Surendra Singh and Others vs State of U.P.

Pratyush Kumar, J.—Three accused persons convicted under Section 302 read with Section 34 and sentenced to undergo imprisonment for life by Sri M.S. Premi, IInd Additional Sessions Judge, Hardoi in Sessions Trial No. 12 of 1985 (State v. Surendra Singh and others) have preferred this appeal under Section 374 Cr.P.C. assailing the correctness of the judgment and order dated 31st August, 1985 passed in the said Sessions trial.

Facts giving rise to the present appeal are summarized as under:--

"On 7th August, 1984 at 7.50 p.m. Ram Dayal reported at police station Kotwali Dehat, Hardoi that on that day at 6.45 p.m. on account of previous enmity, accused persons were beating with lathis brother of the first informant Daya Ram, who was returning home after finishing his working in the field, in his hand he was holding a ''Khurpi''. At that time the first informant was coming home from village Harpalpur. On the cries of Daya Ram, he alongwith Ram Lal, Ram Pal and Nek Ram while warning the accused persons reached the spot, where his brother Daya Ram was lying on the field and Surendra Singh was showering ''Khurpi'' blows on him. On their arrival at the spot, accused persons ran away to southern side. His brother had died. Leaving his family members and co-villagers with the dead body, he had directly come to lodge F.I.R."

Pursuant to this, Chik F.I.R. was scribed, Case Crime No. 163 of 1984 was registered, requisite entry was made in the general diary. Investigation was started, postmortem examination was conducted. After completion of investigation, chargesheet was submitted.

Accused were charged under Section 302 /34 I.P.C. which they denied and claimed to be tried.

In support of its case the prosecution had examined P.W. 1 Ram Dayal, P.W.2 Nek Ram and P.W.3 Ram Pal, P.W.4 Head Constable Udai Bahadur Singh, P.W.5 Dr.Surendra Singh, P.W.6 Constable Dharamraj Yadav and P.W.7 S.I. Chhotey Lal Sharma.

The prosecution proved documents F.I.R. (Ext.Ka1) copy of G.D. Report No. 40 (Ext.Ka 20), postmortem report (Ext.Ka 3), inquest report (Ext.Ka 4), sketch map of dead body (Ext.ka 5), Challan of dead body (Ext.Ka 6),letter to C.M.O. (Ext.ka 7), letter to medical Officer (Ext.Ka 8), sample of seal (Ext.Ka 9), site plan (Ext.Ka 10), memo of blood stained and simple earth (Ext.Ka 11) and chargesheet (Ext.Ka 12).

The accused persons were examined u/s. 313 Cr.P.C. They denied the prosecution case and have stated that witnesses are related inter se and on account of enmity they have been falsely implicated and Daya Ram was killed by some unknown persons in the dark night.

After completion of the trial, learned Sessions Judge convicted and sentenced the accused persons. Against that the instant appeal was filed.

Heard Sri Nagendra Mohan, learned counsel for the appellant and Sri Umesh Verma, learned AGA and perused the record.

In support of the appeal, Sri Nagendra Mohan, learned counsel for the appellants has submitted that the learned trial Judge has erred in holding the First Information Report to be prompt and not ante-timed. He has further submitted that eye-witnesses named in the First Information Report were not examined by the investigating officer. His next argument is that eye witnesses are inimical. Their evidence required to be scrutinized with due care and caution which the learned trial Judge has not done so, hence, on this account evidence has not been properly appreciated and material contradiction were ignored.

On behalf of the State, these arguments have been replied in detail. It has been stated that eye-witness account is corroborated by medical evidence, presence of the witnesses is probable. The learned trial Judge has arrived at right conclusion. No inference in the appeal is required.

At the very outset it will gainful to see what legal obligation a criminal court of appeal bears while hearing appeal against conviction.

To do this we would like to refresh the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni Vs. State of Gujarat, . 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 Vs. State of West Bengal, , 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."

Before appreciating and reassessing the eye-witness account, we would like to place on record medical evidence which consists statement of Dr. Surendra Singh, P.W.-5 and postmortem report Exhibit Ka-3.

"(1) L.W.3 1/2 c.m. X 1 c.m.X scalp deep over left side of head 8 c.m. from left ear.

(2) L.W.2 1/2 c.m. X 1 c.m. X scalp deep on back of left ear.

