# Ram Prakash v. State of U.P

- **Citation:** (2023) 1 ILRA 933
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-18
- **Case number:** Jail Appeal No. 777 of 1991
- **Bench:** Ashwani Kumar Mishra, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-prakash-v-state-of-u-p-49173
- **Pages:** 17

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Section 3- It is settled law that in all
criminal cases, normal discrepancies are
bound to occur in the depositions of
witnesses
due
to
normal
errors
of
observation, namely, errors of memory
due to lapse of time or due to mental
disposition such as shock and horror at
the
time
of
occurrence.
Where
the
omissions amount to a contradiction,
creating
a
serious
doubt
about
the
truthfulness of the witness and other
witnesses
also
make
material
improvement while deposing in the court,
such evidence cannot be safe to rely upon.
However,
minor
contradictions,
inconsistencies,
embellishments
or
improvements on trivial matters which do
not affect the core of the prosecution
case, should not be made a ground on
which the evidence can be rejected in its
entirety. The court has to form its opinion
about the credibility of the witness and
record a finding as to whether his
deposition inspires confidence.
Minor
inconsistencies,
contradictions
and
embellishments in the evidence of witnesses
which do not effect the core of the case of the
prosecution, will not result in the court
discarding such evidence but where the
contradictions are serious and effect the very
core of the case of the prosecution, then such
evidence cannot be safely relied upon.

Indian Evidence Act, 1872- Section 3- It is
well
settled
that
the
evidence
of
interested or inimical witnesses is to be
scrutinised with care but can not be
rejected merely on the ground of being a
partisan evidence. If on a perusal of the
evidence the Court is satisfied that the
evidence is creditworthy there is no bar in
relying on the said evidence. It is also well
settled that interested evidence is not
necessarily unreliable evidence. All that is
necessary
is
that
the
evidence
of
interested witnesses should be subjected
to careful scrutiny and accepted with
caution. Thus, the evidence cannot be
disbelieved merely on the ground that the
witnesses are related to each other or to
the deceased. In case the evidence has a
ring of truth to it, is cogent, credible and
trustworthy, it can, and certainly should,
be relied upon.

Where the evidence of a related or interested
witness
is
found
to
be
truthful
and
creditworthy then the same cannot be
disbelieved on the ground that the witness is
related to the victim , however evidence of
such witness has to be scrutinised with due
care and caution.

Indian Evidence Act, 1872- Section 8-
It is well settled that in case of direct
evidence,
motive
would
not
be
relevant
and
only
in
case
of
circumstantial
evidence,
motive
assumes great significance. In a case
in which the evidence is clear and
unambiguous and the circumstances
proves the guilt of the accused, the
same would not get weakened even if
the motive is not a very strong one.
The motive loses all its importance in a
case where direct evidence of eye
witnesses is available.
934 INDIAN LAW REPORTS ALLAHABAD SERIES
Settled law that in a case of circumstantial
evidence motive is relevant but in a case of
direct evidence, motive pales into insignificance.

Indian Penal Code, 1860- Section 302-
Section 304 - The law is settled that
conviction under Section 302 I.P.C. could
be altered to Section 304 I.P.C., if the case
falls
in
any
of
the
ingredients
of
Exception-4
to
Section
300
I.P.C.,
Exception-4
would
be
attracted.
Necessary ingredients to be attracted for
Exception-4 to Section 300 I.P.C. to be
invoked would be that the incident
occurred without premeditation; in a
sudden fight; in the heat of passion upon
sudden quarrel; without the offender
having taken undue advantage or acted in
a cruel or unusual manner -The case in
hand
would
clearly
not
fall
within
Exception-4 to Section 300 I.P.C. only for
the reason that the offender has acted in a
most cruel and unusual manner while
committing the offence. the accusedappellant objected to wishes of his wife
(deceased) to visit her parental house and
when the deceased insisted to go with her

## Text

_Characters 0–39,976 of 56,032. This is a partial read: ask again with offset=39976 for what follows._

1 All. Ram Prakash Vs. State of U.P.
933

15. No order as to costs.
----------
(2023) 1 ILRA 933
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.11.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Jail Appeal No. 777 of 1991

Ram Prakash ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Devendra Dahma, Sri Raj
Kumar Sharma (A.C.), Sri Rajeev Kumar
Singh 'Parmar'

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

Criminal Law- Indian Evidence Act, 1872-
Section 3- It is settled law that in all
criminal cases, normal discrepancies are
bound to occur in the depositions of
witnesses
due
to
normal
errors
of
observation, namely, errors of memory
due to lapse of time or due to mental
disposition such as shock and horror at
the
time
of
occurrence.
Where
the
omissions amount to a contradiction,
creating
a
serious
doubt
about
the
truthfulness of the witness and other
witnesses
also
make
material
improvement while deposing in the court,
such evidence cannot be safe to rely upon.
However,
minor
contradictions,
inconsistencies,
embellishments
or
improvements on trivial matters which do
not affect the core of the prosecution
case, should not be made a ground on
which the evidence can be rejected in its
entirety. The court has to form its opinion
about the credibility of the witness and
record a finding as to whether his
deposition inspires confidence.
Minor
inconsistencies,
contradictions
and
embellishments in the evidence of witnesses
which do not effect the core of the case of the
prosecution, will not result in the court
discarding such evidence but where the
contradictions are serious and effect the very
core of the case of the prosecution, then such
evidence cannot be safely relied upon.

