Shyam Kishore and Others vs State of U.P.

Pratyush Kumar, J.—1. The aforementioned appeals filed on behalf of the accused appellants are directed against the judgment and orders dated 29th April, 1987 passed by Sri R.N. Singh, the then IInd Additional Sessions Judge, Lucknow in Sessions Trial No. 8 of 1986 (State v. Ram Naresh and others), whereby the appellants were convicted under section 302/34 IPC and sentenced to undergo imprisonment for life.

Both the appeals are directed against the same judgment and orders. They have been heard together and are being disposed of by a common judgment and order.

In the instant appeals facts of the prosecution case may be summarised as under:

"That on 12th November, 1985 at 6.35 p.m. at police station Mal, District Lucknow Bhagwati Prasad Shukla, R/o village Didhara gave a written report stating therein that on that day his elder brother Ram Kumar with his bataidar (partner) Sarjan was taking care of Gula (water way for irrigating the field) of his field, at that time it was 4 p.m. and he was returning after apana khet jagakar (placing dry grass at his field) he saw his co-villager Ram Naresh and Shyam Kishore alias Beta armed with lathi coming from west, out of their grove, they were saying that they would not leave his brother alive that day and they would take revenge for the murder of Brij Kishore and started to shower lathi blows on his brother. His brother, bataidar Sarjan and he raised hue and cry at that moment Satya Narayan armed with sickle (hansia) came out of a nearby field and started to inflict injuries by the sickle on his brother, who had already fallen down due to lathi blows. All the three assailants said that day they would not spare anyone who came near them because that day they were determined to murder (the deceased). He and other persons could not save his brother as they had no weapon. At their shouts Ram Ratan, Kallu, Abdul Haq came running there and challenged the assailants. At that time Ram Naresh started to severe the head of his brother by the spade. On account of pressure made by them, the assailants after murdering his brother ran away towards western side. When they examined Ram Kumar he had died. In the year 1967 in his village Brij Kishore was murdered with whom Ram Naresh and other claimed relationship. In that murder case his uncle Ram Ratan, brother Ram Kumar and two others were accused. Since then Ram Naresh and his family members bore enmity with him and used to say they would take revenge for the murder. For that reason they had murdered his brother."

At this chick FIR was scribed, case crime No. 122 of 1985 under section 302 was registered, requisite entry was made in the report of the general diary and the investigation was taken over by the station officer Abhinash Chandra Pandey himself, who after investigation submitted the charge sheet against all the three named accused persons.

The appellants stood for trial before the Court of Session, where all the three appellants were charged under section 302/34 IPC, they pleaded not guilty and claimed to be tried.

In order to prove the charges on behalf of the prosecution in the documentary evidence, besides other papers, written report Ext. Ka-1, Inquest report Ext. Ka-2, postmortem report Ext. Ka-3, Recovery memo Ext. Ka-5, Site plan Ext. Ka-6, Recovery memo Ext. Ka-7, Ka-8 and Ka-9, chick FIR Ext. Ka-11, Copies of reports Ext. Ka-12 and Ka-13, Chemical examination report were filed. In oral evidence nine witnesses were examined.

After conclusion of the trial, statements of the appellants were recorded under section 313 Cr.P.C. whereby they denied the facts stated by the prosecution witnesses except that Ram Naresh and Satya Narayan were real brothers and Shyam Kishore alias Beta was their nephew. According to them they were wrongly chargesheeted. According to them they were falsely implicated due to their enmity and witnesses were deposing against them due to proximity with the first informant and on the pressure of the police. In the defence one witness was examined.

According to Ram Naresh dead body of the deceased was found in the bushes on 14th November, 1985 out side the village. Bhagwati Prasad was searching for him for last two days.

The learned trial Judge after hearing the arguments found the ocular version of the occurrence truthful. He rejected the defence case and recorded categorical finding that eye witness account was trustworthy and charge under section 302/34 IPC was proved by the prosecution against the accused persons beyond reasonable doubt and sentenced them as above.

Feeling aggrieved, Shyam Kishore alias Beta and Satya Narayan jointly filed their appeal whereas Ram Naresh separately filed his appeal.

Heard Mr. Nadeem Murtaza, learned counsel for the appellants, Mr. Dharmendra Singh learned AGA for the State and perused the record.

