Allahabad High Court
Ghanshyam vs State Of U.P. on 11 August, 2023
Author: Rajan Roy
Bench: Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH High Court of Judicature at Allahabad (Lucknow) *********** Neutral Citation No. - 2023:AHC-LKO:53542-DB Judgment Reserved on 02.08.2023 Judgment Delivered on 11.08.2023 Reserved Case :- CRIMINAL APPEAL No. - 1376 of 2016 Appellant :- Ghanshyam Respondent :- State of U.P. Counsel for Appellant :- Surya Bux Singh,Arpan Prakash Srivastava,Krishna Gopal Yadav,Mohak Srivastava,Smriti,Surya Bux Singh,Vikas Sharma Counsel for Respondent :- Govt. Advocate *********** Hon'ble Rajan Roy,J.
Hon'ble Manish Kumar Nigam,J.
(Per: Rajan Roy, J.)
1. Heard learned counsel for the appellant as well as learned AGA and perused the records including the lower Court record.
2. By means of this Criminal Appeal the appellant has challenged his conviction vide judgment and order dated 12.08.2016 passed by the Additional District and Sessions Judge, Court No. 2, Hardoi in Sessions Trial No. 378 of 2014, arising out of case Crime No. 565 of 2014, Police Station Pihani, District Hardoi convicting the appellant for the offence punishable under Section 304, 323 IPC and sentencing him to undergo life imprisonment with fine of Rs. 3000/-, failing which, he will have to undergo further imprisonment of six months and rigorous imprisonment of one year, respectively.
3. The prosecution case, in nutshell, is that on 20.05.2014 at about 9 PM the appellant came to the house of his father and demanded his share of property from his father, Chhote Lal and mother, Smt. Veera Wati, whereupon, his father, Chhote Lal declined the same on the ground that his wife and three children are surviving on the said property and if it is given to him, he will sell off the same and give it to the woman with whom he was having illicit relations. On hearing this, the appellant got enraged and picked up a eucalyptus stick and hit his father, Chhote Lal, on the head. When his mother, Smt. Veera Wati and Bhabhi, Gaura Devi came to save Chhote Lal, they were also beaten up and were injured. On an alarm being raised, some people came whereupon the appellant Ghanshyam ran away. Preparations were being made for taking all the three inured to the hospital, but, Chhote Lal died.
4. FIR was lodged by the brother of appellant.
5. Inquest was conducted on 21.05.2014 from 1.15 AM to 5.15 AM. PW2 Arvind is signatory of inquest report. Exbt. Ka6 is the site plan of scene of crime.
6. Postmortem was conducted on 21.05.2014 at 2.05 PM to 2.45 PM, according to which, there was one antemortem injury in the form of a lacerated wound at back and right side of the head. On dissection, right side of occipital bone was found to be fractured and sub dural haemotoma was present. Brain cavity contained 40 ml of clotted and fluid blood. Immediate cause of death was mentioned as comma due to antemortem head injury.
7. The other two injured, namely, Veera Wati and Gaura Devi also had injuries. Veera Wati had sustained three lacerated wound and two contusions whereas Gaura Devi had sustained one lacerated wound and two contusions.
8. Weapon used in the commission of crime i.e. stick was recovered from the scene of crime along with plain and blood stained soil and clothes of the deceased. They were sent for forensic examination. Human blood was found on all the six items including the weapon used in the crime. The police investigated the case and submitted charge-sheet against the appellant. Trial was committed to the Court of Sessions by the Chief Judicial Magistrate, Hardoi on 15.07.2014. Charges punishable under Sections 304 and 323 IPC were framed on 25.03.2015 by the Trial Court against the appellant.
9. The prosecution produced three eye-witnesses, PW1-Smt. Veera Wati; PW2-Arvind (informant) and PW3-Smt. Gaura Devi. PW1 is the mother of appellant, PW2 is brother of the appellant and PW3 is bhabhi of the appellant. The Doctor, Dr. Amarjeet Singh Ajmani, who had conducted the autopsy was examined as PW3; PW5, Nagesh Kumar Mishra, was Incharge Inspector of Police Station Beniganj, District Hardoi; PW6 is the Head Constable Mohd. Farid Khan who had made requisite entries in the police records regarding the first information report and commission of crime; PW7 is Vijay Kumar Yadav who was the Station House Officer of Police Station Krishna Nagar, District Lucknow and PW8 is Dr. S.C. Gupta who had examined the injured witnesses.
10. Statement of the appellant-accused under Section 313 Cr.P.C was recorded on 26.07.2016. The prosecution case is one of direct evidence. The defense case is one of denial and false implication on account of enmity.
11. PW1-Veera Wati did not support the prosecution case in her examination-in-chief and accordingly she was declared hostile. In cross-examination also she denied her statement before the Police under Section 161 Cr.P.C. implicating the appellant for the murder of her husband, however, she did not deny the injuries on her body and stated that she was taken to District Hospital, Hardoi for treatment.
