Sandeep and Others vs State of U.P.

Pratyush Kumar, J.—1. These two appeals filed on behalf of the accused-appellants are directed against the judgment and orders dated 28th April, 2009 and 4th May, 2009, passed in Sessions Trial No. 766 of 1997 (State v. Sandeep alias Babua Tiwari and 4 others) whereby the appellants have been convicted under sections 147, 148, 302/149 I.P.C. and sentenced to undergo rigorous imprisonment of one year, two years and imprisonment for life and to pay fine of Rs. 10,000/- each in default thereof to further undergo one year rigorous imprisonment respectively.

Facts of the prosecution case in the present appeals may be summarized as under:--

"That on 31st July, 1997, at 11.50 a.m. Ram Kumar Shukla gave a written report at police station Gola Gokuran Nath stating therein that day at 11.00 a.m., he reached his house from the college, there he was informed by his wife Rekha Shukla that (their son) Paritosh had gone out of the house on the call of Sahroj alias Bablu. 3-4 boys were seen at Jahanpur turn. All the boys had taken Paritosh towards south. He might ensure they were not quarreling. He immediately proceeded and met by Kamlesh Kumar and Ajay Dixit on his way. After proceeding further, he had heard voice of his son calling for help from the side of agriculture farm. When he reached near the farm, he saw Sandeep @ Babua Tewari and Sanjay Singh @ Monu armed with country made pistols, Sahroj @ Bablu, Kaushal and Kallu armed with knives. Babua while waving his country made pistol had warned them, then he and Sanjay Singh shot their country made pistols on his son. His son fell down, thereafter Sahroj, Kaushal and Kallu stabbed his body with knives. The incident occurred at about 11.15 a.m., on their hue and cry, persons living thereby, due to fear, reached slowly at the spot. The assailants after murdering his son had fled away towards Kutwara jungle. Dead body of his son was lying near the agriculture field."

At this chik F.I.R. was scribed, Case Crime No. 356 of 1997 under sections 147, 148, 149, 302 I.P.C. was registered at the police station and S.S.I. Surendra Tripathi was entrusted with the investigation, who started the investigation and after its completion chargesheet was submitted against all the five named accused, out of which Kaushal was chargesheeted after getting him declared absconder. Rest four accused were charged by the Court of Session under sections 147, 148, 302/149 I.P.C. which they denied and claimed to be tried.

During trial, the prosecution besides other papers filed written report Exhibit Ka-1, inquest report Exhibit Ka-2, postmortem report Exhibit Ka-3, F.I.R. Exhibit Ka-4, copy of the report of general diary Exhibit Ka-5, site plan Exhibit Ka-10, recovery memo Exhibit Ka-11 and Ka-12. Report dated 17th November, 1997 of the State Forensic Science Laboratory and report dated 15th November, 1997 of the Serologist. In the oral evidence, six witnesses were examined by the prosecution. One witness Smt. Rekha Shukla, C.W.-1 was examined by the Court. Statements of the accused persons were recorded under section 313 Cr.P.C. wherein the accused persons denied the facts stated by the prosecution witnesses. Regarding medical evidence, they pleaded ignorance. According to them, they were falsely implicated due to misunderstanding.

During trial, Kallu was declared juvenile and his case was separated. After conviction and before sentences could be awarded, Sahroj @ Bablu was also declared juvenile. The learned trial judge after hearing the arguments had convicted the present two appellants with Sahroj. He believed the prosecution version, according to him, testimonies of eye-witness were reliable, duly corroborated by medical and scientific evidence. He rejected the arguments of the defence that both the eye witnesses were planted and it was a blind murder.

Heard Sri Nagendra Mohan, learned counsel for the appellants and Sri Umesh Verma, learned A.G.A. for the State and perused the record.

During pendency of the appeal, out of two appeals, Sanjay Singh @ Monu has also been declared juvenile vide order dated 4th January, 2011 by the Juvenile Justice Board, Lakhimpur Kheri.

On behalf of the appellants, very briefly arguments have been submitted. Eye witnesses are planted. It was a blind murder. F.I.R. was ante-timed. The evidence has not been appreciated in the right perspective and appellants have been wrongly convicted and sentenced.

On behalf of the State, these arguments have been replied and it has been further submitted that Ram Kumar Shukla, P.W. -1 is the reliable witness, contradictions in his testimony are the result of lengthy cross examination running into 65 pages. F.I.R. is not ante-timed.

