Allahabad High Court
Tula Ram And Another vs State Of U.P. on 1 March, 2021
Equivalent citations: AIRONLINE 2021 ALL 420
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 11.01.2021
Delivered on 01.03.2021
Case :- CRIMINAL APPEAL No. - 6831 of 2017
Appellant :- Tula Ram And Another
Respondent :- State of U.P.
Counsel for Appellant :- Krishna Kumar Singh
Counsel for Respondent :- G.A.
Hon'ble Siddharth,J.
Heard Sri Krishna Kumar Singh, learned counsel for the appellants and Smt. Alpana Singh, learned AGA for the State.
This criminal appeal is directed against the judgement and order dated dated 30.10.2017 passed by Additional Sessions Judge/Fast Track Court no.1, Moradabad in Sessions Trial No.28 of 2012 (State Vs. Tula Ram and another) under Section 304/34 I.P.C., Police Station Hayat Nagar, District Moradabad by which the appellants have been convicted for 10 years rigorous imprisonment for the offence punishable under Section 304/34 I.P.C with fine of Rs. one lac each and in case of default of payment of fine to undergo five years additional imprisonment.
The prosecution case is that the informant, Shyam Singh, lodged a first information report dated 19.02.2011 alleging that on 14.02.2011 at about 10.00 hours his sister, Javitri Devi, was cleaning her workshop where her husband, Tota Ram, his brother, Tula Ram, nephew Mukesh and Omwati, wife of Tula Ram, were present. They assaulted his sister, Javitri Devi ,with lathi, danda and iron rod. His brother-in-law, Tota Ram, was wielding iron rod and he assaulted his sister by the same . The other persons beated her by lathi, danda and sariya. On the impression that she has died, all the four persons left her and ran away. His niece, Savitri, raised alarm that her mother has been killed and then her distantly related uncle, Lekhraj and Devash came and took his sister, Javitri Devi, to private Doctor, who referred her to Moradabad. She died at Moradabad hospital. The first information report was registered as Case Crime No.28 of 2011 under Section 304/34 I.P.C.
After Investigation charge-sheet was submitted against the accused, Tula Ram and Mukesh, under Section 304 I.P.C. and charges were framed by the Trial Court under Section 304/34 I.P.C. The accused persons denied the charges and sought trial.
PW 1, Shyam Singh, stated in his examination-in-chief that his sister, Javitri Devi, was beaten on 14.02.2011 as alleged in the first information report. He proved the first information report lodged by him as Exhibit -1.
PW 2, Devesh Kumar, stated before the Court that about four years ago he heard the cries for help in the work-shop of Tota Ram at about 10.30 hours. He went to the workshop along with other persons where, Javitri Devi, was found lying in injured position. Daughter of Tota Ram and injured, namely, Savita, was crying. Thereafter, Lekhraj, took her on a rickshaw to the Sambhal hospital from where she was referred to Sai Hospital. He also went to the Sai Hospital. After admission of Javitri Devi in hospital when Savita, her maternal uncle and grand father came, he and Lekhraj came back. When Savita was crying she did not informed him that Tula Ram and Mukesh have instigated her father, Tota Ram, to beat her mother. He never heard about Tota Ram beating his wife under the influence of liquor.
PW III, Lekhraj, stated that his house is situated 150-200 steps away from the house of Tota Ram, who is son of his elder uncle. About 3-4 years ago dispute took place between Tota Ram and his wife, Javitri Devi. When he reached the place of incident he found Tota Ram and his wife lying unconscious on the ground, their daughter, Savita, was there. Tula Ram was not on the spot. Savita was crying, people took her to the hospital Sambhal and then to Sai hospital. After her maternal uncle and grand father came to the hospital he came back. The daughter of deceased, Savita, did not informed him that Tula Ram, Mukesh and brother of Gajendra have got her mother beaten by her father. He did not saw Tula Ram, Mukesh and brother of Gajendra on the spot.
PW 4, Sub Inspector, Pawan Kumar Singh, who conducted the investigation of this case, proved the investigated record before the court along with charge-sheet.
PW 5, Savita, stated before the court that her father was a drunkard. Her father was always under the influence of his cousin Mukesh, uncle, Tula Ram and sister-in-law, Omwati w/o Tula Ram and on account of same he used to quarrel with her mother often. On 14.02.2011 at 10.00 hours her mother and father were inside the bangle polish factory. She was alone in the house closely situated. She received information that quarrel is taking place inside the factory. She reached the factory running and saw that her mother was being beaten by Tota Ram by iron rod and other accused persons by Sariya, lathi and danda. Tula Ram and Mukesh were exhorting her father to kill her mother. She intervened but she was pushed aside. In her cross-examination she stated that Tula Ram was wielding rod and Mukesh was having lathi. She also stated that after suffering rod blow on her made by her father, Tula Ram, her mother had become unconscious. She denied any dispute between her father and uncle regarding partition of land . She raised alarm. Her uncle, Lekhraj and Devash came and then accused persons ran away leaving her mother presuming her to be dead. Her uncle Lekhraj and Devash took her mother to Sai Hospital. She also accompanied her. During treatment she died after two days. She informed her maternal uncle, Shyam Singh about the incident who lodged the first information report.
