Allahabad High Court
Ram Phool @ Rajjan vs State Of U.P. on 2 May, 2019
Author: Ritu Raj Awasthi
Bench: Ritu Raj Awasthi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 16 A.F.R. Case :- CRIMINAL APPEAL No. - 184 of 2004 Appellant :- Ram Phool @ Rajjan Respondent :- State Of U.P. Counsel for Appellant :- S.K.Tewari,Ajmal Khan,Raj Bax Singh,Sushil Kumar Singh Counsel for Respondent :- Govt.Advocate Hon'ble Ritu Raj Awasthi,J.
Hon'ble Virendra Kumar-II,J.
1. Heard Mr. Sushil Kumar Singh, learned counsel for appellant as well as Mr. Umesh Chandra Verma, learned A.G.A. for the State.
2. This criminal appeal has been preferred assailing the impugned judgment and order dated 17.01.2004 passed by learned First Additional Sessions Judge, Rai Bareli in Session Trial No. 166 of 2002, arising out of Case Crime No. 192 of 2001, Police Station Mohanganj, District Rai Bareli, convicting and sentencing the appellant, Ram Phool @ Rajjan under Section 302 I.P.C. for imprisonment for life and a fine of Rs.3,000/- has been imposed with default stipulation to undergo additional imprisonment for six months.
3. Mr. Sushil Kumar Singh, learned counsel for appellant, on the basis of instructions received by him from his client, informed that appellant, Ram Phool @ Rajjan, has been released from jail as remission has been granted to his sentence.
4. Mr. Sushil Kumar Singh, learned counsel for appellant makes a statement at the Bar that he has instructions to state that appellant does not want to press the appeal on merits and it may be dismissed as not pressed.
5. As per the prosecution version, the complainant Kanhaiya Lal, S/o Machal Pasi, submitted written report (Ex.Ka.-1) dated 27.12.2001 at the Police Station Mohanganj, District Raibareli. On the basis of written report of the complainant, Check F.I.R. (Ex.Ka.-3) and G.D. (Ex.Ka.-4) were prepared. Crime No. 192 of 2001 under Section 302 I.P.C. was registered on 27.12.2001 at 19:35 hours at the aforesaid police station. The complainant has also lodged N.C.R. No. 181 (Ex.Ka.-5), under Section 323, 504 I.P.C. on 26.12.2001 against the appellant and co-accused Matadeen, Baran and Smt. Rajpati. G.D. (Ex.Ka.-16) was prepared in this regard. Smt. Savitri Devi, wife of Kanhaiya Lal, complainant, was medically examined on 26.12.2001 at 3:30 p.m. and her injury report (Ex.Ka.-7) was prepared by the concerned doctor.
6. The complainant has narrated in N.C.R. (Ex.Ka.-5) that appellant along with Matadeen, Baran and Smt. Rajpati, co-accused, assaulted the victim, Smt. Savitri Devi. She was ex-wife of the appellant Ramphool @ Rajjan, who often beaten her up and they got separated one year ago. Smt. Savitri Devi, victim, resided with the appellant for six years after her marriage. The parents of the victim, Smt. Savitri Devi arranged her second marriage with the complainant, Kanhaiya Lal five years ago. The appellant along with the co-accused persons visited the house of complainant on 26.12.2001 and asked Smt. Savitri Devi to return the alleged articles. She told him that she had been separated on the basis of compromise and all the articles of appellant were returned by her. The appellant and his associates assaulted her due to this reason. When she raised alarm, the accused persons fled away.
7. The Investigating Officer prepared inquest report (Ex.Ka.-9) of the deceased, Smt. Savitri Devi and sent her dead body for autopsy. Her postmortem report (Ex.Ka.-2) was prepared. The Investigating Officer recorded statements of witnesses, collected the rope, which was used by the appellant in the crime and prepared recovery memo (Ex.Ka.-14). He inspected the place of occurrence and prepared site plan (Ex.Ka.-8). After concluding the investigation, the Investigating Officer has submitted the charge sheet against the appellant.
8. The Court of Chief Judicial Magistrate, Raibareli committed this case to the Court of Sessions on 19.03.2002.
9. The learned trial court of Additional Sessions Judge, Court No.1, Raibareli framed charges against the appellant on 05.07.2002 for the offence punishable under Section 302 I.P.C. The appellant pleaded not guilty and claimed to be tried.
10. The learned trial court recorded statements of witnesses, P.W.1-Kanhaiya Lal, complainant; P.W.2-Dr. R. K. Verma; P.W.3-Head Constable Ram Kumar Verma; P.W.4-Smt. Kewla, wife of Ram Baran; P.W.5-Dr. N. K. Kanaujiya and P.W.6-S.I., Shri Shyam Sunder Grover.
These witnesses proved the aforesaid documents relied upon by the prosecution.
