Allahabad High Court
Ramdeo Son Of Mahendra Jatav (In Jail) vs State Of U.P. on 10 August, 2007
Author: Imtiyaz Murtaza
Bench: Imtiyaz Murtaza, Amar Saran
JUDGMENT Imtiyaz Murtaza, J.
1. These appeals have been filed against judgment and order dated 28.4.2006 passed Additional Sessions/Special Judge (S.C.S.T. Act), Pilibhit in S.T. No. 661 of 2004 whereby the appellant Ram Deo has been awarded death sentence for an offence under Section 302 I.P.C. and appellants Sri Krishna and Ram Sharan have been sentenced to undergo imprisonment for life and a fine of Rs. 10,000/-for an offence under Section 302/34 I.P.C. and in default of payment of fine to undergo further rigorous imprisonment for one year. Reference is for the confirmation of the death sentence of appellant Ram Deo.
2. Briefly stated the prosecution case is that the informant Mangoo Lal lodged the first information report alleging therein that Somwati wife of Murari Lal was teased by Ram Deo on the festival of Nagpanchami. His son Murari Lal had complained about this incident and Ram Deo became inimical. On 5.6.2004 he, his son Murari Lal, his wife Jagdei were sitting with Mahipal Singh. At about 2.30 P.M. Ram Deo carrying Banka alongwith Ram Sharan and Shri Kishan reached there. Ram Sharan and Shri Kishan caught hold of his son and Ram Deo started inflicting blows by Banka. He, his wife and son raised alarm. Rajendra and Kali Charan and several other persons reached there and accused persons ran away. He brought his son in an injured condition to the hospital, but by the time he reached the hospital his son succumbed to his injuries. A written report had been lodged by Mangoo Lal at police station Pooranpur on 5.6.2004 at 4.30 p.m.
3. After registration of the case Anil Kumar Sharma Senior Sub-inspector commenced the investigation. He prepared the inquest on the dead body of Murari Lal, which is Lxt. Ka. 5. He also prepared photo lash, letter to R.I., letter to C.M.O., Challan lash, sample seal, which are Exts. Ka. 5 to 9. The dead body was sealed and despatched for post mortem examination. He also prepared the recovery memo of the collar of shirt of the deceased, which is Ext. Ka.10. He also prepared recovery memo of blood smeared and plain earth and prepared its recovery memo, which is Ext. Ka. 11.
4. The post mortem on the dead body was conducted by Dr. P.K. Mishra on 6.6.2004 at 3.15 P.M. and noted following ante modem injuries:
1. Incised wound on left skull 16 cm x 2 cm x bone deep brain deep, 6 cm above left ear.
2. Incised wound 16 cm x 3 cm over right cheek bone/cavity extending from 2 cm below right angle of mouth to 5 cm behind right ear. Pinna also incised in middle.
3. Incised wound 2 cm x 2 cm x bone deep, 2 cm above injury No. 2. (Injury 2 & 3 meeting posteriorly).
4. Incised wound of 3 x 2 cm, at right angle of mandible.
5. Incised wound of 10 cm x 1 cm x skin deep on back of neck at base.
6. Incised wound of 6 x 2 cm x bone deep on right shoulder joint top & posteriorly.
7. Bleeding form nose present.
5. In the opinion of doctor cause of death was as a result of haemorrhage/shock/comma due to ante mortem injuries.
6. After the submission of charge sheet case was committed to the Court of Sessions. The Sessions Judge framed charge under Section 302 I.P.C. and appellants Ram Sharan and Shri Krishna were charged under Section 302/34 I.P.C. They were further charged under Section 3(2)5 of SC/ST Act.
7. In order to prove its case prosecution had examined 8 witnesses and defence had examined Charan Pal Singh as D.W.I.
8. P.W. 1 Mangoo Lal deposed that the deceased Murari Lal was his son and Somwati was his wife. Prior to the occurrence on the day of Nagpanchami Ram Deo had teased Somwati. His son had protested and due to this reason Ram Deo became inimical. The occurrence took place about one year and two months back. At about 2.30 p.m. he, his son, and his wife Jagdei were sitting in the grove of Mahipal Singh. Ram Deo, Shri Krishna & Ram Sharan reached there. Ram Deo was carrying a Banka. Shri Krishna and Ram Sharan were empty handed. Shri Krishna and Ram Sharan caught hold of his son Murari Lal and challenged that they would teach him a lesson for making complaint against Ram Deo. Ram Deo started inflicting banka blows on his son. Hearing their cries, Rajendra, kali Charan and others reached there. The accused persons left his son after causing serious injuries. He brought his son to Pooranpur Hospital, but he succumbed to his injuries. He got the report scribed by another son Bhagwan Das and lodged it at the police station, which is Ext. Ka. 1.
