Khushiyal vs State of U.P.

Pratyush Kumar, J.—The present appeal, filed under section 374 Cr.P.C. by the accused-appellants, is directed against judgment and order dated 23.5.1994 passed by Sri K.S. Rakhra, the then Sessions Judge, Gonda in ST No. 144 of 1993 (State of U.P v. Khushiyal alias Hussain Ullah and another) under sections 302 /307 /323 IPC, P.S. Colonelganj whereby he convicted and sentenced the appellant No. 1 Khushiyal alias Hussain Ullah with imprisonment for life and fine of Rs. 2,000/- u/s. 302 IPC, with rigorous imprisonment of five years and fine of Rs. 1000 u/s. 307 I.P.C., with rigorous imprisonment of six months u/s. 323 IPC and the Appellant No. 2 Sayyad Ali with five years rigorous imprisonment and a fine of Rs. 1,000/- u/s. 307 IPC read with section 34 I.P.C.

The facts giving rise to the present appeal are as under:

"On 29th December, 1992 at 10.40 A.M. Isarael gave a written report stating therein that at about 9 A.M. he was standing in front of his door, near the water tap. Between his neighbor Husainullah alias Khushiyal and his brother Hasan Ullah heated exchange was taking place. During this verbal exchange Husainullah alias Khushiyal asked him why he was standing there and slapped him, after returning home he told his mother about that. His mother Smt. Khairul Nissa went along with him to make complaint. At that, Husainullah alias Khushiyal brought farsa from his house and he along with his son Sayyed Ali struck farsa blow on the neck of his mother, who fell down. Meanwhile his father Mohd. Sharif came there. He was also given farsa blow. Dayal, Basharat, Siddiqui and other villagers saw the occurrence and intervened. In critical condition he had brought his mother to police station. He requested that after lodging of the FIR necessary action be taken."

On this written report, chick FIR Ex Ka-2 was scribed. Case Crime No. 572 of 1992 under sections 307 /324 /323 IPC was registered at P.S. Colonelganj and requisite entry was made in the general diary, copy whereof is Ext. Ka-3. Injured were sent for medical examination and treatment to PHC Colonelganj. Investigation was started. On 11.55 A.M. on that date Khairul Nisa expired. During medical examination conducted on 29th December, 1992 on the person of Mohd. Sharif the following injuries were found:

"1. Incised wound 9 cm. x.8 cm. x bone deep, on left side of head, just above eye-brow. Bleeding was present and margins were clean cut.

Incised wound 6 cm. x 1 cm. x bone deep, on the left side of head, just above the left ear. Margins were clean cut. Bleeding was present.

Lacerated wound 1 cm. x.5 cm. on the outer aspect of upper part of right fore-arm. Bleeding was present vide Ext.Ka-5."

On the same day on 5.25 p.m. Injured Isarael was medically examined at PHC, Colonelganj and following injury, found on his person, was recorded by the doctor:

"One abrasion measuring 2 cm. x.5 cm on the right scapular region vide Ext.Ka- 6."

Ext. Ka-7 is the memorandum whereby this fact was reduced in writing that as per accidental register Khairul Nissa was examined. Her condition became serious, she was given live saving treatment, for this reason ante mortem injuries could not be recorded. She expired at 12 noon. The investigating officer after completing the investigation submitted the charge sheet.

The Magistrate took cognizance of the offence and after complying with mandatory requirements committed the case to the Court of Session where the appellants were charged separately. Husainullah alias Khushiyal was charged under sections 302 /307 and 323 IPC. Appellant No. 2 Sayyed Ali was charged under sections 302 R/W 34 IPC and 307 R/W 34 IPC. Both the appellants pleaded not guilty and claimed to be tried. The were tried together and on behalf of the prosecution in documentary evidence the following documents were filed:

"Injury reports - Ext. Ka. 5,6 and 7

Site Plan - Ext. Ka. 8

Recovery memo - Ext. Ka.9

Inquest Report - Ext. Ka. 10

Statement of Ram Dayal - Ext. Ka. 17

P.M. Report - Ext. Ka. 18"

In oral evidence the prosecution tendered the following:

"Statement of Isiraeil - P.W. 1

Statement of Mohd. Sharif - P.W. 2

Statement of Ram Dayal - P.W. 3

Statement of Basharat Ali - P.W. 4

Statement of Dhrirendra Kumar Srivastava -P.W. 5

Statement of Dr. J.P. Rao - P.W. 6

Statement of Suryapal - P.W. 7

Statement of Rajendra Prasad - P.W. 8

Statement of Dr. V.K. Srivastava- P.W. 9

Statement of Salhant - P.W. 10"

In addition to this other formal papers were also filed. Thereafter statements of the appellants were recorded under section 313 Cr.P.C. In the defence Ram Suhawan DW-1 was examined. After conclusion of the trial the learned Sessions Judge recorded finding of guilt against both the appellants and sentenced them stated hereinbefore. In the impugned judgment the learned Trial Judge found the eye witness account given by Isarael P.W.1 Mohd. Sharif P.W.2, Basharat P.W.4 worthy of reliance. He also noticed the medical evidence and found it duly corroborating eye witness account. He rejected the arguments advanced on behalf of the defence that FIR was ante timed, contradictions were minor, therefore worth ignoring. He also rejected the argument that medical evidence contradicted the eye witness account.

Feeling aggrieved the appellants preferred this appeal.

We have heard Sri K.K. Singh, learned counsel for the appellants and Sri Sharad Dixit, learned AGA for the State and perused the record.

Learned counsel for the appellants has submitted that impugned judgment and order are against the weight of evidence and the law settled by Hon''ble Apex Court. To elaborate this argument he has submitted that FIR was neither dictated by the first informant nor it was lodged at the time it is purported to have been lodged. In support of his argument he referred Ext. Ka-5 to Ka-7. According to him as per prosecution version FIR was lodged at 10.40 on 29th December, 1992 whereas injury report of Mohd. Sharif Ext. Ka-5 does not disclose the time of medical examination rather time of medical examination has been mentioned on the left side at the top which appears to be subsequent interpolation. He has also submitted that at the time of medical examination case crime number was not registered. Thereafter he referred Ext. Ka-6 injury report of Iasrael. This injured was examined on 29th December, 1992 at 5.25 p.m. In this injury report time of medical examination has been mentioned clearly in the body of the injury report. Thereafter he referred Ext. Ka-7 memorandum regarding death of Khairual Nisha. In this memorandum name of Momin Ali, Home Guard 4059 has been mentioned at the top of right hand side. On the strength of these, he has submitted that at the time of medical examination of Mohd. Sharif and death of Khairual Nisha FIR was not in existence.

His next argument is that the contradictions treated to be minor by the learned trial judge are material, they are sufficient in themselves to make the eye witness account doubtful.

His third argument is that at the time of incident none of the witness were present and they have been subsequently planted and on account of enmity false FIR was lodged.

On behalf of the State Sri Sharad Dixit, learned AGA has repelled these arguments and submitted that judgment is well reasoned, based on material on record. He has further submitted that in case of direct evidence motive has no significance. He has referred the relevant portions of the judgment whereby the learned trial judge has dealt with the arguments which have also been presented before us.

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 Vs. State of Gujarat, . 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 Vs. State of West Bengal, , 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."

In the light of settled legal position as quoted above, we are not only required to examine and evaluate the evidence produced by the parties during trial but also take into account the reasons given by the trial Judge either to believe or disbelieve such evidence. We are further required to consider the grounds taken in the memo of appeal as well as arguments advanced in support thereof.

In the present case on behalf of the appellants death of Khairul Nissa has not been challenged either before the trial court or before this Court. However, we would have a brief glimpse on the result of postmortem. Dr. V.K. Srivastava, Medical Officer, District Hospital, Gonda, P.W.9 on 30th December, 1992 at 4.20 p.m. conducted the postmortem examination on the dead body of Smt. Khairul Nissa. According to him deceased was aged about 55 years. Five ante mortem injuries were found on her person. Death had occurred due to shock and haemorrhage as a result of ante mortem injuries. Deceased had died one day earlier. The witness proved postmortem report Ext. Ka-18. In the postmortem report the following ante mortem injuries were recorded:

"(I) Incised wound on the top of head, 7 cm. x 1 cm. x bone cut. Brain matter was coming out through the wound. It was 10.5 cm. above right ear.