11. The learned trial court has recorded statement of appellant, Ramphool @ Rajjan under Section 313 Cr.P.C. He has stated that he never deserted his wife (the deceased) Smt. Savitri Devi. Kanhaiya Lal abducted her. The deceased lodged false report against him under influence of Kanhaiya Lal. She got prepared false and fabricated injury report also. The witnesses have adduced false evidence against him. The complainant, Kanhaiya Lal himself murdered Smt. Savitri Devi and he has falsely been implicated in this crime. He is innocent.
12. The learned trial court has appreciated and analyzed the evidence of witnesses and convicted the accused for the offence punishable under Section 302 I.P.C. and awarded the aforesaid sentence.
13. Learned counsel for appellant has submitted that appellant does not want to press this appeal, therefore, it may be dismissed as not pressed. In this regard, provisions of Section 384, 385 and 386 Cr.P.C. are relevant, which are being reproduced as under:
384. Summary dismissal of appeal.-(1) If upon examining the petition of appeal and copy of the judgment received under section 382 or section 383, the Appellate Court considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily:
Provided that-
(a) no appeal presented under section 382 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same;
(b) no appeal presented under section 383 shall be dismissed except after giving the appellant a reasonable opportunity of being heard in support of the same, unless the Appellate Court con- siders that the appeal is frivolous or that the production of the accused in custody before the Court would involve such inconvenience as would be disproportionate in the circumstances of the case;
(c) no appeal presented under section 383 shall be dismissed summarily until the period allowed for preferring such appeal has expired.
(2) Before dismissing an appeal under this section, the Court may call for the record of the case.
(3) Where the Appellate Court dismissing an appeal under this section is a Court of Session or of the Chief Judicial Magistrate, it shall record its reasons for doing so.
(4) Where an appeal presented under section 383 has been dismissed summarily under this section and the Appellate Court finds that another petition of appeal duly presented under section 382 on behalf of the same appellant has not been considered by it, that Court may, notwithstanding anything contained in section 393, if satisfied that it is necessary in the interests of justice so to do, hear and dispose of such appeal in accordance with law.
385. Procedure for hearing appeals not dismissed summarily.-(1) If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given-
(i) to the appellant or his pleader;
(ii) to such officer as the State Government may appoint in this behalf;
(iii) if the appeal is from a judgment of conviction in a case instituted upon complaint, to the complainant;
(iv) if the appeal is under section 377 or section 378, to the accused, and shall also furnish such officer, complainant and accused with a copy of the grounds of appeal.
(2) The Appellate Court shall then send for the record of the case, if such record is not already available in that Court, and hear the parties:
Provided that if the appeal is only as to the extent or the legality of the sentence, the Court may dispose of the appeal without sending for the record.
(3) Where the only ground for appeal from a conviction is the alleged severity of the sentence, the appellant shall not, except with the leave of the Court, urge or be heard in support of any other ground.
386. Power of the Appellate Court.-After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-
(a) in an appeal from an order or acquittal, reverse such order and direct that further inquiry be made, or that the accused be re- tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;
(b) in an appeal from a conviction-
(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re- tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;
(c) in an appeal for enhancement of sentence-
(i) reverse the finding and sentence and acquit or discharge the accused or order him to be re- tried by a Court competent to try the offence, or
(ii) alter the finding maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same;
(d) in an appeal from any other order, alter or reverse such order;
(e) make any amendment or any consequential or incidental order that may be just or proper;
Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement:
Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal.
14. In this regard, the expositions of law propounded by Hon'ble Supreme Court and of Rajasthan High Court, are also relevant, which are as follows:
The Hon'ble Supreme Court in the case of Padam Singh Vs. State of U.P., (2000) 1 SCC 621 in para-2 of its judgment has observed as under:
2. ........................... the court must also bear in mind the innocent and rustic persons hailing from rural areas, when deposed about certain state of affairs, they are not aware of the necessity of law or legal contentions, which may be raised in courts. According to the learned Judge when the occurrence has taken place in broad daylight and there has been no lack of opportunity in identifying the accused persons, the evidence of PWs 1 to 4 is sufficient to bring home the charge and, therefore, the prosecution case must be held to have been established beyond reasonable doubt. When the matter was placed before the third learned Judge viz. Justice Malviya, he, instead of appreciating the evidence as a court of appeal would do, merely stated the conclusion of the two learned Judges, who originally heard the appeal and differed from each other and then he agreed with the conclusion of Hon'ble Mr Justice Kundan Singh, solely relying upon the evidence of PW 4, Vimlesh, who was also attacked by Padam Singh and who sustained the two injuries which could be caused by a blunt weapon. Mr Justice Malviya, apart from the fact that he did not discuss the trustworthiness of the four eyewitnesses, even has not discussed the reasoning advanced by Hon'ble Justice Mathur in not placing reliance on the inimical evidence of PWs 1 to 4. A bare reading of the judgment of Justice Malviya would indicate that he has failed to discharge his duty and obligation as an appellate court, in appreciating the evidence and coming to its conclusion one way or the other. It is the duty of an appellate court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution can be said to have been proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by the appellate court in drawing inference from proved and admitted facts. It must be remembered that the appellate court, like the trial court, has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubt as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final court of appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court. The judicial approach in dealing with the case where an accused is charged of murder under Section 302 has to be cautious, circumspect and careful and the High Court, therefore, has to consider the matter carefully and examine all relevant and material circumstances, before upholding the conviction.
