Ashra Ram vs State on 28 July, 2010

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                                                   Court No. - 44


           CRIMINAL APPEAL No. - 2766 of 1982


Asha Ram                                     ________Appellant
                         Versus

State of U.P.                              _____Opposite Party


Hon'ble Yatindra Singh,J.

Hon’ble Surendra Singh,J.

1. This is an appeal against the judgment of Vth Additional Sessions
Judge, Agra (the ASJ) dated 7th October 1982 in Sessions Trial No.
222 of 1982.

THE FACTS

2. An incident happened at 10:00 hours on 12.04.1982. In this
incident Premwati (the Deceased) was killed. Devi Singh the village
Chaukidar lodged the FIR at the police station at about 14:30 hours. It
was registered as case crime no. 61 of 1982, under section 304 IPC,
Police Station Atmadpur, District Agra.

3. The allegations in the FIR are as follows:

• The Informant is Chaukidar of the village. At about
10:00 hours cries were heard from the house of
Revti. The Informant reached there and found that
door was locked from inside and at the outside of
the door, Netra Pal, brother-in-law (sala) of the
Asha Ram (the Appellant) along with one more
person were stainding.

• The Appellant was beating his wife and was
shouting that he will not permit her to go her
parent’s house;

• The Informant knocked at the door, challenged
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the Appellant, and got the door opened. He saw
that the Appellant’s wife was unconscious and
blood was oozing out from her head;

• The Informant scolded the Appellant as to why was
he beating his wife when she was in the family
way. The Appellant told him that the Deceased
was insisting of going to her parent’s house.

• The Appellant’s parents also came from the fields
and bandaged her head. They tried to put water
in her mouth but she remained unconscious then
they called the doctor. Rajendra, who pronounced
her head.

• The Appellant along with his parents with the help
of villagers are going to cremate the dead body
saying that she died because of an accident.

4. The police investigated the case and submitted the charge
sheet against the Accused. The case was committed to the sessions’
court and was registered as ST no. 222 of 1982.

5. The ASJ framed the charge on 12.07.1982. The Appellant was
charged under section 302 IPC.

6. Among others, the prosecution filed the following documents:

             •     FIR (Ex Ka-1);

             •     Recovery memo of blood stained articles (Ex
                   Ka-9);

             •     Post mortem examination report (Ex Ka-1);

7. The prosecution examined the following witnesses;

• Dr. P. D. Narwariya (PW-1): Doctor; conduct the
post mortem;

• Devi Singh (PW-2): Informant, Chaukidar;

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• Rajendra Prasad Gupt (PW-3): Doctor, who had
examined the Deceased;

• Netra Pal (PW-4): Brother of the Deceased;

                 •     Jagdish (PW-5): Friend of PW-4;

                 •     Sukhbir Singh (PW-6): Investigating Officer (IO).

8. The Appellant was examined under section 313 CrPC on
16.09.1982. He denied his involvement in the incident and stated that:

• He was implicated in the case due to enmity.

• His entire family was inside the home.

9. The ASJ by his judgment dated 7th October 1982 convicted the
Appellant and sentenced him to imprisonment of life under section
302 IPC. Hence the present Appeal.

POINTS FOR DETERMINATION

10. We have heard Sri SP Singh, counsel for the Appellant and Sri
AN Mulla, learned AGA for the State:

(i) What are the circumstances against the Appellant?

       (ii)      Are they proved?

      (iii)      In case answer to the preceding question is in

affirmative, then what offence was committed by the Appellant.

(iv) In case the Appellant is guilty then what punishment
should be awarded to them.

1st POINT: CIRCUMSTANCES AGAINST THE APPELLANT

11. No one saw the incident. The case is based on circumstantial
evidence and the extra judicial confession. The law―when a case can
be said to be proved against an accused on circumstantial
evidence―has been established in different decisions (see below for
citations)1. It is as follows:

1 The cases are: KT Palanisamy v. State of Tamil Nadu: AIR 2008 SC 1095, Arun
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(i) The circumstances from which the conclusion of guilt is to be
drawn should or must be established.

(ii) The facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they
should not be explainable on any other hypothesis except
that the accused is guilty.

(iii) The circumstances should be of a conclusive nature and
tendency.

(iv) They should exclude every possible hypothesis except the
one to be proved.

In substance, there must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent with the
innocence of the accused and must show that in all probability the act
must have been perpetrated by the accused.

12. The AGA has pointed out the following circumstances against the
Appellant:

(i) The Deceased died on unnatural death.

(ii) The Appellant alone was in the house with Deceased.

(iii) The burden was on the Appellant to explain. He has not
explained the same.

2nd POINT: CIRCUMSTANCES ARE PROVED

(i) Deceased Died An Unnatural Death

13. The injuries of the Deceased are as follows:

(i) Traumatic swelling 6 cm x 4 cm on the left side of head.

(ii) On internal examination he found the left temporal bones
and fractured.

14. Dr. PD Narwariya (PW-1) conducted the post mortem. He
deposed that left temporal bones was fractured. It is also mentioned in

Bhanudas Pawar Vs State of UP: 2008 (61) ACC 32, Sharad Birdhichad Sarda v.
State of Maharashtra (SC): AIR 1984 SC 1662, Shivaji Sahabrao Bobade Vs
State of Maharashtra: AIR 1973 SC 2622, Hanumant Vs State of MP: AIR 1953
SC 129.

