Moti Lal and Others vs State of U.P.

Pratyush Kumar, J.—The instant criminal appeal, filed under Section 374(2) Cr.P.C. by the accused-appellants, is directed against the judgment and order dated 18.8.1981 passed by Sri V.C. Jain, Sessions Judge, Unnao in Sessions Trial No. 541 of 1979 (State v. Motilal and others) whereby they were convicted and sentenced as under:-

"1) Under Section 302 read with Section 34 I.P.C. to imprisonment for life, and

2) Under Section 201 I.P.C. to three years'' R.I."

In this appeal prosecution case in brief is that on 8th September, 1979, at 8.10 p.m., Ram Bali gave a written report at Police Station Bangarmau stating therein that accused Mohan Lal and his sons Ram Avtar and Motilal were convicted and sentenced to 4 years R.I. in case under Section 307 I.P.C. involving attempted murder of the first informant. Before the occurrence, five and six days ago, after their said conviction they were released on bail. On 8th September, 1979 when the first informant with his brother Chotelal and niece Tarawati were bringing home fodder from their ''Lilaha wale Khet'' and Chhotelal was carrying bundle of ''Makai'' and ''Chari'' (maize), at about 5.00 p.m. when they reached near the field of Ram Vilas on the ''Mendha'' (boundary mark) cultivated by Mohanlal, Moti Lal armed with SBBL gun, Ram Avtar and Sri Krishna armed with country made pistols suddenly came out of their field of ''Corn''. Moti Lal fired from his gun on Chhotelal, who sustained gun shot injury and fell into an adjacent field of Ghasitey. The first informant and his niece raised hue and cry, on that Ram Avtar and Sri Krishna also fired on, and lifted, Chhotelal and took him into the field of ''Corn'' raised by Mohanlal there they severed the head of Chhotelal with the help of ''Khurpa'' snatched from the hand of Chhotelal. Meantime, Mahadev, Bhadruddin and Hemnath came to the place of occurrence and warned the accused persons, who went away to the eastern side. Due to fear of fire arms, they could not be chased. After leaving the dead body of Chhotelal with his brothers Sri Krishna and Kalicharan, he had come to report the occurrence.

On this written report, Case Crime No. 398 of 1979 under Sections 302 , 201 I.P.C. was registered at Police Station Bagarmau. Chik F.I.R. was scribed. Requisite entry was made in the general diary and investigation was started. All the necessary and formal steps in the investigation were taken and after completion of investigation against all the three accused, chargesheet was submitted. The magistrate took cognizance of the offence and after completing the mandatory requirements committed the case to the Court of Session. In the Court of Session respondents were charged under Sections 302 and 201 I.P.C. who pleaded not guilty and claimed to be tried.

Besides documentary evidence on behalf of the prosecution, five witnesses namely Rambali, P.W.1 first informant, Mahadev, P.W.2 eye-witness, Dr. S.K. Khanna, P.W.-3 who conducted the postmortem, Iswardeen, P.W.-4 Head Constable, who scribed the chik F.I.R and Kamla Prasad Pandey, P.W.-5, investigating officer were examined. After close of prosecution evidence, statements of the accused under section 313 Cr.P.C. were recorded wherein they denied the eye-witness account. The court summoned Krishna Kumar and examined him as C.W.-1 who was Assistant Medico Legal Expert of the State. Thereafter, further statements of the accused persons were recorded under Section 313 Cr.P.C. in reference to deposition of Krishna Kumar, P.W.-1 the accused did not say anything about his testimony. After conclusion of the trial and hearing the arguments of both the parties, the learned trial Judge had convicted all the three accused on both the charges framed under Section 302 read with Sections 34 and 201 I.P.C. and sentenced them accordingly.

Feeling aggrieved the accused-appellants preferred this appeal assailing the correctness of the impugned judgment and order. During pendency of the appeal, the appellant No. 3 Sri Krishna had died in the year 1991 and appeal against him stood abated.

We have heard learned counsel for the appellants and learned A.G.A. for the respondent-State and perused the record.

