Noor Ali vs State of U.P.

Pratyush Kumar, J.—1. The instant appeal, filed on behalf of accused-appellant under Section 374 Cr.P.C., is directed against the Judgment and Orders dated 20.10.1981/21.10.1981 passed by Shri Brahm Singh, the then IInd Additional Sessions Judge, Gonda in Sessions Trial No. 461/1980, whereby the appellant was convicted under Section 302 IPC and sentenced to undergo imprisonment for life.

Heard Sri Abdul Rafey Siddiqui, learned counsel for the appellant, Sri Umesh Verma, learned Additional Government Advocate for the State-Respondent and perused the record.

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

"That on 12.6.1978 at 6.05 a.m. Ramjan resident of Mohalla Civil Lines, Neel Kothi, town and police station Balrampur, District Gonda has informed verbally at the police station that his son Jumman lives with him. On the following night at about 9.00 p.m. Noor Ali came to his house, at that time he was holding Khaki Jhola (soil colour) and asked for Jumman. The first informant told him that he was resting after taking supper, Noor Ali awoke him and took him on his bicycle. In the night his son did not come back, he waited throughout the night. At about 5.00 a.m. he came to know that one dead body was lying on the road going towards Neel Kothi. At that he went there and found dead the body of his son lying there, on the dead body there were many knife injuries and cloths were blood stained. There were many blood stains on the road also. When Noor Ali was taking Jumman with him, his neighbours Ram Chander, Jai Ram, Munna Lal and Siddhu Lal also saw them. He is apprehending that his son was murdered by Noor Ali with the help of his friends for the reason some days ago Noor Ali and Jumman had some altercation about money."

At this chick FIR was scribed, Case Crime No. 246/78, under Section 302 IPC was registered and requisite entry was made in the report of the General Diary. The investigation was entrusted to S.I. P.N. Pandey, who held the inquest proceedings, sent the dead body for postmortem examination to the mortuary, inspected the spot, at about one furlong from the scene of occurrence he recovered bag of Noor Ali. After conclusion of the investigation he submitted the charge sheet against the present appellant.

In the Court of Session the appellant was charged under Section 302, IPC which he denied and claimed to be tried.

In order to prove the charges on behalf of the prosecution in the documentary evidence, besides other papers, FIR Exhibit Ka-1, Site plan Exhibit Ka-8, inquest report Exhibit Ka-4, postmortem report, Exhibit Ka-2-A, report of Serologist and Chemical Examiner along with confession/statements recorded under Section 164, Cr.P.C. Exhibited as Exhibit Ka-2, 3, 5, 6, 7, 9-12, were filed. In the oral evidence on behalf of the prosecution six witnesses were examined. After conclusion of prosecution evidence statement of the appellant was recorded wherein he pleaded ignorance about residence of the first informant and his son Jumman. Rest of the facts stated by the prosecution witnesses were denied by him. He claimed that he has been falsely prosecuted due to enmity and witnesses were deposing against him due to enmity and on the pressure of the police. In the defence no evidence was given. Constable Kailash Prasad of P.S. Balrampur was examined as court witness.

After hearing the arguments learned trial Judge convicted the appellant. He found that prosecution had successfully proved all the links in the chain of circumstantial evidence adduced by the prosecution and further he sentenced the appellant as above.

Feeling aggrieved the convicted accused has filed the present appeal on the ground inter alia that all links in the chain of circumstantial evidence could not be proved by the prosecution and the learned trial Judge has erred in holding otherwise. The medical evidence and other evidence are contradictory to each other. Findings recorded against the weight of the material available on record are illegal and erroneous and the impugned judgment is bad in law. During the arguments on behalf of the appellant in support of the present grounds attention of the court has been drawn towards the testimonies of Ramjan Ali PW-1, Siddhu Lal PW-2, Hari Ram PW-3 and Ram Chander PW-4.

On behalf of the State-Respondent learned AGA has repelled these arguments and submitted that there is no contradiction between evidence of these witnesses and medical evidence. The investigation was fairly conducted. Findings were recorded objectively/dispassionately giving cogent reasons, the impugned Judgment warrants no interference.

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."

Before proceeding further we would like to briefly place on record the details of evidence given by the prosecution witnesses.

In the present case in order to prove the charge prosecution relies on circumstantial evidence. In the circumstantial evidence prosecution has tried to prove the following circumstances:--

"1. Motive.

Evidence of last seen.

3.Homicidal death of Jumman.

4.Recovery of bag alleged to be of the appellant."

Medical Evidence

First, we take up the medical evidence to see whether homicidal death of the deceased at the stated time and date and the manner in which it was caused could be proved by the prosecution. The medical evidence consists of deposition of Dr. M.A. Beg, PW-5 and postmortem report, Exhibit Ka-2-A. In the postmortem report, doctor had recorded the following ante mortem injuries:--

"1. Incised wound 2 cm x.5 cm x cavity deep at the right side of abdomen, 12 cm below the right nipple at 5 o''clock position.

Incised wound 2.5 cm x 1 cm x cavity deep, 9.5 cm above the umbilicus right side at 11 o'' clock position.

Incised wound 1 cm x.5 cm x cavity deep, 4 cm lateral to injury No. 2.

