# Ram Awatar @ Ganesh v. State of U.P

- **Citation:** (2023) 3 ILRA 654
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-15
- **Case number:** Jail Appeal No. 323 of 2017
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-awatar-ganesh-v-state-of-u-p-49905
- **Pages:** 6

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 300, 302 & 304 Part II - Murder-
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 -
Section 3(2)(v) - The Code of Criminal
Procedure, 1973 - Sections 161,313,329 -
Constitution of India - Article 21 - Appeal
against conviction - As per FIR - on
19.12.2013,
wife
of
informant
was
weeding in Garlic field outside village - At
about 1:00 p.m. accused, who is the
resident of same village reached there and
started assaulting her with 'kudal' -
Complainant along with another person
reached and seen them, the accused ran
away - Complainant found that his injured
wife succumbed to the injuries at the spot
- Upon hearing the noise raised by
complainant other villagers reached -
Sessions Judge framed charges under
aforesaid Sections - Sentenced to life
imprisonment - Held, there was hostility
and criminal litigation between accused
and deceased - Attack on the deceased
was not premeditated and preplanned and
it happened at the spur of moment - Only
one injury was on the vital part, which
proved fatal - Offender must not have
taken any undue advantage or acted in a
cruel or unusual manner - Entitled to the
benefit of exception provided in Section
300 of I.P.C - Accused was of unsound
mind - It was not intentionally but
homicidal
death
without
intention
-
Conviction is altered from Section 302
I.P.C. to 304 Part-II I.P.C and offence
under Section SC/ST Act is not made out.
(Para 3, 5, 14, 15, 18, 19)

The appeal is partly allowed. (E-13)

List of Cases cited:

## Text

654 INDIAN LAW REPORTS ALLAHABAD SERIES
different parts of India proves that the
deceased
had given
all
the
alleged
information over the phone to her parents
before her death. Neither it is the case of
the prosecution nor of the defence that
someone else had given this information to
the parents of the deceased. Thus the
information given by the deceased to her
parents soon before her death would be
deemed to have been admitted under
Section 6 and Section 32(1) of the
Evidence Act. Therefore, even if the
statement recorded by PW-11, Sudhir Suri
is not considered, the information given by
the deceased would be considered to be
sufficient evidence to convict the accused.

105. In Kalloo @ Kalyan Singh Vs.
State of UP, Criminal Appeal No.1459
of
2009
(AHC,
DB)
decided
on
11.07.2022 it was held that where the
accused husband had gone to see
Ramleela along with his two children
when he came back he found his wife
dead. In the cited case PW-1, PW-2, PW6, PW-7, PW-8, PW-9 and PW-13 were
declared hostile. The chain of the
circumstantial evidence was not found
intact and unbroken but in the case in
hand it is not so. Hence, the principle laid
down is not applicable in the present
case.

106. In this case all the chains of the
circumstantial evidence are attached with
each other. Motive that there was no
cordial relation between the wife and the
husband and the accused wanted to get a
decree of divorce, presence of the
accused admitted by him in his bail
application, proof that accused was
present in the house where deceased was
killed,
that
the
deceased
had
communicated the torture, beating and illtreatment soon before her death to her
parents, extra judicial confession made by
the accused to his sisters and mother,
recovery of weapon which has matched
with the empty cartridges found on the
spot, presence of the accused and the
deceased together in the house, failure of
the accused to prove the plea of alibi are
the chains of the circumstances which are
intact and unbroken. Thus, the evidence
adduced in this case also meets the
criteria propounded in the cases based on
circumstantial evidence.

107. On the basis of above
discussion, this Court is also of the
opinion that the impugned judgment and
order of conviction and sentence passed
by the ASJ/FTC, Court No.2 Jhansi dated
11.10.2017
is
factually
and
legally
correct and lawful and is not liable to be
interfered.

108. The appeal has no force and is
liable to be dismissed. Accordingly, the
appeal is dismissed.

109. Let the record of the lower
court be sent back to the court
concerned along with a copy of this
judgment.
----------
(2023) 3 ILRA 654
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.02.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJIT SINGH, J.

Jail Appeal No. 323 of 2017

Ram Awatar @ Ganesh ...Appellant
Versus
State of U.P. ...Opposite Party
3 All. Ram Awatar @ Ganesh Vs. State of U.P.
655
Counsel for the Appellant:
From Jail, Sri Brij Raj

