Ori Lal vs State of U.P.

Pratyush Kumar, J.—1. The instant appeal filed on behalf of the accused-appellant is directed against the judgment and order dated 23rd February, 2011 passed by Sri Ram Sahai, Additional Sessions Judge, Court No. 4, Lakhimpur Kheri in S.T. No. 857 of 2009 (State v. Ori Lal), whereby he has been convicted under section 302 I.P.C. and section 30 Arms Act and sentenced to undergo imprisonment for life and to pay fine of Rs. 5,000/- and further to undergo six months imprisonment and pay fine of Rs. 2,000/-. In default of payment of fine, he is directed to suffer imprisonment for one month.

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

"That on 21st April, 2009, at 6.30 a.m., Kamlesh Kumar, resident of Pipri Aziz, Police Station Maigalganj, gave a written report at the police station stating therein that his elder brother Ram Kumar Trivedi aged about 60 years had illicit relations with Manju Devi, who had also illicit relations with Ori Lal. For this reason, while on the yesternight at about 11.00 p.m. a feast on the eve of ''Grih Pravesh'' was going on at the house of Ori Lal, he with his licensed 12 bore gun, came to the house of Manju Devi and shot his brother. When his brother fell down on the side of a cot, he again fired which struck left side of chin and neck of his brother, who started to bleed exccessively and died on the spot. Hearing the sound of fire, Munar, Kamlesh Kumar, Ram Kripal came there and tried to catch Ori Lal but he made good his escape. Dead body of his brother was lying in front of the house of Manju. In the night due to non-availability of transport he could not come, now he was reporting the matter."

At this chik F.I.R. was scribed, Case Crime No. 487 of 2009 under section 302 I.P.C. was registered and requisite entry was made in the report of the general diary. Investigation was taken over by Arun Kumar Dwivedi, the then station officer of the police station, who during the investigation on 22nd April, 2009 arrested the accused and recovered weapon of murder, single barrel 12 bore gun. After investigation, chargesheet was submitted.

In the Court of Session, the appellant was charged under section 302 I.P.C. and section 30 Arms Act separately, he denied the charges and claimed to be tried.

In order to prove the charges, in the documentary evidence on behalf of the prosecution, besides other papers, written report Exhibit Ka-1, P.M. report Exhibit Ka-2, F.I.R. Exhibit Ka-4, copy of report Exhibit Ka-5, inquest report Exhibit Ka-6, recovery memo Exhibit Ka-12 & 13, site plan Exhibit Ka-14, recovery memo Exhibit Ka-15 & Serologist report were filed.

In the oral evidence, six witnesses were examined. Thereafter, statement of the appellant was recorded under Section 313 Cr.P.C. wherein he denied the facts stated by the prosecution witnesses, pleaded ignorance about medical evidence and claimed that he has been falsely implicated due to his enmity with Chottey Lal, who was dismissed from service on his complaint. The deceased was murdered by the husband of the lady, whom the son of the deceased had kept with him.

After hearing the arguments, the learned trial judge has convicted the appellant and sentenced him, as above.

Heard Sri Subodh Kumar Shukla, learned counsel for the appellant and Sri Umesh Verma, learned A.G.A. for the State and perused the record.

On behalf of the appellant, very briefly it has been argued that the impugned judgment is against the weight of the material available on record. Eye-witness account has been erroneously believed. There is contradiction between the oral evidence and medical evidence. From the ballistic report, innocence of the appellant is evident. The learned trial Judge has not taken into consideration the defence version and relied on the testimonies of planted witnesses. According to him, F.I.R. has been lodged with delay and investigation was not fair.

On behalf of the State, these arguments have been repelled and we have been taken through the evidence by the learned A.G.A. to show that evidence has been properly appreciated and findings are well substantiated from the record.

In reference to our obligations as an appellate court hearing appeal against conviction 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 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 we enter into the merits of respective arguments submitted by counsel for both the parties, we would like to have a glance of the medical evidence, which consists of statement of Dr. Suresh Singh, P.W.-3 and post mortem report Exhibit Ka-2. Dr. Suresh Singh P.W.-3 has stated that on 21st April, 2009, he conducted the post mortem examination of the dead body of deceased Ram Kumar Trivedi at 5.00 p.m. According to him, death had occurred due to shock and haemorrhage as a result of ante mortem gun shot injury. Death could have occurred on 24th April, 2009, at 11.00 p.m. by gun shot. He has proved the post mortem report Exhibit Ka-2. During cross examination, violent death of the deceased has not been disputed. He was cross examined only about seat of injury and direction of fatal gun shot. In the post mortem report, he has recorded the following ante mortem injuries:--

"Fire arm wound of entry 8 c.m. X 5 c.m. X vertebrae and chest cavity deep on the left side of chin and neck. Margins inverted irregular, eccomosises on (sic) underlying muscles, great vessels including Carotid artery, lacerated C-3 and C-4 vertebrae found fractured and left plura, left lung found lacerated."

During internal examination, he recovered 24 small metallic pellets and two pieces of wadding material, chest cavity, lungs and muscles.

His statement on oath is duly corroborated by postmortem report Exhibit Ka-2. His testimony is without challenge, therefore, we rely on it and hold that the facts stated by the witness stand proved.