A Three Judges' Bench of Hon'ble Apex Court in the case of Bani Singh Vs. State of U.P., (1996) 4 SCC 720, in paras-14, 15 and 16 of its judgment has observed as under:
14. We have carefully considered the view expressed in the said two decisions of this Court and, we may state that the view taken in Shyam Deo case [(1971) 1 SCC 855 : 1971 SCC (Cri) 353 : AIR 1971 SC 1606] appears to be sound except for a minor clarification which we consider necessary to mention. The plain language of Section 385 makes it clear that if the appellate court does not consider the appeal fit for summary dismissal, it ''must' call for the record and Section 386 mandates that after the record is received, the appellate court may dispose of the appeal after hearing the accused or his counsel. Therefore, the plain language of Sections 385-386 does not contemplate dismissal of the appeal for non-prosecution simpliciter. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. The law clearly expects the appellate court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial court in the judgment, but by cross-checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial court are consistent with the material on record. The law, therefore, does not envisage the dismissal of the appeal for default or non-prosecution but only contemplates disposal on merits after perusal of the record. Therefore, with respect, we find it difficult to agree with the suggestion in Ram Naresh Yadav case [AIR 1987 SC 1500 : 1987 Cri LJ 1856] that if the appellant or his pleader is not present, the proper course would be to dismiss an appeal for non-prosecution.
15. Secondly, the law expects the appellate court to give a hearing to the appellant or his counsel, if he is present, and to the public prosecutor, if he is present, before disposal of the appeal on merits. Section 385 posits that if the appeal is not dismissed summarily, the appellate court shall cause notice of the time and place at which the appeal will be heard to be given to the appellant or his pleader. Section 386 then provides that the appellate court shall, after perusing the record, hear the appellant or his pleader, if he appears. It will be noticed that Section 385 provides for a notice of the time and place of hearing of the appeal to be given to either the appellant or his pleader and not to both presumably because notice to the pleader was also considered sufficient since he was representing the appellant. So also Section 386 provides for a hearing to be given to the appellant or his lawyer, if he is present, and both need not be heard. It is the duty of the appellant and his lawyer to remain present on the appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Sections 385-386 of the Code. The law does not enjoin that the court shall adjourn the case if both the appellant and his lawyer are absent. If the court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial court. We would, however, hasten to add that if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused/appellant if his lawyer is not present. If the lawyer is absent, and the court deems it appropriate to appoint a lawyer at State expense to assist it, there is nothing in the law to preclude it from doing so. We are, therefore, of the opinion and we say so with respect, that the Division Bench which decided Ram Naresh Yadav case [AIR 1987 SC 1500 : 1987 Cri LJ 1856] did not apply the provisions of Sections 385-386 of the Code correctly when it indicated that the appellate court was under an obligation to adjourn the case to another date if the appellant or his lawyer remained absent.
16. Such a view can bring about a stalemate situation. The appellant and his lawyer can remain absent with impunity, not once but again and again till the court issues a warrant for the appellant's presence. A complaint to the Bar Council against the lawyer for non-appearance cannot result in the progress of the appeal. If another lawyer is appointed at State cost, he too would need the presence of the appellant for instructions and that would place the court in the same situation. Such a procedure can, therefore, prove cumbersome and can promote indiscipline. Even if a case is decided on merits in the absence of the appellant, the higher court can remedy the situation if there has been a failure of justice. This would apply equally if the accused is the respondent for the obvious reason that if the appeal cannot be disposed of without hearing the respondent or his lawyer, the progress of the appeal would be halted.
