Islam and Others vs State of U.P.

Pratyush Kumar, J.—Four accused-appellants assail the correctness of the judgment and order dated 3rd May, 1982 passed by Sri R.D. Shukla, IIIrd Additional Sessions Judge, Barabanki in S.T. No. 42 of 1981 (State v. Islam and others) whereby the appellants have been, convicted under sections 302 r/w 34 , 394 IPC and, sentenced to undergo imprisonment for life and five years'' rigorous imprisonment along with fine of Rs. 1000/- each, in default thereof to further undergo one year''s rigorous imprisonment, respectively.

The prosecution case in hand is that on 23rd December, 1979 at 5.05 p.m. at police station Rudauli, District Barabanki chick FIR was scribed on the information of Jagdish Prasad. Jagdish Prasad has stated at P.S. Rudauli that accused persons bore enmity with them due to a dispute taken place three months earlier about water of the canal. That day he along with his father Ram Lal and co-villagers Sunder Lal, Thakur Pasi, Ram Pal and Shiv Narayan had gone to Rudauli market for purchasing household goods and making demand for money due to Ram Lal. After purchasing the goods and getting payment of Rs. 2,500/- from Hazi Farid, they were returning home on two bicycles. Ram Lal was on the bicycle of Thakur. At about 2.30 p.m. when they reached the canal bridge near village Roza, where bank of the canal was filled with loose earth, thence they got down from the bicycles and started walking on foot. While they were going so on the canal bank Anis, Shaukat, Islam Ali and Hasmat of village Sulemanpur armed with lathi, knife and bomb were waiting to ambush his father. As soon as they saw his father, on the exhortation of Anis, Ram Lal was struck with a lathi by Anis when Ram Lal started to run towards his village, Hasmat threw bomb on him thereupon Ram Lal fell down on the bank of canal, Shaukat rode on his chest and struck knife blows there. Islam Ali cut the throat of his father with a knife. After taking money from the dhoti of Ram Lal they ran away.

On the basis of chick FIR Case Crime No. 221 of 1979 was registered, requisite entry was made in the general diary, investigation was started, inquest proceedings were held about the death of Ram Lal and dead body was sent to mortuary, spot was inspected, site plan was prepared. During investigation samples of blood stained and plain earth were taken, remains of hand-grenade and two papers containing sale and purchase of Alsi Seeds and house-hold goods along with two slippers and one steel saw were also taken into possession, recovery memo were prepared, witnesses were examined. After completion of investigation, charge sheet was submitted against the four appellants. The Magistrate took cognizance of the offence and committed the case to the Court of Session. The appellants were charged under sections 302 R/W 34 and 394 IPC who pleaded not guilty and claimed to be tried.

Besides documentary evidence, on behalf of the prosecution, eight witnesses were examined. After close of prosecution evidence, statements of appellants were recorded under section 313 Cr.P.C. who denied the enmity, their involvement in the incident, pleaded ignorance about the autopsy of Ram Lal and steps taken in the course of investigation. According to them they have been falsely implicated due to enmity on the behest of Shitla and others. According to them witnesses are deposing against them due to enmity. In the defence no witness was examined. Only documentary evidence was filed. After conclusion of the trial, the learned trial judge recorded the findings thereby holding the appellants to be guilty of the offences they were charged with and sentenced them accordingly.

Feeling aggrieved, the present appeal has been filed on the grounds that charges are not proved against the appellants beyond reasonable doubt and their conviction is illegal and not warranted by facts on record.

We have heard Sri Arun Sinha, learned counsel appearing for the appellants and learned AGA and perused the record.

Before we propose to deal with the arguments submitted on behalf of 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 Vs. State of Gujarat, , para-4 of the report 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, v. State of West Bengal, [1995 CRI.L.J. 2659 (Supreme Court), 2659], the Apex Court in para-5 of the report has given 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, which is extracted as 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."

