereafter, informant took the child immediately to Primary Health Centre, Saltauwa Gopalpur, Basti from where child was referred to District Hospital due to serious condition, where too, the condition of the child was serious and he was fighting for survival of life. The first informant Uday Shanker gave this information at the police out post (chauki) with prayer for appropriate action. This report is Ext. Ka. 1.

Contents of this report were taken down in the concerned Check FIR on 12.5.2009 at 6.10 A.M. at Case Crime no.279 of 2009 under sections 328, 498-A I.P.C. and Section 3/4 Dowry prohibition Act, Police Station Walterganj, District Basti. Check FIR is Ext. Ka-13.

On the basis of entries so made, a case was registered the same day against several persons including the present appellant under aforesaid sections of I.P.C. and Dowry Prohibition Act, at aforesaid case crime number, at Police Station Walterganj, District Basti. G.D. entry whereof is Ext. Ka. 14.

Record further reflects that during course of treatment, victim child died and information regarding the same was received by the concerned police station and relevant entries were made in the concerned G.D. at Serial No. 24, on 13.5.2009 at 20.10 hours, and as a sequel to it the case was converted, inter alia, under section 302 I.P.C. Relevant entry in the concerned G.D. is Ext. Ka-15 on record.

Thereafter, investigation of the case ensued and the Investigating Officer (P.W.-8- Ram Kishan Rana) swung into action and he proceeded to the spot and recorded statement of various persons including the informant. In the meantime, inquest of nine months old child Shivam was held on 12.05.2009 at 12.10 hours and it was completed at 13.10 hours the same day. The inquest report is Ext. Ka-3.

In the opinion of inquest witnesses and the concerned Investigating Officer, it was thought proper to send dead body of the child for post mortem examination for ascertaining real cause of death, as such, relevant papers were prepared and dead body of the deceased child was sent for post mortem examination, which was conducted by Dr. Pradeep Kumar Singh PW-11 in the mortuary at Basti on 12.05.2009 at 4.30 P.M. wherein following ante mortem injuries were found on dead body of the deceased Shivam:

1. Contused swelling 5 cm x 4 cm on right side cheek.

2. Contused swelling 2.5 cm x 1 cm over left side cheek.

3. Contused swelling 2 cm x 1.5 cm over right side forehead.

In the opinion of doctor, cause of death was due to smothering of mouth and nose - asphyxial death. This post mortem examination report is Ext. Ka-16.

Thereafter, some application was moved at the instance of S.O. Old Basti- Sri P.N. Tiwari on 13.5.2009 for iterum postmortem examination of deceased child by a medical Board. This application was allowed by order of the District Magistrate Basti. This order is Exhibit Ka-11. A Medical Board was constituted comprising Dr. Yogendra Yati PW-7, Dr. Anand Gupta and Dr. Shiv Prasad. Thismedical board conducted postmortem examination on dead body of deceased child Shivam, and after noticing previous ante mortem injuries (in context of Ext. Ka-16), denoted cause of death due to asphyxia. Medical Board has approved this 'iterum' 'postmortem examination report as Ext. Ka-2 (By P.W.-7 Dr. Yogendra Yati).

In the meanwhile, investigation of the case was proceeded further and site plan of the place of occurrence was also prepared which is Ext. Ka-9. The investigation was subsequently carried out by the second Investigating Officer, Ram Kishan Rana PW-9, who besides recording statement of various persons and preparing several relevant papers, proved Ext. Ka-12. The investigating Officer after completion of investigation filed charge sheet which is Ext. Ka-10 on record. The Investigating Officer also proved one application as Ext. Ka-11 moved for re-postmortem examination of the deceased child. Viscera was also preserved and was sent to the Forensic Science Laboratory, Lucknow. Viscera report dated 30.9.2009 was also obtained which Ext. Ka-18 on record. According to this report no poison was detected on examination.

Record further reflects that in the meanwhile, when the death of the deceased child took place, an application addressed to S.H.O. Police Station Walterganj was moved intimating about the death of child and regarding previous intimation of the occurrence made at the police out post. This application dated 12.05.2009 is Ext. Ka-17 on record. Entry whereof was made at Serial No.16 at 11.50 hours on 12.05.2009 in the concerned general diary.

