# Ram Naresh v. State

- **Citation:** (2022) 12 ILRA 861
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-06
- **Case number:** Jail No. 5932 of 2017
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-naresh-v-state-48055
- **Pages:** 7

## Headnote

Criminal Law - Criminal Procedure Code,
Section - 313 - Indian Penal Code,1860 -
862 INDIAN LAW REPORTS ALLAHABAD SERIES
Sections - 304 & 304-A, - Explosive
Substance Act,1908 - Sections 3 & 5 - Jail
Appeal - challenging the order of Conviction -
offence of causing dowry death & demand of
additional dowry - within seven years of
marriage - on perusal of the record & combined
reading of St.ment of prosecution - court held
that - no any eye witnesses - even investigation
officer has not visited the place of occurrence,
means no investigation is carried out at all - no
recovery effected regarding illegal Grenade -
there is neither any direct evidence nor
circumstantial evidences - place of occurrence &
manner of incident is also highly doubtful -
therefore, it is hard to uphold the conviction -
hence, appeal allowed, order of trial court setaside, appellant is acquitted from all the
charges. (Para -18, 22, 23, 24)

Appeal Allowed. (E-11)

List of Cases cited:

Takhaji Hiraji Vs Thakore Kubersingh Chaman
Singh & ors. (2001Criminal Law Journal 2602)

## Text

12 All. Ram Naresh Vs. State
861

120.

As
discussed
above,
appellant/accused Smt. Jonha Devi has
remained in prison in the instant case for a
considerable time therefore, in the facts and
circumstances of the case her sentence
under Section 498-A I.P.C. and 3⁄4 D.P. Act
is modified to the extent she has undergone
imprisonment, therefore, she deserves to be
released if in judicial custody from jail. If
she is detained in judicial custody her
release
order
be
transmitted
to
the
concerned jail Superintendent forthwith.

121. However, considering the
relationship of appellant Ganga with the
deceased we are of the opinion that
sentence awarded to him for offences under
Section 304-B I.P.C. is too stringent,
therefore Appellant Ganga instead of
sentence of life imprisonment, it is
modified to the extent of 7 years rigorous
imprisonment.

122. In the result, the appeal against
the judgment and order 21.11.2013 passed
by Additional District and Sessions Judge,
Court No. 1, Mahrajganj, in Session Trial
No. 96 of 2010, State vs. Baiju and others,
arising out of Case Crime No. 226 of 2009,
under Sections 498-A, 304-B, 201 I.P.C.
and Section 3⁄4 of Dowry Prohibition Act,
Police
Station-Purandarpur,
DistrictMahrajganj, to the extent of conviction of
appellant Jonha Devi and Ganga, is
modified as above and is partly allowed
and for appellant Baiju, the judgment and
order dated 21.11.2013 is affirmed and
upheld and the appeal for him subject to
above conclusion is dismissed.

123. Appellant/accused Ganga, who
has been enlarged on bail, is hereby
directed to surrender before the learned
Additional Sessions Judge, Court No. 1,
Mahrajganj, within a period of one month
from the date of delivery of this judgment,
to undergo the remaining sentence of 7
years awarded by this judgment failing
which the learned trial Court shall secure
his presence before it and forward him to
jail concerned to serve the remaining
sentence. It is also clarified that the period
of his judicial detention, in the present case
shall be adjusted, in accordance with the
Jail Manual.

124. The Superintendent of Police,
Maharajganj, to ensure compliance and
send a report to this Court.

125. The bail bond/ security of
accused Ganga shall stand cancelled/
discharged.

126. Registry to send the lower Court
record
along
with
a
copy
of
this
judgment/order to the lower Court for
compliance and obtain report thereof.
----------
(2022) 12 ILRA 861
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.08.2022

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Jail No. 5932 of 2017

Ram Naresh ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Smt. Kalpana Singh, A.C.

