Teeju Verma and Others vs State of U.P.

Pratyush Kumar, J.—1. The instant criminal appeal, filed on behalf of the appellants, is directed against the judgment and order dated 23.11.2001 passed by IInd Additional Sessions Judge, Faizabad, in Sessions Trial No. 1033 of 1996 [State Vs. Teeju Verma and another] whereby the appellants were convicted under Section 302/34 IPC and sentenced to undergo life imprisonment.

In the present matter, facts of the prosecution case, may be summarized as under:

That on 25.06.1996 at about 3.05 AM at police station Raje Sultanpur, District Ambedkar Nagar, Swami Nath Verma, resident of village Nijampur Ratigar handed over a written report to the effect that during the night his cousin Ram Uchhahal Verma was sleeping in his house, nearby his daughter Shailesh Kumari and wife were also sleeping, at about 2.00 AM co villagers Teeju Verma, Dwarika Verma, Harishyam Verma, Ashok Kumar and Firtu came near the cot of his cousin and Teeju Verma shot him while sleeping, when his cousin fell down from the cot. Teeju Verma, Dwarika Verma, Ashok Kumar and Firtu Verma caught hold of his brother on the ground and Harishayam Verma shot him from the country made pistol. His cousin had enmity with Teeju Verma due to election and with Harishyam Verma regarding Quota (Fair Price Shop). At the sound of fire Bhola Verma son of Dashrath Verma, Ram Adhar Verma and many persons came running there, at that the assailants made good their escape, they were identified in the light of burning lantern and flash light. He brought his cousin in an injured condition on Jeep, on the way his cousin had died.

On this, chik FIR was scribed, Case Crime No. 104 of 1996, under Sections 147, 148, 149, 302 IPC was registered and requisite entry was made in the report of the general diary. Investigation was entrusted to Sri Haripal Singh, the then Station Officer, P.S. Raje Sultanpur, District Ambedkar Nagar, who after completing the investigation submitted the charge-sheet against all the named accused. The case was committed to the Court of Session, where the accused persons were charged. Teeju Verma and Harishyam Verma were charged under Sections 148, 302/149 IPC and rest were charged under Sections 147, 302/149 IPC. They denied the charges and claimed to be tried.

In order to prove the charges, the prosecution in the documentary evidence, besides, other papers has filed written report Ext. Ka-1, chik FIR Ext. Ka-2, copy of the report of the general diary Ext. Ka-3, inquest report Ext. Ka-4, postmortem report Ext. Ka-15, recovery memo Ext. Ka-10 and Ka-13, site plan Ext. Ka-9 and charge-sheet Ext. Ka-14.

In the oral evidence on behalf of the prosecution six witnesses were examined. Thereafter statements of accused persons were recorded under Section 313 Cr.P.C. whereby they denied the prosecution version, disputed the correctness of the facts stated by the eyewitnesses, regarding steps taken during the investigation and medical evidence they pleaded ignorance, according to them they have been falsely charge-sheeted and witnesses were deposing against them due to enmity.

After hearing the arguments, the learned trial Judge found the ocular version of the occurrence trustworthy and convicted the accused persons and sentenced them as above.

Heard Sri Arun Sinha, learned counsel appearing for the appellants and Sri Umesh Verma, learned Additional Government Advocate for the State and perused the record.

On behalf of the appellants, learned counsel for the appellants has submitted that the impugned judgment is against the weight of material available on record. The appellants have been convicted only on the basis of conjectures and surmises. He has further submitted that the motive could not be proved by the prosecution, FIR was anti timed, investigation was not fairly conducted, the occurrence is of the night and none saw it. The witnesses are planted, their accounts are unreliable. Even ignoring such material points the appellants have been erroneously convicted, acquittal of co-accused Ashok Kumar, Firtu and Dwarika Verma shows that the ocular version of the occurrence was not trustworthy, the learned trial Judge should have acquitted the present appellants also.