9. P.W.2 Smt. Jagdei is wife of the informant and mother of the deceased Murari Lal. She deposed that prior to the occurrence on the festival of Nagpanchami Ram Deo had teased the wife of Murari Lal He had made complaint and due to this reason. Ram Deo became inimical. On the date of occurrence at about 2.30 p.m. she, her son Murari Lal, husband Mangoo Lal were sitting in the grove of Mahipal Singh. Ram Deo, Shri Krishna and Ram Sharan reached there. Ram Deo was carrying a Banka and the other two were empty handed, Ram Sharan and Shri Krishna caught hold of her son Murari Lal and challenged that today they would teach him a lesson for making complaint and Ram Deo started inflicting blows on her son by Banka. They raised alarm. Rajendra and Kali Charan reached there and challenged the assailants and by that time several other villagers also collected there. The accused persons left her son in a serious condition. He sustained injuries on his head and neck. They brought her son to Pooranpur Hospital, but he succumbed to his injuries. Her son Bhagwan Das prepared the report on the dictation of her husband and lodged it at the police station.
10. P.W.3 Bhagwan Das is brother of the deceased Murari Lal. He deposed that he reached at the hospital after receiving information that his brother was injured. By the time he reached at the hospital his brother had died. He prepared the report on the dictation of his father. The F.I.R. is Ext.Ka. 1. The police had prepared the inquest memo in his presence and he was also one of the inquest witnesses.
11. P.W.4 Rajesh Kumar Rastogi deposed that on 22.6.2004 he was posted as Senior Sub-inspector at Police Station Pooranpur. He started investigation of the case on 25.6.2004. He had taken remand of Ram Deo on 26.6.2004. He took Ram Deo alongwith Sub-inspector Rakesh Kumar Gupta, constables P.K. Gaur & Ram Kumar Dubey for the recovery of weapon of crime. On the pointing out of Ram Deo, one Banka was recovered from the dry leaves in a mango grove of Mahipal Singh. The Banka was blood stained. Recovery memo was prepared and Ram Deo had also appended his thumb impression on it. The recovery memo of Banka recovered on the pointing out of Ram Deo is Ext. Ka. 2.
12. P.W. 5 Vishwajeet Srivastava deposed that on 14.7.2004 he investigated the case. On 21.7.2004 he recorded the statements of informant, Smt. Jagdei, Hari Ram & Karit Ram. On 23.7.2004 he recorded the statement of scribe Bhagwan Das & formal witness Gaya Deen. He despatched the articles to Scientific Laboratory for chemical examination on 23.7.2004. On 29.7.204 he recorded the statements of Rajendra Prasad, Kali Charan, Kunj Bihari & Tara Chandra. He also arrested Ram Saran and Shri Krishna and recorded their statements. After the conclusion of the investigation he submitted the charge sheet against the accused persons, which is Ext. Ka. 3.
13. P.W. 6 is Dr. P.K. Mishra conducted the autopsy on the dead body of the deceased.
14. P.W. 7 Anil Kumar Sharma deposed that on 5.6.2004 he was posted as a Senior Sub-inspector at police station Pooranpur and a case was registered on that day. He had prepared the inquest memo on the dead body of Murari Lal and completed formalities for the post mortem examination.
15. P.W. 8 Constable Krishna Kumar deposed that on 5.6.2004 he was posted as Head Moharrir and on the basis of the report of Mangoo Lal chik no chik No. 141/2004 was prepared at 4.30 p.m. Chik F.I.R. is Ext. Ka. 12. On the basis of the report G.D. entry was prepared, which is Ext. Ka 13.
16. The case of the defence was of denial and false implication and Chandra Pal Singh C.O. was examined as a defence witness. He deposed that on 5.6.2004 he was posted as Circle Officer, Pooranpur. After the registration of the case he started investigation. He recorded the statement of the informant. He prepared the site plan, which is Ext. Ka. 14. He collected the blood stained and plain earth from the place of occurrence and prepared its recovery memo, which is Ext. Ka 11. He also prepared recovery memo of the collar of the shirt of the deceased, which is Ext.Ka. 10, On 11.6.2004 he recorded the statement of Jagdei. He deposed that Jagdei in her statement had stated that she would give her statement after consulting her people. She further told that Ram Bharose had misled her and she did what Ram Bharose had told her to do. On 11.6.2004 he mentioned in the case diary that involvement of Ram Sharan and Shri Krishna was found false.
17. The Sessions Judge after considering the evidence on record convicted the appellants as aforesaid. Hence these appeals.
18. We have heard Shri Ram Bhawan, Shri G.S.D. Mishra and Shri Bhupendra Kumar Tripathi, learned Counsel for the appellants and Shri R.K. Singh, learned A.G.A. for the State.