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

Criminal Law - Criminal Procedure Code,
Section - 313 - Indian Penal Code,1860 -
862 INDIAN LAW REPORTS ALLAHABAD SERIES
Sections - 304 & 304-A, - Explosive
Substance Act,1908 - Sections 3 & 5 - Jail
Appeal - challenging the order of Conviction -
offence of causing dowry death & demand of
additional dowry - within seven years of
marriage - on perusal of the record & combined
reading of St.ment of prosecution - court held
that - no any eye witnesses - even investigation
officer has not visited the place of occurrence,
means no investigation is carried out at all - no
recovery effected regarding illegal Grenade -
there is neither any direct evidence nor
circumstantial evidences - place of occurrence &
manner of incident is also highly doubtful -
therefore, it is hard to uphold the conviction -
hence, appeal allowed, order of trial court setaside, appellant is acquitted from all the
charges. (Para -18, 22, 23, 24)

Appeal Allowed. (E-11)

List of Cases cited:

Takhaji Hiraji Vs Thakore Kubersingh Chaman
Singh & ors. (2001Criminal Law Journal 2602)

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. Heard Smt. Kalpana Singh learned
Amicus Curiae counsel for the appellant
and learned A.G.A. for the State.

2. The present appeal has been filed
against the judgment and order dated
27.11.2015 passed by the Additional
Sessions Judge, Court No. 2, Farrukhabad
in Session Case No. 84/2011, "State Vs.
Ram Naresh", arising out of case crime No.
396/2009, under Sections 304 I.P.C. and
Section 3/5 of Explosive Substance Act,
Police
Station
Kamalganj,
District
Farrukhabad, whereby the appellant has
been convicted under Section 304 I.P.C.
and Section 3/5 of Explosive Substance Act
of sentencing the appellant to undergo ten
years of rigorous imprisonment with a fine
of Rs. 10000/- under Section 304 I.P.C. and
ten years rigorous imprisonment with a fine
of Rs. 5000/- under section 3/5 of
Explosive Substance Act, with default
provision in each of the offences.

3. As per the written report dated
15.07.2009, prosecution case is that the
informant who was Chowkidar of the
village on 30.06.2009, who went in his
relation and had come back on that day,
then he came to know that on 30.06.2009 at
about 6:30 PM, Ram Naresh in the
influence of liquor in his both hands was
holding hand grenades which are used in
marriages and are thrown on the surface,
was threatening to crack the hand grenade
while demanding money from his wife for
drinking liquor. After refusal by his wife to
pay money, he said that he will crack the
hand grenade. His wife and son in order to
avoid any incident tried to take grenades
from him but due to negligence of Ram
Naresh, both the grenades exploded, as a
result thereof his wife and he himself got
injured. The nearby relatives and neighbors
got her admitted in the Ram Manohar
Lohia Hospital and on the second day she
died. Ram Naresh was still admitted in the
hospital. This incident has happened due to
the negligence of Ram Naresh. The written
report dated 15.07.2009 was given to the
police station and consequently chik F.I.R.
was lodged on the same day i.e. on
15.07.2009 which is exhibited as Exh. Ka10.

4. The investigating officer took the
statements of the prosecution witnesses. On
the basis of the inquest report and
postmortem report as well as on the basis
of
the
material
collected
by
the
investigating officer, the charge sheet was
filed which is exhibited as Exh. Ka-9 under
Section 304-A I.P.C. read with Section 3/5
Explosive Substance Act against the
appellant Ram Naresh, whereupon learned
12 All. Ram Naresh Vs. State
863
Additional and Sessions Judge vide its
order dated 14.06.2012 framed the charges
under Section 304A I.P.C. The accused
denied the charges and pleaded for trial.

5. Learned Special Judge/S.C./S.T.
Act Farrukhabad, vide its order dated
17.08.2015 framed additional charge under
Section 304 I.P.C. read with Section 3/4
Explosive Substance Act. The charges were
denied by the accused and claimed for trial.

6.

The
incident
occurred
on
30.06.2009. The inquest as well as
postmortem was carried on 01.07.2009.
Awadesh Kumar, Mahendra, Virendra,
Mannu and Ajay Pal were the inquest
witnesses.

7. Prosecution in order to prove its
case has produced PW-1 Virendra Kumar
(informant), PW-2 Doctor Singh Vikram
Katiyar who conducted the postmortem of
the deceased, PW-3 Ajay Pal (inquest
witness), PW-4 Virendar (inquest witness),
PW-5 A.K. Bhardwaj who has conducted
the inquest, PW-6 S.I. Indrapal Singh, the
investigating officer who prepared the site
plan, conducted the investigation and filed
the charge sheet and PW-7 Head Constable
Kamla Prasad who prepared the chik F.I.R.
The statement of the accused under Section
313 Cr.P.C. were recorded in which his
case was of total denial. In his defence he
stated that he is a labour, he was not in a
intoxicated state, he remained admitted for
18 days in the Hospital and he has been
falsely implicated.

