Suresh Ram @ Suresh Lal v. State of Uttranchal (Now State of Uttarakhand)

State, and perused the lower court record. (3) Prosecution story in brief is that, on 03.02.2001 from village Kafli (Mugro), a marriage party had gone to village Salardhor (Kafarkhan). In the intervening night on 03.02.2001 and 04.02.2001 accused Suresh Ram, Kishan Ram and Narayan Ram came to the house of Diwani Ram (deceased) (in village Kafli), and took him to take meals in the bridegroom house. There a 3 quarrel took place between the three accused and the deceased. Suresh Ram armed with KHUKRI (sharp edged weapon) assaulted Diwani Ram with the weapon. Accused Kishan Ram and Narayan Ram also allegedly assaulted Diwani Ram with LATHIS. Injured Diwani Ram said to have scummed to injuries. The incident was witnessed by PW1 Sunita (daughter of the deceased), and PW4 Smt Govindi Devi (widow of the deceased), and others. PW2 Naveen Lal (son of the deceased) was called from village Salardhor (Kafarkhan), and got lodged First Information Report (Ex- A1) with the Patwari Kafli. (In Uttarakhand hills certain Revenue officials have police powers). On the basis of said report PW5 Vipin Chandra Joshi, Patwari Kafli registered Crime No. 01 of 2001, relating to offence punishable under section 302/34 of I.P.C., against the three accused and started investigation. He took the dead body of Diwani Ram in his possession, and prepared inquest report ( Ex-A4) on 04.02.2001 at about noon. He also prepared other necessary papers like police form no. 13 (Ex-A7), sample seal ( Ex-A13) etc., and got sent the dead body for post mortem examination in a sealed condition. PW3 Dr. R.C.Pant conducted post mortem examination on the dead body of Diwani Ram on 05.02.2001, and prepared autopsy report (Ex-A2), observing five incised wound and one contusion as ante mortem injuries. He opined that the 4 deceased had died due to shock and haemorrhage as a result of ante mortem injuries. The Investigating Officer interrogated the witnesses, arrested the accused, recovered the KHUKRI (sharp edged weapon) from the place of the incident, prepared site plan and submitted charge sheet against all the three accused namely Suresh Ram, Kishan Ram and Narayan Ram, for their trial in respect of offence punishable under section 302 read with section 34 of I.P.C. (4) The Magistrate, on receipt of the charge sheet, after giving necessary copies as required under section 207 of Cr.P.C, committed the case to the court of Sessions for trial. Learned Additional Sessions Judge/Fast Track Court, Almora, after hearing the parties on 05.02.2001, framed charge of offence punishable under section 302 read with section 34 I.P.C., to which the accused pleaded not guilty and claimed to be tried. On this, prosecution got examined PW1 Smt. Sunita (eye witness and daughter of the deceased), PW2 Naveen Lal (informant and son of the deceased), PW3 Dr.R.C.Pant (who conducted post mortem examination). PW4 Govindi Devi (eye witness and widow of the deceased) and PW5 Vipin Chandra Joshi (Investigating Officer). The oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which, they alleged 5 that evidence as against them was false and they were implicated falsely due to enmity. However, no evidence in defence was adduced. After hearing the parties, the trial court found prosecution has successfully proved charge of offence punishable under section 302 read with section 34 of I.P.C, against all the three accused. Accordingly, the trial court convicted them and after hearing on sentence, sentenced each one of them to imprisonment for life and directed to pay fine of ` 1,000/-. In default of payment of fine, the defaulter was required to undergo further six months imprisonment. Aggrieved by said judgment and order dated

12.03.2003, passed by the Additional Sessions Judge/Fast Track Court, Almora, in Sessions Trial No. 15 of 2002, this appeal is preferred by the convict. (5) Before further discussion, we think it just and proper to mention the ante mortem injuries found by PW3 Dr. R.C.Pant, at the time of post mortem examination on the dead body of Diwan Ram on

05.02.2001, observed in the autopsy report ( Ex A-2). The same are being reproduced below:- (i) Incised wound measuring 9cm x 1.5 cm deep into the skull bone, 4 cm above root of nose, 13 cm away from right ear pinna, 14 cm from left ear pinna 6 (ii) Incised wound measuring 4cm x 2cm deep into the brain, 4cm above left ear pinna, 7 cm away from the left eyebrow. (iii) Incised wound measuring 4cm x 2cm deep into the brain, 1 cm away from the left ear pinna and 8 cm away from left eye brow. (iv) Incised wound measuring 6 and ½ cm x 2.5cm 7 cm away from the left ear pinna and 17 cm above root of the neck. (v) Incised wound measuring 4cm x 1 cm deep into the brain, 7 cm away from left ear pinna, 15 cm away from left eye brow, 9 cm above root of the neck. (vi) Abraded contusion measuring 8cm x ½ cm on left forearm ,5 cm below left elbow joint, 16 cm above from left wrist joint. In the opinion of PW3 Dr. R.C.Pant deceased had died due to shock and haemorrhage as a result of ante mortem injuries. From the evidence of PW3 R.C.Pant read with the ante mortem injuries it is established on 7 the record that Diwan Ram had dead homicidal death in the intervening night on 03.02.2001 and 04.02.2001. Now, we have to examine whether the Diwan Ram was murdered by accused Suresh Ram, Kishan Ram and Narayan Ram, with common intention, or not. (6) PW1 Sunita is eyewitness of the incident, she is daughter of the deceased. She has stated that on