(II) Incised wound on front of upper part of neck on right side 8 cm. x 3 cm. x bone deep, 12 cm. above and inner side of right clavicle.

(III) Incised wound on the front of chest 16 cm. x 1/2 cm. x bone deep just below the inner end of right clavicle.

(IV) Incised wound on front of left hand, 4 cm. x 1/2 cm. x bone deep just below the inner end of right clavicle.

(V) Incised wound on front of left hand, 4 cm. x 1/2 cm. x bone deep, 4 cm. below the left wrist."

This witness was cross-examined on the point of probable time of death. He has stated that on the basis of contents of stomach death of Smt. Khairul Nissa could have occurred at 12 night provided to took her food at 8 p.m. on 29th December, 1982.

Thus homicidal death of Smt. Khairul Nissa is established. On the point of time since death there are two opinions of this witness, which of the two is correct has to be decided on the basis of ocular testimony. Dr. J.P. Rao also deposed the details of medical examinations of Mohd. Sharif and Isarael. He recorded the following injuries on their person:--

"Injuries of Mohd. Sharif

(i) Incised wound 9 cm x 0.8 cm x bone deep, on left side of head, just above eye-brow. Bleeding was present and margins clean cut.

(ii) Incised wound 6 cm. x 1 cm. x bone deep, on the left side of head, just above the left ear. Margins were clean cut. Bleeding was present.

(iii) Lacerated wound 1 cm. x 0.5 m. on the outer aspect of upper part of right fore arm. Bleeding was present.

Medically examined on 11.30 A.M. on 29.12.1992 vide Ex ka5.

Injuries of Isarael

(i) One abrasion measuring 2 cm. x 0.5 cm on the right scapular region.

Medically examined at 11.30 A.M. on 29.12.1992 vide Ex. Ka5."

Isareal P.W.1 is the first informant who has supported the prosecution version and prima facie he was the reason for the alleged occurrence. Learned counsel for the appellant has taken us through the cross-examination of this witness to show that this witness has not seen the occurrence. In paragraph 12 of his deposition he has stated that in the morning he was with his mother, who complained to Khushiyal why he had beaten her child. Khushiyal went inside his house saying let him bring farsa to kill her. He asked his mother to go back to the house but she did not move. He went into his house thereafter 5-10 minutes he heard the noise and reached the spot. His mother was lying on the ground. Khushiyal, Sayyed, Ali had already ran away. This statement appears to be natural. It could not be called slip of tongue and only this reason alone persuades us not to rely on his testimony. Mohd. Sharif, P.W.2 is an injured witness and husband of the deceased. At the time of alleged occurrence he claims himself to be in his field and hearing the alarm and cries he claims to have reached to the scene of occurrence. He has fully supported the prosecution version but during cross examination he has admitted that there was dense fog on that morning. He has also stated that when he reached the spot his wife was lying on the ground in an injured condition and the assailants had left the scene of occurrence.

Here it is first to be considered whether he had actually received the injuries mentioned in Ext. Ka-5 at the alleged time of occurrence. If the injuries had been caused at the same time his aforesaid statement would lose its damaging effect. The injury report Ext. Ka-5 is conspicuous by absence of time of medical examination in the main body of the injury report. Only on the top of left hand side 11.30 A.M. has been written. Dr. J.P. Rao, P.W.6 who conducted his medical examination deposed on oath that medical examination was conducted on 11.30 A.M. During cross examination he had admitted that in the accidental register first he entered the injuries of Smt. Khairul Nissa. Her medical examination is said to have taken place at 11.55 A.M. Thereafter injuries of Mohd. Sharif. However, on the next date he produced the accidental register and admitted that he did not enter injuries of Smt. Khairul Nissa in it. Though in Ext. Ka-5 in the last in a separate line duration fresh has been written but this witness in his statement on oath has not given any opinion about the duration of the injuries noted by him in Ext. Ka-5. As pointed out by learned counsel for the appellants there are several facts, referred by him in his arguments, which indicate that FIR was ante timed. Suspicion about time of medical examination of Mohd. Sharif assumes importance. Since the doctor who had medically examined him did not depose duration of injuries sustained by Mohd. Sharif, in absence of substantive evidence we have no option but to hold that the prosecution failed to prove that in the alleged occurrence Mohd. Sharif sustained injuries as mentioned in Ext. Ka-5.

