Sobhnath 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 order dated 24th November, 2012 passed in Session Trial Nos. 294 of 2007 (State v. Sobhnath and others) and 295 of 2007 (State v. Ram Singar), they have been heard together and decided by a common order.

In the aforesaid Criminal Appeal No. 1767 of 2012, the appellants Sobhnath, Ram Singar & Kalloo have been convicted and sentenced as under:

U/s. 147 IPC

One year RI and fine of Rs. 500/- each.

U/s. 148 IPC

One year RI with fine of Rs. 500/- each.

U/s. 302/149 IPC

Life imprisonment and fine of Rs. 5,000/- each.

U/s. 307/149 IPC

10 years RI with fine of Rs. 2,000/- each.

U/s. 323/149 IPC

One year RI and fine of Rs. 1,000/- each.

U/s. 3/25/27 Arms Act

One year RI each with fine of Rs. 1000/- each.

If the said fine is not deposited within a period of six months, the appellants will go six months further RI.

In Criminal Appeal No. 1768 of 2012, the appellant Ram Teerath has been convicted and sentenced as under:

U/s. 147 IPC

One year RI and fine of Rs. 500/-.

U/s. 148 IPC

One year RI with fine of Rs. 500/-.

U/s. 302/149 IPC

Life imprisonment and fine of Rs. 5,000/-.

U/s. 307/149 IPC

10 years RI with fine of Rs. 2,000/-.

U/s. 323/149 IPC

One year RI and fine of Rs. 1,000/-.

If the said fine is not deposited within a period of six months, the appellant will go six months further RI.

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

"That on 27th April, 2007, at 8.20 p.m. Smt. Mitta Devi gave a written report at police station Kotwali Nagar, Sultanpur stating therein that, that day at about 6.30 p.m., Sobhnath, Ram Singar and Kalloo armed with country made pistols, Ram Murat, Ram Teerath and Dhanua armed with lathi and danda came to her house and called his son Prem Lal @ Munni Lal. When his son came out of the house, Ram Murat caught him and other accused persons started saying that they had forbidden him from fishing in the river, why he did so. In the meantime, Ram Teerath and Dhanua started to beat her and her son. When her husband Nankau came to rescue them, Sobhnath, Ram Singar and Kalloo fired their country made pistols on her son and husband. At the sound of fires and hue and cry, many villagers alongwith Shiv Pujan and Tejai residents of village Vallipur reached there and saw the incident. The assailants while abusing, threatened them and made good their escape. Her daughter-in-law with the help of villagers took her husband and son to the District Hospital where her son Prem Lal was declared dead and her husband was hospitalized. She had also sustained injuries."

At this chik FIR was scribed, Case Crime No. 833 of 2007 under Sections 147, 148, 149, 302, 307, 323, 504, 506 IPC was registered, requisite entry was made in the report of the general diary. Investigation of the case was entrusted to SSI Devendra Kumar Dubey who after completing the formalities, inspected the spot, took samples of blood stained and simple earth, recovered two empty cartridges of 12 bore, prepared site plan and recovery memo, interrogated the witnesses, searched the accused persons, who surrendered on 16th May, 2007. He took them on police remand and on the pointing out of Sobhnath, Ram Singar and Kalloo, recovered country made pistols, prepared their recovery memo and lodged First Information Report against these three accused persons under sections 3/25/27 Arms Act, registered as Case Crime No. 881-883/2007. The investigation of these cases was entrusted to HCP Govind Das, who after investigation submitted the chargesheet. In Case Crime No. 833/2007 after completion of the investigation, chargesheet was submitted against all the accused persons named in the First Information Report.,

The accused persons stood for trial before the Court of Session where accused Sobhnath, Ram Singar, Ram Teerath and Kalloo were charged under sections 147, 148, 302/149, 307/149, 323/149, 506 and 504 I.P.C. Accused Ram Singar, Kalloo and Sobhnath were also charged under sections 3/25/27 Arms Act. All the accused persons denied the charges and claimed to be tried. Case of chargesheeted accused Ram Murat and Dhanua was separated on account of their juvenility and sent to the Juvenile Justice Board for enquiry.

