# Ram Phar & Ors v. State

- **Citation:** (2016) 6 ILRA 85
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-06-09
- **Bench:** Ramesh Sinha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-phar-ors-v-state-44008
- **Pages:** 8

## Text

6 All. Ram Phar & Ors. Vs State

85
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APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.06.2016

BEFORE

THE HON'BLE RAMESH SINHA, J.

Criminal Appeal No.- 293 Of 1991

Ram Phar & Ors. ...Appellants
Versus
State ...Respondent

Counsel for Appellants:
Sri Prabhat Kumar, Sri Anil K. Misra, Sri Indrajeet Shukla, Sri O.N. Tripathi, Sri Om Prakash Tripathi, Sri R.N.
Gupta, Sri Rakesh Kumar Shukla

Counsel for Respondent:
Government Advocate, Sri Mohd. Riyaz

.................................
Culpable Homicide -- Section 304 I.P.C. vs. Section 325 I.P.C. -- Superstition -- Intent --
Knowledge -- Deceased, daughter-in-law, was assaulted by three accused with kicks, fists and lathi at 4:30
A.M. when she had gone outside the house to answer the call of nature -- accuseds' ground was that she was
a 'Mudkatni' (a notion of superstition) -- deceased received 10 ante mortem injuries and died of shock and
haemorrhage -- injury nos. 1 and 2 were sufficient in the ordinary course of nature to cause death, but the
author of the fatal injury no. 2 was not established -- Held: where the incident took place on the trivial issue
of a superstitious belief and there was no prior enmity between the parties, it cannot be discerned that the
accused had any real intent to cause death nor the requisite knowledge that their act was so eminently
dangerous that it must in all probability cause death -- conviction under Section 304 I.P.C. not sustainable --
offence made out under Section 325 I.P.C. only. (Paras 20-22)

Sentence -- Reduction -- Age of Accused -- Delay in Hearing of Appeal -- Appellants convicted and
sentenced to 10 years rigorous imprisonment under Section 304 I.P.C. by trial court -- by the time of hearing,
appellants were 60 to 65 years of age -- incident was 28 years old and the appeal had come up for hearing
after 24 years -- appellants had already undergone one year custody as undertrial and after conviction --
Held: taking into account the age of the appellants, the vintage of the incident, delay in hearing of appeal,
and their position as on date, sentence reduced to fine of Rs. 1,00,000/- (Rs. 50,000/- each) in lieu of
rigorous imprisonment of 3 years under Section 325 I.P.C. (Paras 23-24)

Compensation -- Victim's Child -- Section 325 I.P.C. -- Fine -- Application -- Deceased left behind a
child from her marriage with the son of informant PW-1 -- Held: out of total fine of Rs. 1,00,000/-, Rs.
90,000/- directed to be paid to the child of the deceased Malawati and Jagannath or to her legal heirs, if any -
- balance of Rs. 10,000/- to go to the State -- fine to be deposited in the Court of the C.J.M. concerned within
two months. (Para 24)
86 INDIAN LAW REPORTS ALLAHABAD SERIES

Evidence -- Eye Witnesses -- Interested Witnesses -- Partisan Witnesses -- Credibility -- PW-1 is
the father-in-law of the deceased and PW-2 is his cousin brother -- defence assailed their testimony as highly
interested and partisan -- Held: trial court had minutely scanned the evidence of both witnesses and found
them reliable -- their evidence corroborated the post mortem report of the deceased -- participation of the
accused appellants cannot be ruled out -- testimony of close relatives cannot be rejected solely on the ground
that they are related to the deceased. (Para 20)

Appeal -- Abatement -- Death of Appellant -- Appellant No. 1 Ram Phare son of Dilawar died during the
pendency of the appeal -- Held: his appeal abated by order dated 03.04.2003 -- remaining appellants Ram
Kishun and Ram Jatan, sons of Ram Phare, proceeded with. (Para 15)