Indian Evidence Act, 1872- Section 3- It is
well
settled
that
the
evidence
of
interested or inimical witnesses is to be
scrutinised with care but can not be
rejected merely on the ground of being a
partisan evidence. If on a perusal of the
evidence the Court is satisfied that the
evidence is creditworthy there is no bar in
relying on the said evidence. It is also well
settled that interested evidence is not
necessarily unreliable evidence. All that is
necessary
is
that
the
evidence
of
interested witnesses should be subjected
to careful scrutiny and accepted with
caution. Thus, the evidence cannot be
disbelieved merely on the ground that the
witnesses are related to each other or to
the deceased. In case the evidence has a
ring of truth to it, is cogent, credible and
trustworthy, it can, and certainly should,
be relied upon.

Where the evidence of a related or interested
witness
is
found
to
be
truthful
and
creditworthy then the same cannot be
disbelieved on the ground that the witness is
related to the victim , however evidence of
such witness has to be scrutinised with due
care and caution.

Indian Evidence Act, 1872- Section 8-
It is well settled that in case of direct
evidence,
motive
would
not
be
relevant
and
only
in
case
of
circumstantial
evidence,
motive
assumes great significance. In a case
in which the evidence is clear and
unambiguous and the circumstances
proves the guilt of the accused, the
same would not get weakened even if
the motive is not a very strong one.
The motive loses all its importance in a
case where direct evidence of eye
witnesses is available.
934 INDIAN LAW REPORTS ALLAHABAD SERIES
Settled law that in a case of circumstantial
evidence motive is relevant but in a case of
direct evidence, motive pales into insignificance.

Indian Penal Code, 1860- Section 302-
Section 304 - The law is settled that
conviction under Section 302 I.P.C. could
be altered to Section 304 I.P.C., if the case
falls
in
any
of
the
ingredients
of
Exception-4
to
Section
300
I.P.C.,
Exception-4
would
be
attracted.
Necessary ingredients to be attracted for
Exception-4 to Section 300 I.P.C. to be
invoked would be that the incident
occurred without premeditation; in a
sudden fight; in the heat of passion upon
sudden quarrel; without the offender
having taken undue advantage or acted in
a cruel or unusual manner -The case in
hand
would
clearly
not
fall
within
Exception-4 to Section 300 I.P.C. only for
the reason that the offender has acted in a
most cruel and unusual manner while
committing the offence. the accusedappellant objected to wishes of his wife
(deceased) to visit her parental house and
when the deceased insisted to go with her
father, the accused-appellant assaulted
her with sickle and caused as many as 15
blows.

Where the accused has acted with unusual
cruelty and has inflicted repeated blows on the
deceased then the case will not travel within the
purview of Section 304 IPC.

Indian Penal Code, 1860- Section 302
I.P.C- From perusal of the aforesaid
Section, it is clear that any accused, who
commits any murder shall be punished
with death or life imprisonment and fine
shall also be imposed against him. While
awarding
sentence
of
death
or
life
imprisonment,
fine
should
be
read
together. Before the word "fine", the word
"shall"
is
used
and
therefore,
the
imposition of fine is mandatory while
awarding death or life sentence to any
accused,
who
committed
murderAccordingly,
in
addition
to
life
imprisonment,
while
affirming
the
judgment of trial court, we also impose
fine of Rs. 10,000/- upon the accusedappellant. It is also clarified that in case of
default in payment of the said fine, he has
to
undergo
six
months
additional
imprisonment.

As imposition of fine is mandatory where the
punishment awarded is death or life sentence
and fine has to be read along with the sentence
awarded accordingly fine imposed upon the
appellant. (Para 35, 37, 38, 41, 42, 43, 45, 47,
54, 55, 56)

Criminal Appeal rejected. (E-3)

Case Law/ Judgements relied upon:-

1. Dildar Singh Vs St. of Har., JT 1992 (4) SC
19 (cited)

2. Baldev Singh & anr. Vs St. of Punj., 1996
AIR 372(cited)

3. Mer Dhana Sida Vs St. of Guj., AIR 1985 SC
386(cited)

4. Dalip Singh Vs St. of Har., AIR 1993 SC
2302(cited)

5. Kansa Behera Vs St. of Ori., 1987 AIR
1507(cited)

6.
Satye
Singh
&
anr.
Vs
St.
of
U.K.,15/02/2022, Cril. Appeal No. 2374 of
2014(cited)

7. Ashiq Lal Vs St. of U.P.,1997 Legal Eagle
(Ald) 35(cited)

8. Mekala Sivaiah Vs St. of A.P, 2022 SCC
Online SC 887(cited)

9. Ram Kumar Madhusudan Pathak Vs St. of
Guj., 1998 0 Supreme (SC) 836(cited)

10. Arulvelu & anr. Vs St. Rep. By the Public
Pros. & anr., 2009 0 Supreme (SC)
1628(cited)

11. Ram Nath Nonia Vs St. of Bih., 1999 0
Supreme (Pat) 778. (cited)

12. Suresh Chandra Bahri Vs St. of Bih., 1995
Supp (1) SCC 80
1 All. Ram Prakash Vs. State of U.P.
935
13. Pulicherla Nagaraju [Pulicherla Nagaraju Vs
St. of A.P.,(2006) 11 SCC 444 : (2007) 1 SCC
(Cri) 500]
(Delivered by Hon'ble Shiv Shanker
Prasad, J.)

