Karuna Shanker vs State of U.P.

Pratyush Kumar, J.—1. These two appeals, filed by accused appellants, are directed against the judgment and orders dated 29.2.2008 passed by Sri Santosh Kumar Pandey, Additional Sessions Judge, Court No. 6, Unnao in Sessions Trial Nos. 530 of 2006 (State v. Vijay Shankar) and 17/07 (State v. Karuna Shankar) whereby, the appellants have been convicted under section 302 read with section 34 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 5000/- in default thereof to further undergo imprisonment of three years.

Since both the appeals arise out of the same judgment and order and they are disposed of by a common judgment.

In the present appeals case of the prosecution may be summarized as under:--

"That on 18th September, 1993 at 10 P.M. Umesh Kumar resident of village Gadorava, P.S. Purwa, District Unnao gave a written report stating therein that on that day at 8.30 P.M. he along with his family was viewing television in the outer room, his younger brother Bablu alias Satish Kumar left the room to give fodder to the cattle, at his shout he and his bhanja Pradeep Kumar and brother-in-law Ram Krishna came out of the room and after turning on the flash light saw, Karuna Shankar armed with country made pistol and Vijay Shankar armed with gun, had caught hold of Bablu and they were dragging him. When they warned them Karuna Shankar shot his country made pistol in the chest of his brother and the assailants made good their escape towards west. Being unarmed, due to fear, they could not chase the appellants. His brother sustained gun shot injury and had died, his dead body was lying on the door. After writing the report necessary action be taken."

At this, chick FIR was scribed, Case Crime No. 296 of 1993 under section 302 IPC was registered, requisite entry was made in the report of the general diary, investigation was taken over by Sundar Lal Maurya, S.H.O. Police station Purva who recorded the statement of Umesh Kumar, reached the spot and examined Pradeep Kumar and Ram Krishna. Due to paucity of light inquest could not be held on that night. In the morning of 19th September, 1993 inquest proceedings were held, the dead body was sent to mortuary, spot was inspected. One empty cartridge 12 bore, one dot of rubber were recovered from the spot, samples of blood stained and simple earth were taken. Flash light was inspected. Both the accused absconded. After executing process under section 82/83 Cr.P.C. against them charge sheet was submitted. First, accused Vijay Shankar surrendered before the court. His case was committed to the Court of Session and registered at sessions trial No. 530 of 2006 (State v. Vijay Shankar), thereafter Karuna Shankar was arrested and produced before the court. His case was separately committed to the Court of Session, where it was registered at S.T. No. 17 of 2007. Both were separately charged. Vijay Shankar under section 302/34 IPC and Karuna Shankar under section 302 IPC. They both pleaded not guilty and claimed to be tried. They were tried together.

On behalf of the prosecution in order to prove the charges in the documentary evidence besides other papers, written report Ext. Ka-1, postmortem report Ext. Ka-2, inquest report Ext. Ka-4, recovery memo Ext. Ka-9-Ka-11, Chick FIR Ext. Ka-13 were filed. In oral evidence five witnesses were examined. Thereafter statements of the appellants were recorded under section 313 Cr.P.C. wherein they denied the facts stated by the prosecution witnesses and claimed that they were falsely implicated due to enmity and further claimed they were residing at Mumbai. In the defence on their behalf two witnesses, namely, Dr. Upendra Datta Behre D.W.1 and Karuna Shankar himself D.W.2 were examined.

The learned trial Judge after hearing the arguments convicted the accused appellants. He found the prosecution version trustworthy. Rejected the arguments that FIR was ante timed, medical evidence is contradictory to ocular version. He also discarded the defence evidence and sentenced them as above.

Feeling aggrieved on behalf of the appellants two separate appeals, details given above, have been filed.

We have heard Mr. Nagendra Mohan learned counsel for the appellants, Mr. Amitabh Srivastava learned counsel for the complainant and Mr. Dharmanda Singh learned AGA and perused the record.

In support of the appeals on behalf of the appellants, very briefly, it has been argued that there was no light. Appellants have been implicated due to enmity. They are resident of Mumbai. They had no house at the village. The evidence has not been appreciated in the correct manner, findings, against the weight of the material, have been erroneously recorded, they deserve to be set aside. 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."

Since in the present case argument has been advanced that ocular version of the occurrence and facts emerging from medical evidence are contradictory, we think it would be expedient that first we should re-examine the medical evidence.