Criminal Appeal Partly Allowed -- Conviction of appellants Ram Kishun and Ram Jatan under Section 304
I.P.C. set aside -- conviction altered to Section 325 I.P.C. -- sentence modified from 10 years rigorous
imprisonment to fine of Rs. 1,00,000/- (Rs. 50,000/- each) to be deposited with the C.J.M. concerned within
two months -- Rs. 90,000/- of the fine directed to be paid to the child/legal heirs of the deceased, and Rs.
10,000/- to the State -- in default of payment of fine, appellants to be taken into custody to serve the
sentence as modified. (Paras 23-27)

Case Law Discussed:
1. Mohan and others v. State of U.P., 2013 (2) JIC 788
2. State of U.P. v. Atabul & others, 2006 (1) JIC 503 (All)

(Delivered by Hon'ble Ramesh Sinha, J.)

1. This criminal appeal has been filed against the judgment and order dated 9.5.1991
passed by Vth Additional Sessions Judge, Sultanpur in Session Trial No.81 of 1989 convicting and
sentencing the appellants under Sections 304 I.P.C. to undergo 10 years rigorous imprisonment.

2. The prosecution case in brief are that on 8.4.1988, the daughter in law of the informant,
namely Malawati had gone to attained the call of nature outside the house and further she was not
feeling well after some time the informant heard the cry and shrieks of his daughter in law near the
house of co-accused Ram Phare on which the informant, his wife Smt. Dulari and their daughter
Minwa Devi reached the door of accused Ram Phare and they saw that accused Ram Phare, Ram
Kishun and Ram Jatan, who were resident of village of the informant, were assaulting his daughterin-law Malawati with kicks, fists and Lathi and they were stating that she was "Mudkatni" (a notion
of superstition). She was raising alarm and informant protested the accused for assaulting his
daughter-in-law but the accused assaulting her. On hearing the alarm, one Hargandra and Kaladeen
and other persons of the village arrived and saved informant's daughter-in-law. The informant took
his daughter-in-law to Akhand Nagar Hospital for medical treatment. While he was returned in the
evening he stopped at Rahul Nagar Bazar and as soon as he gave tea to her and further started
taking her back his daughter-in-law died. Due to night he brought the dead body his daughter-inlaw to his house and kept there. He got a written report abut the incident by Mewalal Kahanr which
is marked as Ex. Ka-1 and took the same to the police station Akhand Nagar at 7.15 a.m. on the
basis of which an F.I.R. was lodged against the accused persons on 9.4.1988 which was registered
as Case Crime No. 23 of 1988 under Section 304 I.P.C.
6 All. Ram Phar & Ors. Vs State

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3. The Investigating Officer of the case S.I. Diwakar Pandey was carried out investigation
which was entrusted him and the same was concluded by another Investigating Officer Sita Ram
Arya, who was the Station Officer. During the course of investigation he prepared the site plan Ex.
Ka-14, the inquest report of the deceased was conducted by Sub Inspector Diwakar Pandey which
was marked as Ex. Ka-4 and Ka-5. The dead body of the deceased was sent for post mortem on
9.4.1988, the same was marked as Ex. Ka-8 to District Hospital Sultanpur where the post mortem
report prepared which was marked as Ex. Ka-2. The Investigating Officer Sitaram Arya, recorded
the statement of the witnesses under Section 161 Cr.P.C. and thereafter he submitted the charge
sheet against the accused under Section 304 I.P.C. The case was committed to the court of Sessions
by the Magistrate and the accused were tried for the said offence. The trial court framed the charges
against the appellants under Section 302 read with Section 34 I.P.C., who denied the charges and
claimed to be trial.

4. The prosecution in support of its case examined P.W. 1 Ram Milan, P.W. 2 Kalideen,
P.W. 3 K.P. Pathak, P.W. 4 Head Constable Ram Milan Yadav, P.W. 5 S.I. Diwakar Pandey and
P.W. 6 Sitaram Arya.