Incised wound 2 cm x 1 cm x cavity deep, 6 cm lateral from injury No. 3.

Incised wound 1.5 x.5 cm x cavity deep at the left side of chest over pericardium, 6 cm below the left nipple at 7 o''clock position.

Incised wound 4 cm x 1 cm x cavity deep, 4 cm below the left scapula inferior angle.

Abrasion 3 cm x 1 cm at the middle of right lower leg at the ankle.

Abrasion just above the right ankle joint 2 cm x 1 cm.

Abrasion 6 cm x 3 cm at upper part of scapula (right shoulder)."

The witness has no enmity with the appellant or no affinity with the first informant. He has simply stated the facts noticed by him during autopsy and gave his opinion. He was cross examined only about the variation on the point of time of death. He accepted the suggestion that in the time of death estimated by him there could be variation of eight hours on either side, thus, his testimony remained unchallenged during the trial and we find him to be a reliable witness and hold that on 12.6.1978 at 5.45 p.m. he conducted the postmortem examination of Jumman and found on his person nine ante mortem injuries, out of these six were caused by sharp edged weapon. Death had occurred due to shock and haemorrhage as a result of ante mortem injury Nos. 5 & 6. Death could have occurred one day before the autopsy.

Motive

On this point Ramjan PW-1 has testified, but according to this witness he was informed by his son about the altercation. He was not an eye witness to the altercation. Thus, this statement is based on hearsay. According to learned AGA, this statement is relevant under Section 32(1) of the Evidence Act. On behalf of the appellant it has been argued that in para 3 of his deposition the witness has stated that 5-6 months ago altercation took place which was disclosed by Jumman to him after 2-3 months. On this basis learned counsel for the appellant has submitted that since the statement alleged to be made by the deceased is not proximate in time with death and before it could be established that for this reason deceased was done to death this statement cannot be taken into consideration under Section 32(1) of the Evidence Act.

There appears substance in the argument advanced on behalf of the appellant that relevancy of any statement made by a person about the circumstances resulting in his death can be taken into consideration under Section 32(1) of the Evidence Act, however, prosecution has to establish that those circumstances have some proximity or reasonable nexus with the death of the maker. We cannot accept the argument of the learned AGA that before reasonable nexus could be proved, it may be taken into consideration to establish that the statement falls under the exception provided in Section 32(1) of the Evidence Act. Prosecution is obligated to prima facie show that the alleged circumstances and death had some reasonable connection either in terms of proximity in time or purpose.

In view of the above, we do not think that statement of Ramjan PW-1 is sufficient enough to prove the motive. We notice that the learned trial Judge has taken into consideration the deposition of Ramjan PW-1 to hold the motive stood proved. The finding in question is erroneous and illegal.

Evidence of Last Seen

Other witnesses namely, Siddhu Lal PW-2 and Hari Ram PW-3, have not supported the prosecution version. Ramjan Ali PW-1, is the only witness of last seen. On this point the witness was cross examined on two aspects. First aspect is that at the relevant time he had taken grove of Mango and Guava on contract. He was supposed to look after the fruits, collect them and sell them. Though this witness has denied that grove of Guava was looked after by his son and grove of Mango was looked after by him and he has further stated that on that night he and his son did not go to look after and watch the Mangoes and Guavas, but from his testimony we gather an opinion that reason assigned by him for not to going to usual work on the fateful night appears to be flimsy. For this reason his presence at the time when he alleged that his son was taken by Noor Ali appears to be improbable.

Even if we accept his reply about his presence in the night hours in his house, he would be a chance witness and his uncorroborated testimony on this point would not be enough to hold that certainly Noor Ali took the deceased from the house of the first informant and the evidence of last seen also does not inspire our confidence.

Evidence of Recovery of Bag

Since we have not found evidence of last seen trustworthy, recovery of Jhola looses its importance. Though this recovery has been proved by Panchanan Pandey PW-6, the Investigating Officer, we notice that the bag was not sealed at the spot. It was deposited in the malkhana on 14.6.78. It was not put to identification during the investigation. Its identification in court by Ramjan PW-1 is not trustworthy for the reason indicated above.

Though homicidal death of Jumman stands proved by the medical evidence, but any other links in the chain of prosecution evidence could not be proved by the prosecution by cogent evidence. Learned trial Judge on the basis of conjectures and surmises has held the prosecution case to be proved against the appellant beyond doubt. Such findings of fact are erroneous and illegal. They cannot be sustained by us. The conviction and sentence provided to the appellant are bad in law. The appeal has substance. Impugned Judgment and Orders as also conviction and sentence of the appellant deserve to be set aside and he is entitled to be acquitted from the charge under Section 302 IPC.

Criminal Appeal is allowed. The impugned judgment and orders dated 20.10.1981/21.10.81 as also conviction and sentence of the appellant are set aside. The appellant is acquitted from the charge under Section 302 IPC. Appellant, Noor Ali, is in jail. The appellant, Noor Ali, be released forthwith, in case, he is not wanted in some other case, provided he files his personal bond and two sureties each in the like amount to the satisfaction of the Court concerned in compliance of Section 437 Cr.P.C.

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