Bharat and Others vs State

Pratyush Kumar, J.—The present appeal, filed by three accused appellants, under Section 374 CrPC, is directed against the judgment and order dated 06.07.1982 passed by learned Sessions Judge, Barabanki in Sessions Trial No. 209 of 1981 [State v. Bharat and two others], whereby he convicted the present appellant Nos. 1 and 2 under Section 302 /34 IPC and the appellant No. 3 under Section 302 IPC and sentenced them to undergo imprisonment for life.

The appellant No. 2 has died during the pendency of the appeal. Appellant Nos. 1 and 3 are on bail. The appeal of appellant No. 2 Sri Ram stood abated vide order dated 15.10.2015.

The prosecution case in the instant matter may be summarized as under:

"That on 16.06.1980 at 9.30 P.M. Smt. Gaura lodged a written report at Police Station Safadarganj stating therein that her husband Ram Sajiwan, brother-in-law (Devar) Ram Vilas and younger brother of father-in-law Naipal used to work in the Bara of Jhabbu Seth at Safadarganj, that day her infant daughter was ill, for her treatment she came to Safadarganj. After duty hours, they were returning back to together railway station Safadarganj by the side of railway line, they had to catch local train to reach up to Saidkhanpur. Naipal and Ram Vilas had torches with them. Near the signal, when they almost reached Mal Godam at about 8.15 PM Bharat, Sri Ram and Balak Ram of her village hidden behind railway Thokar came suddenly in front of her husband, Bharat and Sri Ram caught hold of her husband, Balak Ram fired on the left temple of her husband, he fell down and died. Hearing the alarm and gun shot neighbouring persons came there running, at that accused persons ran away. Accused bore enmity with her husband."

On this chik FIR was scribed, case crime No. 82 of 1980, under Section 302 IPC was registered at Safadarganj, district Barabanki, investigation began, after taking all necessary steps all the three accused persons were charge-sheeted by the Investigating Officer. They were tried by the Court of Session, where they were charged under the aforementioned sections, ultimately, they were convicted, the charges were denied by the appellants and they claimed to be tried.

On behalf of the prosecution in documentary evidence, written report (chik FIR) Ext. Ka-1, FIR (proforma) Ext. Ka-4, recovery memos Ext. Ka-2, Ka-6 and Ka-12, site plan Ext. Ka-11, inquest proceedings Ext. Ka-7 and postmortem report Ext. Ka-3 have been filed with other papers.

In oral evidence, six witnesses were examined, statements of the accused persons were recorded under Section 313 CrPC wherein they admitted the relationships of the witnesses and of their own. They also admitted working of the deceased in the Bara of Jhabbu Seth but they denied that Naipal and Ram Vilas also worked there. Rest of the facts stated by the eye witnesses were denied by them. Regarding lodging of the FIR upto filing of charge-sheet, they pleaded ignorance. According to them, they have been falsely implicated due to enmity and for this reason witnesses have deposed against them.

After conclusion of the trial and hearing the arguments of both the parties, the learned trial Judge convicted the present appellants. According to him, FIR has been promptly lodged. Testimonies of eye witnesses are reliable. Motive of the crime has been proved. Thus, according to him charges against the present appellants stand proved beyond doubt.

Feeling aggrieved the present appeal has been filed by the appellants.

Heard Sri Mukul Rakesh, learned counsel for the surviving appellants and Sri Sarad Dixit, learned Additional Government Advocate for the State-respondent and perused the record.

On behalf of the surviving appellants, learned counsel for the appellants has submitted that the defence case has been erroneously disbelieved by the learned trial Judge, ocular evidence is contradicted by the medical evidence, no independent witness has been examined by the prosecution, learned trial Judge ignored the unfair investigation.

On behalf of the State-respondent, learned Additional Government Advocate has repelled these arguments. According to him, medical evidence fully corroborates the ocular evidence, non examination of independent witness is not such a ground on the basis of which trustworthy eye witness account could be discarded and the defence case has been rightly disbelieved by the learned trial Judge.

