Nandu and Others vs State of U.P.

Pratyush Kumar, J.—Since these appeals arise out of the same incident and have been filed against the same impugned judgment and order, they are being disposed of by a single judgement.

Heard Sri Nagendra Mohan, learned counsel for the appellant and Ms. Ruhi Siddiqui, learned AGA for the State.

Criminal Appeal No. 171 of 2006 has been filed by the accused-appellant under Section 374 Cr.P.C. assailing the correctness of the judgment and order dated 17th December, 2005 passed by Sri Jai Mangal Sharma, the then Additional Sessions Judge/Fast Track Court No. 1, at Faizabad in S.T. No. 133 of 1995 thereby convicting the appellant under Section 396 I.P.C. and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 1,000/- in default thereof to further undergo imprisonment of one year.

Criminal Appeal No. 239 of 2006 has been filed by three accused-appellants questioning the correctness of the same judgment and order passed in the same Sessions trial whereby they were similarly convicted and sentenced.

In the appeal prosecution case may be summarized as under:--

"That on 11th October, 1994, at Police Station Tanda at 12.35 a.m. Rajendra Prasad Dubey gave a written report that on that night at about 11.00 p.m., after taking their food they were lying on their cots. Electric bulb was burning at the door. Suddenly 11-12 miscreants armed with weapons came there and by calling his name asked where he was. Hearing their voice, he hid himself from the side of the wall. His brother-in-law Buddhu Lala and first informant his wife Kewalpati were sleeping at the door. They were shot while miscreants were saying their property was attached. They would not spare anyone. His son Pradeep Kumar also sustained gun shot injuries in his back. On the alarm raised by him, Ram Sunder, Iswar Deen, Satya Prakash, his son Anil Kumar @ Kaptan armed with lathi, danda came there, flashing their torches and saw the miscreants. They also looted the house of Iswar Deen, Ram Sunder and Satya Prakash. Out of these miscreants, Nandu @ Nand Lal was resident of his village. Ram Murat, Surendra and Virendra were known to the first informant. Thereafter he gave details of the jewellery and cash looted from his house as well as house of Iswar Deen and Satya Prakash."

At this Chik FIR was scribed. Case Crime No. 251 of 1994 under Section 396 I.P.C. was registered. Requisite entry was made in the report of the General Diary. Thereafter investigation proceeded and after completing all usual and necessary formalities the chargesheet was submitted against the present appellants alongwith two others.

In the Court of Session, the appellants alongwith two other accused were charged under Section 396 I.P.C. Arvind Kumar and Lalji were also charged under Section 396 I.P.C. which they denied and claimed to be tried.

Besides documentary evidence, on behalf of the prosecution, 10 witnesses were examined. Statements of the accused persons were recorded under Section 313 Cr.P.C. wherein they deny their complicity in the crime and claimed false implication on the pressure of the police. The learned trial Judge after hearing the arguments acquitted the non-appellants and convicted the present appellants. He found the eye-witnesses account worthy of reliance.

On behalf of the appellants, learned counsel for the appellants has submitted that the learned trial Judge did not appreciate the evidence in proper perspective, ignored material contradictions, has placed reliance on a story which is inherent and improbable. In the last he has submitted that the FIR is ante-timed.

On behalf of the State, these arguments have been repelled and findings recorded by the learned trial Judge have been said to be justified.

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."

First we would like to make reference to the medical evidence. Dr. Nand Lal Prasad, P.W.-6 is the doctor, who conducted the postmortem examinations on 11th October, 1994 on the dead bodies of Buddu Lal and Smt. Kewalpati. He has stated that at 11.30 a.m. he performed the autopsy on the dead body of Buddu @ Lala and found following ante-mortem injuries on his dead body.

Lacerated inverted wound 6 c.m. x 4 c.m. X whole depth of chest on left side surrounded by tattooing and singling in area of 11 c.m. X 5 c.m. below 12 c.m. from above left nipple.

During internal examination, he found second rib broken. Pluera fractured. Left lung lacerated. He proved the postmortem report Exhibit Ka-2. He also proved the postmortem report of Smt. Kewalpati, Exhibit Ka-3 and has stated that on that date at 10.20 a.m. he performed the autopsy on her dead body. During postmortem examination on her person, he found the following ante-mortem injuries:--

"Lacerated inverted wound 3 c.m. x 5 c.m. x 4 depth of chest on right side of back of chest 4 c.m. below right angle of Scapula surrounded by tattooing and blackening."

During internal examination, he found 7th and 8th ribs broken. Lungs lacerated. On both the dead bodies he found rigor mortis present. According to him, both the deceased have died due to shock and hemorrhage as a result of ante-mortem injuries. Time since death has been opined by him to be half day.

During cross examination, the only point raised was variation in estimated time of death which according to him would be two hours. Thus, homicidal death of both the deceased on the stated date, time and place stands proved.

