Champat Singh and Others vs State of U.P.

Pratyush Kumar, J.—1. Criminal Appeal No. 934 of 1981 filed on behalf of the six accused appellants is directed against the judgment and order dated 16th December, 1981 passed by Sri A.L. Srivastava, the then IInd Additional Sessions Judge, Hardoi in Sessions Trial No. 483A of 1978 (State v. Chandrika Singh and six others) whereby the appellants were convicted and sentenced to undergo imprisonment for life under section 302/149 IPC, rigorous imprisonment of one year under section 147 IPC. Both the sentences were directed to run concurrently.

Criminal Appeal No. 939 of 1981 filed on behalf of the accused appellant Collector Singh challenging the correctness of the same impugned judgment and order passed in the same session trial whereby he was also convicted and sentenced as above.

Since both the appeals arise out of the same session trial and question the correctness of the same judgment and order, they are being disposed of by a common judgment.

Briefly stated the facts of the prosecution case, in these appeals, are as under:

"That on 25th June, 1978 at 4.30 P.M. Puttu Singh gave a written report at police station Atrauli stating therein that his son Sirdar Singh had enticed away daughter of Chandrika Singh R/o village Dambar Khera on the day of Amavasya. Chandrika Singh and others bore enmity with him on this score. On 13th June, 1978 at 5 P.M. Chandrika, Champat Singh, Dambar Singh, Surjan Singh, Mahipal Singh, Tej Singh, Collector Singh and Vishram armed with lathi, danda and gun came to his house and asked whereabouts of his son Sirdar Singh. When he pleaded ignorance, they entered his house and started to beat him and his wife. On their shouts Taula, Tau, Niwazi, Bhagwant and many others reached there and warned the assailants who took him and his wife to their house and locked them during the night. In the morning he and his wife were taken to Balrampur Hospital, Lucknow and there they were treated. From his house one she buffalo proximately of Rs. 2,000/-, some cloths and utensils were taken by the assailants and his son Sirdar Singh was also caught and disposed of by them. He feared for the life of his son."

At this chick FIR was scribed. Case Crime No. 141 of 1978 under sections 147, 148, 452, 342, 364, 382 and 323 IPC was registered and relevant entries were made in the report of the general diary. Investigation was entrusted to Sub-Inspector Raj Narayan Tiwari who immediately examined the first informant reached village Akbarpur there he examined other witnesses, inspected the spot, prepared the site plan. He searched for the accused. On 27th June, 1978 he arrested Dambar Singh, Tej Singh and Vishram Singh. On the personal search of Tej Singh he recovered she buffalo from his tarbaha. Its recovery memo was prepared thereafter on the pointing out of the accused Tej Singh severed head of Sirdar Singh was recovered and further weapon of murder blood stained banka was recovered. After investigation was completed they were chargesheeted. After committal of the case to the Court of Session, the appellants were charged under sections 147, 364, 302/149 IPC, which they denied and claimed to be tried.

During the trial in the documentary evidence besides other papers on behalf of the prosecution recovery memo Exts. Ka-2, Ka-3 and Ka-6, chick FIR Ext. Ka-4, copy of report of the general diary Ext. Ka-5, written report Ext. Ka-7, site plans Exts. Ka-9, Ka-14, Ka-15, inquest report Ext. Ka-10, postmortem report Ext. Ka-16 were filed.

In the oral evidence on behalf of the prosecution 12 witnesses were examined. Thereafter statements of the appellants were recorded under section 313 Cr.P.C. wherein they denied the facts stated by the witnesses. They pleaded ignorance about the medical evidence and steps taken by the investigating officers during the course of the investigation. According to them they were falsely implicated due to enmity. In the defence no evidence was given.

After hearing the arguments of learned counsel for the parties the learned trial Judge by the impugned judgment convicted the appellants and sentenced them as above. He found the evidence adduced by the prosecution trustworthy.

Feeling aggrieved these two appeals have been preferred against the impugned judgment.

During the pendency of the appeal appellants Champat Singh, Dambar Singh, Mahipal Singh, Chandrika Singh and Tej Singh have died. Their appeals stood abated.

Heard Sri K.K. Tiwari, learned counsel for the surviving appellants and Sri Sharad Dixit the learned AGA for the State and perused the record.

On behalf of the surviving appellants it has been submitted that the eye witness account given by the witnesses is not trustworthy. The learned trial Judge has erroneously believed their testimonies without subjecting them to careful scrutiny. He has further submitted that against the present appellants there is no iota of evidence to show their complicity in the crime for which they have been convicted and punished. His next submission is that FIR is delayed and no explanation for the delay has been furnished by the prosecution.