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."

First we would like to have a glance of the medical evidence which consists statement of Dr. B.K. Verma, P.W. -3 and postmortem report Exhibit Ka-3. Dr. B.K. Verma, P.W. -3 has stated that on 31st July, 1997 at 6.00 p.m., he performed autopsy on the dead body of Paritosh Shukla, time since death was six to eight hours. He found 11 ante-mortem injuries on the dead body. Death had occurred due to shock and haemorrhage as a result of ante-mortem injuries. One bullet was recovered from the dead body. Death could have occurred at about 11.15 a.m. on that day. Injuries Nos. 1, 7, 9, 10 were caused by fire arms and rest by sharp edged weapon like knife. Ante-mortem injuries were sufficient in the ordinary course of nature to cause death. He proved postmortem report Exhibit Ka-3 wherein following ante-mortem injuries were recorded:--

"1. Multiple small fire arm abrasions on area 11 c.m. X 5.0 c.m. on the right side of face.

Incised wound 6 c.m. X 2.5 c.m. X bone deep on front of left side chest, just below left nipple.

Incised wound in number (3) three over area 8 c.m. X 5 c.m. on front outer side at right side of lower chest 6 c.m. Below from right nipple.

Incised wound three in number on area 16 c.m. X 7 c.m. on front outer side of right abdomen 7 c.m. below from injury No. 3, size varying 4 c.m. x 1 c.m. x peritonial cavity deep up to 2.5 c.m. x 0.6 c.m. x muscle deep.

Incised wound 2.5 c.m. x 1 c.m. x bone deep, on outer side of right side of chest 8 c.m. below and outer to right axilla.

Incised wound in number five over area 27 c.m. x 18 c.m. on both side of back (sic) below from lower (sic) of right scapula, size varying 5.2 c.m. x 2 c.m. x bone deep to 2 c.m. x 0.6 c.m. x muscle deep.

Fire arm wound of entries 2 c.m. x 1 c.m. x paritonial cavity deep with scorching and tattooing present around the wound over area of 14 c.m. x 12 c.m. on front outer side of left side abdomen, 17 c.m. below from left nipple and 8 c.m. (sic) and outer (sic) margins of the weapon lacerated and inverted blackening, charring present around wound.

Incised weapon 5 c.m. x 3 c.m. x bone cut (sic) back of left hand up to wrist joint.

Fire arm wound of entry 1 c.m. x 1 c.m. x bone deep on the front of right arm 6 c.m. (sic) from side elbow joint. Margins of the wound lacerated (sic) blackening charring present around the wound.

Fire arm wound of exit 1.5 c.m. x 1.4 c.m. x bone deep on front (sic), side of right arm just above injury No. 9. Margins of the wound lacerated and everted.

Incised wound in number four over area 19 c.m. x 11 c.m. on inner of right arm up to elbow joint, size varying 6 c.m. x 2.5 c.m. x bone deep 3 c.m. x 1 c.m. x bone deep."

The witness was cross-examined on the nature of weapons, nature of projectiles, discharged by the fire arms, presence of blackening and charring and time since death. From the thrust of cross examination, we gather that violent death of the deceased in the manner stated by the witness was not challenged during trial. Leaving aside his opinion part, we rely on his testimony and hold that on the stated date and time, he performed autopsy on the dead body of deceased Paritosh, found 11 ante-mortem injuries and who died as a result of shock and heamorrhage caused by these ante-mortem injuries.

Before we enter into the merits of the respective arguments, it would be convenient for us to have summary of the depositions made by prosecution witnesses. The summary reads as under:--

Analysis of ocular evidence.