Medical evidence in the present case consists of statement of Dr. B.S. Nigam P.W.2 and postmortem report Ext. Ka-2. Dr. B.S. Nigam P.W.2 has stated that on 19th September, 1993 at 2.45 p.m. he performed autopsy of the dead body of Bablu alias Satish Kumar. According to him deceased could have died from gun shot injury at about 8.30 p.m. on 18th September, 1993. He was cross-examined about contents of stomach and distance from which he was shot. According to him he found in the stomach of the deceased semi digested food which takes about 3-4 hours. Shot was fired from close range.

In the postmortem report Ext. Ka-2 we find that the doctor recorded the state of rigor mortis to be present in upper as well as lower extremities, he found 2nd and 3rd ribs of right side of chest fractured. In the stomach he found food material 150 gm. In the small intestine he found fluid and gases. In the large intestine he found faecal matter and gases. On the dead body he found one ante mortem injury, which reads as below:--

"Fire arm wound of entry 4 cm x 2 cm cavity deep on right side chest 1 cm below right clavicle. Margines of wound lacerated, inverted, blackening present.

What this witness has observed during postmortem examination and stated before the trial court are facts and his evidence to that extent is direct evidence of these facts. He has no reason to depose falsely, death of the deceased by gun shot has not been disputed. Only time of occurrence, manner of assault have been disputed. On these two points his opinion has secondary role. Leaving aside his opinion, on the basis of his statement of facts we hold to that on the stated date and time the deceased could have been done to death by a gun shot.

Evidence of Sundar Lal Maurya P.W.4 investigating officer and Krishna Swaroop Sinha P.W.5 clerk constable are formal in nature so far as case of the prosecution is concerned.

Krishna Swaroop Sinha P.W.5 has merely taken the dead body from the spot to the mortuary. He has also proved chick FIR Ext Ka-3 and copy of the report of the general diary Ext. Ka-4. He was cross examined and suggested that he was not present at the time of inquest. He was handed over the dead body to the police station and all formalities were fictitiously completed there, of course the witness has denied this suggestion.

Sundar Lal Maurya P.W.4 is the investigating officer who gave details of the steps taken during the investigation. He was cross examined at length. He was suggested that he had not visited the spot promptly, did not hold the inquest proceedings himself, investigation was unfairly conducted. Appellants were falsely implicated. This suggestion was denied by the witness, however, during cross examination he admitted that the papers prepared on the spot did not bear case crime number or sections. He also admitted that he did not check how many cattle the first informant had. He also admitted that process executant S.I. M.P. Dwivedi had reported that house of appellants was in ruins. These facts we propose to bear in mind while re-examining and reevaluating the ocular version of the occurrence given by the eye witnesses.

Umesh Kumar Mishra P.W.1 is the first informant and brother of the deceased. He has supported the prosecution version and proved the written report Ext. Ka-1. We find improvement in his testimony from the written report Ext. Ka-1 such as in the written report deceased was assaulted as soon as he left the room and came outside. In the statement on oath he has improved his statement of the written report Ext Ka-1. The other eye witness is Pradeep Kumar Shukla P.W.3. He is nephew of deceased and claims that he was visiting house of his maternal uncle at that time.

In order to appreciate their testimony we would make our scrutiny on the principles laid down by the Hon''ble Apex Court in the case of Krishnan and another v. State [, AIR 2003 Supreme Court 2978] reads as under:

"21. It is trite that where the eye-witnesses'' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bentham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eye witnesses'' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit-worthy; consistency with the undisputed facts the ''credit'' of the witnesses; their performance in the witness-box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation."

When testimony of Umesh Kumar Mishra P.W.1 is subjected to scrutiny in the manner propounded by the Hon''ble Apex Court we notice that at the time of occurrence this witness claims to be sitting in the outer room and viewing television. The occurrence took place not inside the room but outside the room, shown at place marked ''x'' in the site plan Ext. Ka-4. According to the site plan house of the first informant is on the southern side of the kharanja (bricks paved pathway). Its width has been shown six steps. Between the room, wherein this witness was viewing the television and kharanja there is veranda. Thus from this room to the place of occurrence there is fair amount of distance. On the northern side of the kharanja hata has been shown. By letters (ooo) the place has been shown in the site plan from where the witnesses alleged to have seen the occurrence. This place is on southern side of the kharanja. The reason assigned by this witness to be present at place ''ooo'' is that he heard shout of his younger brother who was dragged by the assailants. The question arises whether this witness was present at place shown by ''ooo''. When we consider the facts stated by this witness that he was viewing the television, powered by battery, we can safely assume that all the viewers would not be holding flash lights in their hands. When this taken into consideration with the fact that at the shout of the deceased they claim to have came out of the room and turning on their flash lights saw the occurrence to do this they have not only to come out of the room but also they have to cross the veranda of the house. This distance is greater than the distance to which deceased was taken by the assailants. Both the witnesses must have taken hold of the flash lights kept in the room thereafter they would have come outside their room and crossed the veranda. This process would naturally take some time whereas the assailants would require lesser time in dragging and shooting the deceased.