Counsel for the Opposite Party:
A.G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 300, 302 & 304 Part II - Murder-
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 -
Section 3(2)(v) - The Code of Criminal
Procedure, 1973 - Sections 161,313,329 -
Constitution of India - Article 21 - Appeal
against conviction - As per FIR - on
19.12.2013,
wife
of
informant
was
weeding in Garlic field outside village - At
about 1:00 p.m. accused, who is the
resident of same village reached there and
started assaulting her with 'kudal' -
Complainant along with another person
reached and seen them, the accused ran
away - Complainant found that his injured
wife succumbed to the injuries at the spot
- Upon hearing the noise raised by
complainant other villagers reached -
Sessions Judge framed charges under
aforesaid Sections - Sentenced to life
imprisonment - Held, there was hostility
and criminal litigation between accused
and deceased - Attack on the deceased
was not premeditated and preplanned and
it happened at the spur of moment - Only
one injury was on the vital part, which
proved fatal - Offender must not have
taken any undue advantage or acted in a
cruel or unusual manner - Entitled to the
benefit of exception provided in Section
300 of I.P.C - Accused was of unsound
mind - It was not intentionally but
homicidal
death
without
intention
-
Conviction is altered from Section 302
I.P.C. to 304 Part-II I.P.C and offence
under Section SC/ST Act is not made out.
(Para 3, 5, 14, 15, 18, 19)

The appeal is partly allowed. (E-13)

List of Cases cited:

1. St. of Gujarat Vs Manjuben (R/Criminal
Confirmation Case No. 1 of 2018 with R/Criminal
Appeal No. 474 of 2019)
2. Vishnu Vs St. of U.P (Criminal Appeal No. 204
of 2021)

3. Pintu Gupta Vs St. of U.P( Criminal Appeal
No. 4083 of 2017)

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Ajit Singh, J.)

1. This jail appeal has been preferred
against the judgment dated 22.11.2016
passed by the Addl. District & Sessions
Judge/SC/ST (P.A.) Act, Ghazipur S.S.T.
No. 12 of 2014 (State vs. Ram Awatar @
Ganesh), under section 302 I.P.C. and
section 3(2)V SC/ST Act, arising out of
Case Crime no. 468 of 2013, P.S. Elhapur,
district-Ghazipur, by which he has been
convicted under section 302 I.P.C. and
sentenced to undergo life imprisonment and
a fine of Rs. 10,000/- and life imprisonment
a fine of Rs. 10,000/- under section 3(2)V
SC/ST Act and in default of payment of
fine the accused shall further undergo three
months additional imprisonment. Both the
sentences shall run concurrently.

2. Heard Sri Brij Raj, learned Amicus
Curiae appearing on behalf of the appellant
and learned A. G. A. for the State.

3. Brief facts as culled out from the
record are that a First Information Report
was lodged being Case Crime No. 468 of
2013, under section 302 I.P.C. and section
3(2)V SC/ST Act at P.S. Dulhpur, districtGhazipur. In the FIR, it was alleged that on
19.12.2013 the wife of the informant
namely, Lalti Devi was weeding in Garlic
field outside village. At about 1:00 p.m.
Ram Awatar alias Ganesh, who is the
resident of same village reached there and
started assaulting the wife of the informant
with 'kudal'. At that very time the
656 INDIAN LAW REPORTS ALLAHABAD SERIES
complainant along with Bhallu Ram son of
Mukhram also reached and seen them, the
accused Ram Awatar alias Ganesh ran
away from the scene with 'kudal'. When the
complainant along with other reached at the
spot he found that his injured wife
succumbed to the injuries at the spot. Upon
hearing the noise raised by complainant
other villagers reached at the place of
occurrence and after leaving the dead body
of his wife the complainant reported the
matter to the police.

4. On investigation being put into
motion, the investigating officer inspected
the place of occurrence, recorded the
statements of witnesses, prepared the site
plan and after completion of investigation
submitted charge-sheet to the learned
Magistrate under section 302 I.P.C. and
section 3(2)V SC/ST Act. The learned
Magistrate summoned the accused and
committed him to Court of Sessions as
prima facie charges were for offences
under Section 302 I.P.C. and 3(2)V SC/ST
Act.

5. On being summoned, the accusedappellant pleaded not guilty and claimed to
be tried. The learned Sessions Judge
framed charges under Section 302 I.P.C.
and 3(2)V SC/ST Act.

6. The Trial started and the
prosecution examined 8 witnesses who are
as follows:

1
Rajendra Ram
PW1
2
Gullu Ram
PW2
3
Ramadhar
PW3
4
Dr. Tarkeshwar
PW4
5
Head
contable
Heera Ram
PW5
6
Ram Singh
PW6
7
Dr.
Prabhakar PW7
Ram
8
Khalikujma
PW8

7. In support of ocular version
following documents were filed and
proved:

1
Written Report
Ex.Ka-1
2
Panchayatnama
Ex.Ka-2
2
Postmortem
Report
Ex.Ka-3
3
Chik FIR
Ex.Ka-4
4
Copy of G.D.
Ex.Ka-5
5
Bloodstain
and
simple soil from
place
of
occurrence
Ex. Ka-6
6
Site Plan
Ex.Ka-7
7
Chargesheet
Ex.Ka-8
8
Letter to C.M.O.
Ex.Ka-9
9
Pratisaar
Inspector
Ex. Ka-10
10
Chalan lash
Ex. Ka-11
11
Police Form 379
Ex. Ka-12
12
Specimen stamp
Ex. Ka-13

8. At the end of the trial and after
recording the statements of the accused
under section 313 of Cr.P.C., and hearing
arguments on behalf of prosecution and the
defence,
the
learned
Sessions
Judge
convicted
the
accused-appellant
as
mentioned above.

