Chinkoo and Others vs State of U.P.

Pratyush Kumar, J.—1. The aforementioned appeal filed on behalf of the accused/appellants is directed against the judgment and orders dated 25th September, 1989 passed by Sri D.C. Srivastava, Sessions Judge Bahraich in Sessions Trial No. 247 of 1988 whereby the appellants have been convicted under sections 302/34 and 323/34 IPC and sentenced to undergo imprisonment for life and rigorous imprisonment of six months, respectively. However, co-accused Ram Nath was acquitted under section 201 IPC.

The facts of the prosecution story, relevant for the present purpose, are as under.

That on 31st August, 1986 at 8.05 A.M. at police station Bhinga Smt. Koila resident of village Tadawa Bankatawa, Police Station Bhinga orally informed that on that day at the sun rise her husband Santram had gone along with lota to relieve himself in the field situated on the north side of village. When he was coming back Chintu, Bahau and Radhe, whose houses are at the northern side towards her main door and with them their litigation for the land was going on for a long time, surrounded her husband in the corridor and started to belabour him with lathi and kulahari. Her husband raised hue and cry, hearing that she had gone running there. Chandra Shekhar of village Baburaiyan and her co-villager Mahant and Nayyuan also reached there and saw that the accused persons had taken her husband in hung condition inside their courtyard and blows of kulhari were showered on his head. She reached the court yard and tried to save her husband but accused Radhey struck lathi blows on her and made her to leave the court yard. Thereafter all the three accused hung the dead body of her husband and proceeded towards Jungle. Chandra Shekhar, Mahant and Nayyuam admonished them. At that they threw dead body in the corridor and fled away. She found her husband dead. There were injuries on his head and leg inflicted by kulhari and danda. In the courtyard and nearby well there were blood stains, after chaukidar came she had come to the police station.

Chick FIR was scribed, case crime No. 185 of 1986 under section 302 IPC was registered, requisite entry was made in the report of the general diary, investigation was taken over by Ram Ashish Yadav Inspector incharge, who reached the spot got the inquest proceeding conducted by S.I. J.P. Yadav. He interrogated the witnesses, inspected the spot, took samples of blood stained and simple earth. From the place of occurrence and from the courtyard of accused Bahau he also found blood stains on two legs of a cot lying in the court yard. He also recovered one blood stained lathi from inside the small room adjacent to the courtyard. On 1st September, 1986 he arrested Ram Nath who was seen washing blood from the courtyard of Bahau. He found impression of foot steps there and asked Ram Nath to stand on them. When Ram Nath put his foot on the impression they matched with his legs. He prepared a memo and site plan, after completion of investigation submitted the charge sheet against all the four accused.

The accused persons stood for trial before the Court of Session where the named accused persons were charged under section 302/34 and 323/34 IPC and accused Ram Nath was charged under section 201 IPC. All the accused persons denied the charges and claimed to be tried.

In order to prove the charges on behalf of the prosecution in the documentary evidence besides other papers FIR Ext. Ka-1, Post mortem report Ext. Ka-2, Injury report Ext. Ka-3, and Ka-4 and Ka-5, site plan Ext. Ka-9 and Ka-13, Recovery memo Ext. Ka-10-12, Copy of column under section 209 Ext. Ka-15, Copy of application before S.D.O. Ext. Ka-16, Copy of Judgment dated 4.1.1986 Ext. Ka-18, Copy of Judgment dated 24.9.1986 Ext. Ka-19, Copy of serologist report Ext. Ka-20 were filed. In the oral evidence on behalf of the prosecution seven witnesses were examined. Thereafter statements of the accused persons were recorded under section 313 Cr.P.C. wherein they admitted that they and deceased Santram were residents of the same village but rest of the facts stated by the prosecution witnesses were denied by them. According to them witnesses were falsely deposing against them on account of enmity.

The learned trial Judge after hearing the arguments found the present appellants guilty of committing murder of Sant Ram and voluntarily causing hurt to Smt. Koila. He found the FIR was promptly lodged, it was not ante timed, motive had been proved and ocular version of the occurrence to be trustworthy. However, in reference to Ram Nath he found no reliable evidence to show that he caused disappearance of evidence and acquitted him. The convicted appellants were sentenced as above.

We have heard Mr. S.K. Singh, learned counsel for the appellants, Mr. Ruhi Siddiqui, learned AGA for the State and perused the record.