1. This appeal has been preferred by
appellant,
Ram
Prakash
against
the
judgment and order dated 11th September,
1984 passed by the Special Judge (E.C.
Act)/Additional
Sessions
Judge,
Farrukhabad in Sessions Trial No. 169 of
1982 (State vs. Ram Prakash) under
Section
302
I.P.C.,
Police
Station-
Gursahaiganj,
District-
Farrukhabad,
whereby the accused-appellant has been
convicted
and
sentenced
to
undergo
imprisonment for life under Section 302
I.P.C.

2. We have heard Mr. Raj Kumar
Sharma, learned Amicus Curiae on behalf
of the appellant and Mr. Arun Kumar
Singh, learned A.G.A. for the State and
also perused the entire materials available
on record.

3. Initially hearing in the matter was
concluded on 2nd November, 2022 and
10th November, 2022 was fixed for
delivery of judgment. While preparing the
judgment it was noticed that the Session
Court
after
convicting
the
accusedappellant has sentenced him to life
imprisonment for the offence punishable
under Section 302 I.P.C. without passing
any order on the aspect relating to fine.

4. Once the concerned court of
Session convicts an accused under Section
302 I.P.C., it was required to pass order in
respect of the sentence and fine both. In the
facts of the present case, however, no order
has been passed with regard to fine.
Because of the said reason, we adjourned
the present case on 10th November, 2022
in order to afford an opportunity of hearing
to learned Amicus curiae appearing for the
accused-appellant on this aspect.

5. On 14th November, 2022, we heard
the learned Amicus Curiae and the learned
A.G.A. for the State on the said issue.

6. The prosecution story, as reflected
from the records, is as follows:

On the written report of the
informant- P.W.-2 Ram Babu dated 3rd
November, 1981 (Exhibit-Ka/1) scribed by
Muneshwar Dayal (son of the informant), a
first information report (Exhibit-Ka/2) has
been lodged on 3rd November, 1981 at
11.35 a.m. against the accused-appellant
alleging therein that about 4-5 years back,
he solemnized the marriage of his daughter
with the accused-appellant. After marriage,
the daughter of the informant (since
deceased) and his son-in-law i.e. accusedappellant often used to fight with each
other. There were incidents when the
informant went to the place of the accusedappellant to take her along with him to his
place but the accused-appellant did not
send her with him. It is further alleged that
about two months ago, the daughter of the
informant i.e. the deceased delivered twin
girls both of whom died after some time.
After coming to know about the sad demise
of his twin grand-daughters, the informant
came to the place of accused-appellant
along with his son to take his daughter
(deceased) with him to his place and when
the
informant-P.W.2
and
his
son
Muneshwar Dayal requested repeatedly, the
accused-appellant refused to send her along
with them. On the next day in the morning
at about 09:00 a.m. when the daughter of
the informant i.e. deceased started to get
ready to go with the informant and
936 INDIAN LAW REPORTS ALLAHABAD SERIES
Muneshwar Dayal, the accused-appellant
abused her and stopped her from going
with them. The deceased, however, said
that she would not stay with him and would
go at any cost on which the accusedappellant threatened her to face dire
consequences if she disobeyed him.

While the informant with his son
Muneshwar Dayal were sitting outside the
house on the platform, waiting for his
daughter, they heard alarm/screams of the
deceased for saving her. The informant and
his son ran inside the courtyard and saw
that the accused-appellant was hitting the
deceased with a sickle (reaping hook) in the
room. Seeing the same, the informant and
Muneshwar Dayal shouted on which
Hanumant Lal son Dhanuk, Shiv Ram son
of Ram Lal Lodhi, Ram Gopal, Ram Vilash
Bhurji, Ram Kishor son of Mathuri Lal and
many other people came and they also saw
the accused-appellant hitting the deceased
with sickle. Due to the injuries of the sickle
sustained by the deceased, she died on the
spot. All persons present on the spot
including the informant and Muneshwar
Dayal caught the accused-appellant along
with said sickle and handed him over to the
two Police constables who were on
patrolling at that time.

7. After collecting the blood stained
sickle and blood stained vest (Baniyan)
wore by the accused-appellant, which
were marked as Exhibit-Ka/4 and ExhbitKa/5, the Investigating Officer reached
the spot and collected the blood stained
and plain earth and also recorded the
statements of the witnesses. The inquest
of the deceased was conducted on the
same day i.e. 3rd November, 1981
between 11.35 a.m. to 02.00 p.m. and the
statements of witnesses were taken on the
inquest
report
(Exhibit-Ka-8).
The
inquest witnesses opined that since the
cause of death of the deceased was due to
injuries sustained by her from sickle, the
post-mortem was necessary.