Ram Kumar Shukla, P.W. -1 is the star witness of the prosecution. According to the learned counsel for the appellants, he is a chance witness. At the relevant time, he was teacher in a college and college hours were 7 to 12. According to him, his presence at 11.00 a.m. has been wrongly shown. As against this, learned A.G.A. has submitted that 31st July, being last working day, school was of the half day, early return of the witness was not un-natural. The witness admittedly at that time was employed as teacher. In his examination-in-chief he has stated his college hours were 7-12.10 but in para 22 of his deposition, he claims that his teaching hours were 7.00 a.m. to 11.00 a.m. That day students were to deposit fees, he had to complete the registers and deposit the fees amount, for this reason there was half day in the college. In para 23, he has admitted that for those work full day teaching was not possible for that reason half day teaching hours were observed, as such, this witness admits that on the last day of the month, due to rush of work, full day teaching was not possible. Had his duty hours were only up to 11.00 a.m., he would not require to take prior permission of his superior to leave early. His explanation appears to be after thought. In the cross examination, he admits that college hours were 7 to 12 noon, half day leave was not meant for teachers. From the statement of Smt. Rekha Shukla, C.W.-1, his wife, it appears that she received information about death of her son at 11.00 a.m., though she claims that Ram Kumar Shukla came back to the house at 10.45 a.m. but it is not the version of the Ram Kumar Shukla that he came back home at 10.45 a.m. For these reasons, it appears to us that there is some substance in the defence version that after coming to know about her son''s death of Ram Kumar Shukla P.W. -1 came back to the house after hearing the news received by his wife. We do not think that this witness was present at the spot at the relevant time. It is needless for us to reproduce here various contradictions occurring in his testimony touching his movements prior to the occurrence and after the occurrence and regarding occurrence.

Kamlesh Shukla, P.W. -2 is the nephew of the first informant. He is resident of village Dharampur, Police Station Mohammadi. He happened to meet his uncle at Jahanpur turn by chance. On behalf of the appellants, it has been argued that he is also a teacher and his school hours were 7 a.m. to 12.05 p.m. On that day, he had attended the school. According to the learned counsel for the appellants, though he claims that he was in indisposed of that day and took half day leave but in support of his statement, no witness from the school has been examined to substantiate his averment. The evidence is appreciated on the test of probabilities. Here there are two coincidence (1) that he met his uncle by chance at Jahanpur turn, that day and he did not come from his village to the school by cycle; as usually done by him, instead he came by bus and further that day, he fell ill, which he claims to be attack of eosinophilia but inspite of his in-disposition, he accompanied his uncle, though at that time there was no apprehension about the well being of Paritosh. For these reasons, we are not inclined to believe that he was present at the spot and saw the occurrence.

Mother of the deceased Smt. Rekha Shukla, C.W.-1 is the only witness of this fact that Paritosh was called by Sahroj and both went together. At the most, this evidence can be said to be evidence of last seen. With the complicity of Sahroj, we are not concern in these appeals, therefore, the evidence of Smt. Rekha Shukla C.W.-1 appears no significance to show the complicity of the present appellants in the crime they are charged for.

Ante-time of FIR

Now remains the argument whether F.I.R. was ante timed or not. The incident had taken place on 31st July, 1997, Chik F.I.R. had reached the office of C.J.M. Kheri on 28th August, 1997. On the Chik F.I.R. there is over writing of case crime number. In Form No. 13, name of the constable, who took the dead body to the mortuary has not been mentioned. On this form we do not find receiving of the dead body in the Reserve Police Line which goes to show that dead body was directly received at the mortuary at 5.45 p.m. Distance from the police station to the mortuary is only 2 k.m., according to chik F.I.R. and inquest report Exhibit Ka-2 distance from the place of occurrence to the police station is 2 k.m., inquest started at 12.30 p.m. and concluded at 2.00 p.m. considering the distance between the place of occurrence and mortuary, transportation of dead body would not take three and a half hours. These are some indications to show that F.I.R. was not lodged at the time mentioned in the chik F.I.R. Our view gets fortified from some of the omissions contained in inquest report. In the inquest report, though Ram Kumar Shukla was the witness but neither weapons were disclosed nor agriculture farm was mentioned as place where the dead body was lying. We find that inquest report does not contain even the usual details. There is no description of the scene of occurrence. Injuries noticed during the inquest proceedings, even the opinion of the witnesses regarding cause of death was not mentioned in the inquest report, what to say of the opinion of the officer holding the inquest proceedings. These omissions persuade us to conclude that at the time when inquest proceedings were held, F.I.R. was not in existence.

On behalf of the State-respondent, the following cases have been referred to justify the findings recorded by the learned trial Judge.

"1. Jaishree Yadav v. State of U.P. , (2005) 9, SCC, 788.

This case has been referred on the point where a witness is subjected to lengthy cross examination, omissions, improvement and contradictions bound to occur. This fact should be kept in mind while appreciating the eye-witness account. This principle we have kept in mind while appreciating eye-witness account but unfortunately presence of both the witnesses was found doubtful for the reasons other than contradictions.