We come to the conclusion that the said statement made by Mohd. Sharif, P.W. 2 in his cross examination becomes material and significant. For the reasons given above we do not think this witness had seen the occurrence. Ram Dayal, P.W.3 has turned hostile, Basharat Ali, P.W.4 though supported the prosecution version but during the cross examination he has also admitted that when he reached to the scene of occurrence assailants had already run away from there. In the teeth of this statement this witness cannot be called an eye witness and the learned trial judge failed to notice such material statements and erroneously held him to be eye-witness.

These witnesses by the prosecution are not trustworthy and their evidence examined does not inspire our confidence. We are of the opinion that all the three witnesses are unworthy of reliance none of them had seen the occurrence.

Moreover, in the present case injury reports Ext. Ka-5 to Ka-7 reveal that FIR was not lodged at the alleged time. For this conclusion we find very substantial reasons which have been noticed by us during perusal of injury reports of Mohd. Sharif Ext.Ka-5, injury report of Isarael Ext. Ka-6 and memorandum about arrival of Khairul Nisha alive at PHC Colonelganj and her death during treatment at 11.55 a.m. on 29.12.1991 Ext.Ka-7. This memo Ext.Ka-7 purports to show that Khairul Nisha reached PHC Colonelganj sent by police of Colonelganj. The prosecution tried to strengthen time of lodging of the report by that however we find that she was shown to be brought by Momin Ali, Home Guard No. 4059. This fact stands falsified from the documentary evidence of the prosecution. Copy of report of G.D. Ext.Ka3 shows that along with injured persons Home Guard Vikram Singh and Home Guard Ram Lal were sent. Injury report of Mohd. Sharif Ext Ka-5 indicates that he was brought by Homeguard Bikram Singh. Injury report of Isarael Ext. Ka 6 shows he was brought by Ram Lal, Home Guard, Momin Ali Home Guard was not sent with injured persons along with Chithis majroobi. Ext.Ka-5 and Ka-6 reveal that names of Homeguards and their numbers were written by the doctor. However, parentage of Momin Ali has been written as Son of Mohd. Sharif a name similar to the husband of the deceased thereafter name of Bikram Singh Homeguard was written. Copy of G.D. Ext.Ka-3 contains the name of persons accompanying the first informant and injured persons there was no one bearing the name of Momin Ali. These facts lead us to infer that memo Ext. Ka-7 was prepared subsequently and none recollected who was accompanying the injured.

Entries of injuries of Mohd. Sharif in accidental register also leads us to same conclusion that till the medical examination FIR was neither written nor chick FIR was scribed. In the case of ante timing of FIR prosecution version as contained in the FIR looses its credibility and spontaneity. This admits possibility of embellishments and deliberations. 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."

In view of above, we do not find ourselves in agreement with the reasons assigned by the learned sessions Judge to reject the defence arguments regarding ante timing of FIR. The relevant facts that escaped the attention of learned trial Judge have culminated in erroneous finding on this count.

Learned trial judge has treated the contradictions and discrepancies noted by us to be minor but in our opinion when the contradiction or discrepancy hit the root of the prosecution version it has to be treated as material one and in such eventuality on the basis of contradictions truthfulness of the prosecution witnesses would become doubtful.

Thus, the learned trial judge has also erred in believing the eye witness account ignoring the fact that none of them had seen the occurrence. The arguments advanced in support of the accused are well substantiated from the record and the impugned judgment and order are full of factual and legal errors. They are not sustainable and the prosecution has failed to prove charges against the appellants beyond reasonable doubt.

Therefore, appeal succeeds. Criminal Appeal No. 275 of 1994 is allowed. Impugned judgment and order dated 23.5.1994 are set aside. Appellants Khushiyal alias Hussain Ullah and Sayyed Ali are acquitted from the charges framed against them. Appellants are on bail, they need not surrender. Their personal bonds and surety bonds are cancelled. Sureties are discharged provided within 30 days from the date of the judgment and order provided the appellants file their personal bond and two sureties in the like amount before the Court of Sessions Judge Gonda in pursuance of provisions contained under Section 437A Cr.P.C.

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