PW 6, Dr Avneesh Kumar Singh, who conducted the post mortem of the deceased found the following injuries on the body of the deceased:-
(I) Stitch wound 5 cm long with four stitches on right side forehead and head, which is 4 cm from mid of nasal bone.
(ii) Stitch wound 5 cm long which is situated on left side of head situated 10 cm from left ear.
(iii) Stitch wound 2.5 cm long with two stitches on left side temporal region of head situated 6 cms from left ear.
(iv) Stitch wound 2.5 cm long with stitches on right side temporal region of head which is 4 cm from injury no.(iii).
(v) Stitch wound 5 cm long with 4 stitches over top of skull.
(vi) Stitch wound 2.5 cm long with 2 stitches over right side forehead which is 4 cm right ear.
(vii) Stitch wound 1 cm long with one stitch on left side eyebrow.
(viii) Stitch wound one cm long with one stitch on right side of temporal bone.
(ix) Abraided contusion measuring 8 crm x 4 cm over back of left knee joint.
PW VII, Sub Inspector, Ram Pal Singh, proved the inquest report of the death of deceased and the signatures thereon.
PW VIII, Haidar Abbas, proved the chick report of the first information report and entry in general diary.
The defence did not produced any witness in defence. In their statements under Section 313 Cr.P.C., accused, Tula Ram, stated that he has been implicated on account of dispute regarding partition of family property. Accused, Mukesh Kumar, denied all the allegations but did not state anything as to why he has been implicated in this case. He only stated that he has been falsely implicated.
The Court below after consideration of evidence on record found that the incident and causing of injuries to the deceased are fully proved from the evidence on record and convicted and sentenced to the appellants.
Learned counsel for the appellant has submitted that in the first information report allegations were made against four accused persons, namely, Tota Ram, Tula Ram both sons of Makhan Lal, Mukesh son of Gajendra and Omwati w/o Tula Ram that they had beaten the deceased by danda, lathi and sariya. Two witnesses, Lekhraj and Devesh, are alleged to have reached the scene of incident on hearing alarm raised by daughter of deceased, Savita. During course of investigation co-accused, Tota Ram, died on 19.04.2011. He was husband of the deceased and assigned the main role. No evidence was found against co-accused, Omwati. Thereafter Investigating Officer submitted charge-sheet against Tula Ram and Mukesh, who were tried and convicted by the judgement and order dated 20.10.2017 in the most illegal manner. He has further submitted that First information report was lodged by Shyam Singh after five days of the alleged incident and three days after the death of the deceased, with no explanation of delay. The appellants are the brother and nephew of co-accused, Tota Ram, who has already died. The implication of co-accused, Omwati, was found to be false, although PW 5, Savita, implicated her. The informant, Shyam Singh, PW 1, is not the eye witness of the incident and has lodged the first information report on the basis of information given by, Savita, PW 5. The appellants were living separately from the deceased and her husband Tota Ram and there was no motive for them to murder Smt. Javitri Devi. PW-6 stated in his statement that the deceased was referred to Moradabad on 14.02.2011 and she died there on 16.02.2011 but PW-2 and PW-3 have stated that she died at Shambhal. PW-2 and PW-3 were never informed that the appellants were instigating father of PW 5 to beat her mother. They had not seen the incident. PW-5 has given statement against her father and has assigned him the main role of beating of the deceased by iron rod on her head. It has further been submitted that the Sub Inspector, Pawan Kumar Singh, PW 4 has stated in his cross-examination that he made spot inspection report on the information given by informant, Shyam Singh but Shyam Singh has not stated this fact in his statement. PW 5, Savita, has also not disclosed whether she informed the Investigating Officer about the place of incident. No weapon used in crime was recovered. PW 4, has admitted this fact that no specific material was collected regarding the involvement of the appellants in the alleged incident and there is no eye witness of the incident. From the statement of PW 5, Savita, the ingredients for constituting the offence under Section 304/34 I.P.C are not made out against the appellants for holding them guilty of offence under Section 304/34 I.P.C. since the basic ingredients under Section 299 I.P.C have not been fulfilled. Maximum punishment of 10 years awarded to the appellants under Section 304 I.P.C., Part-I is unwarranted. There is no proof that the act of the appellants was intended to cause death or to cause bodily injury likely to cause death and if the act of the appellants are without knowledge and intention to cause death, punishment should have been under Part-II of Section 304 I.P.C. The sentence awarded is too harsh and the appellants are liable to be acquitted. The Apex Court in the case of Darshan Singh and others vs. State of Punjab, 2009(16) SCC page 290, Maksood and others Vs. State of U.P., 2016(15) SCC 748 and in the case of Lakshmi Chand and another Vs. State of U.P., 2018 Law Suit (SC) 818 has altered the imprisonment from 8 years to 2 years.