The Hon'ble Apex Court in the case of Rishi Nandan Pandit Vs. State of Bihar, (1999) 8 SCC 644, has held in paras- 4,5 and 9 as under:
4. When the counsel engaged by the appellants in a criminal appeal does not turn up there is no obligation on the court of appeal to wait for him or even to adjourn the case awaiting his presence. The earlier view of a two-Judge Bench of this Court in Ram Naresh Yadav v. State of Bihar [AIR 1987 SC 1500 : 1987 Cri LJ 1856] that in such a situation the court could only dismiss the appeal for default, has been held erroneous by a three-Judge Bench of this Court in Bani Singh v. State of U.P.[(1996) 4 SCC 720 : 1996 SCC (Cri) 848] A.M. Ahmadi, C.J., speaking for the Bench, has stated the legal position thus: (SCC p. 726, para 14) "The law clearly expects the appellate court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial court in the judgment, but by cross-checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial court are consistent with the material on record. The law, therefore, does not envisage the dismissal of the appeal for default or non-prosecution but only contemplates disposal on merits after perusal of the record. Therefore, with respect, we find it difficult to agree with the suggestion in Ram Naresh Yadav case [AIR 1987 SC 1500 : 1987 Cri LJ 1856] that if the appellant or his pleader is not present, the proper course would be to dismiss an appeal for non-prosecution."
5. Nonetheless the learned Chief Justice hastened to add that if the counsel is absent there is nothing in law which precludes the court of appeal from appointing another counsel at the State's expense to assist the court. The following observations of the Bench are pertinent: (SCC p. 726, para 15) "We would, however, hasten to add that if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused appellant if his lawyer is not present. If the lawyer is absent, and the court deems it appropriate to appoint a lawyer at State expense to assist it, there is nothing in the law to preclude it from doing so."
9. As a matter of legal position the court is not precluded from perusing the records and come to its own conclusion unaided by any legal practitioner to project the points favourable to the accused, when the counsel engaged by them does not turn up to argue. But the three-Judge Bench of this Court indicated in Bani Singh v. State of U.P.[(1996) 4 SCC 720 : 1996 SCC (Cri) 848] that it is a matter of prudence that the court may, in an appropriate case, appoint a counsel at the State's expense to argue for the cause of the accused. Of course it is for the court to determine, on a consideration of the conspectus of the case, whether it does or does not require such legal assistance. There can be appeals which could be disposed of unassisted by counsel to put forth the favourable features for the accused. But if the sentence imposed by the judgment impugned in the appeal is of a substantial range it is advisable to seek the assistance of a legal talent.
The Hon'ble Apex Court in the case of Mohd. Sukur Ali Vs. State of Assam, (2011) 4 SCC 729, has held in para-17 as under:
17. We reiterate that in the absence of a counsel, for whatever reasons, the case should not be decided forthwith against the accused but in such a situation the court should appoint a counsel who is practising on the criminal side as amicus curiae and decide the case after fixing another date and hearing him. If on the next date of hearing the counsel, who ought to have appeared on the previous date but did not appear, now appears, but cannot show sufficient cause for his non-appearance on the earlier date, then he will be precluded from appearing and arguing the case on behalf of the accused. But, in such a situation, it is open to the accused to either engage another counsel or the court may proceed with the hearing of the case by the counsel appointed as amicus curiae.
The Rajasthan High Court in the case of Mahendra Singh Vs. State of Rajasthan, 1997 Cri LJ 1751, in para-8 of its judgment has relied upon exposition of law propounded by Hon'ble Apex Court in the case of Bani Singh Vs. State of U.P., (1996) 4 SCC 720 has observed and quoted as under:
"It is the duty of the appellant and his lawyer to remain forsent on the appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Ss. 385-386 of the Code. The law does not enjoin that the Courts shall adjourn the case if both the appellant and his lawyer are present. If the Court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial Court. The plain language of Ss. 385-386 does not contemplate dismissal of the appeal for non-prosecution simplicitor. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. The law clearly expects the Appellate Court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial Court in the judgment, but by cross-checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial court are consistent with the material on record."
15. On conjoint reading of provisions of Section 384, 385 and 386 Cr.P.C. opportunity of hearing has to be given to the appellant/ his learned counsel, but he has not availed this opportunity. This Court is bound to peruse the record of Session Trial No. 166 of 2002, State Vs. Ramphool @ Rajjan and to verify on merits by crosscheck the reasoning of the trial court with evidence on record for satisfying itself that the reasonings and findings recorded by the trial court are consistent with the material on record. This Court has to arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even it can be relied upon then whether the prosecution can be said to have proved charge framed against the accused beyond reasonable doubt on the said evidence.
16. In Bani Singh Vs. State of U.P. (supra) the Hon'ble Supreme Court has observed its earlier exposition of law propounded in Ram Naresh Yadav Vs. State of Bihar, reported in AIR 1987 SC 1500 that, "If the appellant or his pleader is not present, the proper course would be to dismiss an appeal for non prosecution". The Hon'ble Apex Court has approved its view taken in Shyam Deo Pandey and others Vs. State of Bihar, reported in AIR 1971 SC 1606 : (1971) 1 SCC 855 : 1971 SCC (Cri) 353, which is as follows:
7. On September 9, 1966 the High Court admitted the appeal and passed the following order:
"September 9, 1966, this appeal will be heard. Issue notice. Pending the hearing of this appeal the appellants will continue on bail to the satisfaction of the District Magistrate.
