Gulab Ram vs State Of U.P.

Appellant, namely, Gulab Ram is aggrieved against the judgment of conviction and order of sentence dated 02.06.2016 passed by Additional District and Sessions Judge, Ghazipur in Session Trial No.120 of 2011, arising out of Case Crime No.596 of 2010, registered at Police Station-Karimuddinpur, District- Ghazipur, whereby he has been convicted under Section 302 IPC and sentenced to life imprisonment along with a fine of Rs.20,000/-. In the event of default in payment of fine, he has been ordered to undergo further imprisonment of six months.

The subject FIR was registered on the basis of a written complaint given by complainant- Mahendra Ram before SHO Police Station Karimuddinpur, District Ghazipur, wherein he alleged that his sister Lalsa Devi was married twenty years back with Gulab Ram S/o Ramsanehi Ram, r/o Village-Kamupur, District Ghazipur and from this wedlock, three sons and a daughter were born. The complainant’s brother-in-law Gulab Ram suspected the character of his sister Lalsa Devi and after consuming liquor would give her beatings. Yesterday on 21 November, 2010, the complainant visited the matrimonial home of his sister, and in the evening found the couple had an altercation on some issue, and with his intervention they were pacified. After dinner, the complainant slept along with children, whereas his sister and brother-in-law went in their room. At around 1.00 a.m., complainant saw that his brother-in-law and sister going somewhere, but thought that probably they were going to answer the call of nature. The complainant slept and when he woke up in the morning, he found dead body of his sister Lalsa Devi lying with a with a slit throat near a bamboo field. As per the complainant, his sister was murdered by his brother-in-law Gulab Ram. On the basis of these allegations, the FIR was registered for commission of offence punishable under Section 302 IPC.

After registration of the FIR, the investigation in the case was conducted by Investigating Officer, namely, Hariram Maurya, SHO, Saidpur, district Ghazipur, who recorded the statements of complainant-Mahendra Ram, other witnesses, namely, Mool Chandra Sharma, Dal Shingar and also prepared the site plan. During investigation, the inquest proceedings were conducted followed by postmortem of the dead body. Later, the investigation was transferred to Rajit Ram Yadav, SHO- Suhwal, District Ghazipur, who arrested the accused Gulab Ram and allegedly recovered the weapon (Hansua) used in the commission of the crime. The statements of other formal witnesses were also recorded and finally the charge sheet was filed against the accused under Section 173(2) Cr.P.C., thereby sending him to face the prosecution for commission of offence punishable under Section 302 IPC.

As the offence was triable by Sessions Court, therefore, the case was committed to the Additional Sessions Judge, Ghazipur, who vide order dated 04.07.2011 framed the charge against the accused for alleged commission of offence punishable under Section 302 IPC. The appellant- accused pleaded not guilty and claimed trial.

The prosecution in order to prove the guilt of the accused had examined ten witnesses, namely, Mahendra Ram (P.W.1), Siya Lal (P.W.2), Ram Bachan (P.W.3), Rajit Ram Yadav (P.W.4), Vijay Shankar Rajbhar (P.W.5), Sadre Alam (P.W.6), Mool Chandra Sharma (P.W.7), Dal Shingar (P.W.8), Hariram Maurya (P.W.9) and Dr. K.K. Bhaskar (P.W.10). Besides, the prosecution also adduced documentary evidence i.e. written complaint (Exb. Ka-1), recovery memo of weapon (Exb.Ka-2), Carbon copy of G.D. (Exb. Ka-3), Charge- sheet (Exb. Ka-4), Chik FIR (Exb. Ka-5), another copy of GD (Exb. Ka-6), Site Plan (Exb. Ka-7), Postmortem examination report of the deceased Lalsa Devi (Exb. Ka-8), Letters to CMO (Exb. Ka-9 & Ka-11), Letter to R.I. (Exb. Ka-10), Challan Inquest Report No.13 (Exb. Ka-12), Photo Nash (Exb. Ka-13), Request letter for Postmortem (Police Form No.33) (Exb. Ka-14), Specimen Seal (Exb. Ka-15), memo of blood stained soil and plain soil (Exb. Ka-16).

