Vijai Pratap Singh vs State of U.P.

Pratyush Kumar, J.—The present appeal, filed under Section 374 Cr.P.C. by the accused appellant, is directed against the judgment and order dated 28.09.1984 passed by Sri G.L. Tandon, Sessions Judge, Sultanpur in S.T. No. 209 of 1983 [State v. Vijay Pratap Singh @ Vijay Kumar Singh @ Babu Singh] whereby the present appellant has been convicted under Section 302 I.P.C. and sentenced to undergo imprisonment for life.

Briefly stated on 02.10.1982 at 9.40 AM Jagraj Singh gave a written report at Police Station Kotwali stating therein that on that date he and his son Jang Bahadur Singh @ Lal Bahadur Singh @ Kunwar Bahadur Singh, were present at their tube-well, the present appellant Vijay Pratap Singh, whose field was adjacent to their field on northern side came to the tube-well at about 7.00 AM and started abusing why water of his field was diverted to their field. When his son replied that he did not divert the water, Vijay Pratap Singh shot his son, who fell down, Vijay Pratap Singh showing his pistol ran away. Raj Karan Singh, Ram Kumar Singh and Tej Bahadur Singh saw the incident, complainant took his injured son by Riksha to Katka Khanpur, therefrom by Taxi to Sadar Hospital, Sultanpur, whereby he was declared dead.

At this report chik FIR was scribed. Case Crime No. 153 of 1982 was registered, requisite entry was made in the general diary. Investigation was started. The Investigating Officer conducted the inquest proceedings, reached on the spot, inspected it and prepared the site plan, took the samples of blood stained and simple earth. The Investigating Officer examined the witnesses and after completion of the investigation submitted the charge-sheet against the present appellant. The case was committed to the Court of Session whereby the appellant was charged under Section 302 I.P.C. He pleaded not guilty and claimed to be tried.

Besides documentary evidence prosecution examined seven witnesses. After close of prosecution evidence statement of the accused-appellant was recorded under Section 313 Cr.P.C. The accused-appellant disputed the truthfulness of the statement of the eye witnesses pleaded ignorance about the injuries sustained by the deceased, his transportation to Sultanpur, about the postmortem conducted on the dead body of the deceased. According to him, he has been falsely implicated due to enmity. According to him, witnesses were deposing against him due to enmity between his father and brother of Jagraj Singh on account of litigation in consolidation proceedings.

The learned trial Judge after hearing the arguments of both the parties concluded that the present appellant had committed the murder of the deceased Jang Bahadur Singh by firing pistol on him. He found the evidence of Jagraj Singh P.W. 1 and Tej Bahadur Singh P.W. 2 worthy of reliance and duly corroborated by medical evidence. He did not accept the plea that non finding of blood at the spot was fatal for the prosecution. He also did not accept this argument that presence of faecal matter in the rectum of the deceased would lead to infer that the deceased had not relieved himself on that date.

Feeling aggrieved the present appeal has been preferred on the grounds that the eye witnesses examined by the prosecution are not reliable. No case under Section 302 I.P.C. is made out against the appellant.

We have heard Sri Nagendra Mohan, learned counsel for the appellant, learned Additional Government Advocate for the State and perused the record.

At the very outset learned counsel for the appellant has submitted that he would confine his argument only on the question that from the facts established from the prosecution evidence charge under Section 302 I.P.C. is not proved against the present appellant. At the most present appellant may be said to be guilty of committing culpable homicide not amounting to murder punishable under Section 304 part-I of I.P.C. He has taken us through the contents of the first information report and statement of Jagraj Singh P.W. 1, Tej Bahadur Singh P.W. 2 and Dr. R.K. Mathur, P.W. 3. According to him during autopsy only one gun shot wound was found on the body of the deceased. He has further submitted that in the first information report the present appellant was shown to have fired at the deceased only once. His further submission is that after altercation with his son due to provocation the present appellant is said to have fired on Jang Bahadur Singh. Gist of the argument is that the fatal fire was the result of sudden provocation, hence the case against the appellant is squarely fall under Section 304 part-I of I.P.C.

On behalf of the State learned Additional Government Advocate has repelled these arguments and replied that it was a case of deliberate fire. The present case is a case of murder.

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 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."

In the light of settled legal position as quoted above, we are not only required to examine and evaluate the evidence produced by the parties during trial but also take into account the reasons given by the trial Judge either to believe or disbelieve such evidence. We are further required to consider the grounds taken in the memo of appeal as well as arguments advanced in support thereof.

First we would like to discuss the medical evidence consisting of postmortem report exhibit Ka-2 and statement of Dr. R.K. Mathur P.W. 3. Dr. R.K. Mathur, P.W. 3 has deposed that on 02.10.1982 at 4.00 PM he conducted the postmortem on the dead body of Jang Bahadur Singh. According to him death had taken place 1/3rd day ago. In the rectum/stomach there was faecal matter and faecal matter was also present in small intestine. Death had occurred due to shock and haemorrhage as a result of ante mortem injury. This witness has proved the postmortem report exhibit Ka-2, wherein he recorded the ante mortem injury as under:

"Gunshot wound elliptical in shape 0.8 cm x 0.6 cm on the front of abdomen on right side 16 cm below right side costal margin. The margins of the wound were clear cut and inverted and no singing or tattooing was present."

