Subedar vs State of U.P.

Pratyush Kumar, J.—1. The present appeal filed on behalf of the appellant is directed against judgment and orders dated 13th November, 2007 passed by Sri Ajai Verma, the then Additional Sessions Judge, Court No. 2 Unnao whereby the appellant has been convicted under section 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 5,000/-, in default thereof to further undergo simple imprisonment of one year.

Heard Sri O.P. Tiwari, Advocate appearing for the appellant and Sri Chandra Shekhar Pandey, learned AGA for the State-respondent and perused the record.

Briefly stated facts of the prosecution case in the present appeal are as under:

"That on 10th February, 2006 at 11.45 A.M. Ram Bharose gave a written report at P.S. Bangarmau (Unnao) stating therein that three years ago his son Sarvan was married to Ram Saheli, aged 23 years, daughter of Phoolmati R/o village Gulreha. Phoolmati had married second time with Subedar, she had two daughters, namely, Ram Saheli alias Saheli and Seema from her first husband. After marriage of Ram Saheli Subedar used to keep Ram Saheli in his house most of the times, he had illicit relations with Ram Saheli. This fact came to his knowledge after marriage. After settlement by panchayat he took his daughter in law to his house. On 5th February, 2006 Phoolmati took Ram Saheli with her with the promise that she would be sent back after two days. Ram Saheli promised that after one day she would come back. That day he was informed by Raj Kishore of village Gulreha that in the intervening night of 6th/7th February, 2006 Subedar killed Ram Saheli in his house and after hiding her dead body absconded on motorcycle in the morning. When he reached there Phoolmati told him that after taking Ram Saheli back she left her alone with her husband on receiving news about illness of her mother and had gone to Mayaka. She also reiterated the information given by Raj Kishore."

At this chick FIR was scribed, case crime No. 37 of 2006 under sections 302 and 201 IPC was registered. Its entry was made in the report of the general diary. Investigation was taken over by Devendra Mishra, the then Station House Officer of P.S. Bangarmau, after his transfer S.I. Pramod Kher completed the investigation and submitted the charge sheet against the present appellant.

In the Court of Session the appellant was charged under Sections 302 and 201 IPC which he denied and claimed to be tried.

The defence case is that in absence of Phoolmati and the appellant, Ram Saheli was murdered by unknown person and the appellant was falsely implicated.

In order to prove the charges on behalf of the prosecution besides documentary evidence in the oral evidence nine witnesses were examined. Thereafter statement of the appellant under section 313 Cr.P.C. was recorded. In the defence no evidence was given.

After conclusion of the trial the appellant was convicted and sentenced as above. In the impugned judgment the learned trial Judge found the testimony of Raj Kishore P.W. 5 trustworthy. He also found several incriminating circumstances proved established against the appellant and came to the opinion that against the appellant charge of murder is established, however, he did not find the charge under section 201 IPC could be proved against the appellant.

Feeling aggrieved the appeal has been filed on the grounds that there is no evidence against the present appellant, the learned trial Judge has erred in appreciating the evidence. He ignored the evidence of P.W. 6 and contradictions occurring in the prosecution evidence. The findings recorded by the learned trial Judge are against the evidence on record. They are factually and legally incorrect and the impugned judgment deserves to be set aside.

On behalf of the appellant and the respondent detail arguments have been advanced. Their merits would be examined hereinafter. First we would like to remember our duties and obligations as an appellate court.

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 our minds by recalling 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."

During the trial homicidal death of Ram Saheli was not challenged, keeping in view of our obligation as the appellate court we have perused the testimony of Dr. S.S. Rizvi P.W. 2 and postmortem report Ext. Ka-4. Dr. Rizvi deposed that on 11th February, 2006 he conducted the postmortem examination on the dead body of Smt. Ram Saheli aged about 23 years. On her abdomen and breast there were particles of husk. Foul smell was coming off the body. Tongue was protruded and caught between the teeth. Blisters were present. Skin peeled off from some parts. Bullae was present. Hairs were loosed. Nails were loosed in sockets. Face was cyanosed and swollen. On the dead body he found one antemortem injury which reads as under:

"Ligature mark on front of neck below thyroid cartilage. Mark is horizontal, continuous and below thyroid cartilage going backwards, covering almost the whole of the circumference of neck which is 29 cm. mark is 2 cm width."