8. PW-1 while deposing before the
Court has said that on 13.06.2009, he went
away for some personal work and has
returned after 15 days to his home, then he
came to know about the incident. He
further stated that he came to know that on
30.06.2009 at about 7:30 PM, Ram Naresh
in the drunken state was holding grenades
in his both hands demanding money from
his wife by threatening to crack the
grenade. After refusal by his wife to pay
money, he said that he will crack the hand
grenade. Thereafter, the deceased and her
son namely Awadhesh in order to avoid the
incident, tried to take the grenades, all of a
sudden due to negligence of Ram Naresh,
the grenades exploded. Due explosion of
the grenades, the appellant and his wife got
injured. His wife got admitted by the
nearby people in the Ram Manohar Lohia
Hospital and on the next day she died. Ram
Naresh remained admitted in the hospital.

In the cross he has stated that
Ram Naresh never consumed liquor. On the
date of incident he was not present. He
returned after 10 to 15 days. The written
report was got prepared by the son of Ram
Gopal and he only signed the written
report. He further stated that Ram Naresh
and his wife never used to quarrel. He
never took the investigating officer at the
place of occurrence, neither he told about
the explosion of grenade nor regarding the
death of the deceased (wife of the
appellant) to the investigating officer.

9. PW-2 Doctor Singh Vikram
Katiyar received the dead body of the
deceased
namely
Nanhi
Devi.
He
conducted the postmortem of the deceased
who died on 30.06.2009 at about 10:20 PM
at Ram Manohar Lohia Hospital. Perusal of
the dead body, he found two ante-mortem
head injuries on the parital region as a
result
thereof
the
parital
bone
was
fractured. In the cross, he has stated that
she died due to head injury which came in
the middle of her head. It has been
suggested by PW-2 that if the deceased is
standing near almira or tar and something
864 INDIAN LAW REPORTS ALLAHABAD SERIES
fells upon her head, then she can sustain
such injury and can die. The injury
sustained by the deceased could not come
from the front or her back.

10. PW-3 is the inquest witness. After
getting the information about death of the
deceased, he went to Ram Manohar Lohia
Hospital. Thereafter, he reached at the place
of occurrence when both the appellant and
the deceased were already taken to Ram
Monohar Lohia Hospital. He further stated
that he did not saw the incident.

11. Likewise PW-4 has also stated that
he was not at the place of occurrence when
the incident took place. He has also not seen
the quarrel between Ram Naresh and the
deceased. He further stated that he did not go
to the house of Ram Naresh. Ram Naresh
never drunk in front of him. He had no
information about the incident neither he was
present at the time of incident.

12. PW-5 A.K. Bhardwaj is a formal
witness who has prepared the inquest and has
proved it.

13 . PW-6 is the investigating officer
who has conducted the investigation. He
stated that on the pointing out of PW-1
complainant, he went to inspect the place of
occurrence and prepared the site plan. In the
cross, he has stated that the complainant did
not inform him whether he was present at the
place of incident in the village or not. It has
been further stated that the complainant did
not inform him as to how he came to know
about the incident. The complainant was the
chowkidar of the village. The complainant
had also not told him as to from whom he got
information about the incident. It has been
further stated in the cross-examination that he
prepared the site plan in presence of
complainant Virendra Kumar and except him
at the time of making site plan, no one else of
the village was present.

14. PW-7 is a formal witness who has
proved the chik F.I.R. (exhibit ka-10).

15. Learned amicus curie appearing on
behalf of the appellant has submitted that the
incident took place on 30.06.2009 and the
inquest was prepared on the very next day i.e.
01.07.2009. Postmortem was conducted on
01.07.2009, however, F.I.R. was lodged after
a delay of 15 days of the incident. There is no
explanation to the delay in lodging of the
F.I.R. She has further submitted that at the
time of conducting inquest on 17.09.2022 and
post mortem on the same day, the F.I.R.
ought to have been lodged by the police on
the same day. She has further submitted that
out of five inquest witnesses Awadhesh who
was son of the appellant and was the eye
witness has been withheld by the prosecution.
Another inquest witness namely Mahendra
has also been withheld by the prosecution.
These two witnesses have been withheld by
moving two applications numbered as 11-B
and 12-B which are on record.

16. It is next submitted that no one has
seen the incident. Neither there is any direct
evidence nor even a circumstantial evidence
against the appellant. The appellant has been
falsely implicated. It has been further
submitted that PW-2 nowhere has stated that
the injury sustained by the deceased on her
head could have come from explosion of the
grenade rather a contrary opinion has been
given by PW-2. The investigating officer has
not prepared the site plan on the pointing out
of PW-1 and he has not even visited the spot.