On behalf of the State, learned Additional Government Advocate has repelled all these arguments and submitted that the findings recorded by the learned trial Judge are well reasoned and based on evidence. According to him, none of the grounds raised before us is substantiated from the record. The appeal deserves to be dismissed.

Before entering into the merits of the appeal, we would like to recall the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni Vs. State of Gujarat [, 1995 Supreme Court Cases (Crl.) 222] whereby duties of the appellate court have been outlined. 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."

Before we proceed to examine the merits of the arguments advanced on behalf of the parties, we would like to place on record facts established from the medical evidence. Dr. S.C. Sinha P.W. 6 is the doctor who conducted the postmortem examination on the dead body of the deceased on 25.06.1996. He recorded three anti mortem injuries in the postmortem report. During the internal examination, he found 3rd and 4th right ribs fractured, left lung damaged, from there he recovered pellets and card wads. According to him, death had occurred due to shock and haemorrhage as a result of anti mortem injuries. These injuries were sufficient in the ordinary course of nature to cause death. According to his opinion, deceased could have died on 25.06.1996 at about 2.00 A.M. The witness has proved the postmortem report Ext. Ka-15 where in the following anti mortem injuries were recorded:

A firearm wound of 4.4.5 c.m. present on right side of chest 7 c.m. above right nipple. Margins irregular and inverted. Blackening present around the wound (wound of entry).

A firearm wound of 1 x 2 c.m. present on left side of abdomen 30 c.m. below the light axillary fold. Margins irregular and inverted (wound of entry).

Multiple firearm wound in an area of 8 x 10 c.m. surrounding the wound No. 2.

On behalf of the defence death of the deceased was not disputed. Dr. S.C. Sinha was only cross-examined on the point whether injury Nos. 1 and 2 could be inflicted while the deceased was lying on the cot. There is nothing to doubt the correctness of the statement of Dr. S.C. Sinha P.W. 6, we unhesitatingly, rely on the deposition of Dr. S.C. Sinha duly corroborated by the postmortem report Ext. Ka-15 and hold that the deceased Ram Uchhahal Verma was done to death by firearm injuries on the stated date and time.

Motive

Smt. Kanchan Verma P.W. 2 has stated that her deceased husband was elected as village pradhan and accused-appellant Teeju Verma lost the election, on this count he bore ill-will towards the deceased but she had not said anything about the other accused-appellant Harishyam Verma.

Swami Nath Verma P.W. 1 has corroborated the version contained in the FIR. During the cross-examination it has come out that election was held in the year 1995, before that in the year 1988 accused-appellant Teeju Verma was elected as village pradhan and the deceased had lost the election. Swami Nath Verma P.W. 1 has further admitted that after the elections, they did not form any party. Teeju Verma only filed election petition. The interval alleged in between the election and filing of election petition and the occurrence would show that the alleged motive against accused-appellant Teeju Verma could not be established by the prosecution. He has no immediate motive to murder the deceased. Accused-appellant Harishyam Verma was not alleged any motive by the wife of the deceased, this would lead us to infer that the deceased did not apprehend any assault from the side of Harishyam Verma. For the reasons mentioned herein-after we find the statement of Swami Nath Verma P.W. 1 not trustworthy. Bhola Verma P.W. 3 also stated about the motive but we do not find him to be stating anything new, therefore, we are in agreement with the arguments of the learned counsel for the appellants that against the appellants no immediate motive for committing murder of the deceased could be established.

Anti timing of FIR

According to the learned counsel for the appellants FIR was anti timed. Occurrence took place at 2.00 AM, FIR was lodged at 3.05 AM, distance between the place of occurrence and the police station is 9 Kms., inquest was held in the premises of the police station. On form No. 13 addressed to Reserve Inspector of Police, we do not find any endorsement when the dead body was received at reserved police line. In column No. 2 letters ''AM'' appear to be subsequently inserted, it bears neither the case crime number nor sections thereof. In diagram of the dead body, it appears that below section 302 IPC subsequently as denominator sections 147, 148, 149 were added. This inference gets fortified from the specimen seal where this subsequent insertion is quite evident. In the inquest report, in this regard position is the same.