In support of the appeal, learned counsel for the appellants has submitted that the learned trial Judge has erred in holding the First Information Report to be promptly lodged, he has failed to appreciate the eyewitness account in legal perspective mainly on the points inter-alia; Rambali, P.W.-1 and Mahadev, P.W.-2, both are highly interested witnesses. Both were inimical towards the appellants. Their eye-witness account is tainted with their inability of giving details of manner of assault, their account stands contradicted by the medical evidence, they have perjured on various points, their depositions contained material contradictions. He has further submitted that it was a blind murder committed during the darkness and only after its discovery time of occurrence was changed and witnesses were planted which is reflected from the facts establishing death to have occurred prior to the time alleged by the prosecution.

On behalf of the State, these arguments have been repelled in detail and we have been taken through the testimonies of eye-witnesses and expert witnesses to show that there is no contradiction between ocular version and facts established by expert evidence.

Before we examine the material on record, we would like to refresh the observation made by the Apex Court in the case of 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."

After clearly defining out our jurisdiction, we proceed to examine the merit of the arguments advanced on behalf of the respective parties. Before doing that we find it expedient first to deal with the medical evidence adduced by the prosecution.

The medical evidence consists of postmortem report Exhibit Ka-2 and testimony of Dr. S.K. Khanna, P.W.-3. Dr. S.K. Khanna, P.W.-3 was posted at District Hospital Unnao on 10th September, 1979 and performed the autopsy in question at 2.20 p.m. on that date. According to him, deceased was aged about 35 years. He had died two days before. He was of good built. Rigor mortis had passed from the body. Postmortem staining was found on the back side. There were blisters on the dead body. Some of them had already bursted. The deceased had sustained two ante-mortem injuries. He had died on account of shock and hemorrhage as a result of ante-mortem injuries. The dead body was headless. Clavicle and cervical vertebra were cleanly cut. In the stomach, there was semi digested food. Small and large intestines contained semi digested food. The witness has stated that he had prepared the postmortem report at the time of autopsy and proved it. In the postmortem report two ante-mortem injuries were recorded, they read as under:-

"1. One incised wound clean cut 7" x 6" at the level of sixth cervical vertebrae on the back and 1" above both medial (inner) ends of clavicle on the front. The sixth vetebrae was cut clearly and clean cut at the body level.

Firearm wound 1 1/2" x 1 1/4" on the right side of abdomen on the outer side (alteral side) 4" above the pelvic bone. Blackening was present in an area of 1/2" around the wound of entry. No wound of exit was found."

On internal examination the 6th cervical vertebrae was found cut under injury No. 1. The trachea and blood vessels and oesophagus were also cut under injury No. 1.

The witness was cross examined only on two points. First time since death and second regarding measurement of weapon of murder. Except these two points, correctness of testimony has not been disputed. On the first point, he accepted that there may be six hours variation about the estimated time. He replied on the second point that weapon of murder must have broad blade like ''Talwar'' to cause injury No. 1. In their statements recorded under Section 313 Cr.P.C., on behalf of the appellants, correctness of statement on oath of Dr. S.K. Khanna, P.W.-3 has not been disputed. Since Dr. S.K. Khanna has no enmity with the appellants or any affinity with the first informant and further his testimony is duly corroborated by postmortem report Exhibit Ka-2. We find his testimony to be worthy of reliance and hold that on 8th September, 1979, deceased Chhotey Lal was homicidly murdered. Death could have occurred at 5.00 p.m. or with variation of six hours on either side.

Since in the present case, prosecution story has some peculiar aspects, for this reason we prefer to individually assess the probative force of the testimonies of both the eye-witnesses. This approach would make our task easier.

Ram Bali, P.W.-1 is the first informant and also brother of the deceased. In the examination-in-chief, he has supported the narration contained in the First Information Report. In his statement there is a major contradiction about the time of arrival of the other eyewitnesses. This contradictory statement has been proved by Kamla Prasad Pandey, P.W.-5 as Exhibit Kha-1. The witness in his statement has pleaded ignorance about the parentage of Badruddin but the investigating officer has proved that he had told him the name of the father of the witness Badruddin. He has further proved Exhibit Kha-2 which is an another material contradiction on the point of conduct of the first informant and his niece after Chhote Lal fell on account of gun shot injury.

