Vijendra Vijay vs State of U.P.

Pratyush Kumar, J.—The instant criminal appeal, filed by the accused-appellant under Section 374(2) Cr.P.C., is directed against the judgment and order dated 24.5.1982 passed by Sri R.N. Sircar, Vth Additional District & Sessions Judge, Hardoi, in S.T. No. A-457 of 1981 (State v. Vijendra Vijay) under Section 302 I.P.C., Police Station Kotwali, whereby the appellant was convicted under Section 302 I.P.C. and sentenced to undergo imprisonment for life and fine of Rs. 1,000/-. In default thereof to undergo further three months rigorous imprisonment.

In brief the prosecution case is that Hari Shanker gave a written report on 7th February, 1981 at Police Station Kotwali, stating therein that his brother Brahmanand and Naval Kishore were friends, there was some litigation, criminal as well as civil between Naval Kishore and his family members on the one hand and the appellant on the other. On this account, the accused Vijendra Vijay bore enmity with Brahmanand also. Yester-night at 8.00 p.m. his brother Brahmanand, Naval Kishore, Bhanney Chowkidar were conversing in front of the door of Vijendra Vijay. Vijendra Vijay and his brother Brahamanand had an altercation in regard to construction of ''Nali''. During altercation Vijendra Vijay shot Brahmanand on his chest from a country made pistol and entered the house and shut the door. His injured brother reached the door of his house and due to injuries sustained by him he died there.

On this report chik F.I.R. was scribed. Case under section 302 was registered as Case Crime No. 106 of 1981. Relevant entries were made in the general diary and investigation started therefrom. Sri Ram Tripathi, SSI, Police Station, Kotwali reached the spot, examined the witnesses and conducted the inquest proceedings on the dead body of Brahamanand, inspected the spot, prepared the site plan, took samples of blood stained and plain earth. He also sent the dead body to mortuary for its autopsy. On the basis of information furnished by ''Mukhbir'' (informer) on the same day, he arrested the appellant from Hardoi Bilgram Road near place of Param Dhabha from whose personal search, he recovered one country made pistol, one empty and one life cartridge. After coming back to the police station, he deposited the samples taken from the spot. The items recovered from the accused and the accused was locked up in the ''hawalat''. Site plan was prepared. Samples of blood stained and plain earth were sent for chemical examination. After obtaining postmortem report and chemical examination report against the appellant, chargesheet was submitted.

The case was committed to the Court of Session where the accused was charged under Section 302 I.P.C. which he denied and claimed to be tried. In support of the charge, besides documentary evidence, seven witnesses were examined by the prosecution. Thereafter statement of the accused was recorded under Section 313 Cr.P.C. In his statement accused admitted the relationship, enmity, location of the house of deceased Brahamanand. He denied that in front of the house of the first informant, ''lantern'' was burning, though he admitted the details of the litigation but he denied the facts stated by the eye-witnesses, touching the occurrence, regarding autopsy, investigation, chemical examination, he pleaded ignorance. He denied the arrest by Sri Ram Tripathi, SSI. According to him, he has been falsely prosecuted due to enmity. Witnesses were deposing against him on account of enmity. In the defence, certified copies of litigation under Section 145 Cr.P.C. between Raj Kumar and the deceased Brahamanand were filed examined and constable Bhagwati Singh, D.W.-1 were examined.

The learned Sessions Judge, after hearing the parties convicted the appellant under Section 302 I.P.C. and sentenced him to undergo imprisonment for life alongwith fine. According to the learned Sessions Judge, the prosecution has successfully proved the place of occurrence, evidence of Hari Shanker, P.W.-1, first informant and Nawal Kishore, P.W.-4 was found him to be trustworthy. According to him, medical evidence not only proved homicidal death of deceased Brahmanand but also corroborated eye-witness account of the occurrence. He rejected the defence argument that F.I.R. was ante-timed and came to the conclusion that prosecution has successfully proved the charge against the accused-appellant beyond reasonable doubt.

