Ramesh Pasi and Others vs State of U.P.

Pratyush Kumar, J.—1. The instant appeal, filed on behalf of the accused-appellants, is directed against the judgment and order dated 23.08.2004 passed by learned Additional Sessions Judge/FTC, Pratapgarh in Sessions Trial No. 525 of 2000 [State v. Ramesh Pasi and another] whereby he convicted and sentenced the appellants under Section 302/34 IPC for life imprisonment and fine of Rs. 10,000/- each, in default thereof, the appellants shall further undergo six months rigorous imprisonment.

In the present appeal facts of the prosecution case are as under:

"That on 08.06.2000 at about 7.45 AM Arun Kumar, resident of village Laru (Keshari-ka-purwa), P.S. Kunda, District Pratapgarh gave a written report at the police station stating therein that on the previous night at about 1.00 AM, Ramesh Pasi and Gudunni Pasi, both of his village came to his house and started to abuse his father Ram Badan, who was sleeping in a hut situated in the courtyard on southern side, Gudunni Pasi struck a blow from Kulhadi, his father loudly shouted for help to save him from Gudunni Pasi and Ramesh Pasi and came running in the courtyard. At his voice, he, his mother Rani Devi and sister Manorama, who were sleeping inside the room on the northern side woke up and in the light of torch saw Gudunni Pasi striking Kulhadi on the head of his father. When his father tried to catch Kulhadi, Ramesh Pasi fired country made pistol on the face of his father. His father fell down near the door of the courtyard. On that hue and cry was raised by them and many villagers came there. The assailants threatening them had escaped towards north side of the village. After sometime his father had died. The accused persons had an altercation with the deceased one week ago on account of tress-pass by their pigs in his field. They had threatened to kill his father. Three days'' before i.e. on 05.06.2000 in the night, they came to kill his father but his father was awoke and they could not kill him.

At this chick FIR was scribed, Case Crime No. 90 of 2000 under Section 302 IPC was registered at the police station and requisite entry was made in the report of the general diary. Investigation was entrusted to Senior Sub Inspector Rama Shankar Singh, who in the course of investigation recovered weapon of murder Kulhadi, autopsy of the dead body of the deceased was performed and after completion of the investigation submitted the charge-sheet.

The appellants stood for trial before the Court of Session, where they were charged under Sections 302/34 IPC, which they denied and claimed to be tried.

On behalf of the prosecution besides documentary evidence in the oral evidence six witnesses were examined. The statements of the appellants were recorded under Section 313 Cr.P.C. whereby they denied the facts stated by the prosecution witnesses and claimed false prosecution on account of enmity. According to them, during the dacoity some unknown persons murdered the deceased and on account of party bandi they were falsely implicated.

Learned trial Judge rejected the argument that the FIR was ante timed, medical evidence is contradictory to ocular version, there was no source of light, place of occurrence could not be proved by the prosecution, investigation was defective and believed the ocular version of the occurrence, convicted and sentenced the appellants, as above.

Heard Sri Rajeev Mishra holding brief of Ms. Soniya Mishra, learned counsel for the appellants, Sri Dharmendra Singh, learned Additional Government Advocate for the State-Respondent and perused the record.

Very briefly on behalf of the appellants, learned counsel for the appellants have submitted that the impugned judgment is illegal and perverse. There is no evidence against the present appellants but on the basis of wrong appreciation of evidence, the appellants were erroneously convicted, hence the impugned judgment deserves to be set aside.

On behalf of the State-Respondent these arguments have been repelled and it has been submitted that the learned trial Judge has rightly appreciated the prosecution version, medical evidence duly corroborates from the ocular version of the incident and hence he has rightly convicted and sentenced the appellants.

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."

In the present case medical evidence consists of statement of Dr. D.K. Verma P.W. 6 and postmortem report Ext. Ka-15. He has stated that cause of death was shock and haemorrhage as a result of ante mortem firearm wound. Death could have occurred on the stated date and time. He proved the postmortem report Ext. Ka-15 wherein following ante mortem injury was recorded, which is as under:

Ante Mortem Injuries

Wound of Entrance. There are multiple in number, all wounds of entrance measuring about 0.1 x 0.1 x cavity deep on the front of face specially on right side in an area of 8 cm x 10 cm in diameter edge of wounds inverted wound is circular shape. Abrasion present around wounds. No burning, totting or scorching."

Before the trial court homicidal death of the deceased was not disputed and the witness only asked about the time since death and existence of pellets in the dead body. Leaving aside this opinion we find him to be a trustworthy witness and held that the facts stated by the witness stand proved and the deceased could have died at the stated date and time by gun shot injury.

Ocular version of the occurrence has been unfolded by Arun Kumar P.W. 1 and Rani Devi P.W. 2 son and wife of the deceased. Both have supported the prosecution version. What we find surprising in the impugned judgment is that the learned trial Judge has not critically examined the evidentiary value of their testimonies and after rejecting the defence argument he convicted the appellants. Such approach is not warranted in law, therefore, we proceed to critically examine and analyze the testimonies of these two witnesses.