5. The accused in his statement under Section 313 Cr.P.C. has stated that the witnesses
have falsely deposed against them and only on account of enmity and they have been falsely
implicated. The accused stated that the son of the informant, namely, Jagannath ousted his first
wife, who tortured by him and after ousting her, Jagannath re-married after one year with the
deceased Malawati. The informant Ram Milan used to pressurize his son Jagannath to leave his
second wife Malawati but his son Jagannath went to city after leaving his wife separately and after
which, the said incident has taken place. When son of the informant, namely Jagannath started
living separately in the city, leaving behind his wife Malawati, the informant Ram Milan and his
wife starting harassing to the deceased Malawati that due to her, his son was living separately. The
informant Ram Milan was demanding the ornaments of deceased Malawati from her for the
marriage of his younger daughter but deceased Malawati refused to give him. The accused have not
led any evidence in defence.

6. P.W. 1 Ram Milan has deposed before the trial court that he had two sons, elder one of
Jagannath and younger Amar Nath along with four daughters, who have been married. His wife is
alive and the deceased was the wife of his elder son Jagannath. He stated that 20 to 22 days prior to
the incident, the Jagannath had gone to Delhi for earning his livelihood. The marriage of the
deceased with Jagannath was performed about five years prior to the incident and they were having
a child who is alive. The accused Ram Phare, Ram Kishun and Ram Jatan belongs to the same
village and they are Kewat by caste whereas the informant belongs to the Kahar caste. The incident
had taken place on 4.30 a.m. in the morning and the deceased Malawati was ill and she had gone
outside the house to attain the call of nature and he was present at his house. On hearing the alarm
raised by her daughter-in-law, he reached the place of occurrence and saw all the three accused
assaulting his daughter in law with kicks, fists and lathi and he asked the reason for assaulting her
on which at the same time the witnesses Kalideen and Hargendra had arrived at the place of
occurrence, who have also seen the deceased being beaten by accused. The accused had assaulted
88 INDIAN LAW REPORTS ALLAHABAD SERIES

the deceased, who had fallen on the ground and they caused injuries which were found on the
person of the deceased but the same was not bleeding. He further stated that he took his daughter in
law on a cot to Akhand Nagar for medical treatment and while he was returning from their at Rahul
Nagar Bazar, he gave tea to his daughter in law, who died immediately thereafter. He brought the
dead body of the deceased to his house and kept at it on the door. A written report about the
incident was dictated by him to Mewa Lal Kanhar, who wrote the same and also the same was read
over to him on which his thumb impression was given. The written report Ex. Ka-1 has been
proved by him. He took the said report at police station Akhand Nagar Bazar and submitted the
same on which the police had arrived at his house and they conducted the inquest on the dead body
of the deceased and further sealed the same. At the time of panchayatnama, the witnesses Ram
Nihor, Raj Mani and Ram Adhar, who have been appointed as panch by the Sub Inspector and after
sealing the dead body, the same was sent for post mortem and he also accompanied with the dead
body of the deceased and after the post mortem last rite of the deceased was performed in Gomti
River. His statement under Section 161 Cr.P.C. was recorded by the Investigating Officer, he also
disclosed the relationship of the accused with each other and further stated that he has no enmity
with them. He stated that the deceased eased herself thereafter the incident has taken place.

7. P.W. 2 Kalideen, who is the eye witness of the occurrence has also reiterated the
prosecution case as has been stated by P.W. 1 Ram Milan. He submitted that he also reached the
place of occurrence at 5 a.m. on hearing the alarm raised by the deceased. The husband of the
deceased used to earn his livelihood live at Delhi. He stated that he saw the accused assaulting the
deceased with kicks, fists and Lathi. The accused had beaten the deceased so much on account of
which she had fallen on the ground and deed. He further stated that P.W. 1 Ram Milan had reached
before him and the witness Hargaendra, who also reached at the place of occurrence along with
other persons of the village, objected the accused from beating the deceased. The deceased died on
account of injuries sustained by her. The incident has take place in-front of house of Ram Phare
and behind the house of P.W. 1. He also stated that he was real cousin brother of P.W. 1 Ram
Milan. He is also resident of the same village and near his house of P.W. 1. He stated that Ram
Phare caught hold the deceased whereas Ram Kishan and Ram Jatan had assaulted the deceased
with Kicks, fists and lathi.