Feeling aggrieved, the appellant has filed the present appeal on the grounds that eye-witness account was untrustworthy due to enmity. Learned Sessions Judge has erred in relying upon untrustworthy evidence. Further, F.I.R. was delayed. No independent witness was examined. Learned Sessions Judge has committed legal error in ignoring the above facts creating doubt about the fruitfulness of the prosecution evidence.

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 view of above, we propose to examine and assess the credibility of prosecution evidence keeping in view the facts of the case. We further propose to deliberate upon the grounds taken in the memo of appeal as well as the arguments advanced on behalf of the appellant alongwith the reasons assigned by the learned Trial Judge wherever we come to different conclusion.

On behalf of the prosecution, three eye-witnesses were examined, out of which Hari Shanker, P.W.-1 is the first informant and brother of the deceased Brahamanand. He has reiterated the facts stated in the First Information Report and proved it Exhibit Ka-1. Banney, P.W.-3 was the village Chowkidar at the relevant time. In the examination-in-chief, he has supported the prosecution version, however, during cross examination, he resiled from his previous statement under Section 154 of the Evidence Act, he was cross-examined by the public prosecutor wherein he denied the suggestion that village people were terrified of the appellant Vijendra Vijay and no villager out of fear was prepared to depose before the court. He also denied that due to fear, he has resiled from his previous statement. Third eye-witness Naval Kishore, P.W.-4 was named in the First Information Report. He has supported the prosecution version.

In order to properly evaluate intrinsic value of the eye-witnesses we feel that medical evidence should be taken into consideration first and thereafter eye-witness accounts should be evaluated. Dr. N.A. Khan, P.W.-2 was the medical officer, who conducted the postmortem on 7th February, 1981 at 12.15 p.m. on the dead body of deceased Brahamanand. According to his deposition the deceased was aged about 40 years. He has died half a day before. He was of average built. Rigor mortis are present on the body. During external examination he found two ante-mortem injuries which were recorded by him in the postmortem report. These injuries are as under:-

"1. Firearm wound of entry 6 in number in an area of 5 cm x 4 cm over center of chest 9 cm away from right nipple, 5 cm away from left nipple and 9 cm below supra-sternal notch each wound measuring 1.5 cm x 1 cm x chest cavity deep, margin inverted wounds directed slightly upward, forward and towards right side.

Fire arm wound of exist 2.5 cm x 1.5 cm x through x through over right side of chest 9 cm away from right nipple at about 7 o''clock position."

He has further deposed that during internal examination, he found thorax, sixth, seventh and eighth ribs on the right side fractured. Plaura was ruptured and right lung was also found fractured. He proved the postmortem report Exhibit Ka-2 and opined that death occurred due to shock and hemorrhage as a result of ante-mortem injuries, which was ordinarily sufficient to cause death. These injuries could be caused by country made pistol.

The doctor is an official witness, who in discharge of his official duty has conducted the autopsy on the dead body of the deceased Brahamanand. He has no enmity with the appellant and no affinity with the first informant. He is an impartial witness. On behalf of the appellant the witness has been cross examined only on the point of number and location of pellets recovered from the dead body. He has also been cross examined on the point of direction of the wound so as to ascertain distance and height from which the assailant would have fired the fatal wound. Except on these two points, correctness of his testimony has not been challenged. He has not been given any suggestion to show that his experience, impartiality and correctness of the findings recorded by him during the postmortem are disputed on behalf of the appellant. Therefore, we find him to be a truthful witness. His testimony is relied upon by us to hold that as alleged by the prosecution, the decreased Brahamanand was done to death at the time and date alleged by the prosecution.