8. Thereafter the dead body of the
deceased
was
sealed
and
sent
to
Mortuary. The autopsy of the deceased
was conducted on the next day i.e. 4th
November, 1981 at 03:30 p.m. by Dr.
K.K. Agarwal (P.W.-5). In the opinion of
P.W.-5, the cause of death of deceased
was shock and haemorrhage due to
following ante-mortem injuries:

"1- Incised wound 1 1/2" x 1/4"
x cartilage deep on the outer side of left
Pinna.
Direction
from
upward
to
downward. Cartilage was cut.

2- Incised wound 1/2" x 1/10" x
skin deep on the Supraclavicular fossa of
the right side.

3- Stab wound 1" x 1/2" x chest
cavity deep on the upper part of left
breast. Direction front to back and
inward.

4- Stab wound on the lower side
of left breast areola 3/4" x 1/2"x chest
cavity deep. Direction front to back and
upward.

5- Incised wound 1" x 4/10" x
muscle deep on the right side of chest mid
axillary
line
6"
below
the
axilla.
Tapering inward.

6- Stab wound 1 x 1/2" x chest
cavity deep on right side of chest in mid
axillary line 2" below injury No.5.
Direction right to left.

7- Stab wound 11/4" x 3/4" x
abdominal cavity deep on the right
hypochondrium. Direction front to back
downward.

8- Incised wounds 1/2" x 1/4" to
3/10" x 2/10"x muscle to bone deep on the
palmer aspect of the left hand medial four
fingers. Placed transversally.
1 All. Ram Prakash Vs. State of U.P.
937

9- Incised wound 3/4" x 1/4"x
muscle deep on the back of the left forearm
2 1/2" above the wrist joint. Wound in long
axis of forearm.

10- Stab wound 3/4" x 1/2" chest
cavity deep on the back of right side chest
5" below the right shoulder. Direction back
to front.

11-Multiple incised wound 1/4" x
1/2" x bone deep, 1/2" x 2/10" x skin deep
in an area of 10" to 6" on the back of the
chest and the lumbar region.

12-Incised wound 1 1/2" x 1/2" x
muscle deep on the front of the right thigh.
2" above the knee joint in long axis.

13-Incised wound 2" x 3/4" x
bone deep on the shin of the right leg 5"
below the knee joint. Wound in transverse
plane.

14-Two incised wounds 3" apart
1/2" x 1/4" x skin deep and 1" x 1/2" x
muscle deep on the right hip.

15-Abrasion 4/10" x 3/10" on the
outer malleolus of left foot."

9. The investigation proceeded and
after completion of statutory investigation
in terms of Chapter XII Cr.P.C., the
Investigating Officer submitted the chargesheet
(Exhibit-Ka
18)
dated
30th
November, 1981 against the accusedappellant. The Magistrate concerned took
cognizance of the offence on the chargesheet and as the case was triable by the
court of sessions, committed the case to the
court of Sessions resultantly, the same was
registered as Sessions Trial No. 169 of
1982 (State vs. Ram Prakash) under
Section
302
I.P.C.,
Police
StationGursahaiganj, District-Farrukhabad.

10. On 14th October, 1982, the
learned Trial Court framed following
charges against the accused-appellant for
the offence under Sections 302 and 504
I.P.C.:

"I. K.K. Verma, 1st Addl. Session
Judge, Farrukhabad at Fatehgarh, hereby
charge you Ram Prakash as follows:

That you on 3.11.81 at about 9
A.M. in village Mirpur, Police Station
Gursahaiganj
Distt.
Farrukhabad,
committed murder of Smt. Usha Devi by
inentnionally and knwoingly causing her
death by sickle (HANSIA) and thereby
committed an offence of punishable U/S
302 I.P.C. and within the cognizance of this
court.

And I hereby direct you that you
be tried by this court on the aforesaid
charge.

11. In order to prove its case, the
prosecution
relied
upon
documentary
evidence, which were duly proved and
consequently marked as Exhibits. The same
are catalogued herein below:-

"i). Written report dated 3rd
November, 1981 (Exhibit-Ka/1) of the
informant-P.W.2, which has been scribed
by P.W.-3 ;

ii). The first information report
dated 3rd November, 1981 has been
marked as Exhibit- Ka/2;

iii). Recovery memo of blood
stained
sickle
(Hansia)
dated
3rd
November, 1981 has been marked as
Exhibit-ka/4;

iv). Recovery memo of blood
stained
vest
(Baniyan)
dated
3rd
November, 1981 has been marked as
Exhibit-ka/5;

v). Recovery memo of blood
stained
and
plain
earth
dated
3rd
November, 1981 has been marked as
Exhibit-ka/16;
938 INDIAN LAW REPORTS ALLAHABAD SERIES

vi).
Inquest
report
(Panchayatnama) dated 3rd November,
1981 has been marked as Exhibit-Ka/8;

vii). Site plan with Index dated
3rd November, 1981 has been marked as
Exhibit-ka/15;

viii). The post-mortem/autopsy
report dated 4th November, 1981 has been
marked as Exhibit-Ka-7;

ix). Report of chemical examiner
of 9th July, 1982 has been marked as
Exhibit-ka/19;

x). Report of Chemical Examiner
and Serologist dated 27th July, 1982 has
been marked as Exhibit-ka/20;

xi). Extract examination of the
P.W.-1 Ram Bilas; and

xii). Charge-sheet dated 30th
November, 1981 has been marked as
Exhibit- Ka/18."

