Kaushal and Others vs The State of U.P.

Pratyush Kumar, J.—1. The instant appeal filed on behalf of the accused-appellants is directed against the judgment and order dated 19th March, 1988 passed by Sri R.K. Dubey, the then VIth, Additional Sessions Judge, Lucknow, in S.T. No. 276 of 1984 (State v. Kaushal Kishore & others), under sections 452, 323, 504, 307, 302 I.P.C., Police Station Mohanlalganj, Lucknow whereby the accused-appellants were convicted and sentenced as under:--

Kaushal Pandey,

u/s. 452 I.P.C. with five years rigorous imprisonment,

Prem Chandra alias Chhutanney,

u/s. 323/34 I.P.C. six months rigorous imprisonment,

Chandrika Prasad alias Chhunnu,

u/s. 302/34 I.P.C. imprisonment for life.

Deoki alias Deoki Nandan

In the present appeal, facts of the prosecution case may be summarized as under:--

"That on 8th November, 1983, at 10.30 p.m. Rajaram gave an oral information at the police station that he was resident of village Sisandi. His uncle Chandrika had died and about his property, his litigation with his ''Bua'' (sister of the uncle), Deoki, Chandrika Prasad alias Chhunnu, Prem Chandra alias Chhutanney and Kushal Pandey was going. On that day at Tehsil Mohanlalganj those persons came to attend the hearing of the case, when he was returning they threatened him. At about 9.30 p.m. he was having dinner in his house. Kaushal Pandey armed with Kulari, Chhutanney armed with spear, Deoki and Chandrika armed with lathi, entered his house, Deoki and Chandrika had beaten him with lathi. When his parents tried to save him, they were beaten by Kulari by Kaushal Pandey. They all raised hue and cry, thereat his brother Kuware, Mahadev and many villagers came there and the assailants after coming out of the house made good their escape. His father became unconscious. He and his mother sustained many injuries. He had brought his father in unconscious condition. His report be written."

At this Chik F.I.R. was scribed and Case Crime No. 315 of 1983 under sections 452, 323, 504, 307 I.P.C. was registered and requisite entry was made in the report of the general diary. Investigation was entrusted to S.I. Jairam. Injured were sent for medical examination and treatment. During treatment on 9th November, 1983 at 10.00 a.m. injured Bhuiyandeen, father of the first informant succumbed to injuries and died in Balrampur Hospital, Lucknow. Section 302 I.P.C. was added. Thereafter, investigation was taken over by Inspector Incharge Balmukund Pandey, who submitted the chargesheet against all the four named accused.

The magistrate took cognizance of the offence and committed the case to the Court of Session, where they were charged under sections 452, 323/34 and 302/34 I.P.C., which they denied and claimed to be tried. In order to prove the charges, in the documentary evidence, the prosecution, besides other papers, filed Chik F.I.R., Exhibit Ka-1, Injury Reports of Sukhdei, Smt. Bishundei, Pancham and Rajaram, Exhibits Ka-2 to Ka-5 respectively, copies of the reports of general diary Exhibits Ka-7 and 8, inquest report Exhibit Ka-9, post-mortem report exhibit Ka-6, site plan Exhibit Ka-14, recovery memo Exhibits Ka-15 to Ka-19, X-Ray reports Exhibit Ka-21 and Ka-22. In the oral evidence prosecution examined nine witnesses. Thereafter statements of the accused persons were recorded. In the defence, one paper Exhibit Kha-1, a contradiction in the statement of Kalicharan was filed.

In brief, the defence case is that Chandrika died in the year 1983. Rest of the prosecution case is incorrect. The accused were falsely implicated due to enmity for the reason Mahedei was the sister of Chandrika, she was treated as daughter by the neighbours. She used to stay in the house of Chandrika Prasad @ Chhunnu whenever she visited the village to look after her farming. She was married at village Gautam Khera. The first informant asked them not to permit Mahedei to stay in their house. When they did not accede to his request, Rajaram harboured ill-will against them and on the first available opportunity, he had implicated them falsely.