The realisation of fine also will remain stayed during the pendency of this appeal."
8. The appeal was posted for hearing on May 10, 1968. On that date neither the appellants nor their counsel seems to have appeared and the Court dismissed the appeal and passed the following order and judgment:
"May 10, 1968. No one appears to press this appeal. On perusal of the judgment under appeal, I find no merit in the case. It is accordingly dismissed."
17. ...................................Under Section 421 the appellate court is bound to peruse the appeal petition and the copy of the judgment or order appealed against. If the appellate court, on perusal of the same, considers that there was no sufficient ground for interfering with the judgment and order appealed against, it can dismiss the appeal summarily. Under sub-section (2) of Section 421, it is open to the appellate court before dismissing the appeal to call for the record of the case; but it is not mandatory that the appellate court should call for the record. The stage under Section 421 is to enable the appellate court to decide whether the appeal should be admitted or dismissed summarily. In the case before us on September 9, 1966, when the High Court ordered "this appeal will be heard. Issue notice", it is clear that on perusal of the petition of appeal and the judgment of the Sessions Court, the High Court did not take the view that there was no sufficient ground for interference so as to dismiss the appeal summarily. On the other hand, the order of the High Court, extracted above, clearly indicates that the appeal is to be heard and disposed of on merits and for that purpose it issued notice to the State. In fact the provisions regarding issue of notice as provided under Section 422, has also been followed by the High Court. The procedure under Section 422 has to be followed only when the appeal is not dismissed summarily under Section 421. In this case the stages envisaged by Sections 421 and 422 have passed. The appeal has been admitted and taken on file and notice must have been also issued to the appellants or their counsel, as envisaged in the section.
18.Coming to Section 423, which has already been quoted above, it deals with powers of the appellate court in disposing of the appeal on merits. It is obligatory for the appellate court to send for the record of the case, if it is not already before the Court. This requirement is necessary to be complied with to enable the Court to adjudicate upon the correctness or otherwise of the order or judgment appealed against not only with reference to the judgment but also with reference to the records which will be the basis on which the judgment is founded. The correctness or otherwise of the findings recorded in the judgment, on the basis of the attack made against the same, cannot be adjudicated upon without reference to the evidence, oral and documentary and other materials relevant for the purpose. The reference to "such record" in "after perusing such record" is to the record of the case sent for by the appellate court.
19. A reading of Section 423 makes it clear that a criminal appeal cannot be dismissed for default of appearance of the appellants or their counsel. The Court has either to adjourn the hearing of the appeal in order to enable them to appear or it should consider the appeal on merits and pass final orders. The consideration of the appeal on merits at the stage of final hearing and to arrive at a decision on merits so as to pass final orders will not be possible unless the reasoning and findings recorded in the judgment under appeal are tested in the light of the record of the case. After the records are before the Court and the appeal is set down for hearing, it is essential that the appellate court should: (a) peruse such record; (b) hear the appellant or his pleader, if he appears, and (c) hear the public prosecutor, if he appears. After complying with these requirements, the appellate court has full power to pass any of the orders mentioned in the section. It is to be noted that if the appellant or his pleader is not present or if the public prosecutor is not present it is not obligatory on the appellate court to postpone the hearing of the appeal. If the appellant or his counsel or the public prosecutor, or both, are not present, the appellate court has jurisdiction to proceed with the disposal of the appeal; but that disposal must be after the appellate court has considered the appeal on merits. It is clear that the appeal must be considered and disposed of on merits irrespective of the fact whether the appellant or his counsel or the public prosecutor is present or not. Even if the appeal is disposed of in their absence, the decision must be after consideration on merits. Under Section 421 the appellate court has to decide whether the appeal is to be taken on file or dismissed summarily. The obligation of the Court at that stage is only to peruse the petition of appeal and the copy of the order or judgment appealed against. A summary dismissal of the appeal will then be legal if the appellate court considers that there is no sufficient ground for interference. But even in such circumstances it has been held that a summary decision is a judicial decision which vitally affects the convicted appellant and in a fit case, it is also open to be challenged on an appeal before this Court. Though a summary rejection, without giving any reasons, is not violative of any statutory provisions, such a manner of disposal removes every opportunity for detection of errors in the order. It has been further held that when an appeal in the High Court raises a serious and substantial point, which is prima facie arguable, it is improper for an appellate court to dismiss the appeal summarily without giving some indication of its view on the point. The interest of justice and fair play require that in such cases an indication must be given by the appellate court of its views on the point argued before it.
17. We have perused the record of Session Trial No. 166 of 2002. P.W.1, complainant, Kanhaiya Lal and P.W.4, Smt. Kewla, wife of Ram Baran, who is wife of brother of the complainant, are the witnesses of fact. They are inmates of the house of complainant, Kanhaiya Lal. They have adduced their evidence corroborating the facts narrated in the written report (Ex.Ka.-1) submitted by the complainant.