12. PW2, informant, though initially in his examination-in-chief stated that the appellant Ghanshyam had demanded his share of property from the father Chhote Lal and during this altercation he picked up the eucalyptus stick and hit his father Chhote Lal on the head and also beat up his bhabhi and mother who were seriously injured, on account of which, the father, Chhote Lal died, however, in the same vein, he stated that he did not tell the police about the beating by the appellant Ghanshyam and he had signed the Tehrir without the same being read out, accordingly he was declared hostile. In cross-examination, he denied his statement before the police under Section 161 Cr.P.C. wherein he had stated that Ghanshyam had hit his father Chhote Lal on the head and that his father had died on account of the said blow inflicted by the appellant. He stated that he had not seen the assailant in the night. However, PW2 identified his signature on the Tehrir based on which FIR was lodged as also his signature on the inquest report. He admitted his signatures on the inquest report and also that he had shown the scene of crime to the police personnel.
13. Obviously, both these witnesses, PW1 and PW2 being mother and brother have turned hostile only to protect the appellant who is their son/brother, in the circumstances in which they find themselves, they having lost their husband/father.
14. However, PW3, bhabhi has stated in her examination-in-chief that the appellant Ghanshyam resided in the old house whereas she along with her father-in-law i.e. Chhote Lal, mother-in-law i.e. PW1, etc. resided in the new house. Appellant-Ghanshyam had developed illicit relationship with another woman of the village and did not reside with his wife and three children. The family members tried to persuade the appellant not to do so, but, he did not agree to reside with his wife. She stated that one and half years ago while she was cooking and her father-in-law Chhote Lal was having dinner, mother-in-law Veera Wati was also present there, it was about 8-9 O'clock in the night, appellant-Ghanshyam started abusing his father. Her father-in-law (deceased) had written a will in favour of his grandchildren. Appellant-Ghanshyam started beating her father--in-law. She ran to save him whereupon the appellant struck her on the head with the stick and she fainted. She did not know where her father-in-law had been hit. However, her mother-in-law Veera Wati had been struck on the face. When she regained consciousness, her father-in-law Chhote Lal had died. She had gone to the hospital and remained admitted for 24 hours and was discharged on the next day. In cross-examination, upon which great reliance was placed by learned counsel for the appellant, she has stated that there was some litigation between her husband, the appellant-Ghanshyam and his wife and there was enmity between them on account of it. However, she reiterated that she used to reside with her father-in-law and mother-in-law and also that about 8-9 O'clock in the night her father-in-law, Chhote Lal, was having dinner which had been cooked by her mother-in-law. She stated that her food was cooked separately and at the time of the incident she was under her Chhappar. She was cooking at the time of the incident. The scuffle/altercation had taken place suddenly. She could not know as to what was the cause of this fight. She was hit on the head all of a sudden and fainted. She has gone on to state that she did not come to know as to how the incident occurred. She has further stated that she had enmity with the appellant-Ghanshyam who had beaten her up several times that is why she was deposing against him. If he had not beaten her up earlier, then, she would not have deposed against him.
15. Based on this statement, it was contended by the learned counsel for appellant that she has not supported the prosecution case and her testimony in the examination-in-chief is not truthful.
16. PW4, the autopsy surgeon has proved the postmortem report. Based on the injuries mentioned in the postmortem report and the testimony of PW4, it is evident that the deceased did not die a natural death, but, the cause of death was the blow struck on the head.
17. The only question is as to whether the appellant is guilty of the offfence.
18. PW6 Head Constable has proved the entries made by him in the police records on the basis of Tehrir given by PW2, the informant. PW7 has proved the site plan prepared by him on the instructions of the PW2. PW2 has also mentioned about this fact. He has also proved preparation of the inquest report as also the recovery of the plain soil, blood stained soil, weapon used in the crime i.e. eucalyptus stick, etc. PW8, the Doctor, has proved the medico legal examination report of PW1 and PW3, the injured witnesses. He has stated that such injuries on the body of PW1 and PW3 could be caused by hard blunt object such as stick and such injuries could have been caused on 20.05.2014 at about 9 PM. In cross-examination he has stated that some of the wounds could have caused due to falling. Injury no. 2 on the body of the PW3 could not have been caused by stick.
19. The learned Trial Court on a consideration of the evidence on record after taking into consideration the testimony of the eye-witnesses and even after considering the fact that PW1 and PW2 had turned hostile, convicted the appellant on the basis of evidence available. The Trial Court has taken into consideration the fact that PW1 and PW2 were trying to save the appellant who was their son and brother and that is why they had turned hostile.