19. The first submission of the counsel for the appellants is that the prosecution has failed to prove the motive of the crime. According to the prosecution case the wife of the deceased was teased by Ram Deo on the festival of Nagpanchami and he had made complaint about his incident. There is no evidence to show that the deceased had made complaint to any authority and there was no evidence that appellant had teased the wife of the deceased. We have considered the submission of the counsel for the appellants and considered the testimony of the witnesses. The case of the prosecution from the very inception is that the wife of the deceased was teased by the appellant. Ram Deo during the festival of Nag panchami and he had made a complaint. This was the motive for the crime and the witnesses also deposed in court about the same motive. There is no such principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused. Where the ocular evidence is found to be trustworthy and reliable and finds corroboration from the medical evidence, a finding of guilt can safely be recorded even if the motive for the commission of the crime has not been proved. The Apex Court in the case Sardul Singh v. State of Haryana has held that the motive which is not always capable of precise proof, if proved, may only lend additional support to strenghten the probability of commission of the offence by the person accused but the absence of proof does not ipso facto warrant an acquittal
20. The next submission of the learned Counsel for the appellants is that the presence of the close relative is highly doubtful. P.W. 1 is father of deceased and P.W. 2 is mother of the deceased. They did not interfere or try to save the deceased. The natural conduct of the witnesses would have been to save the deceased who was their son. The investigating officer did not prepare any recovery memo of the blood stained clothes of the witnesses.
21. We do not find any substance in this submission of the counsel for the appellants. It is important to note that appellant Ram Deo was armed with a Banka and in such a situation it was absurd to expect any interception by the witnesses. It has been held in various decisions of the Apex Court that different people behave and react differently in different situations. Human behaviour varies from person to person. Human behaviour depends upon the facts and circumstances of each given case. How a person would react and behave in a particular situation can never be predicted. Every person who witnesses a serious crime reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counterattacking the assailants. Some may remain tightlipped, overawed either on account of the antecedents of the assailant or threats given by him. Each one reacts in his special way even in similar circumstances, leave alone, the varying nature depending upon a variety of circumstances. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.
22. It was further submitted by the counsel for the appellants that the occurrence took place in broad day light inside village abadi, but no independent witness have been examined to support the prosecution case.
23. We have considered the submission and in our opinion there is no substance in this submission. It is a settled position that there is no proposition in law that relatives are to be treated as untruthful witness, just because the witnesses are related to the deceased would be no ground to discard their testimony, if otherwise their testimony inspires confidence. Being relatives, it would be their endeavour to see that the real culprits are punished and normally they would not implicate wrong person in the crime, so as to allow the real culprits to escape unpunished. The submission of the non examination of other witnesses is concerned, mere failure to examine all the witnesses who may have witnessed the occurrence will not result in out right rejection of the prosecution case if the witnesses examined by the prosecution are found to be truthful and reliable. Moreover, we cannot ignore the reality that many eye witnesses shy away from giving evidence for obvious reasons. In the case of Ravi v. State it has been observed that It is settled by a catena of cases by this Court that the evidence of eyewitnesses cannot be rejected merely, because they are related. In such a situation, the evidence of PW 2 in the present case, there is no strong motive or ill will on the part of PW2 to exonerate the real person who caused the injuries to her son and to implicate the accused.
24. In another case of Appabhai v. State of Gujarat reported in 1988 (supp.) SCC 241 the Apex Court has observed as under
Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and them search for the nugget of truth with due regard to probability, if any, suggested by the accused. The court, however, must bear in mind that witnesses to a serious crime may not react in a noraml manner. Nor do they react uniformly. The horror-stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The court, therefore, cannot reject their evidence merely because the have behaved or reacted in an unusual manner.
25. According to the prosecution case the independent witnesses were available but they were not examined by the prosecution. It is contended by the counsel for the appellants that only two eye witnesses were examined by the prosecution who are close relatives of the deceased therefore their evidence is not sufficient to convict the appellants. It is now well settled that the evidence of a witness cannot be discarded merely on the ground that he is a related witness or the sole witness, or both, if otherwise the same is found credible. The witness could be a relative but that does not mean to reject his statement in totality. In such a case, it is the paramount duty of the court to be more careful in the matter of scrutiny of evidence of the interested witness. In the case of Seeman v. State , at page 145 the Apex court had observed that The prosecution's non-production of one independent witness who has been named in FIR by itself cannot be taken to be a circumstance to discredit the evidence of the interested witness and disbelieve the prosecution case. It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement.'
