Allowed

Ram Naresh v. State of U.P.

Allahabad HC6 Aug 2022JAPL/5932/2017

Case brief

AI extract

What is this about?

The High Court of Judicature at Allahabad allowed the appellant's appeal and acquitted him. The court found that the prosecution failed to prove the place of occurrence or the incident due to a lack of eyewitnesses, uncorroborated police statements, and the withholding of material witnesses.

What did the court decide?

The appellant was acquitted of all charges and discharged of bail bonds. The conviction and sentence were set aside.

Ram Naresh Vs State of U.P. — Cheque Dishonour | Allahabad HC (2022)

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AFR

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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD

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Court No. - 89

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Case :- JAIL APPEAL No. - 5932 of 2017 Appellant :- Ram Naresh Respondent :- State of U.P. Counsel for Appellant :- From Jail,Smt.Kalpana Singh A.C. Counsel for Respondent :- A.G.A.

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Hon'ble Karunesh Singh Pawar,J.

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

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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.

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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

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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. Ka-10.

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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 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.

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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.

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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.

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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.

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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

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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.

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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.

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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

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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 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.

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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.

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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.

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

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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

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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.

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PW-7 is a formal witness who has proved the chik F.I.R. (exhibit ka10).

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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.

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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.

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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, 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.

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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

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the fact to the investigating officer that the grenade exploded and the wife of the appellant namely Nanhi Devi died.

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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.

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

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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.

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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

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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 PW-2 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.

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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

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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:-

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"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

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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-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."

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(Emphasised by me)

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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.

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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.

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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.

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(Karunesh Singh Pawar,J.)

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Order Date :- 06.8.2022/ RC

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Digitally signed by RAM CHANDER YADAV Date: 2022.09.28 18:47:42 IST Reason: Location: High Court of Judicature at Allahabad

Ram Naresh v. State of U.P.

Case brief

What is this about?

What did the court decide?

Ram Naresh v. State of U.P.

Case brief

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What did the court decide?

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