Very briefly on behalf of the appellants it has been argued that motive could not be proved by the prosecution. FIR was ante timed. Presence of eye witnesses is highly doubtful. It has been further submitted that prosecution could not prove any common intention and the learned trial Judge while ignoring the major contradictions erroneously disbelieved the defence case.

On behalf of the State these arguments have been repelled and we have been taken through the eye witness account given by Bhagwati Prasad P.W. 1, Ram Ratan P.W. 4 and Abdul Haq P.W. 5. Learned AGA has further submitted that on account of Diwali vacation postmortem was delayed, eye witness account is wholly trustworthy, appeals deserve to be dismissed.

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."

First we would like to have a glance at the medical evidence, which consists of statement of Dr. R.K. Srivastava P.W. 3 and postmortem report Ext. Ka-3.

According to Dr. R.K. Srivastava P.W. 3 at 12.20 p.. on 15th November, 1985 he performed the autopsy of the dead body of Ram Kumar Shukla, death had taken place three days ago. Rigor mortis had passed off from upper and lower extremities, small maggots were present. There were blisters on the body, skin could be easily peeled off. On the dead body he found 11 ante-mortem injuries. In the internal examination he found right temporal bone fractured, spinal card and second cervical vertebrae were found cut. In his opinion death had occurred due to shock and haemorrhage as a result of ante-mortem injuries. He has proved the post-mortem report Ext. Ka-3 and after seeing spade Ext. 4 opined that injury No. 5 could have been caused by the spade, injury No. 11 could have been caused by sickle, injury Nos. 6 and 10 could have been caused by sickle and spade. Injury Nos. 1,2, 3, 4 and 7 were caused by lathi. Antemortem injuries were sufficient in the ordinary course of nature to cause death. Deceased could have died on 12th November, 1985 at 4 p.m. in the postmortem report the witness has recorded the following antemortem injuries:

"(1) Multiple abraded contusion in an area of 45 cm. x 12 cm. on the left shoulder outer side of left upper arm elbow and forearm.

(2) Lacerated 4 cm. x 2 cm. x bone deep on the fore-head 4 cm. above left eye brow.

(3) Lacerated wound 2 cm. x 2 cm. x scalp deep on left side head 6 cm. above left ear.

(4) Lacerated wound 5 cm. x 3 cm. scalp deep over top of head.

(5) Incised wound 16 cm. x 4 cm. x bone deep on the right side of neck just below mastorid process extending from left angle of mandible to vertebrae column.

(6) Incised wound 2 cm. x 1/2 cm. x through and through on the back of the right ear.

(7) Incised wound 6 cm. x 4 cm. x bone deep on the back of head just above occipital.

(8) Multiple abraded contusions in area of 28 cm. x 12 cm. on the outer side left upper arm.

(9) Incised wound 7 cm. x 2 cm x muscle deep on inter scapular region 2 cm. below 7th cervical vertebrae transverse.

(10) Incised wound 12 cm x 1 cm on the back parallel to injury No. 9 muscle deep.

(11) Stab would 4.5 cm. x 2 cm. on cavity deep 3 cm. lateral (right) to 2nd lumbar spine margins clean cut."

The witness was cross-examined about the time of death, time of receiving dead body and police papers and nature of the weapons used. The witness has admitted that there could be variation of 12-14 hours on either side in the estimated time of death. Dead body and police papers were received on 14th November, 1985 at 4.35 p.m. He admitted the possibility that injury No. 1 could be caused by spear having sharp edge, injury No. 5 could be caused by heavy cutting weapon and injury Nos. 9 and 10 could be caused by knife.

In this way facts stated by the witness remain unchallenged and on behalf of the defence he was cross-examined only about his opinion. His statement is corroborated by postmortem report Ext. Ka-3 and we hold that the facts stated by the witness stand proved and deceased could have died in the manner opined by the witness on the stated date and time. Correctness of his opinion would be examined when we discuss the evidential value of the ocular version of the occurrence.

Before we enter into the merits of the respective arguments it would be gainful for us to have main features of the statements of prosecution witnesses.

As defence witness Shiv Balak Soni D.W.-1 has been examined who was pharmacist and deputed at mortuary. He has stated that on 13th and 14th November, 1985 he was on leave. He had brought postmortem register and register for receiving dead bodies and on their basis he has stated that on 13th and 14th November, 1985 mortuary was open. On 13th November, 1985 five autopsies were performed but on 14th November, 1985 only one dead body i.e. of Ram Kumar Shukla was received with police papers.