Hari Shanker, P.W.-1 is the brother of the deceased and the first informant. He has fully supported the prosecution story in his statement on oath. Banney, P.W.-3 is the Chowkidar of the village made in the F.I.R. as eye-witness, however, he has turned hostile. Naval Kishore, P.W.-4 is the other eye-witness whose name finds place in the First Information Report. As per prosecution version, the deceased Brahamanand, Naval Kishore, first informant and Banney at the time of occurrence were conversing with the appellant in front of the door. The incident is said to have occurred on 6th February, 1981 at 8.00 p.m. F.I.R. has been lodged at 1.00 a.m. on 7th February, 1981. The distance from the place of occurrence to the police station is about five miles. The first informant has given detailed account how he had lodged the F.I.R. Though before the trial court, it has been argued that the F.I.R. was delayed as also ante-timed. The basis of this argument was that on the inquest report, crime number was not written. We find that this argument is based on fallacy. Though it is correct that on the first page of inquest report, crime number has not been mentioned, however, on the very next page, case crime number has been written. The slip appears to be accidental. It is noteworthy that on 7th February, 1981, at 12.15 p.m. autopsy was conducted. This shows that dead body of deceased Brahamanand would have reached mortuary in the morning on that date accompanied with all necessary papers bearing the case crime number, therefore, in the present case, there are no chances of ante-timing F.I.R.

So far as the delay is concerned, in the light of timing of occurrence, distance from the police station and the manner in which the first informant states how he had lodged the F.I.R., we come to the opinion that F.I.R. was not delayed rather it was prompt F.I.R. There were no chances of deliberation and embellishment. This finding satisfies us that name of Hari Shanker and Naval Kishore, eye-witness find place in the First Information Report without any consultation and their presence at the scene of occurrence, appears to be probable.

In order to determine the probative force of eyewitness account, this Court is required to individually assess the trustworthiness of each eye-witness for which the test is whether presence of the eye-witness at the time and place of occurrence was probable, whether the witness had opportunity to see the occurrence, whether he stood the test of cross examination successfully and any other surrounding circumstances having bearing on the probative force of his testimony.

Hari Shanker, P.W.-1, has given reason to be present at the time and place of occurrence. His statement on this point remains unshaken during the cross-examination. Prompt F.I.R. also lends support to his statement about his presence at the relevant time. We find him to be a natural and probable witness. According to him, at the scene of occurrence one ''lantern'' was burning in whose light he had scene the occurrence. F.I.R. does not contain any reference to the ''lantern''. In his statement recorded under Section 161 Cr.P.C., the investigating officer has not recorded this fact. Presence of ''lantern'' appears to be an improvement. The question is whether presence of ''lantern'' should be doubted upon after going through the answers given by the witness in this regard. During cross-examination in this reference, we find that his statement on this point also remains undemolished. We also find that in the site plan, the investigating officer has shown burning of ''lantern'' at place shown at "4". Thus, from the site plan, statement of Hari Shanker, P.W.-1, on the point of ''lantern'' receives corroboration and we accept his statement on this point as worthy of reliance. Except enmity during the cross examination, nothing adverse could be extracted to show that this witness is lying. He is real brother of the deceased Brahamanand. Only on account of enmity, he would not in all likelihood spare the real assailant of his brother and falsely implicate a person, who is inimical towards the friend of his deceased brother, testimony of relative witness is only required to be scrutinized carefully. It is not in itself a ground to discard the testimony. After careful examination, we come to the opinion that this witness is worthy of reliance and learned Trial Judge has rightly believed.

Naval Kishore, P.W.-4 is also eye-witness. Reasons for his trustworthiness are identical to the reasons we have mentioned while discussing the trustworthiness of Hari Shanker, P.W.-1, therefore, we also find his testimony to be worthy of reliance.

Ocular testimony adduced by the prosecution is fully corroborated by the medical evidence. Though some doubt has been raised about place of occurrence but samples taken of blood stained earth and simple earth were examined at Forensic Science Laboratory. The reports Exhibit 22 and Ka-23 unmistakably indicate that blood stained earth contained human blood stains, therefore, challenge to place of occurrence is also not sustainable. Thus, we agree to the findings recorded by the learned Trial Judge that at the alleged date, time and place, deceased Brahamanand was done to death by the present appellant.