The learned trial Judge after hearing the arguments, found the prosecution case truthful, eye-witness account trustworthy and convicted the appellants and sentenced them as above.

On behalf of the appellants, appeal was preferred. During the pendency of the appeal, appellant Kaushal Pandey had died. His appeal against conviction stood abated.

We have heard Sri Nagendra Mohan, learned counsel for the appellants and Mohd. Yusuf Ansari, learned A.G.A. and perused the record.

Very briefly on behalf of the surviving appellants, it has been argued that occurrence took place in the darkness of night and no source of light was mentioned in the First Information Report. The learned trial Judge has erred in holding the source of light at the time of occurrence. Inimical witnesses have been believed by the learned trial Judge and non-examination of independent witness has been erroneously overlooked. The learned trial Judge has erred in holding that motive for the occurrence has been successfully proved against the surviving appellants. It has been further submitted that ocular version of the eye-witnesses is full of contradictions and discrepancies touching place and manner of occurrence. These contradictions have been erroneously ignored. Lastly, it has been submitted that medical evidence is contradictory to the ocular version of the occurrence. The learned trial Judge did not address this point which is in itself sufficient to make the veracity of the ocular version doubtful.

On behalf of the State-respondent, it has been submitted that F.I.R. has been promptly lodged. Out of three, Rajaram, P.W.-1 and Sukhdei, P.W.-5 are injured witnesses. Their testimonies cannot be discarded only on account of contradictions from the previous statements or medical evidence. Learned A.G.A. has submitted that prosecution has successfully proved the charges against the surviving appellants. The findings recorded in the judgment are substantiated from the record and they warrant no interference.

It is the duty of the Appellate Court while hearing criminal appeal, to re-examine and re-assess the evidence adduced by the parties and form an opinion whether prosecution has successfully proved the charges against the accused persons. While doing so, the grounds taken in the appeal, arguments advanced in support thereof and replies submitted in reference therewith should be duly considered and dealt with. With this obligation, we propose to proceed to re-examine and reassess the evidence adduced by the parties.

First we would like to discuss medical evidence which consist of in the form of statement of Dr. R.P. Mathur, P.W.-3 who on 9th November, 1983 and 10th November, 1983 medically examined the injured and prepared Exhibits Ka-2 to Ka-4. Further, statement of Dr. Amrik Singh, who on 9th November, 1983 at 1.00 a.m. medically examined Rajaram and prepared injury report Exhibit Ka-5. Dr. Iswar Chand Vidya Sagar Verma, P.W.-6 who conducted the postmortem examination on 9th November, 1983 on the dead body of Bhuiyandeen and prepared postmortem report Exhibit Ka-6.

First we proceed to examine the statement of Dr. Iswar Chand Vidya Sagar Verma, P.W.-6 and postmortem report Exhibit Ka-6. Postmortem examination was conducted on 9th November, 1983 at 2.30 p.m. Deceased was aged about 65 years, time since death was estimated to be one day, the rigour mortis was passing of from the upper limbs. It was present on the lower limbs. During internal examination, 3rd to 9th ribs on the right side and 4th to 9th ribs on the left side were fractured. In the postmortem report he recorded, three ante-mortem injuries, which read as under:--

"1. Incised wound 7 c.m. x 7 c.m. x bone deep on right side of head, 8 c.m. above the middle of right eye-brow.

Incised wound 7 c.m. X 1 c.m. x bone deep on the left side of head, ocipital region, semi lineal in shape 4 c.m. above left side pinna of ear.

Multiple abraded contusion in an area of 12 c.m. X 1.5 c.m. on the inner aspect of right forearm, 1 c.m. above the right wrist."

