Gopi vs State of U.P.

Pratyush Kumar, J.—1. The instant appeal filed on behalf of the sole appellant, is directed against the judgment and order dated 24th April, 2000 passed by Sri Mushaffey Ahmad, the then IVth Additional Sessions Judge, Lakhimpur Kheri in S.T. No. 792 of 1997 (Gopi Vs. State of U.P.), under sections 302, 352, I.P.C., Police Station Pallia, whereby the sole appellant was convicted under the said sections and sentenced to undergo imprisonment for life and one month''s rigorous imprisonment respectively.

The facts of the prosecution case may be summarized as under:-

That on 20th July, 1997, at 11.30 a.m. Lalta Prasad, respondent of village Mauruacha, gave a written report at the police station stating therein that two bamboos were kept on the back side of the house, that day at 10.00 a.m. Ram Das, son of Gopi 7-8 years was trying to take one Bamboo from there. His wife Smt. Parwati asked him not to do so, the child had informed about that matter after reaching the house to his father. He was talking with his co-villager Babulal near his house when Gopi armed with ''Takula'' (small Axe) came running there and caught hold of hands of his wife and dragged her to the rasta and after throwing her there, showered various blows of ''Takula'' on her. They reached there to save her, at that brandishing the ''Takula'' in the air, Gopi ran towards them, they came back out of fear for safety. After saving himself, he came to the police station while dead body of his wife was lying on the spot. He had requested legal action be taken.

At this report, chik FIR was scribed. Case Crime No. 196 of 1997 under sections 302, 352 I.P.C. was registered and entered into the report of the general diary. Investigation was entrusted to S.O. Amar Nath Pandey, who after carrying out the investigation, submitted the charge-sheet against the present appellant.

After the case was committed to the Court of Session, the accused was charged there, who denied the charges and claimed to be tried.

In order to prove the charges, the prosecution besides other papers, has filed written report Exhibit Ka-1, postmortem report Exhibit Ka-2, Chik F.I.R. Exhibit Ka-3, site plan, Exhibit Ka-5, inquest report Exhibit Ka-6, recovery memo Exhibits Ka-12 and Ka-13, site plan (recovery of ''Takula'') Exhibit Ka-14, report of the serologist, Exhibit Ka-16. In the oral evidence, prosecution has examined five witnesses, out of these Lalta Prasad, P.W.-1 is the first informant and husband of the deceased and Om Prakash, P.W.-2 is the eye-witness, son of the deceased. Dr. A.K. Singh is the doctor who performed autopsy on the dead body of Smt. Parwati. Amar Nath Pandey, investigating officer, who gave details of steps taken by him during the investigation and proved the police papers. S.I. Krishnanand, P.W.-5 is the second investigating officer who submitted the charge-sheet and proved it Exhibit Ka-15.

After evidence for the prosecution ended, the statement of the sole appellant was recorded under section 313 Cr.P.C. who denied the prosecution case and disputed the correctness of the testimonies of the eye witnesses. He claimed to be innocent and alleged that he was falsely implicated due to enmity. In the defence, no evidence was given. After hearing the arguments of the parties, the trial Judge has found that eye witness account trustworthy and convicted the present appellant and sentenced him as above.

Heard Sri Satyendra Pal Singh, learned counsel for the appellant and learned Government Advocate and perused the record.

Sri Satyendra Pal Singh, learned counsel appearing for the present appellant has submitted that both the eyewitnesses are relative witnesses. Their testimonies could not be relied upon without strict scrutiny. In order to elaborate this argument, he has pointed out contradictions and discrepancies in the statements of both the eye-witnesses and submitted that on account of this, both the eye witnesses cannot be believed. His next argument is that prosecution story is unnatural and improbable. No reliance can be placed on it. His third argument is that none has seen the occurrence and both are planted witnesses. He has further submitted that recovery of ''Takula'' on the pointing out of the sole appellant, is not reliable. No independent witness has been examined to prove the recovery.

On behalf of the prosecution these arguments have been repelled and it has been argued that both the eyewitnesses are natural and probable witnesses. Contradictions and discrepancies indicated in their testimonies are minor and natural. Learned A.G.A. has further argued that prosecution story is natural and recovery has been duly proved.

Further we would like to refresh the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni Vs. 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 death of Smt. Parvati has been disputed by the defence and Dr. A.K. Singh, P.W.-3 was not cross examined. Even then as an Appellate Court, we have to assure ourselves that actual homicidal death of Smt. Parvati had taken place. In order to ensure that we have gone through testimony of Dr. A.K. Singh, P.W.-3 and postmortem report Exhibit Ka-1, in the postmortem report, the doctor has noted seven anti mortem injuries and opined that Smt. Parvati died due to shock and haemorrhage as a result of anti mortem injury. Anti mortem injuries were inflicted by a sharp edged weapon. Death could have occurred on 20th July, 1997 at 10.00 a.m. In the postmortem report, the doctor has recorded the following anti mortem injuries:-

Incised wound 8 c.m. x 3 c.m. x bone deep over the left side of forehead just lateral to left eye brow extending up to parietal region.

Incised wound 6 c.m. x 1 c.m. x bone deep on left jaw, the jaw bone first and second molar found cut along c first & second lower molar teeth on left side.