9. Learned counsel for the accusedappellant submits that he had never moved
application for bail either before the trial
court or before this Court. He next submits
that the accused was of unsound mind and
he is going under treatment since 2014 at
mental hospital Varanasi for mental illness.
The incident was neither preplanned nor
premeditated and it occurred at the spur of
moment. The accused was not having any
3 All. Ram Awatar @ Ganesh Vs. State of U.P.
657
intention to commit the murder of the
deceased. He also submits that the
Investigating Officer in his statement has
deposed that the accused belonged to
'Kushwaha'
caste,
not
belonged
to
Scheduled
Caste/Scheduled
Tribes
category. He recorded the statement of
PW1 Ramadhar son of Mosfir, under
section 161 Cr.P.C., in which he has
categorically stated that he he had seen the
accused running away with 'kudal'. He tried
to catch hold of him but the accused
succeeded to ran away. He also deposed
that he has not seen the accused committing
the murder of the deceased. PW2 Gullu
Ram has deposed that neither he had seen
the accused committing the murder nor
heard slang words used by the accused.

10. It is submitted by the counsel for
the appellant that as far as commission of
offence under Section 3(2)(v) of S.C./S.T.
Act, 1989 is concerned, the learned
Sessions Judge convicted the accused due
to the fact that the victim was a person
belonging to Scheduled Caste Community,
though there were no allegations as regard
the offence being committed due to the
caste of the deceased and there were no
allegations of commission of offence which
would attract the provision of Section
3(2)(v) of SC/ST Act.

11. It is submitted by learned counsel
for the State that deceased belongs to
Scheduled Caste community and the
judgment of learned Trial Judge cannot be
found fault with just because there is
silence on the part of the informant about
atrocity committed. It is submitted that the
incident occurred because of the caste of
the deceased. It is further submitted that
any incident on person belonging to a
particular caste would be an offence. It is
further submitted by learned counsel for the
State that the accused killed the deceased as
she was belonging to lower strata of life
and hence conviction under section 3(2)V
SC/ST Act is justified.

12. Learned counsel for the accusedappellant further submits that with regard
to nature of mental illness the trial court
owed an obligation to undertake an inquiry
under section 329 of the Code so as to
ascertain whether the accused-appellant
was capable of making his defence. Section
329 Cr.P.C. is mandatory. The trial court
should have undertake an inquiry under
section 329 Cr.P.C. and only thereafter
could have proceeded further with the
framing of the charge and recording of the
evidence. In terms of Section 329 (I)
Cr.P.C. the duty of the Court is to try such
fact of unsoundness of mind and incapacity
of the accused to defend himself. If on the
basis of the material brought on record the
Court is so satisfied, it should record the
finding accordingly and in such case the
trial shall have to be postponed. The
provisions contained in Section 329 Cr.P.C.
serve
an
important
purpose
of
not
proceeding a trial against a person, who on
account of his unsoundness of mind is
unable to defend himself. It is not difficult
to appreciate that such requirement would
be mandatory in nature. The proceeding
against a person of unsound mind and
holding him guilty of criminal offence
would be clearly violative of the guarantee
contained
under
Article
21
of
the
Constitution of India, that no person shall
be deprived of his life or liberty without
following the procedure established by law.

13. Learned counsel for the accusedappellant further submits that even if the
accused had not raised such a plea and even
if the defence counsel had not bothered to
look into it, still if the materials on record
658 INDIAN LAW REPORTS ALLAHABAD SERIES
in the form of the documents disclose
something about the mental condition of
the appellant-accused, then it is the duty of
the trial court to look into the materials and
ascertain the capacity of the accused to
enter the defence in accordance with the
provisions of Section 329 Cr.P.C. The
satisfaction of the trial court should be
recorded in so may words. The provisions
of Section 329 do not embrace an idle
formality but are calculated to ensure to an
accused person a fair trial which cannot
obviously be afforded to an insane person
and the non-observance of those provisions
must be held to convert a trial into a farce.
The courts must, therefore, guard against
dealing with the matter of suspected sanity
of an appellant/accused.