(3) L.W. 1 1/2 c.m.X 1 c.m. X scalp deep over occipital region.

(4) L.W. 10 c.m. X 4 c.m.X bone pieces present in the wound.

(5) I.W. 4 c.m. X 1 1/2 c.m. X bone deep below the left eye brow.

(6) I.W.7 c.m.X 2 c.m. X bone deep on left side of face starting from the lower & outer portion of angle of mouth.

(7) I.W. 5 c.m. X 1 c.m. X bone deep on lower lip of left side of face.

(8) I.W. 15 c.m. X 3 c.m. X multiple deep on front of neck 3 c.m. Above suprasternal notch trachea. Muscles and vessels cut on both side.

(9) I.W.5 c.m. X1/2 c.m. X skin deep above and parallel to injury No. 8.

(10) I.W. 5 c.m. X1/2 c.m. X skin deep on right side of neck 2 c.m. above injury No. 9.

(11) Contusion 12 c.m. X 8 c.m. Over right side of chest just below the clavicle.

(12) Multiple contusions 12 c.m. X 8 c.m. Over left side of chest below clavicle.

(13) L.W. 2 c.m. X 1/2 c.m. X bone deep over base of litter finger and palmer aspect, none fractured.

(14) Contusion 6 c.m. X 3 c.m. Over right thigh 12 c.m. from knee joint.

(15) Contusion 6 c.m. X 2 1/2 c.m. Over left forearm 2 c.m. below the elbow joint.

(16) Contusion 8 c.m. X 4 c.m. Over left dorsum of hand.

During internal examination the Medical Officer found that the left parietal bone was fractured and membranes of brain was found lacerated. Both maxilla and mandible bones were found in multiple pieces. The 1st, 2nd and 3rd ribs of right side of chest were fractured and on the left side 1st rib was found fractured. Pleura was lacerated and tracheas was cut. Carotid vessels were cut and larynx was also found cut. In the stomach 2Os. like food matter was present. In the mouth upper 7 and lower 8 teeth were present and remaining other teeth were missing. In the opinion of the Medical Officer death of the deceased took place due to shock and hemorrhage suffered as a result of ante-mortem injuries. He proved the postmortem report Ext.Ka 3."

Since homicidal death of the deceased Daya Ram is not in dispute and Dr.Surendra Singh, P.W.5 was cross examined on behalf of the defence only on the point of probable time of death and number of weapons, therefore, there is no serious challenge to the testimony of this witness. He had agreed with the suggestions put up by the defence, therefore, we find him to be a reliable witness and hold that deceased Daya Ram was done to death with the help of sharp edged weapon(s) and ''lathis''. His death could have occurred on 7th August, 1984 at about 6.30-6.45 p.m. with the possibility of variation of six hours on either side.

Now we come to the eye witness account. On behalf of the prosecution three persons namely Ram Dayal, PW-1, the first informant, Nekram, PW-2 and Ram Pal P.W.-3 have been examined. Out of these independent witness, Nekram has not supported the prosecution version and he was declared hostile.

Ram Dayal, P.W.-1 is the relative of the deceased as well as he bore enmity towards the accused persons because father of the appellants were murdered 5-6 years before the occurrence and in that case the first informant, his brother Daya Ram and two relatives were accused and they were convicted by the Court of Session and at that time they were on bail. Thus, bitter enmity existed between these persons.

Correct test to assess the probative force of the testimony of an eye-witness is that the court should examine whether his presence was natural and probable on the spot at the relevant time, he had opportunity to see the occurrence, his testimony during the cross examination remained unshaken and any other factor, adversely effecting or enhancing his veracity, existed.