12. The prosecution also examined
total nine witnesses in the following
manner:-

"i). P.W.-1 Ram Bilash, resident
of village of the accused-appellant, who is
said to be eye witness;

ii).
Informant/P.W.-2,
namely,
Ram Babu, father of the deceased, who is
also said to be an eye-witness; ;

iii) P.W.-3, namely, Ram Kishor
resident of village of the accused-appellant,
who is also said to be an eye-witness;

iv) P.W.-4, namely, Constable697 Krishnapal Singh, who was on
patrolling duty on the date and time of
incident and took the accused-appellant to
the Police Station along with blood stained
sickle;

v). P.W.-5, namely, Constable360 Padam Singh, who prepared the Chik
first information report (Exhibit-ka/2) and
has also made entry in that regard in
Generl Diary (Exhibit-ka/3);

vi). P.W.-6, namely, Dr. K.K.
Agarwal, who conducted the autopsy of the
deceased and prepared the post-mortem
report (Exhibit-ka/7);

vii).
P.W.-7,
namely,
SubInspector Hori Lal Yadav, who has
investigated the case."

13. After recording of the prosecution
evidence, the incriminating evidence were
put to the accused-appellant for confronting
with the same under Section 313 Cr.PC. In
his statement recorded U/s 313 Cr.P.C. the
accused appellant denied his involvement
in the commissioning of the offence under
Section 302 I.P.C. Accused appellant Ram
Prakash has specifically stated before the
trial court that he has been falsely
implicated in this case due to enmity. He
has further stated that on the date of
occurrence, when he was in his field, some
unknown persons had raided his house in
the early morning, when it was still dark
and they had inflicted injuries to his wife.
No witness has however been adduced
from the defence.

14. The trial court after relying upon
the evidence adduced by the prosecution
and recording its finding, has come to the
conclusion under the impugned judgment
of conviction that the prosecution in this
case has been able to establish beyond all
shadow of doubt that for a very petty
reason the accused committed the murder
of his innocent wife whose only fault was
her insistence to go with her father for a
while for a change because her newly born
twin daughters had recently died. The
accused lost his temper on this trifling
matter and gave numerous blows with his
sickle on his wife resulting in her death.
The trial court has not accepted the plea of
the defence that on the date of incident,
when he was in his field some persons
1 All. Ram Prakash Vs. State of U.P.
939
entered into his house in early morning and
they had assaulted his wife due to which
she died. After recording a finding in that
regard the trial court has opined that the
defence version is palpable false because
no report or any incident of dacoity was
lodged by any member of the family of the
accused and also because none from the
village of the accused has come forward to
support this version.

On the cumulative strength of the
aforesaid, the trial court has held that the
accused-appellant is guilty of offence
punishable under Sections 302 I.P.C. for
the murder of the deceased i.e. his wife. As
such,
the
trial
court
convicted
and
sentenced the accused-appellant for the
aforesaid offence. It is against this
judgment and order of conviction passed by
the trial court that the present jail appeal
has been filed on the ground that conviction
is against the weight of evidence on record
and against the law and the sentence
awarded to the accused-appellant is too
severe.

15. Assailing the impugned judgment
and order of conviction, Mr Raj Kumar
Sharma, learned Amicus Curiae appearing
for the accused-appellant submits that:

(i) As per the autopsy report of
the deceased, semi-cooked food in the
small intestine and fecal matter in the large
intestine of the deceased were found by
P.W. 6 and he also found that there was no
urine in the bladder of the deceased
meaning thereby that deceased must have
eaten food six hours ago i.e. between 3.00
a.m. to 4.00 a.m., which does not seem to
be correct. Therefore the time of death of
the deceased, as per the prosecution i.e. at
around
09.00
is
also
questionable.
Therefore, it appears to be correct that the
deceased must have died in the early
morning, i.e. between 3.00 a.m. and 4.00
a.m.

(ii) The accused-appellant has not
committed the said offence but by dacoits
or some one who entered into his house
between 3.00 a.m. to 4.00 a.m. in the early
morning for looting the property when it
was dark and in absence of the accusedappellant when he was in his field.

(iii) Neither P.W.-2/informant nor
his son Muneshwar, who has not been
adduced as one of the prosecution witness,
had seen the incident on their own eyes as
they were not present at the crime of scene,
when occurrence was going on. It is
impossible to believe that when a married
woman (deceased) was killed by her
husband (accused-appellant) and instead of
saving her, her father (informant/P.W.-2)
and brother (Muneshwar) stood watching
and asking for help from others.

(iv) The case of the prosecution
that the informant/P.W.2 and his son
Muneshwar stayed at the in-law's place of
the deceased for taking her along with them
is also doubtful, as in Indian civilization,
especially in a Hindu Brahmin family, no
father or brother stays with his married
daughter or sister at her in-law's place for
three days. Therefore, the presence of the
informant/P.W.-2 and Muneshwar at the
time of incident is doubtful.

(v) The applicant has been falsely
implicated by the prosecution and he has no
intention or motive to commit the said
offence.

(vi) There were contradictions in
the statements of the prosecution witnesses.

(vii) The prosecution version that
the accused-appellant has assaulted the
deceased by a sickle is also doubtful as the
sickle is a curved weapon and only one of
its side is sharp. When as matter of fact the
injuries found by the doctor at the time of
940 INDIAN LAW REPORTS ALLAHABAD SERIES
post-mortem on the dead body of the
deceased could not have been inflicted by
it.