What we find in the present matter striking that on behalf of the prosecution, no effort was made to show that the special report was promptly dispatched. Pratibha Tripathi P.W. 4 scribe of the chik FIR has admitted that on that date before registration of this case no other case was registered and after registration of this case at 8.45 PM on that date only one NCR was registered.

From the statement of Haripal Singh, Investigating Officer P.W. 5, the obligation of the prosecution in this regard does not stand discharged any further because he had not said anything about these.

The testimony of Swami Nath Verma P.W. 1 is more revealing in this regard. According to him, during the night he reached the police station, his cousin had died before reaching the police station. He dictated the FIR outside the police station to one stranger and gave it to the clerk constable. According to him, he reached the police station at 2.45 PM within 5-6 minutes of the occurrence, he took his cousin by a jeep of another village, which was called by his elder brother. The details given by him in this reference, are not convincing. During the night neither it would be possible to get the jeep within such short time nor distance of 9 kms. could be covered within such short span of time. It is an admitted fact that first he approached the police and on their direction he got the report written by a stranger, when all the above noted facts are taken cumulatively taken into consideration, the probability is that first inquest was held, thereafter deliberations were made and written report was prepared. There appears anti timing of FIR and the prosecution has failed to show that it was promptly lodged.

Now we deal with the ocular version of the occurrence disclosed by Swami Nath Verma P.W. 1, Smt. Kanchan Verma P.W. 2 and Bhola Verma P.W. 3.

The testimony of Swami Nath Verma appears to be unreliable. Reasons are that the Investigating Officer has not shown in the site plan where this witness was sleeping, whereas he has shown the place where wife and daughter of the deceased were sleeping. Further in the site plan neither house nor tube-well of this witness has been shown. We find that this witness has neither disclosed in the FIR why he was sleeping near the deceased nor in the statement recorded on oath he has shown the reason. According to him, he was sleeping in his house. During the cross-examination he has changed his version and said that he was sleeping at his tube-well. According to Kanchan Verma P.W. 2 tube-well of Swami Nath Verma P.W. 1 is in front of her house but in the site plan in front of her house no tube-well has been shown by the Investigating Officer. On the northern side, there is Rasta, thereafter Baradaur of the deceased is situated and adjacent to that on western side there is house of Raja Ram Pathak, on the eastern side of the house of the deceased there is open land of Vishwa nath, on the southern side there is open land, on the western side, there is field of Chandra Bhan Verma. In this topography the presence of this witness at the time of occurrence cannot be believed. His presence on the spot at the relevant time is neither natural nor probable. He appears to be a planted witness.

Kanchan Verma P.W. 2 is the wife of the deceased. Her presence at the time of occurrence is natural and probable. Her testimony has been impeached on the ground that there was no light and the witness was sleeping at that moment, for that reason she could not have identified the assailants. According to this witness, she had woken up 15-16 minutes earlier as her daughter was ill and she was demanding milk. According to her lantern was burning but this witness has said that on hearing the sound she threw light from her torch and saw and identified the assailants. This witness nowhere said that she whilst seeing the occurrence had raised the alarm. The absence of this natural reaction would indicate that the witness has taken help either from her imagination or from the legal advice. The Investigating Officer had made memo about the supurdagi of her torch on 30.06.1996, this fact also tends to make the presence of torch doubtful. Further had the lantern been burning, the witness would have no reason to take the torch up and threw its light where she heard the sound coming that too at the distance of five steps, where her husband was sleeping.

Bhola Verma P.W. 3 is resident of the same village. He explained his presence on the spot at the relevant time on the ground of watching his field to protect his crop from Neelgay. The witness admits that house of the deceased situates within a grove. His field is situated at the boundary of his village. At the relevant time he was in a Kuti situated at the distance of 100-120 meters from his field. He was carrying torch. The question arises that a person who goes to keep watch over his field would remain in a Kuti at such a distance, because due standing crop in his field he would not be able to see whether the crop is damaged by the wild animals or not. He cannot keep the torch on all over the time more so in the torch light visibility extends up to 40-50 feet only. It is not possible to see in the light of the torch as much as could be seen in the natural light. His location at the time of occurrence belies the reason for his presence near the house of the deceased, therefore, we think he is a planted witness and no reliance can be placed on his testimony.