After completion of the prosecution evidence, the statement of accused- appellant was recorded under Section 313 Cr.P.C. on 01.04.2016, who denied the prosecution evidence and pleaded false implication. However, no defence evidence was adduced by the accused- person.

Upon analyzing the prosecution case, evidence and other material on record, the trial court proceeded to convict the appellant- accused under Section 302 IPC and awarded life imprisonment along with fine. Aggrieved against the judgment of conviction and order of sentence dated 02.06.2016, the appellant preferred this appeal.

Learned counsel for the appellant has argued that the complainant falsely implicated the appellant for murder of complainant’s sister, Lalsa Devi, and the version given in the FIR on the face of it, does not appear probable at all. He further argued that the couple had been residing together for over two decades since their marriage, and prior to the death of Lalsa Devi, there had been no allegation of any dispute between them. Learned counsel further argued that the four children were born from this wedlock, but none of them ever alleged any dispute between their parents, and that close family members were never associated with the investigation. Learned counsel has argued that at the time of alleged occurrence, the appellant was not at home, who was arrested on 20^th February, 2011, and the recovery of the weapon (Hansua) was shown to have been effected on the disclosure of the appellant from the kitchen where it was being used in routine. Learned counsel has further pointed out that there is no Forensic Science Laboratory Report produced by the prosecution to establish the use of weapon in the commission of crime.

Learned counsel argued that another witness Siya Lal (P.W.2) is only a witness to the inquest proceedings and was also present at the hospital when the postmortem was conducted, who vaguely described that there used to be an altercation between the couple every day, but, this version is at variance with the deposition made by Mahendra Ram (P.W.1). Therefore, according to learned counsel this witness does not support the stand of the complainant. Learned counsel also referred to the evidence of Ram Bachan (P.W.3) to submit that he was declared hostile, and similarly, according to the learned counsel, the statement of Vijay Shankar Rajbhar (P.W.5) is also vague, as he merely stated that he heard about the murder of Lalsa Devi and immediately suspected the involvement of Gulab Ram in commission of crime, as this was the talk of the village. Apart from that, learned counsel submitted that the sole evidence of last seen is not convincing, therefore, it becomes clear that the trial court has not properly appreciated the prosecution evidence while convicting the appellant.

Learned counsel for the appellant refers to the evidence of recovery and the deposition of the Investigating Officer to urge that the prosecution case suffers from material discrepancies and contradictions, therefore, according to him the benefit of doubt ought to have been extended to the appellant. Learned counsel has drawn the attention of the Court to the explanation of the accused recorded under Section 313 Cr.P.C. to contend that the same is incomplete and the entire incriminating prosecution evidence was not put to him and the trial court hurriedly proceeded to convict the appellant. He argued that the impugned judgment of conviction and order of sentence, being against the evidence on record, calls for interference by this Court in the exercise of its appellate jurisdiction. He prays that the impugned judgment be set aside and the appellant be acquitted.

Learned State Counsel has opposed the prayer, who argued that the complainant is closely related to the deceased as well as the accused, and was staying at the house of his sister- Lalsa Devi (deceased), when he had seen the couple leaving the house around 1.00 a.m., followed by recovery of the dead body of Lalsa Devi next morning. He submits that the weapon used in the crime was also recovered from the appellant, and the motive is also well explained that the accused- husband suspected the character of wife, therefore, he committed her murder. According to the learned State Counsel, the weapon was washed by the accused after its use, therefore, in the absence of the blood stains, it was not sent to the Forensic Science Laboratory. Learned State Counsel has further referred to the evidence of Dal Shingar (P.W.8), to contend that he also saw the couple going together around mid-night on the date of occurrence. Thus, the charges against the accused were proved by leading cogent evidence. According to the learned State Counsel, the trial court carefully examined the prosecution evidence and material on record while convicting the appellant, therefore, he prays that the appeal be dismissed.

Learned counsel for the parties have been heard and with their assistance, case file and the trial court record has been perused carefully.