He found subcutaneous tissues under the mark echymosed, base of the grove was dry hard and parchment (like).

He has further deposed that he did not find any sign of rape. In the internal examination he found corona of hoid bone fractured. In his opinion deceased had died due to asphyxia as a result of antemortem strangulation.

He proved the postmortem report Ext. Ka-1 and opined that death could have occurred in the intervening night of 6th/7th of February 2006. He was asked only one question in the cross-examination to which he replied that about time since death there could be variation of one day on either side. Leaving aside his opinion facts stated by the witness and duly corroborated by the postmortem report Ext. Ka-1 are unchallenged and on behalf of the appellant even before us no argument questioning his veracity has been advanced, therefore, we are satisfied by the evidence of the witness and hold the fact stated by the witness stand proved.

Now we will enter the areas on which arguments on both sides have been submitted before us.

The arguments advanced on behalf of the appellant attack generally the way learned trial Judge has appreciated the evidence of prosecution and specially his error in ignoring evidence of Ram Bharose P.W. 6 and the contradictions occurring in the prosecution evidence.

In order to effectively consider the above arguments it would be necessary for us to give details of the oral evidence adduced by the prosecution. The details are as under:

We have gone through the impugned judgment. After noticing facts deposed by the witnesses and arguments advanced on behalf of the respective parties we notice that the learned trial Judge has referred the testimonies of Ram Bharose P.W. 6 and Raj Kishore P.W. 5 and concluded that motive was proved. FIR was lodged without undue delay. He further noticed that Raj Kishore P.W. 5 gave direct evidence about part of the occurrence. He further noticed that in accordance with law laid down by the Hon''ble Apex Court in Sarda Nand v. State , AIR 1984 SC 1622 what were the necessary circumstances to be proved by the prosecution to prove charges against the present appellant on the basis of circumstantial evidence. Thereafter he summarized the evidence and concluded that following circumstances were proved:

"(A) After lodging of the FIR dead body of the deceased was recovered from the house of the accused kept on the husk.

(B) From the medical evidence death of the deceased by ante mortem strangulation stood proved.

(C) The appellant had failed to give any explanation or to prove that he had gone to the house of his sister."

The learned trial Judge has found the charge of murder against the appellant proved beyond reasonable doubt but for want of evidence he has held charge under section 201 IPC stood not proved.

While going through the impugned judgment we could not find any error in the appreciation of evidence by the learned trial Judge. The general argument to this effect cannot be accepted by us.

Now remain two specific ground that learned trial Judge has ignored the evidence of Ram Bharose P.W. 6 and contradictions in the prosecution case.

As already noticed above the learned trial Judge has considered the evidence of Ram Bharose and referred it at the appropriate place.

Now we advert to third argument in reference to contradictions.

Only two witnesses Raj Kishore, P.W. 5 and Ram Bharose P.W. 6 remained intact. Smt. Phool Kumari, P.W. 1 and Km. Seema P.W. 4 turned hostile as also witness of recovery memo Gajraj Singh P.W. 3 turned hostile. The statement made by the hostile witnesses could not amount to contradictions in prosecution evidence. This is the settled legal position, of course there are exceptions. In the case of Alok Dev Rai v. State of Asam 2004 Cr.L.J. 3048 (SC) the Hon''ble Apex Court has observed that evidential value of the testimony of hostile witness would depend on the quality and confidence it generates in the mind of Court after being subjected to a close scrutiny.

In the case of Sheikh Zakir v. State of Bihar , AIR 1983 SC 911 the Hon''ble Apex Court has noticed the fact that often witnesses turned hostile for various reasons.