According to the doctor, these ante-mortem injuries could have been inflicted at 9.30 p.m. on 8.11.1983. Incised wounds could have been caused by sharp edged weapon. Injury No. 3 could have been caused by lathi. Ribs could be fractured if a person while sitting on the chest pressed the chest with supporting weight of his body continually.

The witness was cross examined only about the use of possible weapons to cause these ante mortem injuries. Thus his testimony is unchallenged about homicidal death of deceased Bhuiyandeen. We hold this witness to be trustworthy and fact of homicidal death of Bhuiyandeen on the stated time and date by the possible use of weapons named by the witness stands to be proved.

Dr. R.P. Misra, P.W.-3 has deposed that on 8th November, 1983 at 11.05 p.m. he medically examined Pancham and on the same day at 5.20 p.m., he medically examined Vishnu Dei. According to him, on the person of Sukhdei, vide exhibit-Ka 2, he found one lacerated wound 0.5 c.m. X 0.5 c.m. X bone deep on interior aspect of right shoulder joint 1.5 c.m. above to lateral end of right clavical. Bleeding present. The injury was kept under observation. It was caused by blunt object. Duration was fresh.

On the person of Pancham, vide Exhibit Ka-4, he found one abrasion in the area of 5 c.m. X 3 c.m. on right side back, 20 c.m. infra medial to infenor angle of right scapula. Abrasion covered by healthy scab. The entry was simple, caused by friction, duration was two days.

On the person of Visandei, vide Exhibit Ka-4, he found the following injuries:--

"1. Abrasion in the area of 2.5 c.m. x 1 c.m. on lateral aspect of right upper arm from 14 c.m. above to right elbow joint abrasion covered by healthy scab.

Abrasion in the area of 4 c.m. X 5 c.m. (oblegue) on lateral aspect of right shoulder joint. Abrasion covered by healthy scab.

Abrasion 1 c.m. x .5 c.m. on antro medial aspect of left leg. 8 c.m. below to right tuberosity. Abrasion covered by scab (healthy). Injuries were simple in nature caused by friction. Duration was two days."

According to the doctor, all above injuries could have been caused by lathi or danda, friction on 8th November, 1983 at 9.00-9.30 p.m. The witness was only cross examined on the point of possible variation about the duration of injuries to which he replied that variation of 4-6 hours on the either side might be possible. His testimony is also unchallenged. We rely on the statement of this witness duly corroborated by Exhibits Ka-2 to Ka-4, and hold that the injured named above could have sustained the injuries mentioned hereinbefore on the date and time and in the manner deposed by this witness.

Dr. Amrik Singh, P.W.-4 has examined Rajaram at 1.00 a.m. On 9th November, 1983, he found the following injuries on his person:--

"1. Lacerated wound 5 c.m. x .5 c.m. x scalp deep on right side head 6 c.m. above from right eye-brow.

Abraded contusion 6 c.m. x 4 c.m. on back of left hand and little ring fingers.

Contusion 3 c.m. x 2 c.m. on back of right middle finger at base."

X-ray report of Sukhdei Exhibit Ka-21 and X-ray report of Rajaram Exhibit Ka-22 reveal that no fracture was sustained by Sukhdei but Rajaram had suffered fracture of middle of right provial phalany of little finger.

We rely on the testimony of Dr. Amrik Singh, P.W.- 4 and hold that injuries deposed by him were sustained by Rajaram on the stated date and time in the manner suggested by the witness.

Now we propose to examine the ocular version of the occurrence narrated by Rajaram, P.W.-1, Kalicharan, P.W.-2, Smt. Sukhdei, P.W.-5. All these three witnesses have supported the prosecution version narrated in the first information.