14. This Court after having gone
through the facts and circumstances of the
instant case, fact is that which is evident
from the material on record that there was
hostility between accused and the deceased
and criminal litigation had taken place
between the deceased and the accused. It
also emerges from the material evidence on
record that the attack on the deceased by
the accused person was not premeditated
and preplanned and it happened at the spur
of moment in sudden altercation between
the deceased and the accused person and
there was no intention of the accused
person to kill the deceased. Whether the
injury inflicted by the accused person was
sufficient in the ordinary course of nature
to cause death or not, must be determined
on the basis of the facts and circumstances
of the case. In the instant case, only one
injury was on the vital part, which proved
fatal. The injury caused during the
occurrence is not a decisive factor but what
is important is that the occurrence must
have been sudden and unpremeditated and
the offender must have acted in a fit of
anger. Of course, the offender must not
have taken any undue advantage or acted in
a cruel or unusual manner. Where, on a
sudden quarrel, a person in the heat of the
moment picks up an instrument which acts
as a weapon and causes injuries, one of
which proves fatal, he would be entitled to
the benefit of exception provided in section
300 of I.P.C.

15. After considering the rival
submissions made by learned counsel for
the appellant, We concur the finding of
Sessions Judge regarding mental status of
the accused-appellant, as we do not find
any reliable evidence that the accused was
of unsound mind. We are fortified in our
view by the decision of Gujarat High Court
in the case of State of Gujarat vs. Manjuben
in R/Criminal Confirmation Case No. 1 of
2018 with R/Criminal Appeal No. 474 of
2019.

16. Facts before us to prove that the
appellant had no preintention to commit the
murder of the deceased. The injuries come
to show that it was not intentionally but it
was homicidal death without intention. It
has been pointed out by learned counsel for
the accused-appellant that the accusedappellant has been in jail for more than 10
yeas.

17. From the above discussion, it is
evident that appellant was not having any
intention to cause death of the deceased.
However, he had knowledge that death
would be likely caused by the use of the
alleged weapon and he has caused with
knowledge bodily injuries as were likely to
cause death and in view of the above, a
case against the appellant under Part-II to
Section 304 I.P.C. is made out and he is not
found guilty of the offence punishable
under Section 302 I.P.C.
3 All. Devi Dayal & Ors. Vs. State of U.P.
659

18. Offence under Section 3(2)V
SC/ST Act is not made out against the
accused-appellants
as
there
was
no
evidence for commission of offence under
section 3(2)V of the Scheduled Castes and
the Scheduled Tribes (Prevention of
Atrocities) Act, 1989. Neither the First
Information Report nor the oral testimony
of prosecution witnesses even remotely
suggest that the offence has been
committed only on the ground that the
deceased
belongs
to
a
particular
community. The decision in the case of
Vishnu vs. State of U.P. decided on
28.1.2021 in Criminal Appeal No. 204 of
2021 and in the case of Pintu Gupta vs.
State of U.P. decided on 28.7.2022 in
Criminal Appeal No. 4083 of 2017 will
also come to the aid of accusedappellants.

19. In view of the matter, the
conviction of the accused is altered from
Section 302 I.P.C. to 304 Part-II I.P.C.

20. Considering all these facts, it
would be appropriate and proper that the
accused be sentenced with the period
already undergone in prison by him and the
amount of fine be imposed.

21. In the result the conviction of the
present accused is altered from Section 302
I.P.C. to section 304 Part-II and he is
convicted under Section 304 Part-II with
imprisonment already undergone in prison
with no fine as the appellant is a poor
person and was not able to engage even a
lawyer for himself. The fine as ordered by
trial court is set aside.

22. Sri Brij Raj, learned Amicus
Cuarie has argued this appeal on behalf of
appellant Ram Awatar @ Ganesh and he
shall be paid a sum of Rs. 15,000/- as his
remuneration.

23. Office is directed to transmit the
lower court record along with a copy of this
judgment to the learned court below for
information and necessary compliance as
warranted.
----------
(2023) 3 ILRA 659
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 15.03.2023

BEFORE

THE HON'BLE MRS. RENU AGARWAL, J.

Criminal Appeal No. 476 of 1994

Devi Dayal & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
J.P. Maurya, Arun Kumar Shukla, Jayant
Singh Tomar, Santosh Kumar Kannaujiya,
Shaquiel Ahmad, Upendra Sharma, Varun

Counsel for the Respondent:
G.A.

A. Criminal Law- Indian Penal Code, 1860
- Sections 394, 397, 366 & 376 I.P.C -
St.ment of prosecutrix is corroborated by
P.W. 2, 3 and 4, who are brothers and
parents
of
prosecutrix
as
she
was
kidnapped by accused Devi Dayal and
Ambika Pasi in their presence and rest of
accused robbed the houselhold goods,
jewellery and cash, witnesses are illiterate
and the St.ment were recorded after the
lapse of three years from the date of
occurrence and the evidence of the
witness were recorded in piecemeal with
the
gap
of
time,
therefore,
the
discrepancies are bound to happen. (Para
32, 35)