20. On a consideration of the material on record, there is no denying the fact that an incident took place on 20.05.2014 at about 9 PM in the house of the deceased wherein PW1, PW2 and PW3 were also present. The deceased sustained head injury and died as a consequence thereof. Initially all the eye-witnesses had stated that it is the appellant-Ghanshyam who had struck a blow on the head of the deceased i.e. his father, using a eucalyptus stick, but, subsequently they have resiled from their statement. The eye-witnesses are closely related to the appellant; PW1 being mother, PW2 being brother and PW3 being bhabhi. The stick which was recovered from the scene of crime had human blood on it.
21. As regards testimony of PW3 is concerned, she has not denied the presence of the appellant-Ghanshyam at the time of commission of the crime, even in cross-examination. In her examination-in-chief, she has categorically stated that the appellant Ghanshyam started abusing his father and started beating him. She has clearly stated that when she tried to protect his father-in-law she also sustained a head injury. This is corroborated from Exhbt. Ka15 which is the medico legal examination report/injury report of PW3 which has been proved by PW8, the Doctor, according to which, she had sustained one lacerated wound on the left side of the head. In her cross-examination, she has not denied having received injury. She has clearly stated that on receiving the said injury she fainted, when she regained consciousness, her father-in-law Chhote Lal had died. Now, this part of the testimony of PW3 stands intact and has not be dislodged in cross-examination. Merely because she has stated there was enmity between the appellant and her husband and that she was deposing on account of the said enmity, does not mean that what she had stated in examination-in-chief was false or not proved. What it means is that she has not concealed the truth in this regard and may have done so if the appellant Ghanshyam had not beaten her up her earlier, therefore, no mileage can be drawn by the appellant's counsel on this statement made in the cross-examination.
22. Once in examination-in-chief, PW3, who resides in the same house where the incident took place and her presence was natural at that time of the date i.e. 20.05.2014, has clearly stated about presence of the appellant-Ghanshyam and that he had abused and beaten up his father Chhote Lal, then, the burden shifted on the appellant to offer an explanation in view of Section 106 of the Indian Evidence Act, but, he has not given any explanation in this regard.
23. PW2 the brother of the appellant has not denied having signed the Tehrir which clearly says that on an alarm being raised, the appellant-Ghanshyam, who had beaten up his father with the stick ran away. PW2 has also not denied signing the inquest report. In fact, he has stated that he has taken the police to the scene of crime and on his instructions the site plan was prepared.
24. Obviously, PW1 and PW2 turned hostile only to save the appellant-Ghanshyam, but, so far as testimony of PW3 in her examination-in-chief is concerned, as noticed hereinabove, the same remains intact even after her cross-examination and, therefore, the Trial Court has rightly relied upon the same.
25. PW1 has not been able to explain the injury as to how she has sustained the same. Her injuries have also been proved by PW8. Moreover, we find that cross-examination of PW1 was delayed and it appears that this time was utilized to win her over taking advantage of the blood and emotional relationship with the appellant, she being his mother.
26. In the Tehrir submitted by the PW2, it is clearly mentioned that the appellant Ghanshyam was having illicit relationship with another woman of the village and did not reside with his lawful wife and children. He was demanding half share in the property which was being denied by his father, the deceased, which led to the heated exchange between them and ultimately appellant Ghanshyam struck a blow with eucalyptus stick on the deceased's head on account of which he died, even before being taken to the hospital. This is corroborated by the medical evidence already discussed hereinabove in the form of postmortem report, testimony of PW4. PW2 subsequently turned hostile to save his brother, but, other evidence on record cannot be discarded, especially part of testimony of PW3 which has remained intact. Reliance placed by the appellant's counsel on the hostility of PW1 and PW2 is, thus, of no avail.
27. In view of the above, we are of the opinion that it is the appellant who had committed murder of his father. Accordingly, we uphold his conviction by the Trial Court. However, on a consideration of totality of the facts and circumstances of the case, evidence on record, as already discussed hereinabove, we are of the opinion that the sentence of life imprisonment is not justified, instead, a sentence of ten years simple imprisonment with fine as already imposed by the Trial Court would suffice the ends of justice. The appellant is in jail since 22.05.2014. We accordingly modify the Trial Court's judgment to the extent that in place of sentence of life imprisonment for the offence punishable under Section 304 IPC, the sentence of ten years simple imprisonment shall stand substituted.
28. The appellant is also guilty of the offence punishable under Section 323 IPC for the injuries inflicted by him upon PW1 and PW3. Based on facts and evidence already discussed, we uphold the sentence imposed upon the appellant for the offence punishable under Section 323 IPC.
29. In view of the above, the appeal is allowed, but, only in part, that is, so far as the sentence imposed by the Trial Court with regard to the offence punishable under Section 304 IPC is concerned. Fine imposed by the Trial Court for the offence punishable under Section 304 IPC shall remain as it is.
30. Let the Lower Court Records along with certified copy of this judgment be sent to the trial Court and the C.J.M. concerned for necessary action.
31. A copy of this judgment shall also be sent to the appellant who is lodged in jail.
[Manish Kumar Nigam, J.] [Rajan Roy, J.] Order Date :- 11.08.2023 Santosh/-