On behalf of the appellants it has been argued that prosecution could not prove motive, FIR is ante timed, medical evidence is contradictory to ocular version and the learned trial Judge has ignored all these short comings in the prosecution case and believed the testimonies of eye witness and erroneously convicted the present appellants, he even ignored that prosecution version in itself is unnatural and improbable.

On behalf of the State these arguments have been repelled and it has been argued that the three eye witnesses are trustworthy, FIR has been promptly lodged, motive has been proved by cogent evidence, offence recorded by the learned trial Judge are well substantiated from record and they warrant no interference.

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."

Before entering into merits of the respective arguments we would like to have a glance at the medical evidence, which in the present case consists of statement of Dr. R.S. Singh P.W.4 and postmortem report Ext. Ka-2 and further statement of Dr. M.K. Gupta, P.W.5 and injury report of Smt. Koila Ext. Ka-3. Dr. R.S. Singh P.W.4 on 1st September, 1986 at 3 p.m. performed autopsy on the dead body of the deceased. According to him time since death was 1-1/2 days. According to him cause of death was shock and haemorrhage as a result of ante mortem injuries, which were sufficient in the ordinary course of nature to cause death. He has opined that incised wounds could be caused by small axe, stab wound could be caused by the corner of such axe and contusions and abrasions could be caused from lathi. He has further opined that deceased could have died on 31st August, 1986 at about sun rise. He has proved the postmortem report Ext. Ka-2 wherein the following injuries have been recorded:

Incised wound 3 cm x 1 cm x bone deep over left side of head 8 cm. above ear.

Incised wound 2 cm x 1 cm x bone over left side of head 2 cm below and behind injury No. 1.

Stab wound 1 cm x 1/2 cm x bone deep over right arm 6 cm above elbow.

Multiple abraided contusion 30 cm x 8 cm over right forearm over back and outer side from elbow to wrist.

Stab wound 2 cm x 1 cm x bone over back of left forearm 3 cm below elbow.

Stab wound of entry 1 cm x/1/2 cm x bone over left forearm 2 1/2 cm below injury No. 5.

Multiple contusion 32 cm x 8 cm over back of left forearm and hand. Facture of both bones present in middle part.

Incised wound 2 cm x 1 cm x bone over front of left leg, 14 cm below knee.

Multiple contusions 15 cm x 9 cm over front and outer side of left leg 14 cm below knee with fracture of both bones, in middle.

Multiple abraided contusions 17 cm x 6 cm over front of right left 5 cm below knee.

Abraided contusion 8 cm x 3 cm over left lateral side of chest 12 cm below axilla.

Contusion 6 cm x 4 cm over front of right shoulder."

During cross-examination homicidal death of the deceased has not been challenged. He was asked for his opinion only about time since death and nature of weapons used for causing ante mortem injuries. Since his factual statement is not challenged, we rely on his testimony and hold that 12 ante mortem injuries were found on the dead body the deceased which were sufficient in the nature to cause death. Death had occurred due to shock and haemorrhage as a result of ante mortem injuries. Death could have occurred on the stated date and time from the use of weapons alleged by the prosecution.

Dr. M.K. Gupta p.W.5 has deposed that on 31st August, 1986 he medically examined Smt. Koila. Her injuries were fresh and simple, caused by blunt object. He has proved injury report Ext. Ka-3. According to Ext. Ka-3 she was accompanied by police personnel and she was medically examined on 10 A.M. on that day. According to the witness the following injuries were found on her person.

"1. Contused swelling of 6 cm x 2 cm on back of the lower part of the posterior aspect of left thigh. Colour red.

Contusion 8 cm x 2 cm over back of the right hip. Colour red."

During cross-examination the witness has admitted that the injuries were superficial and if the person could bear pain they could be manufactured.

Inspite of the cross examination from the testimony of Dr. M.K. Gupta P.W.5 this fact stands proved that two injuries noticed above were found on the person of Smt. Koila and they could have been caused at 31st August, 1986 at the time of sun rise.

Opinion part of both the expert witnesses would be dealt by us while we will be deal with the ocular version of the occurrence. First we would give outline of prosecution witnesses.

The defence case is that deceased was murdered in the jungle. None saw it and on account of enmity they were falsely implicated. Witness Mahant is relative of the deceased. In the defence Govind Prasad Mishra D.W.-1 was examined who testified that daughter of Sri Ram was married to Satguru son of the deceased. His other daughter was married to Guru Dayal. Son of Guru Dayal was married to the sister of witness Mahant. In the defence the appellants had filed documents Ext. Kha-1 to Kha-8 to show the enmity.