18. The complainant, P.W.1 has proved this fact that the deceased, Smt. Savitri Devi was ex-wife of the appellant, Ramphool @ Rajjan and they had been separated according to the custom of their caste, because appellant often beaten her up and tortured her. The deceased solemnized marriage with him seven years ago. Three children borne out of the relationship of the deceased and P.W.1. She resided with him at Delhi, Islamganj and Village Karangaon. P.W.4, Smt. Kewla Devi has also corroborated the statement of complainant, Kanhaiya Lal in this regard that Smt. Savitri Devi was ex-wife of appellant, Ramphool @ Rajjan, who deserted her and she resided with the complainant.
19. P.W.1, complainant and P.W.4 have also stated that the appellant along with the co-accused Matadeen, Baran and Smt. Rajpati came at the house of complainant in the Village Karangaon in the 11th-12th month (26.12.2001) at 1:00 p.m. The appellant demanded from Smt. Savitri, to account for jewellary and other articles. The deceased opposed this demand. The appellant assaulted Smt. Savitri Devi. P.W.1 has further stated that Smt. Savitri Devi lodged F.I.R. at Police Station Mohanganj regarding this incident.
20. P.W.1 and P.W.4 have also proved this fact that on the next day, Smt. Savitri Devi was lying below Chhapper(thatch) due to injuries sustained by her on the previous day. The complainant was present on the back side of his house. His father was with his children outside the house. Smt. Kewla, sister-in-law of the complainant took water from nearby place and reached at the door of his house. The complainant, P.W.1 heard noises inside the house. He and P.W.4, Smt. Kewla saw that the appellant strangulated the deceased, Smt. Savitri Devi with the rope. The appellant after seeing P.W.1 and P.W.4, fled away from the place of occurrence. The deceased died on the spot. P.W.4 has corroborated the statement of P.W.1, complainant that the appellant strangulated the deceased and fled away.
21. P.W.1, complainant has proved his written report. He has stated in examination-in-chief topography of his house and house of his brother, Ram Baran.
22. P.W.1, complainant has disclosed this fact in his cross-examination that his first wife, Dhanau is alive and three daughters were borne out of the wedlock. Smt. Savitri Devi was married with the Ramphool @ Rajjan seven years ago and resided with him in Kathaura. Smt. Savitri was having one son out of wedlock with Ramphool @ Rajjan. She had resided with Ramphool @ Rajjan.
23. The complainant P.W.1 has also stated in his cross-examination that Smt. Savitri Devi went with him at Delhi where he had worked as labourer. After 4-5 days Smt. Savitri Devi had returned back at house of her parents, who solemnized her marriage with Acchey Lal Pasi. The appellant brought Smt. Savitri Devi from the house of Acchey Lal Pasi and kept with him. Out of this relationship three children were born. The complainant is a medical practitioner from 10-12 years ago. He has clarified that his first wife Dhanau and here children reside elsewhere. Her parental house is situated at a distance of 8 kilometers.
24. The complainant, P.W.1 has refuted this suggestion that the appellant resided with Smt. Savitri Devi in Village Karangaon from where, he enticed and brought her at Delhi. He has also refuted this suggestion that parents of the deceased were annoyed by his conduct and they were compelled to marry her with Achhey Lal Pasi.
25. The learned defence counsel has cross-examined the witness P.W.1 by giving suggestion only that false and fabricated report of incident dated 26.12.2001 was got lodged by him and injury report of the victim, Smt. Savitri Devi, was fabricated. Learned defence counsel has not cross-examined P.W.1 on the facts and circumstances of the incident narrated in the written report (Ex.Ka.-1). Learned defence counsel has only suggested the complainant, P.W.1, that in the night of the alleged incident dated 26.12.2001, the complainant himself strangulated Smt. Savitri Devi and with consultations and deliberations of police personnel, he lodged the false and concocted F.I.R. against the appellant.
26. On perusal of statements, examination-in-chief and cross-examination of P.W.1, his presence in his house has been established by the prosecution. No cross-examination has been conducted by learned defence counsel regarding aforesaid incidents allegedly committed by the appellant. Only suggestion has been given to P.W.1 that the appellant has not committed murder of Smt. Savitri Devi by strangulation.
27. P.W.4, Smt. Kewla has also proved her presence at the door of house of complainant-P.W.1, while she was returning home after taking water at 5:00 p.m. one and half years ago. During her cross-examination she has stated that complainant Kanhaiya Lal is his real brother-in-law. She has disclosed this fact that she did not witness the incident of assault (dated 26.12.2001) on Smt. Savitri by appellant and his associates. She has also stated about the topography of the house of Qayyum, who has kept sister of Kanhaiya Lal, P.W.1. P.W.2, during her cross-examination has disclosed this fact that when the appellant committed incident, they raised alarm and 50-60 villagers gathered at the place of occurrence and they tried to chase the appellant, but he fled away on foot.