In the light of the aforequoted legal position, we proceed to deliberate upon merit of the appeal. On behalf of the appellants it has been argued that FIR was ante timed. It was lodged with delay. According to the learned counsel the eye witness account is manufactured one. It is a case of blind murder. In order to falsely implicate the present appellants eye-witnesses have been planted on the behest of Shitla, Jagannath, Asha Ram and Dukh Haran influential farmers of village Khurdaha. He has further submitted that prosecution story is unnatural and improbable. From Rudauli market way to the deceased''s village is a different one, there was no occasion for Jagdish Prasad, P.W.1 and Shiv Narayan, P.W.2 to accompany deceased. His further submission is that medical evidence is contrary to the ocular evidence.

On behalf of the respondents these arguments have been repelled and it has been argued that it is a day light murder, presence of the witnesses is natural, motive has no relevance, medical evidence rather corroborate the ocular evidence adduced by the prosecution.

It would be gainful for us first to take into consideration medical evidence adduced by the prosecution. Dr. H.S. Srivastava was the Medical Officer in District Jail, Faizabad on 25th December, 1979 and he conducted the postmortem on the dead body of the deceased Ram Lal at 2.30 p.m. According to this witness deceased was aged about 50 years. He was of average build, rigor mortis had passed from the body. The witness has proved the post mortem report Ex-Ka 2, prepared at the time of autopsy. The witness has said that during internal examination he found the right temporal bone fractured. Liver and insides of abdomen and kidney had severe cut wounds. According to him, injury No. 1 to 3 were caused by sharp edged weapon. Injury Nos. 4 to 5 were caused by lathi blows. Stomach and small intestine were empty. There was faecal matter in the large intestine. According to him death had occurred, two days ago due to shock and haemorrhage as a result of ante mortem injuries 1 to 4. In the postmortem report the witness has recorded the ante mortem injuries, which read as under:

"(1) Incised wound 11 cm x 6 cm x bone deep in front of middle of neck cutting the wind pipe and oesophagus in middle and great vessels were cut on right side.

(2) Incised would 5 cm x 3 cm x cavity deep on right side upper part of abdomen, 13 cm above anterior superior illiac crest;

(3) Incised would 5 cm x 1 cm x cavity deep 9 cm outer to mid bone and 12 cm below the lower end of right scapula.

(4) Lacerated wound 2.5 cm x.5 cm x bone deep on right side head, 8 cm behind the right eye.

(5) Lacerated wound 3 cm x 5 cm x scalp deep on top of head, 16 cm behind bridge of nose."

During cross-examination correctness of testimony of this witness has not been disputed by the defence. The only question was put to him about the time of death on the basis of contents of stomach. The witness has accepted the suggestion that there may be variation of 8 to 10 hours on either side regarding the estimated time of death. During their statements under Section 313 Cr.P.C. the appellants did not dispute the correctness of the findings recorded by this witness and facts deposed by him during the trial. Therefore, we rely on the testimony of Dr. H.S. Srivastava, P.W.3 duly corroborated by postmortem report Ex Ka-4 and hold that on 23rd December, 1979 between 6 A.M. to 9 P.M. deceased Ram Lal Was done to death in the manner as stated by Dr. H.S. Srivastava P.W.3.

In the present case police witnesses are merely formal. The prosecution has relied on two alleged eye witnesses namely, Jagdish Prasad P.W.1, first informant and son of the deceased and the other eye witness is Shiv Narayan P.W.2 whose name finds place in the first information report. Both have fully reiterated the facts mentioned in the first information report touching the occurrence. Further, Jagdish Prasad, P.W.1 has also proved Chick FIR, Ex-Ka 1. In order to appreciate the arguments advanced before us, we think that proper course would be to re-examine and re-assess the intrinsic value of both the eye witnesses separately.

In order to find out the credibility of the account given by eye witnesses, the test is as to ascertain whether presence of the witness at the time and place of occurrence is natural and probable, whether he had opportunity to observe the occurrence, how he had withstood the test of cross examination and any other surrounding circumstances touching his veracity.