The argument about ante timing of FIR is based on the facts that deceased was murdered before sun rise in the jungle and his dead body was thrown in the corridor. Thus this argument is based on the fact that at the time of sun rise deceased was not murdered. This argument will be dealt with by us while we will be appreciating the ocular version of the occurrence.

Second argument about place of occurrence is also dependent upon the ocular version of the occurrence.

Third argument that motive could not be proved. This argument cannot be accepted even the documents available on the paper book reveal that litigation was going on between the deceased and Ram Nath. Ram Nath is the person who is the co-accused who was acquitted by the trial Judge and against his acquittal no appeal was preferred. In that litigation father of appellant No. 3 Radhe and father of appellant No. 1 Chintu Pyare were also parties. Bahua is the son of Radhe, therefore, from the copy of the, plaint filed by the deceased before the Court of S.D.O. Bhinga, it is established that litigation was pending between the deceased and the father and grand father of the appellants. This paper is Ext. Ka-15. Ext. Ka-16 is written statement filed by the father and grand father of the appellant in that case. Ext. Ka-18 is the copy of the complaint filed by the deceased. Some months before his murder in the court of Special Judicial Magistrate, Baharaich complaining about wrongful trespass of his land along with allegation that the, appellants and their family members asked to vacate the land were ready to commit riot and abused the deceased. In that case accused were summoned vide Ext. Ka-19. Even from the documentary evidence it is established that land of Sant Ram was encroached by the appellants and their family members to construct their houses and Sant Ram was diligently and peacefully pursuing the legal remedies to get them evicted.

The argument about contradiction between medical evidence and oral evidence would have to be dealt with after appreciation of eye witness account.

Examination and analysis of eye witness account

Smt. Koila P.W.1 is the first informant and wife of the deceased. She has claimed that she was also beaten while she was trying to save her husband.

From the statement of Dr. M.K. Gupta read with injury report Ext. Ka-3 two simple injuries stand proved on her person. These injuries could have been self inflicted provided the person would be able to bear pain.

Smt. Kamla is a middle aged household lady. Soon after murder of her husband, we do not think that she would be in a position to get these two injuries manufactured. From the perusal of the FIR we find she is a rustic woman, simple in nature and she only speaks Hindi in local dialect (Avadhi). Though her statement has been recorded by the trial court is simple Hindi language but the manner in which she has described, the occurrence and replied to the questions put to her during the cross examination, lead us to form an opinion that she appears to be a very simple and honest person. She has replied the question unmindful of the consequences they would bring. We are satisfied that her injuries were not manufactured and she is an injured witness, thus enjoys special status as observed by the Hon''ble Apex Court in the case of Narendra Nath Khaware v. Parasnath Khware; , 2003 (Crl.) 1144; State of U.P. v. Kishan Chand; , 2004 SCC (Crl.) 2013), State of MP v. Man Singh , (2003) 10 SCC 414.

The first advantage which the courts attach to the statement of the injured witness is that her presence at the time of occurrence on the spot is implicitly accepted. Therefore, we find her to be a natural and probable witness. Even if we deprive her of the privilege of being injured, we find that occurrence took place near her house and she claims hearing the shouts of her husband. She had reached the spot from where she had seen the occurrence. In this way she was also a natural and probable witness. It was morning hours she had every opportunity to see the occurrence. Being wife of the deceased without very strong reason she would not spare the real culprits who murdered her husband and falsely implicate innocent person. In the present case there is nothing to suggest that for some ulterior reason she wanted her husband to be dead and in order to protect the murderer she was falsely implicating the present appellants. We come to the conclusion that she is narrating the facts which were perceived by her on the fatal day. Though on behalf of the appellants it has been argued that she says that she took the lota of the deceased from the spot and handed over to the investigating officer and the investigating officer has denied this fact.

For rustic woman we cannot accept that soon after the occurrence she was in a position to identify the investigating officer. Therefore, this discrepancy does not diminish intrinsic value of her testimony. Her testimony on the point of scene of occurrence, time of occurrence, manner of occurrence remains intact and her statement is duly corroborated by the information given by her which were reduced in to writing by Jaisraj Yadav P.W.6 in the form of chick FIR Ext. Ka-1. Her testimony receives support from the statement of Dr. M.K. Gupta and injury report Ext. Ka-3, therefore, we find her to be a trustworthy witness of the highest order.