28. P.W.2 has stated in her cross-examination that Smt. Savitri Devi resided with the appellant at Delhi for 6-7 years. Learned defence counsel has only given suggestion to P.W.4, in which circumstances Smt. Savitri Devi was married with the appellant, Ramphool @ Rajjan and went with other person including complainant Kanhaiya Lal. She has also disclosed topography of house of complainant during her cross-examination. She has refuted this suggestion that she was adducing her evidence being sister-in-law of the complainant. No other material contradictions were elicited by the learned defence counsel during cross-examination of P.W.1 and P.W.4.
29. P.W.1 and P.W.4 have proved this fact that the appellant, Ramphool @ Rajjan assaulted the deceased on 26.12.2001 and again committed her murder by strangulation on 27.12.2001 at 5:00 p.m.
30. The evidence of P.W.1 and P.W.4 is wholly reliable, trustworthy, credible, natural and acceptable.
31. P.W.2, Dr. R. K. Verma has conducted autopsy of the dead body of the deceased Smt. Savitri Devi on 28.12.2001 at 3:00 p.m. He has stated that rigor mortis was present in upper and lower parts of the body. He has found following ante-mortem injuries on the dead body of the deceased:
(i) Lacerated wound of 1 c.m. x 0.3 c.m. x scalp deep on right side of neck 4 c.m above right ear pinna.
(ii) Lacerated wound of 2 c.m. x 0.5 c.m. x scalp deep on right side of head 7 c.m. below and back from right ear pinna.
(iii) Abrasion of 2 c.m. x 0.5 c.m. on anterior side of right shoulder joint, 4 c.m. below from its top.
(iv) Abrasion of 2 c.m. x 1 c.m. over back of right forearm 5 c.m. above wrist joint.
(v) Abrasion 3 c.m. x 1.5 c.m. on lateral side of right thigh, 2 c.m. above knee joint.
(vi) Contusion 8 c.m. x 1.5 c.m. obliquely placed on back of right upper arm 8 c.m. above elbow joint.
(vii) Multiple abrasion in an area of 5 c.m. x 4 c.m. over left knee joint anteriority, varying in size and overlapping.
(viii) Abrasion of 2 c.m. x 1 c.m. right lateral side of chest 12 c.m. above iliac chrest.
(ix) Abrasion of 1.5 c.m. x 1 c.m. on back of right side of trunk, 4 c.m. below and medially front interior angle of scapula.
(x) Ligature mark- ligature mark of 22 c.m. x 1.5 c.m. on anterior and lateral side of neck just above the thyroid cartilage, horizontally placed 5 c.m. above manubrim sterni, 4.5 c.m. below both ear, base of (sick) is pale, raddish margin, ligature mark is interrupted posterially.
(xi) Abrasion of 2 c.m. x 1 c.m. on left side of back of trunk, 13 c.m. above iliac crest.
P.W.2 has opined that cause of death of the deceased, Smt. Savitri Devi was asphyxia as a result of ante mortem strangulation. Her trachea was congested.
32. P.W.2 has proved postmortem report (Ex.Ka.-2) and opined that the death of the deceased was possible to be caused on 27.12.2001 at 5:00 p.m. P.W.2 has clarified in his cross-examination that there was no ligature mark on back side of neck of the deceased. No other material contradiction was elicited on behalf of appellant by learned defence counsel. He has opined that 50 ml. liquid material was found in the stomach of the deceased, therefore, he opined that the deceased took some liquid half or one hour prior to her death.
33. P.W.5-Dr. A. K. Kanaujiya has medically examined Smt. Savitri Devi on 26.12.2001 at 3:30 p.m. and he found following injuries:
i) Lacerated wound of size 3 c.m. x 0.5 c.m. muscle deep on right side of head, 11 c.m. above the right ear pinna.
ii) Lacerated wound of size 3 c.m. x 0.5 c.m. muscle deep on right side of head, 6.0 c.m. above the right ear pinna.
iii) Lacerated wound of 3.0 c.m. x 0.5 c.m. muscle deep on right side head, 3.0 c.m. above the right ear pinna.
iv) Lacerated wound of size 1.0 c.m. x 1.0 c.m. skin deep on right side of back of head, 11 c.m. back from left ear pinna.
v) Abrasion of size 4.0 c.m. x 0.5 c.m., 2.0 c.m. above left knee joint.
vi) Abrasion of size 0.5 c.m. x 0.5 c.m. on lateral part of left knee joint.
Complaint of pain on right forearm, but no external mark of injury was seen.
Duration of injuries was found six hours and were inflicted by hard and blunt object. These injuries were of simple nature.