The only argument raised on behalf of the appellant is that from the facts established on the basis of prosecution evidence, homicidal death of deceased Brahamanand would not fall within the definition of murder, as contained in Section 300 rather it would amount of culpable homicide not amount of murder punishable under section 304 I.P.C.

According to the learned counsel for the appellant, when the deceased Brahamanand intervened between the discussion taking place between Naval Kishore and the appellant, the appellant accused him to be root of the litigation and an altercation took place between these two, wherein the appellant had fired from the country made pistol on the deceased Brahamanand, thereafter, went into his house. According to medical evidence, during autopsy one fire wound of entry was found on the dead body of deceased Brahamanand. Hari Shanker, P.W.-1 and Naval Kishore, P.W.-4 also reiterated the facts mentioned in the First Information Report in this regard. Even Naval Kishore, P.W.-4 has specifically stated that when the altercation was going on and they were asking the deceased Brahamanand and the appellant, not to do so, the appellant Vijendra Vijay became annoyed and fired the fatal wound from his country made pistol on the deceased Brahamanand. To resolve whether from the facts established from the prosecution evidence, it was a case of murder or culpable homicide not amounting to murder, we would like to re-collect and reproduced Exception 4 of Section 300 I.P.C., which is quoted as below:-

"Section 300 I.P.C. Exception 4- 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."

The Apex Court in the case of Mahesh Balmiki @ Manna Vs. State of Madhya Pradesh, , has observed that if homicide takes place without per-meditation in a heat of sudden quarrel, the offender has not taken undue advantage and he has not acted with cruelty or unusual manner, such homicide would not be murder but would amount to culpable not amounting to murder punishable under Section 304 I.P.C.

In view of the facts noted above and legal position stated by the Apex Court, we are of the opinion that the argument advanced on behalf of the appellant is well substantiated. Perusal of the impugned judgment reveals that on this point the learned trial judge has not applied his mind whether it would be a case of murder or culpable homicide not amounting to murder. In absence of any reason assigned by the learned Trial Judge, we presume that perhaps this argument was not raised before him, though this ground has not taken in the memo of appeal, however, with our permission, learned counsel for the appellant has raised this point and we find that this argument is sustainable. We further find that prosecution has been successful in proving beyond reasonable doubt that on the stated date, time and place, deceased Brahamanand was done to death by the appellant. To this extent, we are in a agreement with the findings recorded by the Trial Judge. From this juncture, we depart for the reasons stated above and disagree with the findings of the learned Trial Judge that the appellant was guilty of commission of offence punishable under Section 302 I.P.C. We are of the opinion that the prosecution has successfully proved that on the stated date, time and place, the appellant has killed the deceased Brahamanand thereby committed an offence of culpable homicide not amounting to murder punishable under Section 304(1) I.P.C.

In our opinion, under this charge, life imprisonment would be an excessive sentence and keeping in view the fact that the appeal of the present appellant remained pending for more than 33 years, we are of the opinion that ten years rigorous imprisonment and Rs. 1,000/- fine, in default thereof further imprisonment of three months rigorous imprisonment would serve the end of justice.

The appeal is partly dismissed and partly allowed.

The impugned judgment and order is modified and the appellant Vijendra Vijay is acquitted from the charge under Section 302 I.P.C. and convicted under Section 304(1) I.P.C. His sentence to undergo life imprisonment is also set aside and he is sentenced under Section 304(1) I.P.C. to undergo imprisonment for ten years and to pay fine of Rs. 1,000/-, in default thereof of he was further served rigorous imprisonment for a period of three months.

Office is directed to communicate this order to the court concerned and to send back the record to the court below.