17. Learned A.G.A. has opposed the
argument
of
learned
amicus
curiae
submitting that since the incident has taken
place in the house of the appellant,
12 All. Ram Naresh Vs. State
865
therefore, onus to explain the incident was
on the appellant. He has further submitted
that two persons one was appellant and
another was deceased who got injured in
the same incident and both were admitted
in the hospital and this fact has not been
denied by the appellant.

18. On due consideration to the
argument advanced by the parties, perusal
of the record, the first question which crops
up
before
this
Court
whether
the
prosecution has been able to prove the
place of occurrence. It is admitted case of
the prosecution that PW-1 is not the eye
witness. In his statement PW-1 has stated
that he signed the written report which was
written by the son of Ram Gopal. He
further stated that he has not seen the place
of
incident
neither
has
taken
the
investigating officer to the place of
occurrence and he has not narrated the fact
to the investigating officer that the grenade
exploded and the wife of the appellant
namely Nanhi Devi died.

19. PW-2 in his statement has
nowhere stated that the deceased died due
to injuries sustained by the grenade,
however, on the contrary he has stated that
if some heavy thing falls on her head then
she can sustain such injury and these
injuries could not have been sustained from
the front or back by hitting anything from
front or her back.

20. PW-4 has also stated that he was
not at the place of occurrence when the
incident took place. He has also not seen
the quarrel between Ram Naresh and the
deceased. He further stated that he did not
go to the house of Ram Naresh. Ram
Naresh never drunk in front of him. He has
no information about the incident neither
he was present at the time of incident. PW5 A.K. Bhardwaj is formal witness who has
prepared the inquest and has proved it.

21. PW-6 in his statement has stated
that on the pointing out of PW-1
complainant, he inspected the place of
occurrence and prepared the site plan
which has been outrightly denied by PW-1.
He further stated that the complainant has
not told him how he came to know about
the incident and who gave him information
about the incident.

22. The combined reading of the
statement of the prosecution witnesses
show that there is no eye witness to the
incident; no one has seen the incident; the
investigating officer has not visited the
place of occurrence and therefore in view
of the testimony of PW1, the statement of
PW-6 regarding the inspection of the place
of occurrence and preparation of the site
plan in presence of PW-1 cannot be
believed. Not only the place of occurrence
could not be proved by the prosecution, the
prosecution could not also prove as to
whether the injury sustained by the
deceased could have come from the
grenade or otherwise and statement of PW2 clearly suggests that the deceased
sustained injury on the top of her head
while she was standing some heavy object
fell on her head and as a result thereof, the
parital bone of the head can be fractured.
Thus the prosecution has failed to prove the
place of occurrence as well as the incident
itself and perusal of the entire record it is
also evident that the investigating officer
has conducted no investigation at all. The
prosecution has failed to prove the charge
under Section 304 Cr.P.C. and so far as the
charge under Section 3/5 of Explosive
Substance Act is concerned, there is no
recovery effected by the investigating
officer regarding illegal grenade.
866 INDIAN LAW REPORTS ALLAHABAD SERIES

23. This Court has also noticed that in
the written report, the incident is alleged to
have happened in front of son of the
appellant namely Awadhesh who was the
eye witness and who could have stated the
true and correct version of the prosecution
case, however, he has not been produced by
the prosecution. Another inquest witness
namely Mahendra has also been withheld
by the prosecution by moving application
before the trial court. Had these two
witnesses were produced before the trial
court particularly Awadhesh who has seen
the incident, the true version of the
prosecution case could have come. Because
of the fact that these witnesses were
withheld by the prosecution as a result
thereof they could not be examined before
the trial court, therefore, the question of
drawing adverse inference arises against
the prosecution as held by the Apex Court
in the case of "Takhaji Hiraji Vs. Thakore
Kubersing Chamansingh and others",
reported in "2001 Criminal Law Journal
2602". Relevant para 19 is reproduced as
under:-