This witness has been cross-examined only on two points. First time since death, second, nature of weapon from which fatal shot was fired. The correctness of other findings recorded in the postmortem report and deposition of this witness have not been disputed on behalf of the present appellant before the trial Judge. This witness has conducted the autopsy in discharge of his official duty. He has no enmity with the present appellant and no affinity with the first informant. His statement is duly corroborated with the entries in postmortem report exhibit Ka-2, therefore, we find his statement worthy of reliance.

Jagraj Singh P.W. 1 has stated the facts mentioned in the first information report. He has fully supported the prosecution version and has given detail how he took his son first to the Katka Khanpur, thereafter to Sultanpur. He has proved the first information report exhibit Ka-1 and identified the clothes worn by the deceased material exhibit 1 to 3. He has been cross-examined at length. Even right from the very beginning he has given his reason to be present at the tube-well where the occurrence had taken place along with deceased. During cross-examination this statement has not been challenged, therefore, presence of the witness at the time and place of occurrence is considered to be natural and probable.

According to site plan exhibit Ka-12 incident had taken place at the place indicated by ''X'' and this witness claims himself to be at place indicated by ''B''. From there place ''X'' is not only adjacent but visible also, therefore, this witness was in a position to see the occurrence. Since before the occurrence altercation took place, it is natural that the attention of the witnesses must have been drawn where the altercation was taking place. This satisfy us that this witness has seen the occurrence. During lengthy cross-examination his testimony remains unshaken. He is father of the deceased though it has been argued that he is an inimical witness, however, we cannot overlook this fact that he is also a related witness, who would be most interested in seeing that murderer of his son be punished, therefore, on account of enmity his testimony cannot be discarded. In the case of Jayabalan Vs. U.T. of Pondicherry, , the Apex Court has held that the testimony of a witness in a criminal trial cannot be discarded merely because the witness is a relative or family member of the victim of the offence. In such a case, court has to adopt a careful approach in analyzing the evidence of such witness and if the testimony of the related witness is otherwise found credible accused can be convicted on the basis of testimony of such related witness. Keeping in view this legal principle, we find him reliable witness.

The second witness Tej Bahadur Singh P.W. 2 has been named in the first information report. During evidence it has come out that at the tube-well flour-mill was also running. It was a morning time and this witness says that he had gone to the tube-well of the deceased to take his flour. Even this witness has not been cross-examined on this point. Therefore, his presence at the spot cannot be doubted. He has supported the prosecution version. During cross-examination his testimony remains unshaken. He is also related to the deceased for the reasons mentioned earlier being relative witness, we find that on account of enmity his testimony cannot be discarded. We find his testimony worthy of reliance.

The eye witness account given by these two witnesses is duly corroborated by the medical evidence. Other witnesses are formal witnesses.

When the evidence of the prosecution is considered along with the reply given by the present appellant in his statement recorded under Section 313 Cr.P.C., we find that the eye witness account is fully worthy of reliance and replies given by the present appellant are unsubstantiated and inadequate to create any doubt about the complicity of the appellant in the homicidal death of the deceased Jang Bahadur Singh. The first ground taken in the memo of appeal is without substance.

The second ground has been pressed before us by the learned counsel for the appellant. It is not disputed that the appellant had fired his pistol only once. This fact stands corroborated from the medical evidence. The question is as to whether it is a case of murder or culpable homicide not amounting murder.

To answer this question we would like to quote the exception of Section 300 I.P.C.

"Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender''s having taken undue advantage or acted in a cruel or unusual manner."

Now we proceed to answer this question. According to prosecution, the present appellant abused the deceased for diverting water to his field. Both eye witnesses examined by the prosecution substantiate this fact. They have also disclosed that deceased had used the words According to both the eye witnesses, thereafter the present appellant had shot the fatal fire. From these facts it is clear that in the present case culpable homicide of Jang Bahadur Singh was without premeditation, it was as a result of sudden altercation, generating heat of passion and the present appellant had not taken any advantage or committed murder with cruelty or in unusual manner. In the case of Mahesh Balmiki @ Manna Vs. State of Madhya Pradesh, , the Apex Court in such situation has held such culpable homicide to be culpable homicide not amounting to murder.

Perusal of the judgment reveals that the learned trial Judge has not considered this question whether it was a case of murder or culpable homicide not amounting to murder.

We are in agreement with the reasons given by the learned trial Judge and findings of fact recorded by him about the occurrence but we are unable to agree with him that in the present case the prosecution has successfully proved the charges under Section 302 I.P.C. against the present appellant. From the facts established from the prosecution evidence, we are of the opinion that it is a clear case of culpable homicide not amounting to murder and to this extent the prosecution has been successful to prove beyond reasonable doubt that the present appellant had caused the homicidal death of Jang Bahadur Singh which amounts to culpable homicide not amounting to murder punishable under Section 304 part-I I.P.C. To this extent the impugned judgment and order require to be modified and further sentence of imprisonment for life for the offence committed in heat of passion without premeditation imprisonment for life appears to be excessive.

Considering the fact that this appeal is heard by us after more than twenty one years of its filing, we think that punishment of 10 years R.I. and fine of Rs. 5,000/- in default thereof further imprisonment of six months R.I. would serve the ends of justice.

Resultantly the appeal is partly dismissed and partly allowed. The impugned judgment and order dated 28.09.1984 stands modified to this extent that the present appellant is convicted under Section 304 part-I I.P.C. in place of Section 302 I.P.C. and he is sentenced to undergo ten years R.I. and fine of Rs. 5,000/-. In case of default of payment of fine, he shall further undergo six months RI.