Arun Kumar P.W. 1 is the first informant and son of the deceased. His presence at the spot at the relevant time is natural and probable but it has been questioned that there was no light for him to identify the assailants. It has come out in the evidence of Rani Devi P.W. 2 that night was dark. The only source of light is said to be torch in the possession of the first informant. The existence of torch is strengthened by the recovery memo of torch Ext. Ka-2 and statement of Rama Shankar Singh P.W. 4, who inspected the torch on the next morning. When we looked at the site plan, it transpires that house of the deceased was surrounded by a boundary wall of 10 ft. from each side, its main door was on the north side. On the north side there was cattle shed, on the western side there were two rooms and one big Osara, on the southern side there was a Madaha. It is the case of the prosecution that the deceased was sleeping in the Madaha at place ''A'' towards south. First informant and other family members were sleeping on the north side of the house inside the room at place ''B''. The Investigating Officer has not shown the distance between these two places but according to Arun Kumar P.W. 1 distance between these two places 18-20 steps, at place ''C'' deceased was murdered. Distance between places ''A'' and ''C'' is 20 steps and ''C'' to ''D'' is 6 steps. According to this witness when the deceased woke up he tried to run towards north and he was fired from the front side on his face, in such a situation, back of the assailant was towards the witness and it was not possible for him to identify him from the back side, specially when he had awakened from sound sleep, picked up the torch and came out of the room with his mother and sister and identify the grappling assailants. During the cross-examination in his statement several contradictions and inconsistencies have occurred. He has contradicted himself with the version contained in the FIR whereas in the FIR his father was being struck on the head by Kulhadi who avoided that. On other points he has also contradicted himself but he has admitted in the cross-examination that he could not see the assailants because he was in sound sleep, he had woke up on the shout of his father and saw the occurrence. The occurrence consists of only two acts by the assailants, first blow of Kulhadi and immediately thereafter shot from country made pistol, we do not think the witness has sufficient time even to come outside the room. During the cross-examination his testimony has become truncated and it does not inspire our confidence.

Rani Devi P.W. 2 is a natural and probable witness but she admitted in the cross-examination that she had seen the accused persons while they were running away, she did not see them while they were hurting her husband. We do not think that after this admission reliance can be placed upon her testimony.

In this way the ocular evidence of the occurrence dos not inspire our confidence and we find that the learned trial Judge has not cared to evaluate the intrinsic value of their testimonies.

Since FIR has been lodged after more than seven hours, we do not think that there was any need to ante time the FIR. We have already expressed our opinion about the source of light, place of occurrence stands corroborated by the statement of Rama Shankar Singh P.W. 4, only omission of non examination of blood stained earth by the chemical examiner is no ground to disbelieve the statement of Sub Inspector Rama Shankar Singh P.W. 4.

However, it is true that both the witnesses claimed that the deceased was struck the Kulhadi though first informant has resiled from his earlier statement contained in the FIR but Rani Devi P.W. 2 reiterated this fact. In the postmortem examination no incised wound was found.

Dr. D.K. Verma P.W. 6 has categorically stated that on the dead body, he could not find any injury caused by Kulhadi therefore, there is contradiction between the medical evidence and ocular evidence and this contradiction is not in between the direct eye witness account and medical opinion but this contradiction is between the direct evidence of the doctor and ocular version given by the eye witnesses. The Hon''ble Apex Court has settled the law in this regard and propounded that whatever there is conflict between the medical evidence and ocular testimony normally ocular testimony should be preferred unless it belies fundamental facts, State of Punjab v. Hakam Singh [, 2005 (7) SCC 408].

In the present case ocular version of the occurrence does not inspire our confidence and the Hon''ble Apex Court has held that where sharp edged weapon was alleged to be used in the occurrence but during the postmortem examination no incised wound could be found, in such a situation, inconsistency is irreconcilable between the oral and medical evidence and such inconsistency is enough to make prosecution version doubtful, Amar Singh v. State of Punjab [, AIR 1987 SC 826].

Therefore, keeping in view the contradictions between the ocular version and medical evidence, moreso when the ocular version of the occurrence is of doubtful veracity, we hold that in the present case prosecution could not prove the charge of murder against the present appellants beyond doubt.

The learned trial Judge without appreciating the evidence has recorded incorrect and erroneous findings of facts which cannot be sustained by us, therefore, the appeal has substance and it deserves to be allowed and the impugned judgment and order as also conviction and sentence of the appellants deserve to be set aside.

Accordingly, the appeal is allowed and the conviction and sentence awarded by the learned trial Judge vide judgment and order dated 23.08.2004 in Sessions Trial No. 525 of 2000 [State v. Ramesh Pasi and another] are set aside. The appellants, namely, Ramesh Pasi and Gudunni Pasi are acquitted from the charges levelled against them. The appellant No. 2 Gudunni Pasi is on bail. The appellant No. 1 Ramesh Pasi is in jail. The appellant No. 1 Ramesh Pasi, be released forthwith, in case, he is not wanted in some other case, provided he files a personal bond and two sureties each in the like amount to the satisfaction of the Court concerned in compliance of Section 437-A 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.