Incised wound 4 c.m. x 2 c.m. x muscle deep on Right cheek.

Incised wound 10 c.m. x 2 c.m. back bone deep on front and left side of neck underlying muscles, artery vessels, trachea and oesophagus were found cut through and through.

Incised wound 12 c.m. x 2 c.m. x muscle deep on front of Rt. Shoulder.

Incised wound 6 c.m. x 2 c.m. x muscle deep on back of left shoulder.

Incised wound 11 c.m. x 3 c.m. x bone deep on the left elbow, underlying upper ends of radius and ulna found cut through and through.

In view of above, the homicidal death of Smt. Parvati on the stated date and time stands proved.

S.I. Amarnath Pandey, P.W.-4 is the first investigating officer, who recovered weapon of murder ''Takula'' on the pointing out of the present appellant and proved recovery memo Exhibit Ka-13 and its site plan Exhibit Ka-14. From the perusal of Exhibit Ka-13, it transpires that on 26th July, 1997, in presence of public persons, on the pointing out of the present appellant from the sugarcane field of Mustafa, ''Takula'' in question was recovered. These facts have been stated by the recovery officer in his examination-in-chief. During cross examination, nothing could be extracted to show that the investigating officer has shown the false recovery. Only non-examination of independent witness would not make the recovery doubtful specially when the weapon of murder was subjected to scientific examination and it was found to be blood stained.

Now we come to our examination and re-evaluation of the ocular version of the occurrence. Star witness of the prosecution is Om Prakash, P.W.-2, son of the deceased. Though his testimony has been challenged on the ground that he is a child witness, aged about ten years. His name does not find place in the first information report and his version is discrepant with the statement of his father Lalta Prasad, P.W.-1.

Before examining and evaluating the trustworthiness of his testimony, we would like to mention that there is no hard and fast rule that evidence of a child witness should be corroborated by some evidence. In reference to Section 118 of the Evidence Act the Hon''ble Apex Court in the case of State of M.P. Vs. Rakesh [, 2011 (74) ACC 193 SC] has observed in para-13 of the report, which on reproduction reads as under:

"....the law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the Court and there is no embellishment or improvement therein, the Court may rely upon his evidence. The evidence of a child witness must be evaluated more care fully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition."

We also find that the learned trial judge before administering oath to him has ensured that the witness has sufficient understanding to know that it is his duty to speak the truth. In this reference in the case of Golla Yelugu Govindu Vs. State of Andhra Pradesh [, AIR 2008 SC 1842] the Hon''ble Apex Court has held as under:

"The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession of lack of intelligence, and said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial Court may, however, be disturbed by the higher Court if from what is preserved in the records, it is clear his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make beliefs. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness."

In this way, the only condition is that testimony of child witness should be subjected to close scrutiny.

The first informant has not mentioned the name of this witness in the first information report, it is also not very material. He is a child. It was Sunday. He usually plays nearby his house. Thus, his presence at the spot is natural and probable. When son of the present appellant tried to take away one bamboo and his mother asked him not to do so, the attention of this witness must have been diverted to that place, therefore, it is not unnatural and improbable for him to see the occurrence. Since he is a child, his father while writing first information report, would not have given importance to his son so as to mention his name in the first information report.

No two individuals can perceive and describe in the same manner, the facts perceived by them simultaneously. Therefore, inconsistency occurred in his statement with the statement of his father, are not very material. Though this witness was not examined on the day inquest was held, but, on the next day his statement was recorded and in his statement, the only contradiction, which occurred is that he did not tell the investigating officer that Babu Lal also ran to save his mother. According to this witness, he had told the investigating officer that Babu Lal had ran away and he could not tell the reason how the investigating officer had recorded the earlier statement as a part of his statement, hence, this contradiction is not a material one, it does not reflect adversely against the witnesses and we find him to be a natural and probable witness having no enmity with the present appellant and his testimony remains unshaken during the cross examination. For these reasons, we believe him to be a fruitful witness.

Lalta Prasad, P.W.-1 gave a detailed account of the occurrence and he was subjected to long cross examination. His presence is natural and probable. Reasons for the discrepant account given by the witness appears to be that he was talking with Babu Lal. At the alarm raised by his wife, he went towards her and when he reached on the road, his wife was lying on the ground. Thus, earlier part of the occurrence had not seen by this witness but we are confident that the remaining part of the occurrence has been seen by him and his testimony also could not be shaken during the cross examination. He appears to be truthful witness to that extent. Thus, ocular version given by Om Prakash-2 is duly corroborated by the statement of Lalta Prasad, P.W.-1 and homicidal death of his mother is duly proved by Dr. A.K. Singh, P.W.-3 and further from the fact that the appellant knew where the weapon of murder was hidden. We think that there is truthful eye-witness account of the occurrence duly corroborated by medical evidence and recovery under section 27 of the Evidence Act and the learned trial Judge has rightly recorded the findings of guilty against the present appellant. The learned trial Judge has given cogent reasons well substantiated from the record. We find no reason to take the other view.

The arguments advanced in support of the appeal are not substantiated from the record. Grounds taken in the appeal are devoid of merit, hence, the appeal lacks merit and, is, dismissed.

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