On the cumulative strength of the
aforesaid, learned counsel appearing for the
accused-appellant
submits
that
the
impugned
judgment
and
order
of
conviction cannot legally be sustained and
is liable to be quashed.

Apart from the above, in the
alternative learned Amicus Curiae has also
submitted that since the incident in
question occurred on a spur of moment and
in the heat of passion upon sudden quarrel,
the same would be covered under the 4th
Exception to Section 300 I.P.C., which
reads as under:

"Exception
4.
--Culpable
homicide is not murder if it is committed
without premeditation in a sudden fight in
the heat of passion upon a sudden quarrel
and without the offender having taken
undue advantage or acted in a cruel or
unusual manner."

Learned
Amicus
Curiae,
therefore, submits that if this Court finds
the accused-appellant guilty of the offence
beyond reasonable doubt, he be punished
under Section 304 Part II I.P.C. instead of
Section 302 I.P.C. In support of the
aforesaid submissions, learned Amicus
Curiae has placed reliance upon following
judgments of the Apex Court, Allahabad
High Court:

(a) Dildar Singh vs. State of
Haryana reported in JT 1992 (4) SC 19;

(b) Baldev Singh & Anr. Vs.
State of Punjab reported in 1996 AIR 372;

(c) Mer Dhana Sida vs. State of
Gujarat reported in AIR 1985 SC 386;

(d) Dalip Singh vs. State of
Haryana reported in AIR 1993 SC 2302;

(e) Kansa Behera Vs. State of
Orissa reported in 1987 AIR 1507;

(f) Satye Singh & Another vs.
State of Uttarakhand decided on 15th
February, 2022 passed in Criminal Appeal
No. 2374 of 2014' and

(e) Ashiq Lal Vs. State of U.P.
reported in 1997 Legal Eagle (Ald) 35.

16. On the other-hand, Mr. Arun
Singh, learned A.G.A. for the State,
supporting the judgment and order of
conviction,
submits
that
the
first
information
report
has
been
lodged
promptly naming the accused person; there
is clinching evidence to support the
prosecution's case; the incident in which
the deceased is alleged to have been
murdered by the accused-appellant Ram
Prakash, occurred at about 09:00 a.m. i.e.
in broad day light; there are three eye
witnesses of the alleged incident; one
circumstantial
witness;
the
place
of
occurrence has not been disputed by the
defence; and the accused-appellant has
strong motive or intention and the same has
also been explained by the evidence of
prosecution. Therefore, the prosecution has
proved the charge levelled against the
accused-appellant
beyond
reasonable
doubt.

17.

To
bolster
the
aforesaid
submissions, learned A.G.A. has invited the
attention of the Court to the latest judgment
of the Apex Court in the case of Mekala
Sivaiah vs. State of Andhara Pradesh
reported in 2022 SCC Online SC 887,
whereby the Apex Court in paragraph
nos.25 and 26 has held as follows:

"25. The facts and evidence in
present
case
has
been
squarely
abefornalyzed by both Trial Court as well
the High Court and the same can be
summarized as follows:
1 All. Ram Prakash Vs. State of U.P.
941

i.
The
prosecution
has
discharged its duties in proving the guilt
of the appellant for the offence under
Section 302 I.P.C. beyond reasonable
doubt.

ii. When there is ample ocular
evidence
corroborated
by
medical
evidence, mere non-recovery of weapon
from the appellant would not materially
affect the case of the prosecution.

iii. If the testimony of an eye
witness is otherwise found trustworthy and
reliable, the same cannot be disbelieved
and rejected merely because certain
insignificant,
normal
or
natural
contradictions have appeared into his
testimony.

iv. The deceased has been
attacked by the appellant in broad daylight
and there is direct evidence available to
prove the same and the motive behind the
attack is also apparent considering there
was previous enmity between the appellant
and PW-1.

26.
Having
considered
the
aforesaid facts of the present case in
juxtaposition
with
the
judgments
referred to above and upon appreciation
of evidence of the eyewitnesses and
other
material
adduced
by
the
prosecution, the Trial Court as well as
the High Court were right in convicting
the appellant for the offence under
Section 302 I.P.C. Therefore, we do not
find any ground warranting interference
with the findings of the Trial Court and
the High Court."

(Emphasis added)

Mr. Arun Singh, learned A.G.A.
for the State has also placed reliance upon
the following judgments of the Apex Court
and Patna High Court:

(a) Ram Kumar Madhusudan
Pathak vs. State of Gujurat reported in
1998 0 Supreme (SC) 836;

(b) Arulvelu & Anr. Vs. State
Rep. By the Public Prosecutor & Anr.
Reported in 2009 0 Supreme (SC) 1628;
and

(c) Ram Nath Nonia vs. State of
Bihar reported in 1999 0 Supreme (Pat)
778.

On the cumulative strength of the
aforesaid submissions, learned A.G.A.
submits that as this is a case of direct
evidence, the impugned judgment and
order of conviction does not suffer from
any illegality and infirmity so as to warrant
any interference by this Court. As such the
present jail appeal filed by the accused
appellants who committed heinous crime
by murdering the deceased is liable to be
dismissed.