Chandra Kesar Pandey P.W.2 is resident of another village. He has one field in the village where the deceased lived. This field was nearby the place of occurrence. Though during cross examination he was cross examined on this point but his testimony remains unshaken. He has given reason to be there and his reason for going to the spot also, therefore, he is also a natural and probable witness. He has vividly described the occurrence. During cross examination his testimony remains unshaken. We find him to be also a trustworthy witness.

Mahant P.W.3 has given his reason to be present at the spot at the relevant time. He has also vividly described the occurrence. This witness is also rustic witness. Ability to observe and narrate the incidence differ from person to person. The Hon''ble Apex Court in the case of Shivaji Sahabrao Bobade and another v. State of Maharashtra , 1973 SCC (Crl) 1033 in para 18 of the report has considered the point about the depositions of eye witness and discrepancies occurring therein. Before concluding we would like to gainfully refer the said observation which reads as under:

"18. Some attempt was made to show that the many injuries found on the person of the deceased and the manner of their infliction as deposed to by the eyewitnesses do not tally. There is no doubt that substantially the wounds and the weapons and the manner of causation run congruous. Photographic picturisation of blows and kicks and hits and strikes in an attack cannot be expected from witnesses who are not fabricated and little turns on indifferent incompatibilities. Efforts to harmonise humdrum details betray police tutoring, no rugged truthfulness."

When we examine his whole of the deposition, we find the reason for contradictions discrepancies about occurrence specially in reference to blows struck by the appellants appears to be natural and considering the fact that his presence is established and his evidence receives support from the evidence of other two witnesses, we also find him to be a reliable witness.

Now remains one argument regarding contradiction between the medical and ocular version of the occurrence. This argument is of two folds, first is that though number of stab wounds were found on the person of the deceased but none of the eye-witness has assigned any pointed weapon to the appellants. According to the learned counsel for the appellants, who caused injury Nos. 3, 5 and 6 to the deceased remains unexplained. Therefore, ocular version stands contradictory with medical evidence.

The second ground is that according to Smt. Koila, deceased was coming back from the field after relieving himself but his large intestine was found filled with faecal matter.

The first ground in this reference cannot be said to be inconsistent with ocular version. According to ocular version, one of the appellant Bahau was armed with Kulari. From the evidence of Mahendra, P.W.-3, we find that for Kulari, he used the word ''Tenguli''. Thus, the Kulari used by the appellants is a generic name and of which it was ''Tenguli''. According to Dr. R.S. Singh, P.W.-4, stab wounds could be caused by the point of Kulari and incised wound could be caused by small Kulari. Thus the weapon assigned to the appellant Bahau could be used for causing incised wound as well as stab wounds. In this way, the contradiction indicated on behalf of the appellants stands reconciled with ocular version.

The second ground is that the deceased was coming back from the field after relieving himself and in his large intestine, faecal matter was found is also susceptible to the fact that according to Smt. Koila, when her husband left the house, she remained in the house, whether her husband could relieve himself or for some reason, could not relieve himself, cannot be answered on the basis of her testimony. In the First Information Report, she merely says that her husband had gone to the field to relieve himself. Only in the examination-in-chief, she says that he was coming back after relieving himself. Therefore, she is not an eye-witness of the fact that the deceased had actually relieved himself. Only on the basis of his going to the field with Lota, she had presumed that he had relieved himself. For this reason, we do not think that there is contradiction between the medical evidence and ocular version. The medical evidence says that deceased could not relieve himself and the ocular version says that he had gone to relieve himself.

The last argument is that prosecution story is unnatural and improbable because why the appellants would try to take the dead body of the deceased to the jungle, answer to this is obvious, to hide their crime. The prosecution version is not unnatural and improbable at all.

Non-finding of Lota also bears no significance for the reason mentioned above.

In view of above, we find that the appellants had strong motive to murder the deceased. Three eye witnesses were present when the deceased was murdered by the appellant. Acquittal of Ram Nath does not diminish the credibility of the ocular version of the occurrence. Findings recorded by the learned trial judge are well reasoned, substantiated from the record. There is no legal or factual infirmity in them. Appeal has no substance and deserves to be dismissed.

Accordingly, the Criminal Appeal is dismissed. The conviction and sentence awarded by the learned trial Judge vide judgment and order dated 25.9.1989 is hereby affirmed. The appellants Nos. 1, 2 and 3 namely Chinkoo, Bahau & Radhey are in jail. They are directed to serve the sentences awarded by the trial court vide judgment and order dated 25.9.1989.

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