According to Ram Dayal, P.W.1, he was coming back from the ''Sasural'' of his ''Behan'' situated at Harpalpur. When he heard the cries of Daya Ram, who was at that time in the ploughed field of Badri. According to him, when he reached alongwith the witnesses, Surendra Singh was showering ''Khurpi'' blows on the deceased. The question arises whether reason assigned by the first informant to be present near the scene of occurrence at the relevant time is natural and probable. Admittedly, the occurrence took place outside the ''abadi'' of the village ''Ghosar''. Field of Desh Raj where the deceased was picking and extracting grass, was at the distance of 3-4 furlang from the place of occurrence. The deceased coming alone on some account, left the public way and went into the field of Naresh where allegedly he was beaten with lathis by the appellants. According to site plan Exhibit Ka-10, deceased was found lying in the ploughed field of Badri further west away from the chak road. Since no sign of dragging was found it has to be inferred that after receiving lathis blows he had run towards ploughed field of Badri further on the western side. Various locations shown in the site plan indicate that the chak road by which the first informant was coming, has a turn near the tubewell and after turning on the southern side, the first informant was not required to pass the field of Naresh and Badri. When we examine the reason shown by Ram Dayal to be present at the spot, we find that in para 12 of the deposition during cross examination, he has admitted that he has no real sister. The sister who he had visited on the eve of festival by taking ''Tijia'' was a widow having a son elder to the first informant. Thus, his reason for going to village Harpalpur appears to be a feeble. To conclude possibility appears that presence of the witness is doubtful and he is not a natural and probable witness.

As discussed above, the side from which he was coming and the place where the alleged occurrence had taken place are not conveniently placed so that this witness could have heard cries and seen Surendra Singh showering ''Khurpa'' blows on the deceased. In front of the first informant, there was a tubewell. From the place ''X'' where ''Khurpa'' blows were showered and the chak road there was field of Badri having crops of ''Jwar'' and ''Arhar''. According to site plan, the investigating officer has not shown the witnesses going to the field of Badri. The mark indicating the presence of the first informant in the site is far away from there it is doubtful that occurrence could have been seen by this witness. During cross examination, this witness has evaded answers to questions which may have bearing on the merit of the case. It is strange that after seeing his brother dead, he did not cry or lift him. He directly went to the police station. His answer regarding source of light available at the time of inquest proceedings is in contradiction with the testimony of the investigating officer on this point. He says that from the place of occurrence, he went to the police station by foot which is situated at a distance of five miles. F.I.R. has been lodged only one hour after the occurrence. Thus, during cross examination veracity his testimony becomes clouded.

Considering the fact that he had bitter enmity with the appellants, we do not think that testimony of this witness could have been relied. However, we find that the learned trial judge did not appreciate the evidence in proper perspective. He has not ensured that at the stated time and place this witness could have been present or not and whether he had any opportunity to see the occurrence.

The second eye-witness Ram Pal is the cousin of the first informant. According to him, he was taking out pests from his field of groundnut alongwith his brother Ram Lal. During cross examination, he has admitted that his crop of groundnuts was spoiled and no groundnut could be produced. According to him, in addition to crop of groundnut in that field, he had crop of ''Jwar'' but it is well known fact that crop of ''Jwar'' does not require taking out of pests with the help of ''Khurpi''. He did not show the investigating officer where he was doing the work. It has come out in testimony of Ram Dayal P.W.1 where field of Daya Ram was, it was situated at the distance of 3-4 furlang from the place of occurrence. According to this witness field in which he and his brother were working, was adjacent to the field where Daya Ram was working. We understand that this witness claims to have heard cries at the distance of 3-4 furlang that too during dusk hours when cows return from grazing to their tethering places and reached the spot to see the occurrence. We cannot accept this.

We are of the opinion that this witness is a planted witness and this was the reason he was not examined by the investigating officer when he inspected the spot. Being cousin, his name was mentioned in the First Information Report. His testimony does not inspire any confidence to us.

The FIR of this occurrence was allegedly lodged one hour after the murder. Distance from police station is five miles, the first informant claims to go to police station on foot. His presence at the spot is doubtful, in such eventuality FIR has to be held to be anti timed.

Rest of the evidence is formal in nature and is of no help to the prosecution for proving the charges claimed against the appellants. Thus, the eye-witness account adduced by the prosecution is unworthy of reliance for the reasons indicated above.

The arguments advanced in support of the appeal are well substantiated from the record. The appeal has merit and deserves to be allowed and the impugned judgment and order are full of factual and legal infirmities, therefore, liable to be set aside.

Resultantly, the appeal is allowed and the impugned judgment and order dated 31.8.1985 passed by the IInd Additional Sessions Judge, Hardoi in S.T. No. 12 of 1985, under Sections 302 /34 I.P.C., Police Station Kotwali (Dehat), District Hardoi, are hereby set aside. The appellants are acquitted from the charge levelled against them. The appellants are on bail. Their personal bond and bail bonds are cancelled and the sureties are discharged from their liabilities in compliance of Section 437-A Cr.P.C. The appellants need not surrender, in case, they are not wanted in any other case.