On behalf of the State-respondent the learned AGA has repelled these arguments and submitted that eye witness account is fully reliable. He has further submitted that recovery of severed head on the pointing out of deceased co-appellant Tej Singh is an unmistakable evidence that crime was committed by the appellants. He has further submitted that the first informant and his wife were of rural background and illiterate persons. They were unaware about the intricacies of criminal law. As soon as they came back from Lucknow the first informant lodged the FIR but unfortunately due to his death he could not be examined by the prosecution, therefore, prosecution cannot be said to be at guilt of not explaining the delay in lodging the FIR.

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, Appellant v. State of West Bengal, Respondent [, 1995 CRI.L.J.2659 (Supreme Court), 2659], 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."

Though in the FIR two separate incidents were mentioned without specifying the time gap between these two however in the present matter we are concerned with the second incident which occurred on 17th June, 1978. We propose to re-examine and re-evaluate the prosecution evidence only in reference to the second incident as evidence about the two incidents have been separately recorded in two separate session trials.

The eye witness account of the second incident consists of testimonies of Smt. Phulwasa P.W.2 mother of the deceased. Toley P.W.3 living nearby the house of Puttu Singh. Bhagwati Prasad P.W.4 is an independent witness.

Smt. Phulwasa is the wife of the first informant and mother of the deceased. She has supported the version contained in the FIR. She further says that after 11 days from the first incident all seven accused came to her house in the morning, her son Sirdar Singh was sitting on the boundary of well situate in front of her house. Bhagwati, toley and Niwazi were present there. Accused were armed. Seeing them her son tried to run away but he was caught by the accused persons and taken by them. After seven days she came to know that her son was murdered by the accused. She did not lodge the report hoping that her son would be released by the accused persons. All the accused are of one family. During cross examination she says that after her son was caught by the accused person Daroga ji called her son-in-law thereafter she was called. She could not meet the Daroga ji due to her broken arm. According to her well situates at the distance of 40 steps from her house when accused were coming armed with lathi her son ran towards the house but he was caught by the accused. According to her, daughter of Chandrika was caught in the morning. She has denied the suggestion that her son had criminal antecedent and was killed by his enemy and on account of old enmity appellants were falsely implicated.

When her statement is subjected to careful scrutiny, we find that there is improvement in it from the story narrated in the FIR. Since the first informant had died, this witness being his wife must have some knowledge how the first informant lodged the report. In the first information report no specific details about the abduction of the deceased was given. Her statement on this point also appears to be unnatural. The deceased saw armed accused. He ran towards his house. He had to cross only 40 steps how come before he reached his house the deceased was caught by the outsiders whereas according to this witness four villagers were present on the spot. The second improbability noticed by us is that if the girl kidnapped by the deceased was caught on the same morning and accused were roaming about the village, there was no reason for the deceased to sit publicly outside his house. When her statement is considered with the fact that first version about the occurrence has come into light on 25th June, 1978 at least eight days after the forcible abduction and several days after the deceased was heard to be murdered. We do not think testimony of Smt. Phulwasa can be relied upon.

Toley P.W.3 lives in a house adjacent to the house of Puttu Singh. According to him he did not see anyone catching deceased Sirdar. Thereafter he resiled from this statement and said that he saw Chandrika and identified none others. This witness was declared hostile. In the cross-examination he says that for the first time he saw Chandrika on that date. Therefore, no reliance can be placed on his testimony.

Bhagwati Prasad P.W.4 says that accused came in the morning, they were armed. Niwazi, Kanahi and Tole were also present there. Accused tried to catch Sirdar who ran away. Subsequently he heard that accused caught Sirdar. He has heard that Sirdar was murdered. During cross-examination he admits that he does not know the accused persons well. Even the day he was deposing he said that he could not identify them by name. Thereafter the witness was declared hostile. Since the evidence of this testimony is based on hear say no reliance can be placed on it.

In this way the eye witness account adduced by the prosecution and found trustworthy by the learned trial Judge does not inspire our confidence. The learned trial Judge has not addressed the points noticed by us in testimonies of these witnesses. On the basis of the statement of Smt. Phulwasa P.W.2 regarding first incident he evaluated the probative force of the testimony of Smt. Phulwasa P.W.2 which the law does not permit. Therefore, we find that the learned trial Judge has misdirected himself while appreciating the evidence of eye witnesses. We do not agree with the findings recorded by him in this regard.