18.

We
have
considered
the
submissions made by the learned counsel
for the parties and have examined the
original records of the court below as well
as the impugned judgment and order of
conviction challenged before us.

19. The only question which is
required to be addressed and determined in
this jail appeal is whether the conclusion of
guilt arrived at by the learned trial court
and the sentence awarded is legal and
sustainable under law and suffers from no
infirmity and perversity.

20. Before entering into the merits of
the case set up by the learned counsel for
the appellant and the learned A.G.A. for the
State qua impugned judgment and order of
conviction passed by the trial court referred
to above, it is desirable for us to record
statements of the prosecution witnesses in
brief.

21. P.W.-1 Ram Bilas who is resident
of village of accused-appellant has stated
942 INDIAN LAW REPORTS ALLAHABAD SERIES
that he knew the accused-appellant who
killed his wife. It is further stated that on
the date of incident at about 8.30 to 9.00
a.m. when he was coming to his house
from his field and as soon as he reached the
door of the house of one Pandit Radhey
Shyam, he heard a loud sound and entered
into the house of the accused-appellant,
where he saw that the relatives of accusedappellant i.e. his father-in-law and brotherin-law were standing behind the accusedappellant who had a sickle in his hand
which was full of blood. The other
villagers, namely, Hanuman and Shiva,
Raj, Ram Kishore, Ram Gopal were also
there. The relatives of the accusedappellant caught him and brought him out.
Wife of the accused-appellant was lying on
the ground, blood was flowing from her
body. Soon after two constables reached
the spot and with their help the accusedappellant was taken to the Police Station by
P.W.-2 and his son Muneshwar. However,
P.W.-1 has stated that he did not see the
accused beating his wife with a sickle. As
such he was declared hostile. In his crossexamination by the prosecution, he has,
however, conceded that his house was quite
close to the house of the accused-appellant
and that he had no enmity with him.
However, in the cross-examination by the
learned counsel for the defence, he stated
that some litigation was going on between
the accused-appellant and his cousin
brother, namely, Benchay Lal (son of sister
of his father). He has also stated that at the
time of incident the other brothers of the
accused-appellant were not present but his
mother was present on the spot and she was
crying. He has also stated that the clothes
wore by P.W.-2 and his son Muneshwar
had also some blood stains on them. He did
not admit the defence version of the
incident.

22. P.W.- 2, Ram Babu, father of the
deceased and father-in-law of the accusedappellant, who is main witness of the
incident, has supported and corroborated
the entire prosecution story as is unfolded
in the first information report and in his
statement recorded under Section 161
Cr.P.C. etc. He has stated that on the date
of incident, as the deceased started to get
ready to go with him, he came out from the
house and sat on the platform along with
his son Muneshwar. After some time, the
voice of his daughter came from inside of
the house to save her. The villagers of the
village of the accused-appellant, namely,
Shivaram,
Ramkishore,
Ramvilas
Ramgopal,
Hanumant
were
near
the
platform at the time of the incident.
Hearing the noise, P.W.-2 and his son
Muneshwar went inside the house where
they saw the entire incident.

23. P.W.-3 Ram Kishor who is also
said to be an eye witness has supported the
entire prosecution story. He has stated in
his examination that at 09.00 a.m. when he
went to Lajjaram's house to ask for a bull,
he heard the scream of P.W.-2 and his son
Muneshwar and entered into the house of
the accused-appellant and saw that the
accused was hitting the deceased by a
sickle. At that time Shivram, Ramvilas,
Hanumantlal also came. After sustaining
such injuries of sickle the deceased fell
down on the ground and died. After this, as
soon as the accused-appellant came out of
the room, P.W.-2 grabbed him along with
sickle and brought him out. At the same
time constables Krishnapal and Virendra
came to the spot and the accused-appellant
was handed over to them. He has also been
cross-examined by the learned counsel for
the defence but he has not changed his
version.
1 All. Ram Prakash Vs. State of U.P.
943

24. P.W.-4 Constable-697 Krishnapal
Singh, has stated that on the date of
incident, he was returning to the Police
Station after patrolling at around 09.15 a.m.
and on the way seeing the crowd at the
door of accused-appellant he stopped there
and reached his door and saw that P.W.-2
and his son Muneshwar were sitting
holding
the
accused-appellant.
Ramprakash. There was a sickle on which
blood was present. He has further stated
that on inquiry, P.W.-2 and his son
Muneshwar told him as to how the
deceased was killed by the accusedappellant. P.W.-4 had taken the accusedappellant to the Police Station along with
P.W.-2, where he lodged written report.
P.W.-4 returned to the place of occurrence
along with Investigating Officer (P.W.-7)
and
after
completion
of
necessary
formalities, he took the body of the
deceased to Mortuary at Fatehgarh, which
is 35 to 36 kilometres away from the
village of accused-appellant for postmortem.

25. P.W.-5 Constable-360 Padam
Singh has stated that on the basis of written
report of P.W.-2/informant (Exhibit-ka/1)
scribed
by
son
of
the
informant
Muneshwar, he has prepared the chik first
information report (Exhibiit-ka/2). He has
also proved the said chik first information
report. He has also proved the recovery
memos (Exhibit-ka/4 and Exhibit-ka/5) of
blood stained sickle and vest of the
accused, which were taken in possession by
the Police.