8. P.W. 3 Dr. K.P. Pathak, who is a formal witness of the incident and has stated that he
had conducted the post mortem of the deceased on 10.4.1988 at 3 p.m. while he was posted as
Medical Officer in District Hospital, Sultanpur. He has stated that the duration of death of deceased
was two days old and he found following ante mortem injuries on the person of the deceased :

1. Abraded contusion 6 cm x 3 cm on forehead middle just above the root of nose.
2. Contusion swelling Lt.-side head 10 cm. above Ltd. ear
3. Contusion on Rt. side face just outer to Rt. Eye in area of 8 cm. X 5 cm.
4. Multiple abrasion of 20 cm. X 10 cm on Rt. side back just above iliac crest 1.5
cm x 1 cm. skin deep seen after removal of applied dressing with a complain.
5. Multiple abrasion contusion on back of chest Rt. side just below the shoulder 12
cm. X 2 cm. seen.
6 All. Ram Phar & Ors. Vs State

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6. Multiple contusion in area of 15 cm. X 10 cm. on top of both shoulder.
7. Multiple contusion in area of 15 cm. X 10 cm. on the right buttock.
8. Abraded contusion 30 cm. X 12 cm. on outer just above the knee Jt.
9. Abrasion 3 cm x 2 cm. On Lt. Elbow Jt.
10. Abraded traumatic swelling 3 cm. X 1.5 cm. on Rt. elbow Jt.

9. In the opinion of the doctor the cause of death was shock and hammeorage and Coma as
a result of ante mortem injuries sustained by the deceased. He has proved the post mortem report
Ex. Ka-12. He further submitted that the death has occurred on 8.4.1988 at 4.30 a.m. He further
submitted that the injuries no. 1 and 2 were sufficient in the ordinary course of the nature to cause
death. He submitted that the death had occurred on account of injury no. 2 sustained by the
deceased before the trial court.

10. P.W. 4 Head Constable Ram Milan Yadav stated before the trial court that on 9.4.1988,
he was posted as constable clerk at police station Akhand Nagar on the said date. The informant
Ram Milan given written report Ex. Ka-1 on the basis of which he has prepared Chick F.I.R. in his
writing on which Sub Inspector Diwakar Pandey signed the same and proved the same as Ex. Ka13. He has also stated that he endorsed the said F.I.R. in G.D. Rapat No. 11 on 7.15 a.m. a carbon
copy of which has been prepared by him which is marked as Ex. Ka-6. He denied the suggestion
that informant had lodged the present F.I.R. in consultation with the police.

11. P.W. 5 Sub Inspector Diwakar Pandey has stated that he was posted at the concerned
police station on the said post and he was entrusted with the investigation of the case and the
investigation was further interested to Station Officer Sitaram Arya, who was concluded the
investigation of the case and submitted charge sheet against the accused. He further stated that he
had recorded the statement of the witnesses under Section 161 Cr.P.C. and conducted inquest of the
deceased and sent the dead body of the deceased for post mortem. After inquest he prepared the site
plan of the occurrence.

12. P.W. 6 S.I. Sitaram Arya, has deposed before the trial court that he was posted at the
said police station from 11.6.1987 to 1988 as Station Officer of Police Station Akhand Nagar and
he has taken over the investigation of the case from Diwakar Pandey on 16.4.1988. He stated that
he has recorded the statements Jagannath of the husband of the deceased and other witnesses. The
accused surrendered and were sent to jail. He recorded their statements while they were confined in
jail and he submitted charge sheet against the accused persons which has been marked as Ex. Ka-5.

13. Heard Sri Indrajeet Shukla, learned counsel for the appellant and Mohd. A. Raj
Siddiqui, learned AGA for the State.

14. Mohd. Riyaz, learned counsel for the complainant is not present though the matter has
been called in the revised list.
90 INDIAN LAW REPORTS ALLAHABAD SERIES

15. The appellant no. 1 Ram Phare son of Dilawar is said to have died during the pendency
of appeal, his appeal was abated by the Court's order dated 3.4.2003.