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the post mortem report. He also deposed that injury was sufficient in
case death in ordinary course of nature.

15. In our opinion, the Deceased died an unnatural death because
of the injury on the head.

(ii) Appellant Alone Was with the Deceased

16. In the statement under section 313 CrPC, the Appellant denied
his involvement but in answer to question no.6 stated that his entire
family was in the house. This is not correct.

17. The prosecution examined six witnesses. Out of six, three
namely the Informant (PW-2), Netra Pal (PW-2) and Jagdish (PW-3)
are witnesses of the fact and the remaining are formal witnesses.

18. Netra Pal (PW-4) is brother-in-law of the Appellant. He along
with his friend Jagdish (PW-5) had gone to invite the Deceased. Both
of them deposed that:

• The Deceased was married to the Appellant about 5-6 years
ago;

• The mother of PW-4 has died and there was no other person in
the family except Deceased. They had gone to invite and bring
the Deceased as the marriage of Netra Pal (PW-4) was to be
performed.

• They had reached on the previous evening on the fateful day.
They invited the Deceased but the Appellant did not answer it;

• The next day, after they had taken the food and Netra Pal again
requested that the Deceased be sent but the Appellant refused.
The Deceased insisted on going back and there were hot
exchange;

• The Appellant brought Netra Pal (PW-4) and Jagdish (PW-5)
out side. Thereafter, he went inside and closed the door. He
was alone there with the Deceased. After sometime they heard
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the crying of Deceased for help;

• On her cries, Devi Singh, the Chaukidar of the village also
came and got the door opened. They saw that Deceased was
lying unconscious and blood was oozing from her head;

• After sometime the Appellant’s father also came and called the
doctor, who told them the Deceased is dead.

19. The Informant is the Chaukidar of the village and he also
deposed that

• He reached the spot after hearing the noise from the house of
the Revti;

• On reaching there, he heard the cries of the Deceased. He got
the door opened;

• The Appellant alone was with the Deceased;

• It was found that the Deceased was unconscious and the blood
was oozing out.

20. Netra Pal (PW-4) is the brother of the Deceased and Jagdish
(PW-2) is the friend nonetheless Devi Singh (PW-2) is Chaukidar of
the village and is an independent witness. There is nothing in their
cross-examination or evidence to disbelieve their oral testimony.

21. The witnesses of the fact deposed that only the Appellant and
the Deceased were inside the home. There is no reason to disbelieve
them.

22. In our opinion, the Appellant alone was with the Deceased at
the time of the incident.

(iii) No Explanation

23. The Deceased died an unnatural death. She was with the
Appellant in the room. The room was locked from inside. It was
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opened at the insistence of the Informant (PW-2). It was for the
Appellant to explain how the incident occured. He has not explained it.

24. In our opinion, the prosecution has proved beyond reasonable
doubt that the Appellant is guilty but is it murder or culpable homicide
of lesser degree?

3rd POINT: GUILTY UNDER SECTION 304 PART-II IPC

25. It is correct that the Appellant has not specifically explained but
the circumstances point towards the possibilities that are probable
and they cannot be ignored.

26. The post mortem indicates that there was fetus about 24
weeks. The doctor PW-1 has also deposed that she was 6 months
pregnant.

27. The Deceased and the Appellant were married six years
before. There is no evidence on record to show that the Appellant was
cruel to her or ill treated her.

28. Netra Pal (PW-4) deposed that their relations were normal. He
was the only brother-in-law of the Appellant. The discussion whether
the Appellant should go or not had started from the previous evening.
There could not be any objection on the side of the Appellant in not
giving permission except that the Deceased was pregnant and was in
advanced stage of pregnancy: travelling during this time is not safe.

29. There is no explanation from the Appellant side that this was
the reason for not sending her but considering the circumstances;

• There is no evidence of ill treatment of the Deceased;

• Their relationship was normal;

• There was debate since previous evening about going yet, the
Appellant was not agreeing;

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It cannot brushed aside this cannot be a factor.

30. There is only one injury. It caused internal damage, that
caused death. Considering that:

      •      There was only one injury;

      •      Their relationship was normal;

      There could not be intention to kill.

31. In our opinion, the Appellant is guilty under section 304 part-II
IPC rather than 302 IPC. He is sentenced to 7 years’ rigorous
imprisonment.

CONCLUSIONS

32. Our conclusions are as follows:

(i) All circumstances are proved against the Appellant;

(ii) The Appellant is guilty of under section 304 Part-II rather
than 302 IPC. His conviction is altered accordingly;

(iii) The Appellant is sentenced to 7 years rigorous
imprisonment.

33. In view of our conclusions, the appeal against the judgment of V th
Additional Sessions Judge, Agra dated 7th October 1982 in Sessions
Trial No. 222 of 1982 is partly allowed. The Appellant is on bail. His
bail is cancelled. He will be taken into custody to serve out the
remaining part of his sentence.

Date: 28.07.2010

Imroz/-