Though we are not inclined to discard the testimony of this witness only on the ground of material contradictions exhibited as Exhibit Kha-1 and Kha-2. However, we find that presence of this witness at the time and scene of occurrence appears to be improbable. In the First Information Report and examination-in-chief, this witness claims that he, deceased and his niece were returning home with fodder which was cut from his ''Lilaha Khet''. It is noteworthy that only the deceased was carrying the bundle of fodder. This witness was not carrying fodder at that time. In para 10 of the deposition, he has stated that they went to ''Lilaha Khet'' at about 2.00-2.30 p.m. His brother took ''Khurpi'' with him. The first informant went to that field with sickle to cut crop of ''Urdi''. It is strange that in ''Lilaha Khet'' though crop of ''Urdi'' was sown and being harvested. The question arises from where the deceased Chhotelal had cut the fodder. The bundle of fodder which according to this witness Chhotelal was carrying when he was murdered consisted of ''Makai'' and ''Chari''. ''Urdi'' is not one of them. The investigating officer has not shown ''Lilaha Khet'' in the site plan. It was incumbent upon the prosecution to disclose from where deceased Chhotelal had cut the fodder because in ''Lilaha Khet'' neither ''Makai'' nor ''Cheri'' was sown and grown.

In para 12 of the statement this witness has admitted that west to the field of Ghasitey where Chhotelal fell, there is a grove of the first informant consisting of one tree and in rest of the area crop of ''Corn'' was sown and grown at that time. When all the surrounding facts are taken into consideration, it appears that these two brothers had not gone for the same purpose to the same field. One went to harvest the crop of ''Urdi'' and other went to cut fodder from other field where it was grown and there is fairly good distance between these two fields. The bundle of fodder consisted of ''Makai'' and ''Chari''. This fact is established from the perusal of Exhibit Ka-11 i.e. memo of taking sample of fodder and ''supurdginama'' of the bundle of the fodder, the investigating officer found in the bundle only ''Makka'' and ''Chari''.

Possibly that may be the reason on account of which the witness could not correctly tell how many times his brother was struck with ''Khurpa'' to behead him. In the cross examination, he could not tell which of the appellant severed the head of his brother. According to him, 10-15 times blade of the ''Khurpa'' was inflicted on the neck of his brother whereas according to the statement of Dr. S.K. Khanna, P.W.-3, injury No. 1 was caused by a single blow of sharp edged weapon. Though, Krishna Kumar Singh, Assistant Medico Legal Expert, C.W.-1, tried to reconcile the size of weapon i.e. 7"x 6" by reducing it to 6" x 5" on account of decomposition of the body. He has stated that blade of ''Khurpa'' was 3/1/2" and ordinarily at least two blows by the blade of ''Khurpa'' would be required to severe the head. It is also relevant to observe here that according to Dr. S.K. Khanna, P.W.-3, Injury No. 1 was a clear cut wound. Kamla Prasad Pandey, Investigating Officer, P.W.-5 has identified the weapon of murder material Exhibit-1. When Sri Krishna Kumar Singh, P.W.1 was examined, seeing material Exhibit-1 opined that blade of ''Khurpa'' was not much sharp like razor. For this reason doubt is created whether actually the deceased was inflicted ''Khurpa'' blows 10 to 15 times or whether he actually could have been be-headed by ''Khurpa'' material Exhibit-1 in the manner alleged by the prosecution.

When all these reasons are cumulatively considered, we come to the conclusion that presence of Rambali, P.W.-1 is highly doubtful and possibly he has not seen the occurrence.

The second witness Mahadev is also an inimical witness. He has admitted that he had litigation with the party of Motilal in the form of proceedings drawn under Sections 107 /117 Cr.P.C. He is the resident of another village and claims that he has a field near the place of occurrence. He could not tell the number of his field and further admitted that field was not in his name but in his father''s name. His reason for going to his field also appears to be doubtful. He says that he had gone at 2.30 p.m. to plough his field. It is a common knowledge that usually in the morning hours fields are ploughed. There is a sound reason for this practice because in the morning hours, atmosphere is cool and bullocks do not tire in a short time whereas in the afternoon during summer and rainy season atmosphere remains hot and temperature in the fields does not suit the animals for hard work.

This reason is based on long practice but here the reason for his presence is also belied by the fact that when the witness claims to have seen the occurrence, neither he had any bullocks with him nor any plough nor other necessary paraphernalia for ploughing. Whatever answers he has given during the course of examination indicate that during cross examination, he has forgotten that he was supposed to be saddled with these animals and items. This slip possibly could not be result of fading memory rather probability is that he was empty handed and for showing his presence ploughing of field was an invented reason.