The presence of eye witnesses at the time and place of occurrence has a close nexus with the version contained in the first information report. If the name of witnesses find place in the first information report and such report was promptly lodged, presence of such eye witnesses prima facie would appear to be probable. So first we would like to find out whether in the present case FIR was prompt or it was lodged with delay/ante timed. In the present case according to the prosecution version occurrence took place on 23rd December, 1979 at about 2.30 p.m. FIR was lodged at 5.05 A.M. From the place of occurrence police station is at the distance of 3-1/2 miles. Inquest proceedings were conducted on 24th December, 1972 at 7.30 A.M. Post-mortem was conducted on 25th December, 1979 at 2.30 p.m. Between the occurrence and postmortem there is considerable time gap. According to Jaiveer Singh S.I. P.W.5, after inquest proceedings he sent the dead-body to mortuary along with requisite documents. Munna Lal P.W.4 Chaukidar who accompanied the dead-body states that dead body reached the mortuary Faizabad on 24th December, 1975 at 5.45 p.m. This delay has not been explained either by this witness or by the prosecution with the help of other witnesses. This is the first ground to indicate that perhaps the investigating agency had not acted fairly.

The second point brought to our attention is that in the inquest report Ex-Ka 4 at page 1 in the column of date of FIR figure ''23'' has been made by over writing on figure ''24''. In subsequent column cause of death words "Chautno Ke Karan Mrityu i.e. Hatya" and in the last line in the column of time of close of inquest proceedings figure ''8'' has been made with the help of over writing. We also find that in the recovery memo Ex. Ka7 and Ka-8 on the margin of the paper case crime number and sections have been written which according to learned counsel for the appellants are result of subsequent insertion. According to him in the preset matter special report was sent promptly this fact has not been proved by the prosecution. On the basis of these facts, learned counsel for the appellants submits that in the present matter FIR is deceased and ante timed, it contains embellishment and it would not be safe to rely the contents of such FIR. In support of his arguments he has referred the case of Meharaj Singh (L/Nk.) Vs. State of U.P., he has placed reliance on the observations made in the paragraph 12 of the report which reads as under:

"(12) FIR in criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye witnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an after though. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR, was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in dispatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second eternal check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 Cr.P.C. is aimed at serving a statutory function to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in embryo and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante timed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante timed and had not been recorded till the inquest proceedings were over at the spot by PW8."

According to learned AGA in the teeth of statement on oath given by Jagdish Prasad (P.W.1) there is no reason to doubt that he had not lodged the FIR at the stated time. This point was also raised before the learned trial Judge. He has discussed the matter of contradiction crept in the testimony of Jagdish Prasad that in the statement on oath he says that the FIR bears his signature whereas chick FIR reveals that chick FIR was scribed on the oral information. The second discrepancy indicated by him is that according to Jagdish Prasad (P.W.1) after the incident he had gone to the village, thereafter he went to the police station. Whereas according to Shiv Narayan (P.W.2) he and Jagdish Prasad went to P.S. Rudauli directly from the place of occurrence. The learned trial judge has nowhere had taken into account delayed post mortem examination, various over-writings in the inquest report noticed hereinbefore, therefore, we find that his finding on this point is not well founded.

In view of the facts noticed above and the observations of the Apex Court quoted by us, we come to the opinion that FIR was lodged with delay. It was not written till the inquest proceedings were held on the next day, therefore, there is reasonable ground to doubt its correctness.

So far as evidential value of Shiv Narayan (P.W.2) is concerned it need not detain us for long because he himself says in the cross-examination that he does not know any person resident of village Sulemanpur by name. No identification parade was held therefore evidential value of this witness is assessed by us to be nil.

So far as statement of Jagdish Prasad (P.W.1) is concerned, delayed FIR reduces his credibility to significant extent. There were four persons. According to his statement his father was murdered ruthlessly and all the persons accompanying deceased Ram Lal did not take any effective steps to save Ram Lal. In the cross examination he say that they had requested the accused to spare Ram Lal but the accused persons did not accede to their request. Thus conduct of the witness is also unnatural. Further it has come out in the testimony that his deceased father was doing business of grains which must have required frequent visits to the market. It appears unnatural that during such frequent visits he would take his son along with him. No blast injury was found on the dead body of Ram Lal during autopsy. These discrepancies support the argument advanced on behalf of the appellants and negates the reply given on behalf of the state.