34. The concerned doctor, P.W.5 has proved the aforesaid injuries.
35. No material contradiction was elicited during his cross-examination of P.W.5. No suggestion was given on behalf of appellant that this injury report prepared by doctor, P.W.5, is false and fabricated. The evidence of doctor, P.W.5, corroborates statements of P.W.1 and P.W.4 regarding the fact that appellant along with his associates assaulted Smt. Savitri Devi on 26.12.2001 at 3:30 p.m. The deceased Smt. Savitri Devi lodged N.C.R.(Ex.Ka.-5) regarding this incident on 26.12.2001 at Police Station Mohanganj, Raibareli.
36. The evidence of P.W.2, Dr. R. K. Verma also corroborates statements of P.W.1 and P.W.4 that the appellant committed murder of the deceased, Smt. Savitri Devi, on 27.12.2001 at 5:00 p.m.
37. P.W.3-Head Constable, Shri R. K. Verma, has proved Check F.I.R. (Ex.Ka.-3) and G.D. of registration of crime (Ex.Ka.-4). He has also proved N.C.R. No. 181 dated 26.12.2001, under Section 323, 504 I.P.C. which was lodged by the deceased, Smt. Savitri Devi. N.C.R. was recorded by him in G.D.(Ex.Ka.-6) separately also. He has refuted the suggestion that N.C.R. and Check F.I.R. of present crime was lodged with consultations and deliberations of police personnel. No other material contradiction was elicited during cross-examination of P.W.3. He is a formal witness.
38. P.W.6-S.I., Shri Shyam Sunder Grover has conducted investigation of present crime. He has stated that he recorded statements of P.W.1 and P.W.4 and other witnesses also. He inspected the place of occurrence and prepared site plan (Ex.Ka.-8). P.W.6 has proved inquest report (Ex.Ka.-9) and other documents (Ex.Ka.-10 to Ex.Ka.-13) prepared for autopsy of the dead body of the deceased. He also took in his possession rope recovered from the place of occurrence and prepared recovery memo (Ex.Ka.-14). He has also collected N.C.R. dated 26.12.2001 and injury report of Smt. Savitri Devi. He arrested the accused-appellant on 28.12.2001, collected postmortem report on 29.12.2001 and copied it in case diary. He has also proved charge sheet (Ex.Ka.-15). During cross-examination, no material contradiction was elicited on behalf of learned defence counsel.
39. P.W.6 has refuted this suggestion that the complainant procured witnesses and he got registered the case against the appellant. He has stated in his cross-examination that he prepared site plan and inquest report of the deceased. He has accepted in his cross-examination that he has mentioned names of house owners in site plan, but he did not record their statements. Therefore, it may be fault of the Investigating Officer, P.W.6 that he had not collected evidence of neighbours of the complainant.
40. P.W.6 has disclosed this fact that he had not investigated the N.C.R. dated 26.12.2001 lodged by the deceased. He has also accepted this fact that Smt. Kewla, P.W.4, has not apprised him about the place, from where, she brought water on the date of incident. He has specifically stated that rope which was taken by him in his possession, was found on the place of occurrence. He has refuted this suggestion that he has recorded false evidences at the behest of complainant.
41. The appellant has not adduced any defence evidence in the category of plea of alibi that he was not present on the date of incident dated 26.12.2001 on or 27.12.2001 at 5:00 p.m. in Village Karangaon at the house of complainant and he was elsewhere from that place. His presence at the place of occurrence was improbable. He has also not adduced any other evidence regarding the fact that complainant, Kanhaiya Lal himself committed murder of Smt. Savitri Devi.
42. Learned A.G.A. has placed before the Court, letter dated 16.04.2019 of the Senior Superintendent, Central Jail, Naini, Prayagraj along with the Government Order dated 29.01.2019, whereby appellant, Ram Phool @ Rajjan has been released from jail custody on 30.01.2019. Copy of the letter dated 17.04.2019 and the Government Order dated 29.01.2019 are taken on record.
43. The aforesaid Government Order dated 29.01.2019 disclosed that appellant has completed period of imprisonment 17 years and 20 days without remission and 22 years, 01 month and 01 day with remission on 26.01.2019. His remaining period of imprisonment/ sentence has been remitted. The appellant has been released on 31.01.2019 on furnishing P.B. of Rs.50,000/- to maintain lawful conduct, peace, law and order.
44. On the basis of above discussion and the evidence available on record, the impugned judgment and order dated 17.01.2004 cannot be termed as perverse or against the evidence available on record. The conviction and sentence of appellant is liable to be upheld, and it is hereby affirmed.
45. This appeal lacks merit and is liable to be dismissed.
46. The appeal is accordingly dismissed.
47. The copy of judgment be sent to the concerned Jail Superintendent and the learned trial court for compliance.
48. The record of trial court be sent back.
Order Date :- 2.5.2019 Mustaqeem