26. P.W. -6 Dr. K.K. Agarwal, who
conducted the autopsy of the body of the
deceased on 4th November, 1981 at 3.30
p.m. P.W.-6 has stated that the injuries
found on the body of the deceased were
sufficient for causing her death which must
have been either instantaneous or must
have occurred within an hour of the injuries
sustained. P.W.-6 has also stated that at the
time of autopsy he found that the stomach
of the deceased was empty. There was
semi-cooked food in the small intestine and
fecal matter and gasses in the large
intestine of the deceased. In the opinion of
P.W.-6 the death of the deceased must have
been occurred at about 09.00 a.m. on 3rd
November, 1981 with six hours margin
either away.

27. P.W.-7 Sub-Inspector Hori Lal
Yadav, has stated that on the date of
incident, he was posted in Police Station
Gursahaiganj. The investigation of this case
was handed over to him. At the police
station itself, he took the statements of the
accused-appellant and the informant/P.W.2.
After taking the statement of the witness
Muneshwar (son of the informant) and
taking necessary documents from the police
station, he reached the crime scene and
after inspecting the same, he prepared the
site plan (Exhibit-ka/15), the inquest report
of the dead body (Exhibit-ka/8), other
documents, namely letter to the CMO and
RI, sketch of the dead body and chalan
(Exhibit-Ka/9
and
Exhibit-ka/14)
and
handed over the dead body of the deceased.

28. Having noticed the facts of the
case as also the evidence led in the matter
we proceed to deal with the respective
submissions of the learned counsel for the
parties.

29. The first submission made by the
learned Amicus Curiae that timing of the
death of the deceased as per the prosecution
i.e. 09:00 a.m. is doubtful, is liable to be
rejected on the ground that the autopsy
report of the deceased clearly shows that
the deceased was done to death at about
944 INDIAN LAW REPORTS ALLAHABAD SERIES
09.00 a.m. on 3rd November, 1981. In the
cross-examination, P.W. 6 has clearly
stated that there could have been a
difference of six hours either way. There
are circumstances to hold that the murder
did not take place at about 4.00 or 5.00 a.m.
Apart from the above, all the eye-witnesses
have stated that the occurrence took place
at about 9.00 a.m. as also the circumstantial
evidence has also supported the same. The
presence of semi-cooked food and fecal
matter in the small and large intestines of
the deceased respectively does not help the
defence to shift the time of death. As per
the prosecution, the deceased must have
been very sad because of refusal of her
husband i.e. accused-appellant to allow her
to go with her father, she might have taken
meal late in the night because of quarrel
with her husband. Even otherwise, only the
presence of semi cooked food in the small
intestine of the deceased was not enough to
change the time of occurrence.

30. The second submission made by
the learned Amicus Curiae that the alleged
offence has not been committed by the
accused-appellant and the same has been
committed by some one else or dacoits for
looting the property of the accusedappellant, has also no legs to stand on the
ground that there is no direct or indirect
evidence on record from which it is
established that the said offence has been
committed by dacoits or some one else. If
the offence has been committed by dacoits
or some burglars for looting the property of
the accused-appellant in the early morning
i.e. around 04.00 a.m. when it was dark,
some sort of information must have been
lodged either by the accused-appellant or
any other member of his family at the
Police Station much earlier or some news
must have been in the knowledge of the
villagers and eye-witnesses. From the
injuries found on the body of the deceased
by P.W.-6 at the time of post-mortem, it is
impossible to believe that the same have
been inflicted by a dacoit or some one else.
From the same it seems that the same have
been inflicted by an indignant man.

31. To the third submission made by
the learned Amicus Curiae that neither
P.W.2 nor his son Muneshwar had seen the
occurrence by their own eyes as they did
not came forward to save their daughter
and sister respectively, when the accusedappellant was assaulting the deceased, we
may record that it is a common knowledge
that when a person is killing someone with
a sharp edged weapon, no ordinary person
who does not have any weapon, will try to
save that person, as there will be
apprehension of danger of his own life and
only way to save that person is to raise
alarm and gather the crowd. Therefore, the
mere fact that P.W.-2 and his son
Muneshwar did not try to save his daughter
and sister respectively, their presence at the
time of occurrence cannot be doubted.
Even otherwise, from the eye-witness
account of P.W.-1 and other witnesses
accounts, the presence of P.W.-2 and his
son Muneshwar at the time occurrence is
established.

32. To the forth submission made by
the learned Amicus Curiae that any
Brahmin father or brother who does not
drink water of the place of in-law's of his
married daughter or sister, then how can
they stay there for three days?, the same
has only been stated to be rejected on the
ground that in today's world and after more
years of independence of this Country, it
does not go down the throat. If this was a
matter of pre-independence then it could
have been accepted but in today's era, this
cannot be accepted. When there is direct
1 All. Ram Prakash Vs. State of U.P.
945
and
clinching
evidence,
no
such
presumption can be taken in this case.

33. Qua the fifth submission made by
the learned Amicus Curiae, we may notice
that for false implication of the accusedappellant by the prosecution in the present
case, the defence has completely failed to
prove as to why he has been implicated in
the present case. Neither any documentary
nor oral evidence in that regard has been
produced by the defence.