On behalf of the prosecution, in the documentary evidence, besides other papers, written report Exhibit Ka-1, Injury report (Smt. Mitta Devi) Exhibit Ka-2, recovery memo Exhibits Ka-3 & Ka-4, site plan Exhibit Ka-5, recovery memo Exhibit Ka-6, postmortem report Exhibit Ka-7, site plan Exhibit Ka-7, recovery memo Exhibit Ka-8, site plan Exhibits Ka-9, 11, & 13, site plan Exhibit Ka-15, inquest report Exhibit Ka-16, inquiry report (Nankau) Exhibit Ka-24, Order of D.M. (Prosecution sanction) Exhibits Ka-25, 26 & 27, F.I.R. Exhibit Ka-28, copy of report Exhibits Ka-29 & 30, Serologist report were filed. In the oral evidence, prosecution has examined 14 witnesses. Thereafter statements of the accused persons were recorded under section 313 Cr.P.C. whereby they pleaded ignorance about the medical evidence, rest of the facts stated by the prosecution witnesses were denied by them. They claimed they were wrongly chargesheeted, witnesses were deposing against them on account of enmity. In the defence, one witness was examined and copy of order Exhibit Kha-1, copy of report Exhibit Kha- 2, 3 & 4, copy of proceeding Exhibit Kha-5, copy of letter and copy of order were filed.

Learned trial Judge after hearing the arguments found the prosecution case trustworthy. He believed the ocular version of the evidence and medical evidence, convicted the present appellants and sentenced them, as above.

On behalf of the accused-appellants, two separate appeals have been filed.

We have heard Mohd. Mustafa Khan, learned counsel for the appellants and Sri Umesh Verma, learned AGA for the State and perused the record.

On behalf of the appellants, it has been argued that the impugned judgment is illegal and perverse, findings recorded therein are against the evidence on record and law. Learned counsel has further submitted that FIR is ante-timed, place of occurrence could not be proved by the prosecution, ocular version is contradictory to medical evidence. Both the eye-witnesses are related witnesses. The injured Nankau has been examined by the investigating officer after delay of six days. Original injury report of Nankau has not been filed. Prosecution sanctions are illegal and granted without application of mind.

On behalf of the State, these arguments have been repelled and it is urged that Nankau is an injured witness. His testimony enjoins special status. He has supported the prosecution version. There is no contradiction between medical evidence and ocular evidence of the occurrence. Though original injury report or injury register could not be produced before the Court but attested copy has been filed and the doctor, who examined the injured has deposed before the Court, therefore, findings recorded by the learned trial Judge are well substantiated from the record and they warrant no interference in these appeals.

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 at the medical evidence which consists of postmortem report Exhibit Ka-7, statement of Dr. Rama Kant Arya, P.W. -6, injury report of Smt. Mitta Devi Exhibit Ka-2, statement of Dr. Ramesh Chandra, P.W. -3, injury report of Nankau Exhibit Ka-24 and statement of Dr. Suresh Chandra Gupta, P.W. -5, he is also the doctor, who on 27.4.2007 on arrival of body of Prem Lal, declared him dead and thereafter on 28th April, 2007 at 3.00 p.m. Dr. Rama Kant Arya performed the autopsy on the dead body of Prem Lal. According to him, deceased could have died on the stated date and time due to shock and haemorrhage as a result of ante-mortem injuries. He has proved the postmortem report, Exhibit Ka-7 wherein the following ante-mortem injuries were recorded:--

"1. Incised wound 3 c.m. X 1 c.m. bone deep at back of head just above occipital region.

Incised wound 3 c.m. x.5 c.m. bone deep at back of head 3 c.m. below injury No. 1.

Incised wound of 3 c.m. x 1 c.m. bone deep at right side of head, 2 c.m. behind right ear.

Wound of entry 2 c.m. x 2 c.m., cavity deep on back 9 c.m. x 2 c.m., 9 c.m. below neck. Blackening, tattooing and abrasion around wound of entry, 6 c.m. x 4 c.m. surrounding area.

Multiple abrasion on back in area of 35 c.m. x 25 c.m. area across midline.

Abrasion 6 c.m. x 2 c.m. area at right chin."