After hearing the learned counsel for the parties and considering their submissions, this Court finds that the appellant was prosecuted for alleged commission of offence of murder of his wife, Lalsa Devi, and in order to bring home the guilt of the accused-appellant the prosecution relied upon the testimonies of complainant- Mahendra Ram (P.W.1) and four independent witnesses, namely, Siya Lal (P.W.2), Ram Bachan (P.W.3), Vijay Shankar Rajbhar (P.W.5) and Dal Shingar (P.W.8) as well as the depositions of four police officers, namely, Rajit Ram Yadav (P.W.4), Sadre Alam (P.W.6), Mool Chandra Sharma (P.W.7) and Hariram Maurya (P.W.9). Further prosecution also examined Dr. K.K. Bhaskar P.W.10, who proved the post-mortem report. That apart, the documentary evidence Exb Ka-1 and Ka-16 as already noticed has also been relied upon, and after examining the same, the trial court deemed it appropriate to record the explanation of the accused under Section 313 Cr.P.C. The said statement of accused- Gulab Ram was recorded on 1^st April, 2016.

A perusal of the said statement would show that the trial court did not question the accused by putting him the entire incriminating evidence relied upon by the prosecution, and sought his response by putting him question only with respect to the testimony of Hariram Maurya P.W.9, and Exb Ka-7 to Ka-9 (Site plan, Postmortem examination report of Lalsa Devi, Letter to CMO) and Ka-15 (Specimen Seal).

Thereafter, the trial court asked him the reason for his prosecution. Strangely, before seeking his explanation the trial court asked the accused, if, he wishes to lead defence evidence. In the end question no.4 asking his explanation was put to the accused. We have no doubt in our minds that the above noticed four questions put to the accused are not only unsystematic, but reflect serious omission on the part of the trial court, as the entire incriminating prosecution evidence was not put to the accused and this resulted in prejudice to him.

At this stage, this Court deems it necessary to have a glance at Section 313 Cr.P.C. and the same is reproduced below:

A reading of the above Section would make it abundantly clear that the trial court is well within its powers to put a question to accused at any stage for explaining any circumstance appearing against the accused, but where the prosecution has examined its all the witnesses, it is mandatory for the trial court to question the accused specifically and distinctly in respect of every piece of prosecution evidence emerging against him. This mandatory exercise is founded upon the principle of fairness, and this also helps the accused to prepare the defence which he may put forward before the trial court. We are mindful that not every omission occurring in putting the incriminating prosecution evidence to the accused under Section 313 Cr.P.C. would vitiate the trial proceedings, unless it is established that the omission relates to the material evidence and would result in miscarriage of justice to the accused. However, that would depend on the facts, circumstances and evidence in each case.

The explanation of appellant recorded under Section 313 Cr.P.C. on 1^st April, 2016 only relates to the deposition of Hariram Maurya (P.W.9), whereas no reference of other nine witnesses is contained in the said questioning. Thus, we have no hesitation in holding that the impugned judgment of conviction and order of sentence cannot be sustained because of the violation of his right to fair trial guaranteed under Article 21 Constitution of India.

Here reference can be made on the decision of the Hon’ble Supreme Court in the case of Sanjay Kumar and another Vs. State of Bihar and others, 2026, Law Finder SC Page 914, wherein Hon’ble the Supreme Court placed following observations:

Since this serious defect noticed by us cannot at all be cured by exercising appellate jurisdiction, therefore, we are compelled to remit the case back before the trial court for proceeding with the trial from the stage of recording the statement of accused under Section 313 Cr.P.C. afresh. We make it clear that the observations made herein shall have no bearing on the merits of the prosecution evidence, which shall be analyzed by the trial court at the final stage of the trial i.e. after recording the statement under Section 313 Cr.P.C., and defence evidence, if any.

Resultantly, the impugned judgment of conviction and order of sentence dated 02.06.2016 passed by Additional District and Sessions Judge, Ghazipur are hereby set aside and the case is remanded back before the trial court for proceeding afresh from the stage of recording the statement of accused under Section 313 Cr.P.C.

The appellant has been in custody for more than fifteen years since his arrest on 20.02.2011, therefore, we order that the accused- Gulab Ram be released on regular bail during pendency of the trial subject to his furnishing requisite bail bonds and surety bonds to the satisfaction of the trial court.

The appeal is hereby disposed of. Record and proceedings be remitted back to the trial court.