Since the charge-sheet was filed against the appellant, the case was committed to the court of Sessions from where it was transferred for conduction of the trial and disposal to the court of Additional Sessions Judge, court no.3, Basti, and the Sessions Trial was numbered 23 of 2010- State Vs. Radhey Shyam and another.

The case was opened by the Public Prosecutor before the trial court by stating the charges brought against the accused, and the prosecution also stated the evidence, by which, it proposed to prove the guilt of the accused. The accused was also heard on charge and the trial court after considering the matter, was prima facie satisfied that case against the accused is made out, consequently, the accused was charged under Section ¾ D. P. Act and under Sections 498-A, 302 and 328 IPC. Charges were read over and explained to the accused, who abjured charges and claimed to be tried.

In the process, the prosecution was directed to produce all its testimony. The prosecution produced in all 11 witnesses. A brief description of the same is ut infra:-

Udai Shanker P.W.1 is the first informant and he has proved the report initially made by him intimating about the commission of the offence and has proved the same as Exhibit Ka-1.

Smt. Radhika P.W.2 is the wife of accused Radhey Shyam. She is stated to be witness of fact of occurrence.

Smt. Bhanumati P.W.3 is the mother-in-law of accused Radhey Shyam. She is also witness of fact.

Raj Kumar P.W.4 is the maternal uncle of deceased child Shivam.

Raj Kumari P.W.5 is the sister-in-law (bhabhi) of Radhika and is also witness of fact.

Rajesh Kumar P.W.6 is also witness of particular fact about prevailing of cordial relationship between accused Radhey Shyam and his wife Radhika P.W.2.

Dr. Yogendra Yati is P.W.7. He presided over the medical board for re-postmortem examination on 13.5.2009 pursuant to the order of District Magistrate, Basti and C.M.S. of District Hospital, Basti. He along with two other doctors- Dr. Bhan Chandra Gupta and Dr. Shiv Prasad conducted the re-postmortem examination, as directed. They have proved the re-postmortem examination report, Exhibit Ka-2.

S.I. Atal Bihari Thakur- P.W.8, initially, took over the investigation of this case and held inquest of deceased child Shivam on 12.5.2009 and has proved the inquest report Exhibit ka-3 and has also proved preparation of other relevant papers for sending the dead body of Shivam for postmortem examination. He also proved addition of Section 302 IPC in this case vide parcha No.2 of case diary. Thereafter, the matter was forwarded for investigation to S.O. Walterganj. Consequently, Ram Kishran Rana P.W.9, the Second Investigating Officer of this case took over the investigation on 13.5.2009 and completed investigation on his part and has proved the same before the trial court.

Head Constable Ramakshay P.W.10 has proved various entries made by him in the relevant record.

Dr. Pradeep Singh P.W.11 has conducted first postmortem examination on the dead body of deceased Shivam on 12.5.2009 and has proved the process and the postmortem examination report as Exhibit Ka-16.

Thereafter, evidence for the prosecution was closed and the statement of the accused was recorded under Section 313 Cr.P.C, wherein he termed his implication false on account of enmity.

The defence, though, initially desired to adduce testimony on its behalf but no testimony, whatsoever, was produced. Consequently, the matter was posted for argument by the trial court and after hearing both the sides on merit and after considering the matter on its merit recorded finding of conviction vide order dated 25.6.2011 against the appellant and convicted him under Section 302 IPC and sentenced him to imprisonment for life coupled with fine Rs.5000/-, default stipulation prescribed additional imprisonment for six months. However, by the same order the appellant was acquitted of other charges under Sections 328, 498-A IPC and of charge under Section ¾ of Dowry Prohibition Act. Consequently, this appeal against aforesaid order of conviction and sentencing.

While assailing the judgment and order of conviction passed by the trial court, the learned counsel for the appellant strongly urged that on over all reading of the evidence on record, vis-a-vis, the facts and circumstances of this case, it is is obvious that it is a case of no evidence. No worthy evidence is forthcoming pointing out perpetration of crime by the appellant. The crux of the allegations made is admittedly rooted in imputation solo that some poisonous substance was administered by the appellant to his 9 months old child Shivam, which imputation, upon scrutiny of evidence both documentary and ocular, stands negated by fact that no any such overt or covert act was ever committed or tried to be committed by the appellant. The theory of poisonous substance being administered to the victim, stands ruled out by perusal of two postmortem reports.