Before we propose to deal with the arguments submitted by the respective parties, we would like to recollect the manner in which appeal against conviction is required to be considered by this Court and scope of jurisdiction conferred on the Court by Sections 374 and 386 Cr.P.C. Further we would like to refresh the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni v. State of Gujarat [1995 Supreme Court Cases (Crl) 222]. Para-4 of the judgment reads as under:

"4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained."

In the case of Lal Mandi Vs. State of West Bengal, , the Apex Court in para-5 of the report has given the caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would be gainful to reproduce the observation made in para-5 of the report, extracted below:

"5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh''s case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence."

It would be convenient to appreciate the eye witness account, if we first consider the medical evidence adduced in the form of statement of Dr. Prem Prakash P.W.3 and postmortem Ext. Ka-3.

Dr. Prem Prakash P.W.3 has conducted on 18.06.1980 at 2.00 PM postmortem examination of the dead body of Ram Sajiwan, who was aged about 35 years and had died two days before. Rigor mortis had passed off in both extremities. In the internal examination, he found that frontal, left temporal and parietal bone of the skull were fractured. 39 pellets were recovered from the brain. Death had occurred due to comma as a result of head injury. He has recorded one ante mortem injury in the postmortem examination, which reads as under:

"1. Gun shot wound 3.5 cm x 3.00 cm into brain tissues deep on the left side of forehead, 7 cm left to the mid line and 4.5 cm above the eye brow. Margins of wound were lacerated and inverted. Blackening and scorching was present around the wound."

The witness was not cross-examined on any fact noticed by him during the postmortem examination. He was asked only when the dead body was received at mortuary to which he replied at 2.30 PM on 17.06.1980. In this way testimony of Dr. Prem Prakash P.W.3 and the findings recorded in the postmortem report Ext. Ka-3 are unchallenged. We believed them and hold accordingly.

Two witnesses of fact Smt. Gaura P.W.1 and Naipal P.W.2 have been examined to prove the charges against the present appellants. Smt. Gaura P.W.1 is the first informant and wife of the deceased. She has fully supported the version contained in the first information report and further stated that the deceased fell down on the spot after sustaining gun shot injuries and leaving Naipal P.W.2 with the dead body, she along with Ram Vilas, had gone to Bara of Jhabbu Seth and got the written report Ext. Ka-1 written by Munshi Om Chand Yadav.

Veracity of her testimony has been challenged on various grounds. The first ground taken on behalf of the surviving appellants is that she had never gone to Safadarganj before the date of occurrence. According to him, her daughter was not ill, she was in the village and after the deceased was murdered, she was called from the village and FIR was ante timed. All these facts required to be extracted during the cross-examination. This witness has been extensively cross-examined for three days and result of the cross-examination is that she had never visited Safadarganj before the occurrence. Her reason for going to Safadarganj is that her daughter was ill for about seven days, her condition was not improved by Deshi Dava, she had gone to Safadarganj where her husband was to get better treatment to her daughter. We do not think the reason for visiting Safadarganj stated by the witness as manufactured one. The name of the Doctor to whom she consulted was not secret to the defence. The present appellants did not examine that Doctor to rebut the statement made by her. We are of the opinion that the way she had faced the test of cross-examination strengthens the veracity of her testimony and the reasons cited to disbelieve her presence on the fatal date at Safadarganj do not appeal to us.

It is natural for a wife to go to the home, after consulting the doctor along, with her infant daughter specifically when the infant is ill and that to in the evening hours along with her husband and the relatives, her conduct makes her presence at the time of occurrence natural and probable. She accompanied the deceased, when the assailants had an opportunity to identify the victim, we presume that the witness had also opportunity to identify the assailants because they belonged to the same village and were known to the witness. More so, two relatives at the time of occurrence were carrying torches. These torches were examined by the Investigating Officer on 16.06.1980. He prepared the memo of his inspection and proved as Ext. Ka-2 and Ka-6, they support the fact that on the date of occurrence the witnesses were carrying torches. There is no doubt that the deceased and his relations used to go back home in the evening hours, they must in the habit of carrying torches because the way to the railway from the Bara was uneven.