The learned AGA has placed reliance on the evidence of recovery of severed head of the deceased, weapon of murder Banka. Though the evidence of recovery on the pointing out of deceased co-appellant Tej Singh is admissible under section 27 of the Evidence Act, however, still this evidence is of confessional nature. The probative force of this evidence would be high against the accused Tej Singh but against other co-accused his confessional statement to this effect can only be taken into consideration by the Court under section 30 of the Evidence Act. It cannot be made basis of the conviction vide Haroom Hazi v. State of Maharastra, , AIR 1968 SC 832.

After clarifying the legal position we would like to discuss the evidence of recovery. According to recovery memo Ext. Ka-3, in the presence of witnesses when arrested deceased co-accused Tej confessed murder of Sirdar Singh, also implicated in the abduction co-accused Dambar Singh, Chandrika Singh, Champat Singh, Surjan Singh, Collector Singh and Mahipal Singh (since all deceased except Collector Singh) with him. According to him on 21st June, 1978 in the night he, Chandrika Singh, Surjan Singh and Parbhu took Sirdar Singh tied with rope near Bharva River at about 12 night and near Big canal they made Sirdar Singh to lie down on the earth and after gagging him, he severed the head of Sirdar Singh with the help of banka. During that Chandrika Singh was holding both hands of deceased and Surjan Singh was holding both legs of deceased and Parbhu was holding his head. Thereafter he took severed head and hid it under the water of the canal. On this point witness of recovery memo Ram Avatar P.W.5 and Raj Narayan Tiwari arresting officer P.W.10 have been examined.

According to the prosecution thereafter on the pointing out of the accused Tej Singh from his locked kothari one blood stained banka was recovered by the investigating officer and on the spot recovery memo Ext. Ka-6 was prepared. Shiv Lal P.W.7 is the independent witness of this recovery. His evidence is proposed to be corroborated by testimony of Raj Narayan Tiwari P.W.10. Before handing over the banka the accused Tej Singh disclosed that with the help of this banka he had severed the head of the deceased Sirdar Singh.

When we consider this evidence in legal perspective we find that the only fact which has been made admissible under section 27 is the mental knowledge of the accused that incriminating article has been hidden at a particular place and before the recovery of the article whatever the accused had disclosed is not admissible in evidence being of confessional nature made before a police officer, therefore, inadmissible under section 25 of the Evidence Act.

The learned counsel for the appellants submits that mental knowledge of co-accused Tej Singh cannot be imputed on the surviving appellants. We agree with this submission. He has further submitted that this evidence can be used only to convict Tej Singh. It cannot be used to convict the surviving appellants. We also agree with this submission.

Further we find that had the confessional statement of co-accused Tej Singh been admissible, it would not have amounted to clinching evidence to convict the surviving appellants because in Ext. Ka-3 according to accused Tej Singh at the time of murder surviving appellants were not present. He only says that while Sirdar was caught Collector was present. The recovery of the incriminating articles relate to commission of murder. By no stretch of imagination it can be connected with the forcible abduction of Sirdar alleged to have taken place four days before the murder. Thus evidence of recovery substantiated by Ram Avatar P.W.5, Shiv Lal P.W.7 and Raj Narayan Tiwari P.W.10 is of no help to prosecution.

In view of above, there remains no evidence worthy of reliance to uphold the findings recorded by the learned trial Judge whereby he found the surviving appellants guilty of becoming member of unlawful assembly having common object of murdering deceased Sirdar, therefore, against them neither charge under section 147 IPC nor under section 302/149 IPC could be proved by the prosecution beyond reasonable doubt.

The appeal has substance. The impugned judgment is full of factual and legal errors. It deserves to be set aside and surviving appellants are entitled to be acquitted from the charges framed against them.

Both the appeals (Criminal Appeal No. 934 of 1981 and Criminal Appeal No. 939 of 1981) are allowed in reference to surviving appellants and the impugned judgment and order are set aside to this extent that conviction and sentences of surviving appellants Vishram and Collector Singh are set aside. They are acquitted from the charges framed under section 147 and 302/149 IPC. They are on bail. They need no surrender. Their personal bonds and surety bonds are cancelled and sureties are discharged provided they file personal bond and two sureties in the like amount before the Sessions Judge, Hardoi in pursuance of provisions contained in section 437A Cr.P.C. from the date certified copy of this order is produced before him.