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SUPREME COURT OF INDIA
G.K.Mitter : J.M.Shelat
Kanauji
Versus
State Of U.P.
Case No. : 186 of 1969
Date of Decision : 2/18/70
Penal Code, 1860 – Section 302 – Constitution of India, 1950 – Article 134 – Offence of Murder – Order of acquittal – Benefit of doubt – Appellant and one Javitri were tried by the Sessions Judge, Etah, on the charge of their having killed one Rampa while she was watching the mango trees in her grove. The Sessions Judge gave tlie benefit of doubt to the two accused and acquitted them. – On appeal by the State of Uttar Pradesh, the High court sustained the order of acquittal of Javitri, but on assessment by it of the evidence on record set aside the order of acquittal in favour of tlie appellant, convicted him under S. 302 of the Penal Code and imposed upon him the sentence of death. – This being a case where the sentnce of death has been imposed after reversal of the order of aequitlal passed by the Sessions Judge, this appeal is as of right under Article 134(1) (a) of the Constitution. – Held, It would not have been easy or even possible to take Rampas life in her house in the village without being seen by the neighbours and even caught. Neither the time nor the place of the crime can, therefore, be said to be improbable. – Medical evidence shows that at the time of the post-mortem examination semi-digested food was found in the stomach of the deceased and on that basis the doctor pronounced the opinion that Rampa must have taken food some 3 or 4 hours before the murder. – That evidence rules out the possibility of the murder having taken place in the early hours of the morning, the body having been discovered in the afternoon and the F. I. R. then having been prepared. – Murder could not also have taken place at night, because there was no occasion for Rampa to go to the grove at night. – There was no such evidence nor was even a suggestion made to any one of the witnesses that Rampa had gone to the grove at night. – On these facts, the High court was justified in giving significance to the F. I. R. having been written out almost immediately after the murder and there being no time or scope for Badri to have collected persons willing enough to involve the appellant either falsely or on a mere suspicion. – It is true that an attempt was made in the cross-examination of these witnesses to establish some sort of relationship between them and the murdered woman. – Evidence, however, was not precise. – But, even if it is taken that there was any such relationship, that by itself could not be a valid ground for rejecting their evidence, especially in view of the fact that immediately after the incident the two eye-witnesses had come running into the village openly naming the appellant and Javitri as the persons responsible for the crime and the F. I. R. having been got written on that basis. – Court cannot, therefore, find any valid reason justifying the rejection of the evidence of the eye-witnesses. – Weapon used, the nature of the injuries caused and lastly the reason for that attack, it can hardly be said that the extreme sentence imposed upon the appellant by the High court was not in the circumstances justified. – Appeal Dismissed
SHELAT J.M.,J.
(1) -THE appellant and one Javitri were tried by the Sessions Judge, Etah, on the charge of their having killed one Rampa at about 4 p. m. on 10/05/1965, while she was watching the mango trees in her grove. The Sessions Judge gave tlie benefit of doubt to the two accused and acquitted them. On appeal by the State of Uttar Pradesh, the High court sustained the order of acquittal of Javitri, but on assessment by it of the evidence on record set aside the order of acquittal in favour of tlie appellant, convicted him under S. 302 of the Penal Code and imposed upon him the sentence of death. This bein.g a case where the sentnce of death has been imposed after reversal of the order of aequitlal passed by the Sessions Judge, this appeal is as of right under Article 134(1) (a) of the Constitution.
(2) THE deceased Rampa, a widow; was, prior to her death, possessed of certain agricultural lands including the said mango grove. She had no children and therefore if she were to die without disposing of her said properties, the said Javitri, also a widow, would have been her nearest next of kin and inherited Rampas properties. The appellant is one of three brothers of the said Javitri.
(3) THERE is no dispute that the deceased Rampa was murdered while she was in her mango grove. According to the prosecution, the appellant and Javitri went to the said grove, the appellant with a spear and Javitri with a Gandasa, and apprehending that the deceased was about to convey her lands in favour of her two nephews, Naubat and Ulfat, that is, her brothers sons and thus deprive Javitri of her right to inherit the said properties on the death, the appellant in common intention with Javitri attacked Rampa with a Gandasa carried by Javitri and killed her outright. The attack was seen by Shiam Lal (P. W. 3), a potter of the village, who had gone nearby to fetch some clay, and by Ajudhi (P. W. 6), a neighbour of Rampa, who also had his mango grove next to Rampas and in whom Rampa appears to have considerable confidence. The two of them used to keep a watch of each others grove sometimes singly and sometimes together. It appears that Rampa had disclosed to him and certain other persons in the village her intention to transfer her said lands to her said two nephews. According to the prosecution, Rampa had that afternoon taken with her Brahma (P. W. 7), the grand-daughter of Ajudhi (P. W. 6). Just before the appellant and Javitri arrived there, Brahma and some other children were playing at the grove. On their arrival the appellant asked the children to go away and thereupon the children returned to the village leaving Brahma who remained there concealing herself in a ditch nearby. Almost immediately after the children had returned to the village, Shiam Lal and Ajudhi came running to the village shouting that Rampa had been murdered by the appellant and Javitri. P. W. 1 Badri, the son of Rampas sister, on receivitg this information from the other residents of the village, had a report scribed by Dalta Ram (P. W. 2) and lodged the same at about 6.30 p. m. at the nearest police station. II the incident took place at about 4 p. m., as was the prosecution case, the first information report was promptly lodged considering that the village was at a distance of about 7 miles from the police station. Badri was not a witness to the incident and, therefore, whatever he dictated to Datta Ram was from the information he received in the village. The F.I.R.) nonetheless, mentioned the two accused, also set out the weapons, namely, a spear and a Gandasa with which Rampa was killed, and the names of persons who witnessed the incident, namely, Shiam Lal and Ajudhi and the children who were playing at that place, viz., Brahma, Ramesh, Radhey Shiam and Munni. Of these children, Brahma and Radhey Shiam were examined as prosecution witnesses. The F. I. R. lastly set out the relationship between Rampa, Javitri and the appellant, and
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