Further in the case of Mallappa Siddappa v. State of Karnataka , 2009 (66) ACC 725 (SC) the Hon''ble Apex Court has clarified the murky area about the testimony of hostile witness and observed that the evidence of a hostile witness was not to be washed out of the record and could not be rejected outrightly. Both parties were entitled to rely on such part of his evidence which was trustworthy and reliable.

We will deal with the probative force of testimonies of prosecution witnesses while keeping in mind the argument advanced on behalf of the appellant.

We propose to do this in three parts. In first part we would deal with the testimonies of Raj Kishore P.W. 5 Ram Bharose P.W. 6. Thereafter we would deal with the testimonies of Smt. Phool Kumari P.W. 1 and Km. Seema P.W. 4. Thereafter we propose to critically examine the circumstantial evidence.

Raj Kishore P.W. 5 lives in the same village where the occurrence took place. According to him in the night of 6th/7th February, 2006 at 2 A.M. he had a stomachache and was going to relieve himself. When he was in front of the door of Subedar''s house he heard Ram Saheli crying that father spare me, he peeped through the door and saw Subedar was dragging Ram Saheli towards him and Ram Saheli was resisting that. He thought it to be a family matter. After relieving himself when he was returning Subedar came out of the house in a disturbed condition. When he had asked the reason, Subedar admitted that he had murdered his daughter Ram Saheli and threatened if he opened his mouth he would be done to death. In the morning Subedar left on his motor cycle. After four days he informed Ram Bharose about it. During the cross examination he admitted that by village relations Ram Bharose was his brother-in-law.

He is the star witness. He has given reason for his presence where he heard and saw this part of the occurrence. For this reason we do not think he is a chance witness. He withstood the test of examination successfully. On behalf of the defence during cross examination no reason could be shown that this witness is risking his life by deposing against his neighbour falsely. It is a matter of common knowledge that normally persons avoid deposing against resident of their locality and village. For deposing against co-resident truthfully no reason is required. If they think it is their duty to get the guilty person punished. But if it is alleged that they deposed falsely the defence has to show a cogent reason why a person is risking his life. Failure by the defence in showing this we think his testimony should be given due weight. In the present defence has not succeeded to show any such reason. While going through his testimony we find only one point going against him is that he did not tell Ram Bharose for four days. Had he kept silent about the occurrence for four days we would not have believed his testimony but we find that during cross examination he has stated that he disclosed what he saw during the night to his family. Taking into consideration his mentality about family matters we think delay of four days in informing Ram Bharose could be for the reason that he treated the matter to be their family affair. Thus we find his testimony trustworthy.

Evidence of Ram Bharose P.W. 6 is confined to the point of his receiving information from Raj Kishore, lodging of FIR, his knowledge about illicit relations of the appellant with the deceased and reluctance of the appellant to send Ram Saheli to her sasural and further recovery of her dead body from the house of the appellant. We find that during cross examination he was not cross examined about the illicit relations, reluctance of the appellant to sent Ram Saheli to her sasural. On other points he was cross examined but unsuccessfully. His testimony remained unshaken. Being samdhi (father of the bridegroom) he is not likely to depose against the appellant falsely. We find his testimony worthy of reliance.

In the second stage we have two hostile witnesses Phool Kumari P.W. 1 and Seema P.W. 4. The first statement she made in favour of the appellant is that she is not aware that appellant had illicit relations with the deceased. The second statement is that dead body of Ram Saheli was recovered from the portion of the house falling in the share of Ratnu. Though there is a contradiction between her statement recorded by the investigating officer and the application given by her Ext. Ka-2 on the first count and that makes her first statement controverted. It would not amount to proof of that fact which has not been stated by her on oath. On the second point she has stated that dead body of the deceased was not recovered from their house. However, we find that during the postmortem examination the doctor had found particles of husk on the body of Ram Saheli. Ratnu was neither married nor lived in his portion of the house. Possession of his portion remained with the appellant. Presence of husk on her person makes the second statement made by this hostile witness untrustworthy.