Though place of occurrence is in front of his house but the presence of this witness at the relevant time on the place he claims to be present appears to be improbable. During cross examination he has made a discrepant statement that in front of his house there is kaccha rasta having width of 4-5 feet. According to him till that time she-buffaloes were not milked, food was not cooked in his house. The deceased had no flash light in his hand. All these answers would go to show that the occurrence could not have taken place at the alleged time as usually she-buffaloes are milked before sun set. Cattle are given fodder either in the late afternoon or early in the evening. Food in the household having rural background use to be cooked prior to 8.30 p.m. normally. There was no extraordinary happening in the family, that is evident from the fact that all family members were viewing television.

After we have perused whole of his testimony we find that his testimony lost its credibility during cross examination. He has given evasive replies about criminal antecedents of his brother Suresh, about the families of the accused, his answers reveal his ignorance about the children of the appellants. Even he evaded to reply to this question whether the room in which he was viewing television is at the distance of 100 steps from the place of occurrence. In the cross-examination he has stated that he had seen the occurrence from his veranda. We do not think he can be relied upon.

Pradeep Kumar P.W.3 is not resident of the same village. He is not family member of the deceased. He is required to explain his presence in the house of the deceased as also at the place of occurrence at the relevant time. Though he claims that 3-4 days ago he came to the house of his maternal uncle. During cross examination he has admitted that first informant is not his real uncle. He could not reply about the programme which was viewed by him when occurrence took place. He could not explain the reason for his visit. Even he could not deny that when he had first seen the dead body whether flies were settling on the dead body or not. According to him police had come to the village one hour after the occurrence, which is discrepant with the statement of Sundar Lal Maurya, P.W.4. He could not tell at that time who were present in his nansaar. From his answers we have gathered the opinion that perhaps this witness had not seen the occurrence and the deceased before his death. Even he could not tell the location of the dead body. This way neither he is a natural and probable witness of the occurrence nor he appears to have seen the occurrence. In our opinion no reliance can be placed on his testimony.

Perusal of the impugned judgment reveals that the learned trial Judge has not subjected testimonies of eye witnesses to internal and external scrutiny. Though he has discussed defence evidence and arguments of the defence in great detail but he refrained from critically examining and evaluating the probative force of testimonies of these eye witnesses. In this way we find much substance in the arguments advanced on behalf of the appellants that none had seen the occurrence. Ocular version of the prosecution case has not been properly appreciated and findings recorded by the learned trial Judge are full of factual and legal infirmities.

We also notice that before the trial court several points were raised to show the ante timing of FIR but without adverting to these points we notice that this argument was rejected.

The approach of the learned trial Judge appears to be erratic. Evidence of both the parties has to be properly appreciated in the same manner and whatever points indicating doubt on the veracity of the prosecution version are raised, they require to be dealt with reasons. The learned trial Judge has failed to do so. Resultantly wrong findings of fact have been recorded which cannot be sustained by us.

After giving our anxious consideration to the material available on record, we conclude that prosecution has failed to prove charge against both the appellants beyond reasonable doubt. The impugned judgment and orders as also conviction and sentence of the appellants deserve to be set aside and appellants are entitled to be acquitted from the charges framed against them. Thus appeals have substance and deserve to succeed.

The Crl. Appeal Nos. 662 of 2008 (Karuna Shanker v. State of U.P.) and 953 of 2008 (Vijay Shanker v. State of U.P.) are allowed and the judgment and order dated 29.2.2008 are hereby set aside. Conviction and sentences of the appellants, namely, Karuna Shanker and Vijay Shanker are also set aside. They are acquitted from the charges framed against them. The appellants are in jail. They be released forthwith, in case, they are not wanted in some other case, provided they file their personal bonds and two sureties each in the like amount to the satisfaction of the court concerned in compliance of section 437A Cr.P.C.