Further, his narration about the injuries inflicted to the deceased are also at variance with the medical evidence. The important variation is that he says that his father was inflected knife injury on his chest. The doctor found the injury No. 2 in his abdomen.

During the cross examination Jagdish Prasad P.W.1 has admitted in para 4 of his deposition that canal bridge was situated on Faizabad-Barabanki Road. From this bridge Rudauli town was at the distance of 10 K.M. and further from the bridge his village Khurdaha was also at the distance of 5 k.m. Thus according to this witness from village Khurdaha to town Rudauli they had taken a longer root of 15 k.m. Whereas he has admitted that one metalled road from Dariabad to Rudauli was in existence. His village is situated on the side of the road and from this road town Rudauli was at a distance of 8 k.m. He has not explained the reason why his deceased father took a longer root which also involved dirt road that too under construction. These facts go to show that probability is that story of going to Rudauli market and coming back was not real one and something is being hidden by the prosecution.

Though in the present case prosecution has asserted motive for the crime but during evidence motive for the crime could not be proved. All these reasons lead us to the conclusion that Jagdish Prasad (P.W.1) did not see murder of his father and on the behest of influential persons FIR was lodged by him with delay, therefore we do not find him a trustworthy witness. Therefore, presence of this witness at the time of occurrence also appears to be improbable.

Thus ocular testimony adduced on behalf of the prosecution is unworthy. Now we propose to deal with the reasons given by the learned trial judge to hold otherwise. The learned trial judge rejected the defence arguments about Shiv Narayan (P.W.2) that when he did not know any person of village Sulemanpur how he could name them. The learned trial judge held that since he has named them in his examination-in-chief and he also claimed that he personally knew them and the defence failed to cross-examine the witness on this point, therefore, on his simple statement his testimony cannot be disbelieved. We disagree with this reasoning.

The very object of cross-examination is to ascertain the truthfulness of the statement made by the witness in his examination-in-chief. On this point the witness has been cross-examined and the sentence relied upon by the defence is not in isolation. It was made after sustained cross-examination when he admitted that he had never visited village Sulemanpur. We cannot agree to the reason assigned by the learned trial judge for placing reliance on the testimony of Shiv Narayan, P.W.2. So far as reasons given for relying upon testimony of P.W. 1 Jagdish Prasad are concerned, the learned trial judge mentioned that medical evidence is not discrepant to the ocular version. He did not examine the possibility that Jagdish Prasad could have been planted as eye-witness. He had not seen the occurrence. The reasons assigned by the learned trial judge for holding the FIR not to be ante timed and Jagdish Prasad (P.W.1) to be a reliable witness cannot be accepted by us.

In view of above, we come to the conclusion that in the present case though homicidal death of Ram Lal had taken place but the prosecution has failed to prove that the appellants had murdered him on the said date, time and place and robbed him.

In view of the above, we find much substance in the arguments advanced in support of the appeal. The findings in the impugned judgment have been recorded not for cogent reasons. Evidence has not been appreciated in a legal prospective. The learned trial judge has omitted to take into consideration facts noticed by us as above, therefore, impugned judgment and order deserve to be set aside and conviction and sentence of the appellants are also liable to be set aside. Therefore, appeal succeeds.

The criminal appeal is allowed. The impugned judgment and order dated 3.5.1982 passed by Additional Sessions Judge, Barabanki in ST No. 42 of 1981 (State v. Ishlam and others) are set aside. The appellants Islam, Shaukat, Hashmat are acquitted from the charges under Section 302 r/w 34 and 394 IPC. The appellants are on bail. Their personal bail bonds are cancelled and the sureties are discharged. They need not surrender.