He also says that head of Chhotelal was severed with ''Khurpa'' which was wielded 2-4 times by the accused persons but he could not tell which of the appellant wielded ''Khurpa'' and how many times. According to him, due to grown corn, he could not clearly see the appellants wielding ''Khurpa'' on the neck of Chhotelal. Site plan Exhibit Ka 17 reveals that in that field plants of ''Corn'' had withered and scantly stood. We fail to understand how from the place from where this witness claims to have seen this incident he could see the appellants wielding ''Khurpa'' on the neck of Chhotelal and how he could not observe whether ''Khurpa'' was wielded once or many more times. For these reasons, we have no hesitation in holding that this witness is also a planted witness and he has not seen the occurrence.

The arguments advanced by learned counsel for the appellants that F.I.R. was ante-timed though has been rejected by the learned trial Judge but we find ourselves unable to agree with those reasons. Alleged time of the incident is 5.00 p.m. F.I.R. has been shown to be lodged at 8.10 p.m. Distance from the seen of occurrence to the police station is about four miles. Apparently F.I.R. has been lodged promptly but inquest report Exhibit Kha-5 falsifies the lodging of F.I.R. at the stated time. In the first column at page-1, between words ''Tarikh'' and ''Samay'' figure 8.9.1979 has been written after preparation of inquest report because it is written in a quite different ink. In the inquest report, case crime number has not been mentioned. In the last where details of enclosures have been given, enclosure No. 7, copy of F.I.R. has been written in different ink. Letter to R.I. Exhibit ka-6 reveals that dead body was received in the police line at 3.20 p.m. on 9th September, 1979. Chik F.I.R. Exhibit Kha-3 reveals that under the column, time for sending it from police station, first figure 9 has been overwritten. Late postmortem also fortifies the argument that F.I.R. was ante-timed due to which dead body was received with undue delay at mortuary. Learned trial Judge has not applied his mind on these facts.

In the light of observations made by the Hon''ble Supreme Court in the case of Meharaj Singh v. State of U.P. 1995 Crl.LJ 457 (SC) we find the argument advanced by the learned counsel for the appellants well substantiated. The relevant observation of the Hon''ble Supreme Court in Meharaj Singh''s case (supra) is quoted below:-

"(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 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 gave 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"

There is also a latent reason for the ante timing of the FIR. In the written report, Rambali, P.W.1 has mentioned the name of eye witnesses Mahadev s/o Darab and Badruddin s/o Amanat and Hemnath s/o Dulare. During cross examination Rambali has admitted that he does not know parentage of Badruddin. He could not explain how parentage of Badruddin has been mentioned in the written report and in his statement recorded under Section 161 Cr.P.C. In view of above very foundation of the prosecution story stands demolished and discredited.

Learned trial Judge has not appreciated the evidential value of the eye witnesses in the proper perspective. He has given no reason to treat these witnesses as natural and probable witness. He has not given any importance to this fact that deceased sustained only one gun shot injury whereas the eye witnesses claim three fires from firearms and according to their accounts, these were close ranged fires which were not likely to miss already fallen Chhotelal. Only one gun shot injury was found which bears blackening. Subsequent two fires were more closed range as per version of these witnesses. Probably the recovery of three empties from the spot led the story of three fires crept into the written report. The discrepancies noted above between the medical evidence and ocular evidence in the present case are very material. Ordinarily in case of contradiction between ocular testimony and medical evidence, if ocular evidence is found reliable, its contradiction with medical evidence is always ignored but in the present case ocular testimony has not been found worthy of reliance. In such situation, contradiction between these two assumes importance and persuades us to discard testimonies of alleged eyewitness.

For these reasons we find that in the present case, prosecution has failed to prove charges against the appellants beyond reasonable doubt. Findings recorded by the learned trial Judge are not substantiated from the record. Arguments advanced in support of the appeal have much substance. The impugned judgment and order are against material on record and the law regulating the rules of appreciation of evidence.

The impugned judgment and order are not sustainable and deserve to be set aside. The appeal is allowed.

The appellants are on bail. Their personal bonds are cancelled and sureties are discharged provided the appellants file to the satisfaction of the Sessions Judge, Unnao 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.