Before we proceed further, it will be convenient for us while considering the arguments of both the parties that we place on record the broad features of the testimonies of prosecution witnesses. They are as under:--

In the documentary evidence, in addition to the papers discussed above, we have other requisite papers send with the dead body, Exhibit Ka-7 and Ka-11, site plan Exhibit Ka-14, recovery memo of taken samples of blood stain earth and simple earth, Exhibit Ka-12 and Ka-13 and two recovery memo regarding recovery of gun Exhibit Ka-15 and further report dated 10th August, 2009 of the State Forensic Science Laboratory in reference to the result of ballistic examination of empty cartridge recovered from the spot and its matching with the recovered gun. Since, percussion cap of empty cartridge was missing, no opinion about its being fired from the recovered gun could be given, however, the ballistic expert found in the barrel of the gun, remains of nitrate and lead.

In the defence, no evidence are given.

First we deal with the eye witness account. Manju Devi, P.W.-1 has fully supported the prosecution version. Though she was placed in a very delicate position, however, she withstood the test of cross examination successfully. We find that her presence on the spot was not disputed during the cross examination. She is a natural and probable witness. She has given details of the occurrence, of course, she denied the allegation about her illicit relations with the deceased and the appellant and there are contradictions in her statement with her previous statement recorded by the investigating officer on these points however considering the sensitivity of the allegations, we are not inclined to treat her a liar. She has a right to defend her dignity. Treating this to be a natural conduct, we find that she had no reason to depose against the present appellant. Though her testimony was impeached on the point that her statement was recorded by the investigating officer on 24th April, 2009 though spot inspection was made in front of her house on 21st April, 2009. The investigating officer Arun Kumar Dwivedi, P.W.-6 was asked why he did not examine Manju Devi at that time. The reply of the investigating officer is that probably she was not present on the spot at the time when he visited the spot. Thus, for late examination, a reason has been advanced by the investigating officer. Delay of three days in the peculiar facts and circumstances of the case does not appear fatal to the prosecution. For this reason, we find her to be a trustworthy witness and we agree with the appreciation of her evidence made by the learned trial Judge.

Kamlesh Kumar, P.W.-2 is the other eye-witness examined by the prosecution. He is the first informant and brother of the deceased. Though he has supported prosecution version in his statement. On behalf of the appellant, veracity of his testimony was challenged before the trial court as well as before us on several grounds, namely, the report Exhibit Ka-1 was not dictated by him otherwise he would not have mentioned his name in the third person, according to the appellant, there was no occasion for the witness to search his brother except to show his presence at the relevant time at the spot he has lodged the First Information Report with delay and it has been ante-timed. The learned trial judge did not accept the first ground for the reason he was of rural background and not used to technicalities of language, therefore, the indicated ground did not hold good. We also agree with this reasoning. This second ground requires more deliberation of our part because in his statement, the witness has stated that he was searching for Ram Kumar at 11.00 p.m. Ram Kumar was aged about 60 years and according to the witness, he had illicit relations with Manju. It seems improbable that without any reason, witness would have searched his brother. Since occurrence consists of two stage; in the first stage, Ori Lal brought food to the house of Manju Devi where he found Ram Kumar present, thereupon altercation took place and Ori Lal returned to his house came back with gun and shot the deceased.

From this point, we are inclined to believe his testimony that hearing about altercation, the witness would have gone to the house of Manju Devi and saw the second part of the occurrence wherein Ori Lal shot his brother. He has given vivid account of that firing, about the presence of family members of Manju Devi nearby the place, source of light and reason for going to the police station in the morning. We notice that his testimony appears to be natural. Though defence had suggested before the trial court that he did not see the incident and on the behest of Chottey lal, had falsely implicated the appellant. The suggestion was denied by the witness and we think rightly so.

There is evidence of S.I. Arun Kumar Dwivedi, first investigating officer, P.W.-6, who testified that on 2nd April, 2009, he arrested Ori Lal and recovered weapon of murder, S.B.B.L. gun and sent it in a sealed condition to the State Forensic Laboratory. Ballistic report dated 10th August, 2009, to some extent indicates that the gun before its recovery was recently fired and it was not cleaned. This evidence may not be determinative in character but it has corroborative value.

In this view, we find that ocular version of the occurrence given by Smt. Manju, P.W.-1, Kamlesh Kumar, P.W.-2 is trustworthy and has rightly been believed. It is corroborated by medical evidence and ballistic report. We are not convinced that any fact emerging from medical evidence can be said to be contradictory to the oral version. Ballistic report also does not support the defence version.

On behalf of the appellant, before the trial court, no evidence in the defence was given. The version advanced by the defence remained unsubstantiated during the trial. We think the learned trial Judge has rightly discarded the defence version. There is explanation for lodging F.I.R. with delay and any investigation could not be shown to be unfairly conducted.

The grounds taken in the appeal and arguments in support thereof are without substance. The findings recorded by the learned trial Judge are based on material on record. The learned trial Judge has given cogent reasons in support thereof. We do not find any ground to interfere with the impugned judgment and orders. In our opinion, appeal deserves to be dismissed as conviction and sentence of the appellant deserve to be affirmed.

Resultantly, appeal is dismissed. Conviction and sentences awarded to the appellant are affirmed.

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