"19. So is the case with the
criticism levelled by the High Court on the
prosecution case finding fault therewith for
non-examination of independent witnesses.
It is true that if a material witness, which
would unfold the genesis of the incident or
an essential part of the prosecution case,
not
convincingly
brought
to
fore
otherwise, or where there is gap or
infirmity in the prosecution case which
could have been supplied or made good by
examining
a
witness
which
though
available is not examined, the prosecution
case can be termed as suffering from a
deficiency and withholding of such a
material witness would oblige the Court to
draw an adverse inference against the
prosecution by holding that if the witness
would have been examined it would not
have supported the prosecution case. On
the other hand if already overwhelming
evidence is available and examination of
other witnesses would only be a repetition
or duplication of the evidence already
adduced, non-examination of such other
witnesses may not be material. In such a
case the Court ought to scrutinize the
worth of the evidence adduced. The court
of facts must ask itself - whether in the
facts and circumstances of the case, it was
necessary to examine such other witness,
and if so, whether such witness was
available to be examined and yet was
being withheld from the court. If the
answer be positive then only a question of
drawing an adverse inference may arise.
If the witnesses already examined are
reliable and the testimony coning from
their mouth is unimpeachable the Court
can safely act upon it uninfluenced by the
factum of non-examination of other
witnesses. In the present case we find that
there are at least 5 witnesses whose
presence at the place of the incident and
whose having seen the incident cannot be
doubted at all. It is not even suggested by
the defence that they were not present at
the place of the incident and did not
participate therein. The injuries sustained
by these witnesses are not just minor and
certainly not self-inflicted. None of the
witnesses had a previous enmity with any of
the
accused
persons
and
there
is
apparently no reason why they would tell a
lie. The genesis of the incident is brought
out by these witnesses. In fact, the presence
of the prosecution party and the accused
persons in the chowk of the village is not
disputed. How the vanity of Thakores was
hurt leading into a heated verbal exchange
is also not in dispute. Then followed the
assault. If the place of the incident was the
chowk then it was a sudden and not pre-
12 All. Smt. Subhawati & Ors. Vs. Smt. Lalita & Anr.
867
meditated fight between the two parties. If
the accused persons had reached their
houses and the members of the prosecution
party had followed them and opened the
assault near the house of the accused
persons then it could probably be held to
be a case of self-defence of the accused
persons in which case non-explanation of
the injuries sustained by the accused
persons would have assumed significance.
The learned Sessions Judge has on
appreciation of oral and the circumstantial
evidence inferred that the place of the
incident was the chowk and not a place
near the houses of the accused persons.
Nothing more could have been revealed by
other village people or the party of tight
rope dance performers. The evidence
available on record shows and that
appears to be very natural, that as soon as
the melee ensued all the village people and
tight-rope dance performers took to their
heels. They could not have seen the entire
incident. The learned Sessions Judge has
minutely scrutinised the statements of all
the
eye-witnesses
and
found
them
consistent and reliable. The High Court
made
no
effort
at
scrutinising
and
analysing the ocular findings arrived at by
the Sessions Court. With the assistance of
the learned counsel for the parties we have
gone through the evidence adduced and on
our independent appreciation we find the
eye-witnesses consistent and reliable in
their narration of the incident. In our
opinion non-examination of other witnesses
does not cast any infirmity in the
prosecution case."

(Emphasised by me)

24. On perusal of the statements of all
the prosecution witnesses, it is clear that
not a single prosecution witness has seen
the incident, there is no direct evidence or
there is not even a circumstantial evidence,
place of occurrence is highly doubtful and
the incident itself could not be proved by
the prosecution, coupled with the fact that
the two witnesses namely Awadhesh son of
the appellant and deceased and Mahendra
(inquest witness) have been withheld who
could have given the true version of the
prosecution case, therefore, on the basis of
such evidence, it is hard to uphold the
conviction of the appellant on this quality
of evidence. Accordingly, the criminal
appeal filed against the judgment and order
of conviction dated 27.11.2015 and order
of sentence dated 28.11.2015 is allowed.
The order of the trial court convicting and
sentencing the appellant is set aside. The
appellant is acquitted of all the charges
levelled against him. The appellant be
discharged of his bail bonds.

25. Let a copy of this judgment be
transmitted to the learned trial court as well
as concerned Jail Superintendent for
compliance. Lower court record be sent
back to the lower court.

26. Smt. Kalpana Singh learned
Amicus Curiae shall be paid a sum of Rs.
20,000/- for assisting the Court from the
State Exchequer through Registrar General
within two months from the date of
production of certified copy of this order.
----------
(2022) 12 ILRA 867
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.11.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

Matter Under Article 227 No. 816 of 2019

Smt. Subhawati & Ors. ...Petitioners
Versus
Smt. Lalita & Anr. ...Respondents