We have no reason to disbelieve this witness that at the time of occurrence, both the companions Ram Vilas and Naipal were having torches and in their light the witness had identified the assailants. Thus, she had the opportunity to identify the appellants. The testimony of this witness remained unshaken during lengthy cross-examination. Nothing diminishing her credibility could be brought on record during the cross-examination. Though she was relative witness but for the reasons indicated above she is most natural and probable witness, she had opportunity to see the occurrence, we cannot believe that she would spare real murderers of her husband and falsely implicate innocent persons. We find her testimony to be worthy of reliance.

Naipal P.W.2 also substantiated the prosecution version. P.W.2 in his statement recorded on oath during trial has stated that on the date of occurrence he was having his torch and had shown his torch to the Investigating Officer, vide Ext. Ka-2. From this fact not only his presence on the place of occurrence is established but it is also established that he had opportunity to see the occurrence. He was present at the spot. During cross-examination he satisfactorily answered the questions put to him. His statement is corroborated by the statement of Smt. Gaura P.W.1. We also find him to be the trustworthy witness.

Medical evidence and the ocular testimony corroborates each other. There is no contradiction between these two evidences. Thus, ocular evidence of the occurrence is fully corroborated by the medical evidence.

In the light of trustworthy testimonies of two witnesses unfolding the full facts of the prosecution case, we do not think non-examination of independent witness bears any adverse effect on the prosecution case.

Now the question remains anti timing of the FIR. From perusal of the statement of Amar Nath Bajpai, P.W.4, Head Constable, it has come on record that on that day at 10.00 PM one FIR under Section 25 of the Arms Act against the accused was lodged at the police station. In view of the finding recorded by us, this argument already stands negated by us and only on account of late postmortem examination this argument cannot be accepted.

Regarding defence evidence the argument advanced in support of the appeal appears to be misconceived. The case of the defence was of simple denial.

In the impugned judgment we do not find any reference about the defence evidence. Perusal of the index reveals that the statement of the accused recorded under Section 313 CrPC were indexed at serial No. 104 to 111. Thereafter, we find no entry about the defence evidence. Thus, the total evidence given in defence is only one contradiction Ext. Kha-1 occurring in the statement of Naipal P.W.2, which has been taken note of by the learned trial Judge and considered to be minor. We are also of the same opinion that on the strength of that contradiction testimony of Naipal P.W.2 for the reasons indicated herein above cannot be discarded.

Learned counsel for the appellants in the last has feebly argued that the place of occurrence is doubtful. From the testimony of Investigating Officer Diwakar Mishra P.W.5, we find that he took samples of plain and simple earth from the spot, though these samples were not subjected to scientific examination, however, considering the trustworthiness of the ocular version we find that non examination by the chemical analyst is not enough to create doubt about the place of occurrence.

So far as question of late postmortem examination is concerned, we find that in the night of 16.06.1980 the Investigating Officer could not held the inquest proceedings due to inadequate light. Next day inquest proceedings were conducted, thereafter dead body was sent to the police line from where it was transported to mortuary.

We do not think that not holding inquest proceedings during the fateful night due to insufficiency of light can be made the basis to discard the prosecution version of the occurrence.

No other point has been argued in support of the appeal.

We find that the learned trial Judge has recorded findings with cogent reasons, well substantiated from the record, he committed no illegality or factual infirmity. We are in agreement with the findings recorded by the learned trial Judge. The appeal is bereft of merit and deserves to be dismissed.

Resultantly, the criminal appeal is dismissed.

Both the appellant Nos. 1 and 3, namely, Bharat and Balak Ram, are on bail. They are directed to surrender their bail before the Sessions Judge, Barabanki, who shall take them into custody and send them to jail to serve their sentences. In case, appellants do not surrender within the stipulated time, the Sessions Judge, Barabanki, shall take appropriate steps to procure their attendance so that they will serve the sentences awarded to them.

Office is directed to communicate this order to the court concerned to ensure compliance forthwith and to send back the lower court record.