We have already held that the FIR was lodged with delay after deliberation. In this backdrop and for the reasons mentioned above, we find that the testimonies of these witnesses also cannot be relied upon.

On the ground of unfair investigation impugned judgment has been challenged. Anti timing of FIR, subsequent insertion in the police papers coupled with the fact that in the site plan the Investigating Officer did not show the distance between the place where the lantern was burning and the deceased was sleeping, we find that the Investigating Officer did not act fairly and for this reason crime could not have been investigated properly, thereby causing prejudice to the present appellants.

The last ground that acquittal of co-accused Ashok Kumar, Firtu and Dwarika Verma has been made on the basis of same evidence on the ground that when the deceased was already injured, he could not have run away, therefore, the story about holding the deceased on the ground by these accused could not be believed. All the three eye witnesses have narrated the prosecution version, showing complicity of all the five assailants, out of five, three accused have been acquitted by the learned trial Judge. The moot point is whether on the same evidence the appellants could have been convicted. Though it is settled legal position that a witness false in one thing cannot be treated to be false in all things. (Falsus in Uno, Falsus in Omnibus).

We find that after disbelieving the eye witness account about three acquitted accused, the surviving evidence is not enough to reconstruct the story to establish the guilt of the two present appellants. In this reference case of Ugar Ahir Vs. State of Bihar , AIR 1965 SC 277 can be gainfully referred, wherein it has been held by the Apex Court that this can be done provided substratum of the prosecution case or material parts of the evidence would be enough to reconstruct the story of its own out of the rest. When considered this the Hon''ble Apex in the case of Balaka Singh Vs. State of Punjab , AIR 1975 SC 1962 has further explained that where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation the court would be required to reconstruct an absolute new case for the prosecution by divorcing essential details presented in the prosecution version. If divorced, the facts about complicity of three acquitted accused, the original prosecution version and its supporting evidence would not be enough to prove the guilt of the present appellants on its own. From the evidence available on record the Court is not in a position to conclude that only two assailants entered into the house of the deceased and murdered him and ran away.

In view of the above, we conclude that in the present matter motive has not been established and the learned trial Judge has wrongly relied upon the testimonies of eye witnesses and formed the opinion that the present appellants and three acquitted co-accused form one party and bore enmity with the deceased. FIR was anti timed. Eye witness account does not inspire our confidence and the learned trial Judge without considering ante timing of FIR has placed reliance on the ocular version of the occurrence. Acquittal of three co-accused also makes the complicity of the present appellants in the said crime doubtful. This aspect has escaped the attention of the learned trial Judge, therefore, the findings recorded by the learned trial Judge are factually incorrect and suffers with legal infirmities.

Arguments advanced in support of the appeal are well substantiated from the record and we hold that against the present appellants the prosecution has failed to prove charges beyond reasonable doubt. The appellants are entitled to be acquitted after extending them benefit of doubt.

Accordingly, the criminal appeal is allowed and the judgment and order dated 23.11.2001 passed by learned IInd Additional Sessions Judge, Faizabad in S.T. No. 1033 of 1996 [State Vs. Teeju Verma and others] arising out of Case Crime No. 104 of 1996, under Sections 147, 148, 149, 323, 302 I.P.C., P.S. Raje Sultanpur, District Ambedkar Nagar are hereby set a side. The appellants are acquitted from the charges levelled against them. The appellants are on bail. Their bail bonds are cancelled and the sureties are discharged from their liabilities. The appellants need not surrender, in case, they are not wanted in any other case.

Office is directed to communicate this order to the court concerned to ensure compliance and further sent back the lower court record.