In this way, the claim that the death is homicidal and was caused by the appellant, is untenable. In this case, even the ocular testimony on record, overwhelmingly, establishes non-administration of any poisonous substance to the victim child Shivam. None of the witnesses of fact, has supported the prosecution version even in the least. The very substratum of the charge is altogether missing. It is a fit case where imputation made was discovered to be without foundation, but, the trial court unmindful judicious approach scrutinised the testimony on record, out of whim and caprice and was perhaps guided by emotions and personal perception and, thus, recorded the finding of conviction, which finding is prima facie illegal, erroneous and perverse. The best witness who would have come out with specific testimony, was the mother of the victim Radhika P.W.2, but, she too, has not supported the prosecution case even in the least. The two postmortem examination reports- one by individual doctor (P.W.-11) and the another by a medical board, also vindicates the claim of the appellant that no worthy evidence exists for establishing charge that appellant ever indulged in any such activity, like administering poison and for which he may be held responsible for causing death of the child. It is a case based on no evidence and it is surprising that the trial court was doggedly confined to arbitrary finding and, thus, passed illegal judgment, which cannot be sustained in the eye of law. The death of Shivam was natural outcome and the same has been said to be due asphyxia and there are various types of maladies and diseases, which tend to cause death and it cannot be termed homicidal.

While replying to aforesaid argument, the learned AGA's have submitted that the prosecution case has been consistently proved. Presence of the appellant on the spot, when the condition of the deceased child Shivam deteriorated, is established and it has been proved that the appellant took the child in his lap and went on the roof of informants house and then committed the offence and there is no worthy explanation as to how condition of the child Shivam deteriorated all of a sudden when the child was in his lap. Witnesses of fact being relative of appellant, have been won over and they are deliberately hiding the truth. Thus, the witnesses of fact have given their previous statements to the Investigating Officer under Section 161 Cr.P.C. These statements have been deliberately denied to give colour to ulterior motive, to somehow save the appellants from the gallows. Cause of death has been said to be due to asphyxia. Injury has been noted on both cheeks of the deceased child. How these injuries were caused, was required to be satisfactorily explained by the appellant, which the appellant, despite opportunity being afforded to him has not been explained. The case of the prosecution is proved beyond reasonable doubt and the learned trial court has rightly convicted the accused and has sentenced him condignly.

We have also considered the aforesaid rival submissions .

After considering the rival claims as above, and after considering the allegations made against the appellant by the prosecution, and claim raised against the judgment and order of conviction, the core consideration that crops up for adjudication of the appeal, relates to the fact whether, the charge against the appellant under Section 302 IPC, has been proved beyond reasonable doubt, by the prosecution?

We, on perusal of first information report dated 12.5.2009, notice that this information was written by Udai Shanker, the father-in-law of the appellant and specific allegations have been made regarding demand of articles Television, Alimirah, Fridge and Rs. one lac as cash, in the shape of and within the meaning and ambit of dowry demand and on account of non-fulfillment of above demand, daughter of the appellant was subjected to cruelty. This embarrassed family of the first informant. They tried to console the appellant but because of insolent attitude of the appellant, the matter, instead of being alleviated, was aggravated to such an extent that specific allegation was made to the effect that on 11.5.2009 the appellant came to the house of first informant and there he took the child with him and went on the roof and there administered poisonous substance to him.

A glaring example of mismanagement by the police deserves mention at this stage. Bare perusal of application dated 12.5.2009 which is Ext. Ka. 17 and G.D. Entry at serial no. 16 at 11.50 hours on 12.5.2009, shows that the appellant had already been arrested by the police after previous report was made on 11.5.2009; whereas, the Investigating Officer Ram Kishan Rana- P.W. 9 deposes in his examination in chief (on page 44 of the paper book), that he effectuated arrest of appellant - Radhey Shyam Gupta- after he received tip off information regarding his presence in village Magraura. The statement on the face is a paradox and self explanatory of highhandedness of the concerned police personnel and an instance indicative of charismatic swiftness of police action-a splendide mendax.