Dr. Mohd. Idreesh, P.W.9 is the medical officer who on 11th October, 1994 at 7.15 a.m. medically examined injured Pradeep Kumar. During medical examination, he found two injuries on his person. They read as under:--

"1) Multiple fire injuries in the area of 18 c.m. x 9 c.m. in the shape of lacerated wound 1.5 c.m. x.6 c.m. of irregular margin, tattooing mark on back below Scapula till last left rib.

2) Multiple fire injuries in the area 14 c.m. x 5 c.m. on left upper area tattooing and scorching present."

In his opinion, injuries were caused by gun shot, simple in nature and their duration was fresh. He proved the injury report Exhibit Ka-9. Thus, injuries of Pradeep Kumar stand proved.

When we have peruse the eye-witness account given by the first informant Rajendra Prasad Dubey, P.W.-1, Ram Sunder, P.W.-2, Satya Prakash, P.W.3, Pradeep Kumar, P.W.4, Ishwar Deen, P.W.5, we find that the prosecution in the present case appears to have taken on a u turn. The purpose for which the miscreants were said to have come was to commit murder of Rajendra Prasad Dubey. Instead of that, they had murdered two persons in his house and looted valuables. The first inherent weakness in his testimony is that known persons during the night would not come without hiding their faces for committing dacoity. The second point which struck to us that the witness could not tell who opened the door when miscreants were saying that they would murder Pradhan. The third point is that he claims to be sleeping in his room. How he has seen the occurrence taking place in front of the main door of the house remained unexplained by him. Had there been any light and witness was observing the activities of the miscreants, they would have certainly murdered him. During cross examination, further this witness claims that he had two houses, one newly constructed and the other old one. According to him, dacoity was committed in the old house and the witness was sleeping in the newly constructed house and dacoits did not search for him. During cross examination, we have found that he admitted that his report was written on the dictation of the clerk-constable at the police station. Police reached the spot at about 12-12.30 a.m. He has also admitted that prosecution witnesses are his relatives except Iswar Deen, who is his neighbour. The most striking point is that after occurrence, he admitted that during the night, he had not talked with anyone.

In view of these inconsistency, admissions and improbabilities, we do not think any reliance can be placed on his testimony.

Ram Sunder, P.W.-2 supported the prosecution version but during cross examination, he has stated that who murdered Nandlal that he came to know about that from the persons who had seen the incident, meaning thereby he did not identify them. No reliance can be placed on his testimony.

Satya Prakash, P.W.-3 has also supported the prosecution version. During cross examination, he has admitted that he was informed by the Pradhan on the night of occurrence, who committed the crime. Till then, he did not know the dacoits by name. Thus, his testimony also carries no weight.

Pradeep Kumar, P.W.-4 has stated only about Nandu who killed his maternal uncle. During cross examination, he has stated that he came to know the names of the miscreants from the villagers. His testimony also carries no weight.

Iswar Deen, P.W.5 is a witness of identification held in reference to non-appellants Arvind and Lalji, though he has supported the prosecution version substantively but he introduced a new fact that miscreants were exploding hand grenade and bombs. During cross examination, he has stated that identification parade was held after two months. His testimony instead of strengthening the prosecution case, makes it worst.

Thus, eye-witness account given by prosecution witnesses does not inspire our confidence for the reasons indicated above.

The arguments regarding ante-timing of FIR is substantiated from the admission made by Rajendra Prasad Dubey, P.W.-1 noticed by us hereinbefore. Thus the foundation of the prosecution story collapses. The learned trial Judge has not adverted to these points and placed implicit reliance on the testimonies of eye-witnesses without critically examining them.

For these reasons, we find the impugned judgment full of legal and factual infirmities. Finding recorded by the learned trial Judge are bad in fact and in law and deserve to be set aside.

Criminal Appeal No. 171 of 2006 and Criminal Appeal No. 239 of 2006 are allowed. The judgment and order dated 17.12.2005 passed by Additional Sessions Judge/Fast Track court No. 1, Faizabad in Sessions Trial No. 133 of 1995 (State v. Nandu) convicting and sentencing the appellants under Section 396 IPC are set aside. In Criminal Appeal No. 171 of 2006 the appellant Nandu alias Nand Lal was on bail. Due to non-appearance he was arrested on warrant and confined in jail, his bail application was dismissed and since then he is in jail. The appellant Nandu alias Nand Lal is acquitted from the charges levelled against him. The appellant Nandu alias Nand Lal be released forthwith, in case he is not involved in any other case.

In Criminal Appeal No. 239 of 2006 all the appellants namely Ram Murat, Surendra Maurya & Virendra were on bail during trial and still they are on bail. The bail bonds of appellants Ram Murat, Surendra Maurya & Virendra in Criminal Appeal No. 239 of 2006 are cancelled. They need not surrender. The sureties are discharged from their liabilities.

Office is directed to communicate this order to the court concerned and to send back the record to the court below.