Learned AGA has vehemently opposed the arguments raised on behalf of the appellants and has submitted that there are clear allegations and role assigned to the appellants by the witnesses in their statements. He has submitted that the delay in lodging of the first information report cannot be considered to be fatal for the prosecution case because the daughter of the deceased was alone in the hospital with her injured mother and only in the hospital after her death and cremation, her maternal uncle lodged the first information report. He has further submitted that there is clear role of beating and exhortation assigned to the appellant. They exhorted , Tota Ram, to kill his wife Javitri Devi. He has further submitted that on account of aforesaid facts appellants have been convicted for offence under Section 304/34 I.P.C. He has further submitted that since first information report was lodged belatedly, the weapons used in the crime were removed by the accused persons and this cannot be fatal for the prosecution case. He has submitted that the Trial Court has not committed any error in convicting and sentencing the appellants for the alleged offence. The appeal lacks merit and deserves to be dismissed.
After considering the rival submissions, it is clear that the deceased, her husband Tota Ram (since deceased) and PW 5, Savita are closely related to the accused persons. Appellants, Tula Ram is the real elder brother of Tota Ram (since deceased) and co-accused Mukesh is nephew of co-accused, Tula Ram and Tota Ram (since deceased). PW 5, Savita, has stated in her statement that the accused persons used to instigate her father, Tota Ram and he used to quarrel with her mother on their instigation. In her statement she has made allegations against Tota Ram of beating the deceased by rod and causing head injuries to her. She has stated in her cross examination that the appellants, Tula Ram and Mukesh were there when her father was beating but not saving her mother. Appellant, Tula Ram, was having a rod and second appellant, Mukesh, was having a danda in his hand. She gave information of the incident to Devesh and Lekhraj and informed her maternal uncle on phone. She expressed her ignorance whether police went on the spot or not. She admitted that she never showed the scene of incident to the police. She denied and knowledge of any dispute regarding partition pending with the appellant, Tula Ram. In the suggestions he admitted that she has received Rupees Seven lakhs on account of sale of land and she does not knows how much is yet to be received by her.
The only eye witness of the incident who has supported the prosecution case is PW 5. PW 2, and PW-3 are not the eye witnesses of the incident and the prosecution case itself is that they reached the scene of occurrence after the incident and they had not seen any of the accuseds committing any offence. PW 2 and PW 3 were declared hostile by the court. However, from their statements, it is clear that they got the information of the incident from PW 5, Savita.
After considering the statement of PW 5 and statement of other witnesses, there is no evidence that the appellants had any intention or motive to cause death of the deceased or to cause such bodly injury to her which was likely to cause death. The injury was admittedly caused by iron rod on the head of the deceased by her husband, Tota Ram (since deceased) and in case the appellants were instrumental in exhortation of co-accused, Tota Ram, they had common intention was required to be proved. The intention of the Tota Ram (since deceased) has not been proved as to why he was assaulting his wife so badly. In case there was dispute regarding any property between the family of the appellants and the deceased then the intention of the deceased, Tota Ram, cannot be said to be against his wife. There is no allegation that the deceased was obstructing the partition of joint family property. In cross examination PW 5 has denied any knowledge of any dispute regarding partition of property between the appellants and family of the deceased. Section 34 I.P.C. can only be invoked where there is pre-arranged plan showing prior meeting of minds of the accused persons. It means pre-arrangement of plan and acting in pursuance of such a plan with common intention. The burden lies on the prosecution to prove that actual participation of the accused persons for commission of criminal act was done in furtherance of common intention. In the present case no such prior concert between accused persons and Tota Ram (since deceased) was proved. Hence implication of appellants for offence under Section 34 I.P.C is not found correct.
Considering the over all facts and circumstances of the case, this Court finds that certain witnesses have supported the prosecution case and certain witnesses have only supported the same in part, but the testimony of PW 5 is intact., so far as the role of the appellants of exhortation and beating of the deceased by danda and sariya are concerned. However, the ingredients for punishing the appellants for offence under Section 304 Part-I I.P.C are not made out. The injuries on the body of the deceased proved that she was beaten by number of persons since she had suffered eight injuries on upper parts of her body and one on leg. The appellants are in jail since 30.10.2017. Their conviction is confirmed but the sentence is reduced to period already undergone.
The fine imposed by the court below is being reduced to Rs.50,000/- each appellant and accordingly default clause is reduced by 2 ½ year. The appellants are deemed to be convicted under Section 304, part-II, I.P.C. The amount of fine shall be deposited prior to the release of appellants from jail and shall be paid to P.W. 5, Savita Let the record of the court below be remitted along with copy of the judgement within two weeks for necessary compliance.
Order Date :-01.03.2021 SS