26. The counsel for the appellants further challenged the prosecution case on the ground that the investigation of the case is tainted. The counsel for the appellants submitted that P.W. 7 S.I. Anil Kumar Sharma stated that after registration of the case he reached at the place of the occurrence in village Sabalpur and prepared the inquest on the dead body of Murari Lal and he also prepared other relevant papers for the post mortem examination, which are Ext. Ka-5 to Ka-9. The eyewitnesses stated that deceased was brought to Puranpur hospital where he succumbed to his injuries. P.W. 2 Smt. Jagdai also stated that she alongwith her husband had brought her son to Poranpur hospital where he succumbed to his injuries. It is submitted that there are contradiction between the testimony P.W. 7 and the eye witnesses and further pointed out that there are some contradiction about the vehicle on which the injured was brought to the hospital. The eye withnesses have deposed that dead body was sealed in hospital we do not find any such substance in the submission of the counsel that on account of contradiction between eye witness account and testimony of P.W. 7 about the place where inquest report was prepared the eye witness account should be disbelieved or presence of the eye witnesses should be doubted about the manner of crime. It is relevant to point out that inquest memo it is clearly mentioned that he after registration of the case came to CHC Puranpur campus where the dead body was kept on a cot and he prepared inquest memo at that place. It appears that due to some misunderstanding in the court he mentioned that he came to village Sablpur whem he prepared the inquest. It is also important to mention that he was not asked to explain as to how he mentioned in the inquest report that he prepared the inquest in the hospital. Moreover on account of these contradictions eyewitness account cannot be disbelieved. P.W. 7 investigated the case for a short time and he did not (sic) the investigation. He had only prepared the inquest and also prepared some recovery memos therefore, his statement that he prepared the inquest at the place of occurrence cannot be accepted. It is also important to note that any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise poved. The Apex Court in the case of Karnel Singh v. State of M.P. has observed as under:
In case of defective investigation, it would not be proper to acquit the accused if the case is otherwise established conclusively because in that event, it would tantamount to the falling into the hands of an erring investigating officer.
27. Again in the case Paras Yadav v. Srate of Bihar the Apex Court has held as under:
It may be that such lapse is committed designedly or because of negligence. Hence, the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not.
28. We are of the opinion that the role assigned to the appellants Ram Sharan and Shri Krishna is only of catching hold. D.W. 1 stated that during the investigation he also found participation of these two accused as false. We agree with the submission of learned Counsel for the appellant that Ram Deo had the main enmity with the deceased. The complaints were made against him for teasing the wife of the deceased and there was no direct motive against Ram Sharan and Shri Krishna for committing the murder of the deceased. Ram Deo was armed with Banka and there was no necessity for him to accompany the other accused for only catching hold purpose. We are of the opinion that as an abundant caution benefit of doubt should be extended to Ram Sharan and Shri Krishna.
29. The Sessions Judge has awarded death sentence to Ram Deo on the ground that he had teased the wife of the deceased and when complaints were made against him he committed the broad day light murder of the deceased.
30. A sentence for imprisonment for life is now the rue and capital sentence is an exception. It has also been made obligatory on the courts to record special reasons if ultimately death sentrence is to be awarded. The Constitutional Bench of the Supreme Court in the case of Bachan singh v. State of Punjab A.I.R. 1980 898 while upholding the constitutional validity of the death sentence voiced that as a legal principle death sentence is still awardable but only in rarest of rare ease when the alternative option of lesser sentence is unquestionably foreclosed.
31. The Apex court in the case of Ram Pal v. State of U.P 2003 (47) A.C.C. 567 for the reasons mentioned in paragraph 8 and 9 of the judgment reduced the sentence from death to life imprisonment despite the fact that 21 persons were murdered in an incident
32. Compassion in sentencing is also a key factor. It allows the scars to heal. Longevity of incarceration may make them see reason. Passage of time may make them ponder over the crime they had committed. This might arouse in them a feeling of remorse and repentance.
33. Considering she over all circumstances of the case this case does not fall within the category of rarest of rare case and it cannot be said that imprisonment for lesser sentence of life term stood altogether foreclosed and we are of the view that a sentence of imprisonment for life to the appellant Ram Deo would meet the ends of justice.
34. For the reasons stated above, the above appeals are decided as under:
Criminal Appeal No. 2777 of 2006 (Ram Deo v. State) is dismissed with the modification That while affirming the conviction of the appellant under Section 302 I.P.C we set aside the sentence of death imposed by the trial court and reduce the same to imprisonment for life. Appellant is in jail, he shall be kept there to serve out the sentence as modified by this court.
35. Criminal Appeal No. 2550 of 2006 (Shri Krishna v. State) is allowed the appellant Shri Krishna is acquitted of the charge. The order of conviction and sentence regarding the appellant is Set aside. He is on bail He need not surrender. His bail bonds are cancelled and studies discharged.
36. Criminal Appeal No. 2659 of 2006 (Ram Sharan v. State) is allowed, The appellant Ram Sharan is acquitted of the charge. The order of conviction and sentence regarding the appellant is set aside. He is on bail. He need not surrender. His bail bonds are cancelled and sureties discharged.
37. Criminal reference for confirmation of death sentence of appellant Ram Deo is rejected.
38. Office is directed to communicate this order within fifteen days to the court concerned for compliance.