Nand Kumar v. State of Chhattisgarh, , 2015 Crl. L.J. 381

This case has been referred in support of the argument that non-examination of independent witnesses is not fatal for the prosecution and testimony of related witness on account of relationship should not be discarded.

In the present case presence of both witnesses is doubtful. They have not been disbelieved on their being relatives of the deceased.

Mani Lal Hiraman Choudhari v. State of Maharashtra (2008) 3, SCC (Cri) 288

This case has been referred on the point that if some witnesses were not examined, it is not fatal for the prosecution. Since non examination of Ajay Dixit has not been made a ground by us to disbelieve the ocular version of the occurrence, this case is also of no help to the respondent.

Shanmugam and another v. State , (2013) 12, SCC, 765.

This case has been referred as an authority that if testimony of sole relative witness is found reliable, conviction can be sustained. Since in the present case, presence of both the eye-witnesses was found doubtful, this case does not help the respondent.

Dilawar Singh and others v. State of Haryana, , 2014 (Crl. L.J.), 4844.

This case has been referred as an authority that behaviour of the witnesses would differ from situation to situation and individual to individual. Uniformity in reaction should not be insisted upon."

Since in the present case, presence of the eye-witnesses was found doubtful, the principle laid down by the Hon''ble Apex Court does not help the respondent.

We have also noticed this fact that in the present case, no immediate motive for the occurrence could be proved by the prosecution. It is true that in case of direct evidence, motive bears no significance but if immediate motive exists, it lends assurance to the court while appreciating the eye-witness account.

We have noticed one further loophole in the prosecution version that is absence of link evidence. On behalf of the prosecution, no effort was made to examine the person, who was running flour mill and allegedly indicated the way taken by the deceased and boys accompanying him. That link evidence could have been very material. Its absence is also material.

Further the constable, who brought the dead body from the spot to the mortuary was not examined. Though in the ordinary circumstances, such non-examination would not be material but in the present case, Kamlesh Shukla, P.W. -2 has stated that he had gone with the dead body. Dead body was taken to the police station and it remained there for 1 1/2 half hour and two hours and it was taken to mortuary at 2-3 p.m. The distance was only 200 meters(according to the witness). Going of Kamlesh Shukla to the police station is not admitted to the prosecution. In the report of the general diary Exhibit Ka-4, we notice that at the alleged time of registration of case crime number, the first informant was accompanied with Ajay Dixit, therefore, it appears probable that after holding the inquest at the spot, dead body was taken to the police station, deliberations were made, thereafter written report was prepared and chik F.I.R. was scribed. This possibility admits opportunity for deliberations and embellishments in the prosecution version. On this score, the appellants are also entitled to get benefit of doubt.

From the perusal of the impugned judgment, we notice that the learned trial Judge has not taken into consideration this fact noticed by us. Though detailed judgment was written by him but it does not contain appreciation of eye witness account in the correct manner. He did not address the points indicating possibility of ante-timing of F.I.R., presence of alleged eye witnesses improbable etc. For these reasons, we do not think correct findings of fact have been recorded by the learned trial Judge. We conclude that eye witness account of the occurrence is not trustworthy and F.I.R. was lodged with delay and after deliberations and further to show it prompt, it was ante-timed. Therefore, the charges against the present appellants could not be proved beyond reasonable doubt.

Appeals have substance. They deserve to be allowed. Conviction and sentence recorded by the learned trial Judge against the present appellants deserves to be set aside and after extending benefit of doubt they are entitled to be acquitted.

Resultantly, both the Criminal Appeals are allowed. The conviction and sentence of the appellants, namely, Sandeep @ Babua Tiwari and Sanjai Singh @ Jitendra Singh @ Monu awarded by the trial court vide judgment and orders dated 28th April, 2009 and 4th May, 2009, passed in Session Trial No. 766 of 1997 (State v. Sandeep alias Babua Tiwari and 4 others) are set aside. Appellants are acquitted from the charges levelled against them. Appellant Sanjai Singh @ Jitendra Singh @ Monu is on bail. He need not surrender, in case, he is not wanted in any other case. His bail bonds are cancelled and the sureties are discharged from their liabilities. Appellant Sandeep @ Babua Tiwari is in jail. He be released forthwith, in case, he is not wanted in any other case.

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