16. The appellant nos. 2 and 3, namely, Ram Jatan son of Ram Phare and Ram Kishan son
of Ram Phare are present in compliance of Court's order dated 12.5.2016 and 8.6.2016
respectively. They have identified by their counsel.

17. It has been argued by learned counsel for the appellants that the deceased who was
"Mudkatni" was done to death by the informant and his wife as they used to harass her. The
deceased was the second wife of the elder son of P.W. 1, namely, Jagan Nath and they were having
a child. P.W. 1 and his wife had been pressuring the deceased and his son Jagan Nath to leave the
deceased on account of which Jagan Nath had started living in the city. The allegation which has
been levelled against the appellants that they have assaulted the deceased on account of the fact that
she was the Mudkatni with Lathi is false one. He further submitted that the evidence of P.W. 1 and
P.W. 2 cannot be relied upon as the are highly interested partisan witnesses. It was next argued that
the even if the prosecution case is taken its face value, though the deceased received 10 injuries on
her person but the injury no. 2 was found to be fatal one as is evident from the statement of the
doctor P.W. 4 K.P. Pathak and further author of the said injury is not known, thereafter, conviction
and sentence of the appellants under Section 304 I.P.C. for 10 years against the evidence on record.
He submitted that the incident has taken place on a trivial issue that the deceased was a "Mudkatni"
(notion of superstition) and she was done to death by the appellants the findings of conviction and
sentence recorded by the trial court against them under Section 304 I.P.C. is not justified and the
same be set aside as the case would not travel beyond Section 325 I.P.C. Moreover, the appellants
have already served out one year in jail as under trial and after their conviction and they are aged
about 60 to 65 years. The appeal has come up for hearing after 24 years and incident is 28 years
old. Their rest of the sentence be reduced to fine which may not be treated as enhancement of fine.
The learned counsel for the appellant has placed reliance upon the judgement of the Division Bench
of this Court passed by 2013 (2) JIC 788 (Mohan and others Vs. State of U.P.) and 2006 (1) JIC
503 (All) (State of U.P. Vs. Atabul & others)

18. Learned AGA on the other hand has vehemently refuted the arguments of the learned
counsel for the appellant and submitted that even though the deceased was a "Mudkatni" then to the
appellants had not right to assault her and beat her to death. He argued that as per the post mortem
report of the deceased the deceased received 10 injuries on her person which shows that the
deceased was mercilessly beaten by the two appellants with Lathi and the post mortem report of the
deceased corroborates the prosecution case but the learned AGA could not dispute the fact that the
injury no. 2 which has been opined by the doctor to be the cause of death. The author of the said
injury is not known and the case law which has been relied upon by the learned counsel for the
appellant particularly Mohan and others Vs. State of U.P. (supra) is squarely covered in the given
facts and circumstances of the case.

19. Considering the submissions advanced by the learned counsel for the parties and
perused the record.
6 All. Ram Phar & Ors. Vs State

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20. It is admitted fact that the deceased had gone to attain the call of nature at 4.30 a.m. in
the morning on 8.4.1988 and the accused treated her to be "Mudkatni" (a notion of superstition) for
assaulting the deceased with Lathi on an alarm raised by her father in law of P.W. 1 and other
witnesses including P.W. 2 Kalideen arrived at the place of incident and saw that the accused
assaulting the deceased with Lathi the deceased was beaten by the appellants on account of which
she had fallen on the ground but her injuries were not found to be bleeding. The deceased received
as many as 10 injuries of her person as has been evident from the post mortem report of the
deceased. P.W. 4 Dr. K.P. Pathat during his evidence before the trial court that out of the ten
injuries found on the person of the deceased, injury nos. 1 and 2 were sufficient in the ordinary
course of the nature to cause of death the appellant. Moreover injury no. 2 is the cause of death.
The contention of the learned counsel for the appellants that it was the P.W. 1 Ram Milan and his
wife, who were torturing the deceased and harassing her and further pressuring his son to leave her,
who had leave her and went to live city to earn his livelihood and further the deceased ornaments
were demanded by the P.W. 1 for the marriage of her younger daughter, who refused to do the
same, therefore, they have beaten the deceased cannot be accepted as the incident has taken place
outside the house of the informant when the deceased had gone to attain the call of nature near the
house of accused Ram Phare where she was assaulted by the two appellants and his father Ram
Phare (Now dead) and the said incident was witnessed by P.W. 1 and P.W. 2 Kalideen and other
persons of the village. Further the contention of the applicants of counsel that two witnesses P.W.
and 2 are highly interested and partisan witnesses hence their testimony is unwarranted to be
believed also has no force as the trial court has scanned their evidence minutely and came to the
conclusion that the said witnesses were reliable one and further their evidence corroborates the post
mortem report of the deceased which has been proved by P.W. 4 Dr. K.P. Pathak. Thus, the
participation of the accused appellants cannot be ruled out.