Ante-timing of FIR

The first two arguments that FIR was ante timed and postmortem examination of the dead body took place after great delay are intertwined with each other. We think it would be proper that they should be considered together. It is the prosecution case that on 12th November, 1985 occurrence took place and on 15th November, 1985 autopsy was performed. Time of occurrence is 4 p.m. FIR is said to have been lodged at 6.35 p.m. and autopsy was performed at 12.20 p.m. Learned counsel for the appellant in order to strengthen his argument has also referred the statement of Saligram Pandey P.W. 7 who has stated that case property was deposited at the malkhana on 14th November, 1985 at 12.10 p.m. He has further stated that on 12th November, 1985 special report was not sent to headquarter because no transport was available.

Learned AGA has drawn our attention to the statement of the said witness where he has stated that before registration of the present case at case crime No. 122 of 1985 under section 4/10 PBT Act was registered at 12.25 p.m. After registration of the present case, at 10.20 p.m. case crime No. 123 of 1985 under section 436 IPC was registered and also readover report No. 30; 6.30 p.m., dated 12th November, 1985 Ext. Ka-12. This is the entry made in the general diary regarding registration of the present case crime number. In this report it has been mentioned that special report would be sent on the next following day and its information was given by RT set to DCR. The learned AGA has also taken us through the statement of SI Khushiram Verma P.W. 9 who has stated that after he proceeded on 12th November, 1985 in reference to the present case he came back on 14th November, 1985 in the afternoon, during this period he remained at the spot.

When we have taken into consideration the statement of Saligram Pandey, P.W. 7 about the registration of three criminal cases on 12th November, 1985; one prior to the present case and the other subsequent thereto, we believe that the plea that the FIR was ante-timed appears to be without substance. There is also an explanation for the delay in depositing the case property at the malkhana. There is also an explanation for not sending the special report on the same evening. The only ground remains that postmortem was conducted after three days.

When we have gone through the statement of constable Jai Prakash Maurya P.W. 8 we find that he was handed over the custody of the dead body on 10.30 p.m. on 12th November, 1985. After arranging a bullock cart he took the dead body to the town Mal situate at the distance of 10km. According to him he reached the town in the morning thereafter he took the dead body by horse driven carriage from Mal to mortuary at Lucknow. He started at 9.30 A.M. from qasbah Mal and reached the mortuary between 3-4 p.m. on 13th November, 1985. At that time mortuary was locked. He waited during the night and on the next following day when the Compounder came he handed over dead body and police papers at 3.30-4.00 p.m.

As against this statement we have statement of Shiv Balak Soni D.W. 1 pharmacist looking after mortuary, who has stated on 13th and 14th November, 1985 mortuary was open. Five autopsies were performed on 13th November, 1985. One dead body was received at 2.15 p.m. on that day. On 14th November, 1985 one dead body was received at 4.35 p.m. He has admitted that on these two days he was on leave. He is conspicuously silent on the point that on 13th November, 1985 after 2.15 p.m. no dead body was received and on 14th November, 1985 no autopsy was performed and only dead body was received at 4.35 p.m. it is not disputed that on these two days there was the Diwali festival. Statement of Shiv Balak Soni D.W.-1 does not show that on 13th November, 1985 after 3.30 p.m. mortuary was open or on 14th November, 1985 autopsies were performed. In this way we find statement of Jai Prakash Maurya P.W. 8 to be sufficient to explain the delay which took place between the occurrence and postmortem examination.

In view of above, we reject both the arguments advanced on behalf of the appellants that FIR was ante timed and dead body was discovered only on 14th November, 1985. Here it will not be out of place to mention that on 15th November, 1985 before 12 noon surrender application was moved on behalf of all the three appellants and on that day the Chief Judicial Magistrate concerned when considering the request made by the investigating officer for issue of process under section 82 and 83 Cr.P.C. against the present appellants took the appellants into custody. In his report the investigating officer has mentioned that several times he raided the houses of the appellants but they were avoiding arrest. These two documents find place in the remand file and they indicate that before 15th November, 1985 the police was actively searching for the appellants, thus investigation was in progress.