He was only cross examined about nature of injuries Nos. 1,2, 3 and by which weapon they were caused. According to witness, these were caused by sharp edged weapon like Pharsa, Kulari, Baka or Talwar.

In view of above, homicidal death of the deceased stands proved. Death could have occurred at the stated date and time.

Dr. Ramesh Chandra, P.W. -3 on 27th April, 2008 at 8.35 p.m. medically examined Smt. Mitta Devi. He has proved the injury report Exhibit Ka-2, wherein the following injuries were recorded:--

"1. Lacerated wound 6 c.m x 5 c.m., skin deep at (sic) on front area of scalp, 7 c.m. above left eyebrow, blood present. 2

Contusion 5 c.m. x 2 c.m. just lateral to right eye. Colour reddish."

His testimony has not been challenged during cross examination except duration of the injuries. On the basis of his deposition, we hold that on 27th April, 2007 at 8.35 p.m. Smt. Mitta Devi was medically examined and two injuries were found on her person. Their duration was fresh and they were caused by blunt object.

Dr. Suresh Chandra Gupta, P.W. -5/12 on 27th April, 2007 at 7.15 p.m., medically examined Nankau. He has proved injury report Exhibit Ka-24 and stated that first five injuries were caused by fire arm. Injury Nos. 6 and 7 were kept under observation. X-ray was advised. Injuries were fresh. Condition of the patient was serious. In the injury report, he has recorded the following injuries:--

"1. Fire arm wound of entry 1.5 c.m. x 2 c.m. x muscle deep, inner aspect of left upper arm 4.5 c.m. above elbow. Blackening present.

Fire arm wound of exit 2.5 c.m. x 2 c.m. outer aspect of left forearm just near elbow. Both injuries were communicating, kept under observation, X-ray was advised.

Fire arm wound of entry 2 c.m. x 2 c.m. x muscle deep, outer aspect of right upper arm, 6 c.m. above elbow, blackening present.

Fire arm wound of exit 2.5 c.m. x 2 c.m., anterior aspect of side upper arm 5.5. c.m. above elbow, both wounds were communicating, kept under observation, X-ray was advised.

Fire arm wound of entry 2.5 c.m. x 2.5 c.m. x muscle deep on top of right shoulder, blackening around wound present, kept under observation, X-ray was advised.

Lacerated wound 1.5 c.m. x 1 c.m. x skin deep anterior aspect of right leg 13 c.m. above ankle joint, kept under observation, X-ray was advised.

Lacerated wound 1 c.m. x 1 c.m. x skin deep, anterior aspect of right leg, 21 c.m. above ankle joint, kept under observation, X-ray was advised."

During cross examination, injuries sustained by Nankau were questioned on the basis of absence of original injury report or injury register. The witness has admitted their absence and also admitted that he had not seen X-ray report or prepared any supplementary report. Perusal of injury report of Nankau Exhibit Ka-24 reveals that it was merely a photocopy. Though learned A.G.A. has submitted that it is an attested copy but in absence of original injury report or injury register, we cannot take into consideration photostat copy specially when the person, who attested the photocopy was not examined by the prosecution. Therefore, in absence of original injury report and non-production of injury register, injuries sustained by Nankau stand not proved.

Before we enter into the merits of the respective arguments, we would like to have main features of the testimonies of the prosecution witnesses, which are as under:--

On behalf of the defence, Ram Sahai D.W.-1, Secretary of the Fishery Society has been examined, who has proved various documents filed in the defence exhibited as Exhibits Kha-1 and Kha-5.

Appreciation of eye-witness account

Nankau, P.W. -1 is the injured witness. Learned AGA has laid great emphasis on this fact but due to non-production of original injury report/injury register, we are unable to treat him as an injured witness. He has claimed that occurrence had taken place in front of the house. On behalf of the appellants, it has been contended that from the place of occurrence, the investigating officer could not find blood stained earth.

Devendra Kumar Dubey, P.W. -4 the first investigating officer has admitted in his cross examination that in the site plan, he did not show the place from where he had taken the blood stained earth. He denied the suggestion that occurrence did not take place at the alleged spot. The omission indicated in the site plan bears significance specially when the deceased had sustained three incised wounds. For this reason, we are in doubt whether the presence of the witness can be said to be natural and probable. While going through the testimony of this witness, we notice that the witness has claimed that deceased was assaulted by lathi and fire arms.