21. So far as the contention of the counsel for the appellants that even if the case of the
prosecution is taken on its face value the offence would not travel beyond Section 325 I.P.C. and
the conviction of the appellants under Section 304 I.P.C. is against the evidence on record appears
to have substance. It is evident from the evidence of P.W. 4 Dr. K.P. Pathak before the trial court
that the injury no. 1 and 2 were sufficient to cause death in the ordinary course of nature but the
injury no. 2 was proved to be fatal and the the author of the said injury was not known. Further the
incident has taken place on a trivial issue that the deceased was "Mudkatni" and the accused were
under superstition that she was not auspicious in the village, hence on seeing her in the morning at
a tap, they assaulted her. There was no enmity between the parties, therefore, it is apparent from the
evidence that there was no real intent nor it could discern any knowledge to any accused that the
act which he had committed was so eminently dangerous that in all probably must have caused
death.

22. In my opinion there is no intent of causing the death and as such it could be a voluntary
act of causing grievous injury to the deceased.

23. In view of foregoing discussions, I partly allow the appeal by acquitting the appellants
for their conviction under Section 304 I.P.C. by altering the finding of conviction as against them
92 INDIAN LAW REPORTS ALLAHABAD SERIES

under Section 325 I.P.C. As regards the sentence, I direct the two appellants Ram Kishun and Jatan
to suffer rigorous imprisonment for three years. The appellants are old persons and their age about
60 to 65 years. The incident is 28 years old and the appeal has come for hearing after 24 years for
hearing and further taking into account, the position of the appellants as on date. As they have
already undergone one year as under trial and after their conviction.

24. Considering the facts and circumstances of the case, the appellants Ram Kishun and
Ram Jatan, who are convicted and sentenced under Section 325 I.P.C. for three years R.I. and
further their sentence is reduced to fine of Rs. 1,00,000/-, which shall be deposited by the aforesaid
two appellants, namely, Ram Kishun and Ram Jatan in equal proportion i.e. 50,000/- each in the
Court of C.J.M. concerned within two months from today. Out of which Rs. 90,000/- is directed to
be paid to the child of the deceased Malawati and Jagannath or to her legal hairs, if any and Rs.
10,000/- shall go to the State.

25. In default of payment of fine, as directed above, the appellants shall be taken into
custody to serve out the sentence, as modified by this Court.

26. In view of the above, the appeal is partly allowed.

27. Senior Registrar of this Court is directed to send the certified copy of this order to the
District Judge, concerned for its compliance.
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APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.06.2016

BEFORE

THE HON'BLE SHASHI KANT GUPTA, J.
THE HON'BLE HARSH KUMAR, J.

Criminal Appeal No.- 958 Of 1983

Suraj Bali & Ors. ...Appellants
Versus
State Of U.P. ...Respondent

Counsel for Appellants:
V.C. Katiyar, R.K. Tiwari, U.C. Mishra

Counsel for Respondent:
D.G.A.
.................................
Murder -- Culpable Homicide -- Section 302/149 IPC vs. Section 304 Part I/149 IPC -- Sudden
Fight -- No Premeditation -- Deceased's cattle per chance trespassed into arhar fields of accusedappellants -- Abusing followed by deceased's refusal to tender apology -- Altercation suddenly converted into