We have also, before us, two postmortem reports. First postmortem on the dead body of Shivam was conducted on 12.5.2009 at 4.30 p.m., wherein three ante-mortem injuries were noted:-

(1) Contused swelling 5 cm x 4 cm over right side cheek. (2) Contused swelling 2.5 x 1 cm area left side of cheek. (3) Contused swelling 2 cm x 1.5 cm over right side of forehead.

The cause of death was stated to be, due to smothering of mouth and nose and death has been termed asphyxial death. This postmortem report is Exhibit Ka-16 and has been proved by Dr. Pradeep Kumar Singh (P.W.-11). However, he has testified in his cross-examination on page-53 of the paper book that the ante-mortem injuries were not sufficient to cause death. The deceased died due to asphyxia, which may be caused by various reasons. He has also testified that he did not find sign of any injury causing smothering of mouth and nose. We may also observe, at this stage, that the viscera was preserved and viscera report has been obtained, which is Exhibit Ka-18, wherein, the Forensic Science Laboratory has come out with report that no poisonous substance was detected on examination. Thus, it is obvious that possibility of poison being administered and death being caused due to administration of poison, cannot be accepted. Even in the re-postmortem examination, conducted after a lapse of about 8 or 9 hours of the conduction of the first postmortem examination, also does not confirm to any such diagnosis that the cause of death was due to administration of poison. But the re-postmortem examination report Exhibit Ka-2 specifies that cause of death is not clear, so viscera was preserved. Dr. Yogendra Yati P.W.7, who presided over the medical board, has testified that re-postmortem examination was done in the night at 1 a.m. on 13.5.2009, and, in his cross-examination, he has admitted that in the viscera report no trait of poisonous substance was found. He also admitted in cross-examination that asphyxiation poison was not found. Thus, charge of poisoning stands subsided and the same is not supported by testimony so forthcoming.

We may now move on to the ocular testimony of the witnesses of fact, who are five in number (P.W.-I to P.W.-V). We may observe that Udai Shanker P.W.1 is the first informant. In his examination-in-chief he has not supported the prosecution version, instead, he has testified that the condition of child was deteriorated because of hot summer (season) and relation between his daughter Radhika and appellant were normal and cordial. He has gone to the extent by stating that the crime in question was not committed by the appellant. This witness has been declared hostile and has been cross-examined by the prosecution but no worthy evidence has emerged, which may be construed in favour of the prosecution, therefore, testimony of P.W.1 does not support claim of the prosecution, instead it becomes innocence of the appellant.

Upon perusal of testimony of other witnesses of fact (P.W.-2 to P.W.-5) also, we find that all the witnesses of fact, like P.W.1, have not supported the prosecution case and have turned hostile and they have been cross-examined by the prosecution upon which it emerges out that allegation of administering poison to the child remains a bald.

Now, it would be sheer wastage of time to deal with subsidiary material emerging from the testimony of formal witnesses, particularly, the police personnel, the Investigating Officers and the concerned Constable who verified and completed various process of this case, as required under law. Since the charge under Section 302 IPC is required to be proved by cogent and conspicuous testimony by the prosecution, but, in the absence of any such proof, we are of firm opinion that this is a case of no evidence against the appellant and we sustain force of argument extended on behalf of the appellant that the trial court, instead of giving positive appreciation to the testimony, facts and circumstances of the case, has misinterpreted and misread the evidence and based its finding on no worthy evidence, instead on imagination and whim.

Consequently, the contention raised by the learned counsel for the appellant holds the ground firmly and the appeal is allowed and judgment and order of the trial court dated 25.06.2011 passed by Additional Sessions Judge, Court No. 3, Basti, in Sessions Trial No.23 of 2010 State Vs. Radhey Shyam and another, arsing out of Case Crime No.279 of 2009, in so far as it relates to finding of conviction and sentencing under section 302 I.P.C., Police Station Walterganj, District Basti is hereby set aside.

In this case the appellant is in jail. He be set free forthwith, if not wanted in connection with any other case after complying with the provisions of Section 437-A Cr.P.C.

Let a copy of this order be certified to the concerned trial court for its intimation and follow up action.

Dt.21.10.2016 Iss/RK

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