Rajaram, P.W.-1 while stated the version contained in FIR in his examination-in-chief has also made various improvements. For the sake of brevity, we would only be discussing the improvements made touching the occurrence. We find that in the First Information Report, he did not disclose that his son Kalicharan was also taking dinner and his wife was serving them and further at that time Pancham was sitting at his door and Chirag (a small mud lamp) was burning. The second improvement is that in the First Information Report, he did not mention that his wife Sukhdei and daughter Visundei also sustained injuries. In the First Information Report, he described the whole occurrence to have taken place inside of his house and only after coming of witnesses, departure therefrom by the assailants. In his statement made before the Court, he claims that his father was beaten in front of his door. He was belaboured by Deoki and Chandrika Prasad by sitting on his chest and pressing the chest forcefully. He has also improved that at the door of the house of Mahadev another Chirag was burning. During cross examination it has come out that his parents lived separately. When he was assaulted they came to save him and outside the house, they were assaulted alongwith other injured. He admits that after marpeet, he did not tell about the marpeet of any villager. He tried to deviate from the original version that Mahedei was his bua and had a son Ram Naresh. Even he pleaded ignorance where she lived. He gave evasive replies during the cross examination to circumvent justness of the claim of Mahedei to the property of her deceased brother. This witness was examined by the investigating officer on 3rd day after the occurrence. He denies that in his statement under section 161 Cr.P.C., he admitted that Mahedei is the sister of Chandrika.

Kalicharan, P.W.-2 is the son of the first informant. His name does not find place in the First Information Report. He has also improved to state that a lamp burning at the door of his house. According to him, his grandfather was given 8-10 lathi blows by Chandrika Prasad @ Chhunnu thereafter 8-10 lathi blows were also given by Deoki. After Bhuiyandeen fell down, Kaushal struck Kulari blow on him. According to him, Chhutanney had beaten his grandmother but she did not fall down on the ground. Pancham was given 4-5 blows of lathi by Chandrika Prasad @ Chhunu. According to him, one hour after the occurrence, his father came there. He did not know where he was. No villager came there. According to him when the assailants had departed from the scene of occurrence, only his uncle Kuware and Mahadev came there.

Smt. Sukhdev, wife of deceased Bhuiyandeen also supported the prosecution version but she admitted that Mahedei was his sister-in-law. From her cross examination, it has been brought on record that deceased Chandrika was not directly related to the first informant. According to him, she did not know when Rajaram was beaten he was how much away from her. At that time, she was in her Kothri. According to her, deceased appellant Kaushal struck kulari on the head of the deceased. According to her, Rajaram fell down. She could not tell how Bhuiyandeen was belaboured. According to her 15 to 20 persons came there at the hue and cry raised by Rajaram. The second point is that she had not disclose any source of light at the time of occurrence. None of the prosecution witness says that there was moon light. Existence of ''Chirag'' becomes doubtful because in the First Information Report, they were not mentioned.

Now we would discuss the evidence of investigating officer Jairam Gupta, P.W.-9. He proved the contradictions extracted during the cross examination. He has admitted that in the site plan, he has shown a Chirag in Ala present in the room of Rajaram. According to him, he was not informed that in front of Chappar or door any Chirag was burning. He further admits that he did not find any Chirag in front of room of Kuware, though it was claimed by the first informant. He further says that in the Ala he did not find blackening to indicate that it was regularly used for that purpose. He also admits that inside the house of Rajaram, he did not find blood stains.

To assess the probative course of an eye-witness, the Court is required to see whether presence of the witness at the time and place of occurrence is natural and probable, whether the witness had an opportunity to see the occurrence, he fared well during the cross examination and other surrounding circumstances like relation with the deceased, previous enmity with the accused etc.

According to Rajaram, P.W.-1, occurrence took place inside of his house and in front of his house. This makes his presence in his house during night time natural and probable but in absence of the light it is doubtful whether he had any opportunity to see who murdered Bhuyiadeen. Since his statement about entry of assailants inside his house is shaky, we do not think his evidence about trespass can also be treated trustworthy. During cross examination, his testimony lost its coherence, we do not think any part thereof deserves our confidence though he is an injured witness, but keeping in view the motive; he wants to usurp the property of the deceased Chandrika and deny claim of Mahedei, possibility of false implication of any sympathizer of Smt. Mahedei, cannot be ruled out, therefore, we do not think he is a reliable witness and the learned trial Judge without noticing the points indicated by us has found his testimony worthy of reliance without any reason. We do not agree to this finding.