03.02.2001, there was marriage in the village and marriage party of Ramesh Ram had gone to another village. She further states that in the night accused Suresh Ram, Kishan Ram and Narayan Ram, came to her house and called her father to come to the house of Durga Ram (the house from where the marriage party had gone). According to the witness there her father was assaulted by accused Suresh Ram with KHUKRI (sharp edged weapon), and by accused Kishan Ram with LATHI. She has further stated that Narayan Ram also caused injuries on the person of her father. PW1 Sunita further told that at the time of the incident there was a light of generator in the village. She further states that her mother also witnessed of the incident. The witness was cross examined. However, nothing has come in her evidence which creates doubt for a testimony, so far the role of Suresh Ram is concerned. As to the role of other two accused their appears inconsistency between the medical evidence and her 8 statement. (7) PW4 Govindi Devi widow of the deceased has also narrated the prosecution story in the manner her daughter has stated as mentioned above. She has disclosed that the three accused has taken Diwan Ram (deceased) with them for taking meals in the house where there was marriage ceremony. As to the role of Suresh Kumar, her statement fully corroborates the statement of PW1 Sunita, but as to the role of Narayan Ram she says that he was armed with LATHI, but Sunita Devi has not stated so. (8) The presence of the above two eyewitnesses in their village is natural. The statements made by them that accused Suresh Ram inflicted knife blows on the person of Diwan Ram, fully corroborated from the medical evidence on record which shows as many as five ante mortem incised wounds on the head of the deceased. As such, this court is in agreement with the trial court to the extent that the person has successfully proved charge of offence punishable under section 302 I.P.C., against accused Suresh Ram. (9) On behalf of the appellants learned Amicus Curiae submitted that PW4 Govindi Devi, admitted that she had gone to her parental house on 03.02.2001, as 9 such, she had no occasion to see the incident. However, on reading her statement the submissions appears to be misconceived. The witness has clarified that she had gone to her parental house at a distance of half kilometer and came back within one hour. (10) Learned Amicus Curiae also submitted that deceased had a criminal record, and it cannot be ruled out that he might have been killed by some one else. Had it been a case of circumstantial evidence, the argument could have been accepted , but there is direct eyewitness account of the incident, in the present case, as such, we are not inclined to accept the argument advanced on behalf of the appellants. (11) Shri Ravindra Singh Bisht, Advocate/Amicus Curiae further submitted that there is no evidence of common intention on the part of the Kishan Ram and Narayan Ram with Suresh Ram in commission of crime. (12) On re-appreciation of entire evidence on record, we found that there is force in submission of the learned counsel. PW4 Govindi Devi has clearly stated that the three accused had taken Diwan Ram to take meals in the house from where the marriage party had gone. In said court it has come on the record that there 10 was the light of generator. In the circumstance, it is hard to believe that the three persons were having common intention to kill Diwan Ram in a house where there was light, and they could be spotted while committing the crime. As such, in our opinion there is no common intention on the part of Narayan Ram and Kishan Ram with accused Suresh Ram. As such, it cannot be said that charge of offence punishable under section 302/34 of I.P.C., is proved against said two appellants. (13) Lastly, it is argued that even if it is believed that Suresh Ram caused injury on the person of the deceased, it is a case of culpable homicidal not amounting to murder, as Suresh Ram also suffered an incised wound injury in the sudden fight. Had there been only one injury on the head of the deceased we would have accepted the argument. But there are as many as five incised injuries on the head, and most of them are brain deep, as such, the act on the part of Suresh Ram constitutes nothing less than culpable homicide amounting to murder. (14) For the reasons as discussed above, the appeal of Kishan Ram and Narayan Ram deserves to be allowed. The appeal of Suresh Ram is liable to be dismissed. Accordingly, the appeal of Suresh Ram is dismissed, 11 and the appeal of Naryan Ram and Kishan Ram is allowed. The conviction and sentence recorded by the trial court, against accused Kishan Ram and Narayan Ram under section 302/34 of I.P.C is set aside. They are acquitted from the charge giving them benefit of reasonable doubt. The conviction and sentence recorded by the trial court against accused Suresh Ram under section 302 of I.P.C., is affirmed. Accused/appellant Suresh Ram is on bail. His bail is canceled. He shall serve out the sentence awarded by the trial court. Let a copy of this judgment be sent to the trial court for making Suresh Ram serve out the sentence. (Servesh Kumar Gupta, J.) (Prafulla C. Pant, J.)

30.03.2012 N.P