Moreso the investigating officer could not find any pellets or wads on the spot. This makes the place of occurrence doubtful.

According to Dr. Ramakant Arya, P.W. -6, the deceased had sustained three incised wounds and fire arm injuries. The statement of Dr. Ramakant Arya, P.W. -6 is contradictory to the ocular version narrated by this witness.

It is settled law that whenever 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; , (2005)7 SCC 408). In this case, facts stated by Dr. Ramakant Arya, P.W. -6 are statements of facts. Incised wounds were perceived by him during the autopsy. His testimony is a direct evidence of the incised wounds. In such situation, we find that statement of Nankau, P.W. -1 takes secondary place and being in contradiction with the medical evidence on fundamental points, it has to be inferred by us that this witness has not seen the occurrence. His testimony does not inspire our confidence. During cross examination, he has evaded answers to many questions which might indicate reason for false implication.

Ram Lal Nishad P.W. -2 is the brother of the deceased. His testimony also suffers with the same shortcomings which have been indicated by us above.

These are the only two eye-witnesses examined by the prosecution. Testimonies of both the witnesses do not appear to be trust worthy. There is another reason not to believe the prosecution version and this reason is that it appears that FIR was ante-timed. In chitthi mazrubi of Mitta Devi, case crime number has not been mentioned, though she was sent by the police for medical examination. In the chik FIR Exhibit Ka-15, in the column of time of lodging of the FIR, overwriting has been made and ''22.20 p.m.'' has been altered as ''20.20 p.m.'' Possibility of ante-timing of F.I.R. admits prior deliberation which makes the veracity of the prosecution version doubtful.

To summarize, we would find that there is a doubt that FIR was promptly lodged. Place of occurrence is doubtful. Veracity of eye witness account is not above board. Papers filed on behalf of the defence reveals bitter enmity between the two parties on account of fishing in the Gomti River.

Since injuries sustained by Nankau, P.W. -1 could not be proved by the prosecution, hence, charge under sections 307/149 I.P.C. cannot be sustained. Smt. Mitta Devi could not be examined as she had died before that, therefore, charge under section 323/149 IPC also could not be sustained by us.

In view of above, we find that prosecution failed to prove charges under sections 147, 148, 302/149 I.P.C. also against the present appellants in reference to Case Crime No. 833 of 2007.

So far as conviction of appellants Sobhnath, Ram Singar and Kalloo under section 3/5/25 Arms Act is concerned, perusal of prosecution sanction Exhibits Ka-25, Ka-26 and Ka-27 reveal that the District Magistrate while granting prosecution sanction has not applied his mind. According to Exhibits Ka-25 and Ka-26, the District Magistrate has observed that country made pistols were recovered by the recovery officer from the personal search of appellants Sobhnath and Ram Singar. Though according to prosecution case they were recovered on their pointing out.

So far as Exhibit Ka-27 is concerned, it reveals that the country made pistol was hidden under the bushes near godown of Forest Department whereas recovery memo reveals that it was concealed in the sand in open place. For this reason, we find that prosecution of the appellants under the said sections was illegal and their conviction under section 3/5/25 Arms Act cannot be sustained.

Therefore, the appeal has substance. The impugned judgment is full of factual and legal infirmities. Findings recorded by the learned trial Judge are against the material available on record and law, therefore, appeals succeed and impugned judgment deserves to be set aside.

Criminal Appeal Nos. 1767 of 2012 & 1768 of 2012 are allowed. The impugned judgment and orders dated 24.11.2012 as also conviction and sentence of the appellants are set aside. Appellants Sobhnath, Ram Singar, Kalloo & Ram Teerath are acquitted from the charges framed under sections 147, 148, 302/149, 307/149, 323/149 I.P.C. The appellants Sobhnath, Ram Singar and Kalloo are also acquitted from the charge framed under sections 3/5/25 Arms Act. They are in jail. If they are not wanted in any other case, they be released on their furnishing a personal bond and two sureties in the like amount to the satisfaction of the Sessions Judge, Sultanpur.