Presence of Kalicharan, P.W.-2 is also natural and probable but he had also no opportunity to see the occurrence in absence of moonlight. Value of his testimony is further diminished from the fact that his name does not find place in the First Information Report. Though he claims to be an injured witness. During cross examination, his testimony also suffers with various discrepancies and contradictions. For that reason, we do not think he could be relied upon and we find that the learned trial Judge has not made any effort to find out the intrinsic value of the testimony of this witness. He has merely reproduced substance of his evidence and concluded that prosecution has successfully proved the charges against her the surviving appellants. No reason has been assigned to place reliance on his testimony. We cannot accept this finding.

Smt. Sukhdei, P.W.-5 can also be taken to be natural and probable witness, so far as her statement relates to occurrence touching her and her husband though she vaguely says that Rajaram was also beaten but she has not narrated how the occurrence began and first informant, his wife and son were beaten. She has also no opportunity to see the occurrence in absence of light. Her depiction of occurrence is discrepant with narration thereof given by other alleged eye witnesses. Merely she is an injured witness, that does not mean that she had seen the occurrence. She does not say that any one sat on the chest of the deceased and belaboured him. We do not think she had seen the occurrence. We find that learned trial Judge has not appreciated her testimony on the relevant yardsticks.

For the reasons indicated above, ocular version of the occurrence given by the eye-witnesses is not trustworthy. Though from medical evidence homicidal death of the deceased and injuries to other persons are established but the prosecution has failed to prove that the death of the deceased and injuries of the injured persons were caused by the surviving appellants beyond reasonable doubt.

Here we would like to clarify that we are not holding that no occurrence took place. What we find is that from the evidence adduced by the prosecution, no reasonable man, who had not seen that occurrence, would believe that incident was definitely committed by the surviving appellants. We find that there is doubt that at the time of occurrence, there was sufficient light for the witnesses to see the occurrence. This is the reason, all the three witnesses failed to give how the injuries were inflicted. The death of the deceased was caused due to fracture of his ribs. It was the most important injury but it does not find place in the First Information Report. Rajaram, P.W.-1 states about it before the court for the first time. There remains doubt that whether he had seen two persons belabouring his father in such manner. Had he seen it, he must have mentioned it in the First Information Report. Other two eye-witnesses do not say anything about it. For these reasons we think our doubts are reasonable and substantial. They are not imaginary or based on mere possibility.

The learned trial Judge has failed to appreciate the evidence of the eye-witness in legal perspective. Findings recorded by him are not substantiate from the record. No reason has been assigned in support thereof. These findings are erroneous and full of infirmities. They cannot be upheld.

Appeal has substance. The impugned judgment deserves to be set aside and appeal deserves to be allowed. Since the prosecution has failed to prove the charges against the surviving appellants beyond reasonable doubt after extending benefit of doubt, the accused are entitled to be acquitted and their conviction and sentences also deserves to be set aside.

Criminal Appeal No. 151 of 1988 is allowed to the extent of appellant Nos. 2 to 4 Prem chandra alias Chhutanney, Chandrika Prasad alias Chhunnu and Deoki alias Deoki Nandan is allowed and the impugned judgment and order dated 19th March, 1988 are set aside so far as they relate to the surviving appellants. Conviction and sentences awarded to the surviving appellants are also set aside. Surviving appellants are acquitted from the charges under sections 452, 323/34 and 302/34 I.P.C. The surviving appellants are on bail. They need not surrender. Their personal bonds are cancelled sureties are discharged provided the appellants file to the satisfaction of the Sessions Judge, Lucknow, their personal bonds and two sureties each in the like amount under Section 437-A Cr.P.C. within 30 days from the date of this judgment.