Rest of her statement rather supports the case of the prosecution that Ram Saheli was sent to her sasural after panchayat. She died in her mayaka and at the time and after her death the appellant was found absent from his house.

Seema P.W. 4 also pleaded ignorance about the illicit relations between the appellant and the deceased. She also claimed that dead body of the deceased was not recovered from their house. Pleading ignorance does not mean that she denied such possibility. The second statement made by her favouring the appellant has already been dealt with by us in reference to evidence of Smt. Phool Kumari P.W. 1. She has also stated that when deceased was brought to her mayaka two days'' before the appellant had gone to the house of his sister. This fact stands falsified by the testimony of Raj Kishor P.W. 5. No benefit can be derived by the appellant from this statement. Rather statement of this witness is also supportive of the incriminating circumstances indicating the guilt of the appellant.

In this way evidence of hostile witness also supports the prosecution version of the occurrence.

Now we deal with the circumstantial evidence. The following circumstances stand proved by cogent evidence:

"(i) It is established that appellant was the step father of the deceased.

(ii) Deceased was married to Shravan but her vidai could take place only on the intervention of the panchayat.

(iii) In her mayaka deceased was murdered by strangulation.

(iv) Raj Kishor P.W. 5 on the fateful night at about 2 p.m. heard her pleadings to the deceased, urging her step father to spare her.

(v) Soon after the witness came back after relieving himself the appellant was in disturbed state of mind and made a statement that he had murdered the deceased and if the witness opened his mouth he would also be murdered.

(vi) The appellant after the fateful night was found absent from his house.

(vii) Dead body of the deceased was recovered from room of the house of the appellant from mound of husk.

(viii) The appellant has illicit relations with the deceased and for this reason he wanted to keep the deceased in his house. All these circumstances unless properly explained would lead to the only conclusion that the deceased was murdered by the appellant."

In his statement recorded under section 313 Cr.P.C. the appellant has denied that after marriage he detained the deceased in his house and had illicit relations. About his absence he has stated that when deceased was brought to her mayaka he had gone to house of her younger sister who had died. He pleaded enmity with Raj Kishore P.W. 5. According to him Shravan was remiss in taking his wife i.e. deceased to her sasural. She was sent there forcibly.

No evidence in the defence has been given. The appellant had not cared to examine anyone from the house of her deceased sister. His bare denial about his illicit relations stands contradicted by the fact that the deceased was not sent to her sasural by him and before the court he pleaded a new case that Shravan did not want to take her back. This new case cannot be believed being after thought.

Overall we find that his explanation has no substance and the case of the prosecution in reference to murder of the deceased is fully proved. The learned trial Judge has not erred either in appreciating the prosecution evidence or in applying the correct law.

The second ground that FIR was lodged with delay is also bereft of substance because Ram Bharose when came to know about fate of his daughter-in-law he immediately approached the authorities and dead body was recovered. He could not be saddled with lodging the FIR with delay.

The contradictions indicated on behalf of the appellants are not material contradictions so far as the case of the prosecution is concerned. Contradictory statements have been made by two hostile witnesses which are supportive of appellant''s case but these statements have been found by us to be unreliable.

We find no infirmity in the findings recorded by the learned trial Judge. The impugned judgment is well reasoned, findings are well substantiated from the record. Appeal lacks merit, arguments advanced in support thereof cannot be accepted by us. The appeal deserves to be dismissed and conviction and sentence of the appellant does not warrant any interference by us.

Criminal Appeal No. 58 of 2008 (Subedar v. State Of U.P.) filed by the appellant is dismissed. Conviction and sentence awarded by the impugned judgment and orders dated 13th November, 2007 passed by Sri Ajai Verma, the then Additional Sessions Judge, Court No. 2 Unnao are hereby affirmed. The appellant is in jail. He is directed to serve out his sentence.

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