MOTIVE

We find from the statements of Bhagwati Prasad P.W. 1 and Ram Ratan P.W. 4 that deceased was accused in the case of murder of Brij Kishore. In that case deceased and Ram Ratan P.W. 4 were acquitted and appellants claimed close relationship with Brij Kishore. Moreover the present case is based on eye witness account and prosecution is not required to prove any immediate provocation by the deceased to the accused persons. We hold that motive for murder was murder of Brij Kishore, a relation of the appellants, wherein the deceased was an accused, who was acquitted in that case.

Examination and analysis of ocular evidence

Now remains appreciation of ocular version of the occurrence and the arguments advanced on behalf of the appellants to discredit it.

Bhagwati Prasad Shukla P.W. 1 is the first informant and brother of the deceased. He has lodged the first information report promptly, he has given reason for his presence at the place of occurrence at the relevant time. His presence is natural and probable. We find no reason that, while sparing the real culprits, he would falsely implicate the appellants. Against his version one criticism has been made that according to him lathi and sickle were used for committing the murder of the deceased but according to the statement of the doctor R.K. Srivastava P.W. 3 injury No. 11 was a stab wound which could not be caused by sickle but we find that the witness has opined that injury No. 11 could be caused by sickle. Therefore, ocular version is not contradictory to medical evidence. During cross examination his testimony remains unshaken, and his deposition remained consistent and it inspires our confidence.

Ram Ratan P.W. 4 is the uncle of the deceased. According to learned counsel for the appellants he is a chance witness. According to this witness he had gone to Datiyawali to fetch wheat flour from flour mill and from there he was coming back when he heard the cries. Practically taken he is a passer by. A passerby while proceeding on his way is a natural witness of any occurrence which takes place nearby. He has also faced the test of cross examination successfully. Though in his cross examination he has given statement that dead body remained at the field during night but considering the fact that he is a rustic person about 55 years of age deposing after a gap of 7-8 months, we do not think this discrepant statement on non material part would diminish his evidential value, therefore, we find his testimony to be reliable.

Abdul Haq P.W. 5 is an independent witness of the occurrence. He has a tube well nearby. He claims that on hearing shouts he reached the spot. His presence at the spot is natural and probable. It is not disputed that he has tube-well at the distance of 200 meters. He withstood the test of cross examination successfully. He has given vivid description of the occurrence. We find that in his testimony there is one contradiction on the point that to the investigating officer he had stated that he heard the cries coming from the side of the village and saw Kallu running towards there. In the examination in chief he has stated that he heard the cries coming from the southern side and he followed Kallu while raising hue and cry.

We do not think this contradiction can be called material contradiction. Even we are not sure that this can be called a contradiction at all. In this way we find his testimony to be worthy of reliance.

In view of above, arguments advanced on behalf of the appellants about contradiction does not survive. We have also held that in the ocular version and medical evidence there is no contradiction. For this reason case of Mani Ram v. State of U.P. , 1994 SUPP (2) SCC 289 referred on behalf of the appellants is of no help to them.

Last argument advanced on behalf of the appellants is that the prosecution could not prove that common intention was shared by all the appellants. This argument is based on the fact that Ram Naresh, Kishore alias Beta were armed with lathi and Satya Narayan was armed with Sickle.

Learned counsel for the appellant wants to persuade us that appellants armed with lathi were not sharing the common intention.

We cannot accept this argument ultimately it was Ram Naresh who tried to severe the head of the deceased. Blows of lathi were showered on the head of the deceased, therefore, only nature of weapon used for committing murder does not rule out that the assailants were not sharing common intention. In the facts and circumstances of the case we find that all the three appellants were sharing the common intention to murder the deceased. They all had the same motive. They all participated with zeal to murder the deceased. For these reasons case of Surendra Singh v. State of Punjab, , (2006) 13 SCC 533 does not help the cause of the appellants.

No other argument has been raised on behalf of the appellants. After going through the record we find that the learned trial Judge has recorded correct findings by appreciating the evidence in proper manner. The impugned judgment and orders contain neither factual error nor any legal infirmity. The Appeals have no substance, while affirming the conviction and sentence of the appellants we think the appeals deserve to be dismissed.

Criminal Appeal Nos. 314 of 1987 and 338 of 1987 filed by the appellants are dismissed. Conviction and sentence awarded by the impugned judgment and orders dated 29th April, 1987 passed by Sri R.N. Singh, the then IInd Additional Sessions Judge, Lucknow in Sessions Trial No. 8 of 1986 are hereby affirmed. The appellants are in jail. They are directed to serve out their sentence.

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