Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 2139 (ALL)

Jagdish Gupta v. State of U. P.

2016-06-03

PRATYUSH KUMAR, VIKRAM NATH

body2016
JUDGMENT Vikram Nath and Pratyush Kumar,J. The instant appeal filed on behalf of the accused-appellant under section 374(2) of Cr.P.C is directed against the judgement and order dated 19.11.2009 passed by Sri Ram Raj Ram, Additional Session Judge, Fast Track Court No.4, Maharajganj, in S.T. No. 93 of 2006, State of U.P. Vs. Jagdish Gupta, whereby the appellant has been convicted under section 302 I.P.C and sentenced to undergo imprisonment for life and to pay fine of Rs.20,000/-, in default thereof to further undergo rigorous imprisonment of one year.. 2. Heard Sri Shashwat Shukla, Advocate and Sri Kaushlesh Tripathi, learned counsel appearing for the appellant and Sri A.N. Mullah, learned A.G.A for the State-respondent and perused the record. 3. Facts giving rise to the present appeal may be summarized as under: - (i) That on 5.4.2006 at 7.10 a.m Chandra Bhan Gupta gave a written report at police station Kotwali, Sadar stating therein that on the previous day on 4.4.2006, he along with his son Vijay and his daughter Km. Saroj had gone to Durgamandir, Maharajganj. In his absence his wife Smt. Sharda Devi and his aged father remained at his house. His real brother Jagdish, who 2-3 days earlier had beaten his daughter-in-law who took shelter in the house of first informant and for that reason Jagdish had threatened that they were spoiling the mind of his daughter-in-law as such they would not be spared. Yester-night at about 4.00 a.m his wife was sleeping in the Varanda nearby his father who was also sleeping. Jagdish after fastening his wife to the cot had burnt and murdered her and thereafter he had absconded. Hearing the shouts of his father other villagers came to the house and doused the fire.Coming to know of the occurrence he along with his children came back. The dead body of his wife was lying in the Varanda. He requested for suitable action. (ii) At this, chick F.I.R was scribed, Case Crime No.734 of 2006, under section 302 I.P.C was registered and the investigation was taken over by S.H.O Ram Mohan Singh, who reached the spot and held the inquest proceedings and sent the dead body of the deceased for the post-mortem examination, inspected the spot and recovered one iron rod from the spot and also took sample of ashes. Thereafter investigation was transferred to Sri Harish Chandra Bharati, who concluded the investigation and submitted the charge sheet against the present appellant. 4. The appellant stood for trial before the Court of Session, where he was charged under section 302 I.P.C which he denied. The appellant was tried, convicted and sentenced as above. 5. On behalf of the appellant, learned counsel for the appellant has submitted that the F.I.R has been lodged with delay, motive for the murder could not be proved. According to him, there was no source of light. The only alleged eye witness Lalai Gupta PW-2 is old and infirm person who could not see in the night. He has further submitted that the testimony of Lalai Gupta is not reliable. Prosecution story is unnatural and improbable. The learned trial Judge has not appreciated the evidence in proper perspective and recorded erroneous finding of facts. The judgement is against the law and facts and deserves to be set aide. 6. On behalf of the State-respondent these arguments have been repelled and it has been submitted that the motive has been duly proved, Lalai Gupta being father of the appellant was in a position to see the occurrence in the night and identify the appellant. Learned A.G.A further submits that the testimony of father against his son is fully reliable. He further submits that the delay in lodging the F.I.R has been satisfactorily explained. The findings recorded by the learned trial Judge are well substantiated from the record,cogent reasons have been given in support thereof and the appeal has no substance and deserves to be set aside. 7. 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 in our mind the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni Vs. State of Gujarat [1995 SCC (Crl) 222], in this regard. 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. State of Gujarat [1995 SCC (Crl) 222], in this regard. 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." 8. 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 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. 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." 9. After telling the counsel about our duties and before entering into the merit of the arguments we find it convenient that the prosecution evidence may be discussed before we re-examine and reassess the same. 10. In the documentary evidence, the prosecution has filed besides other papers written report Ext.Ka-1, check F.I.R Ext.Ka-2, copy of the report of the general diary Ext.Ka-3, inquest report Ext.Ka-4, other papers accompanying the dead body Ext.Ka-5. Ext.Ka-8, recovery memo of burnt cot, ashes of burnt ropes, iron rod Ext.Ka-10, site plan Ext.Ka-9, charge sheet Ext.Ka-11 and post-mortem report Ext.Ka-12. 11. In the oral evidence the prosecution has examined the 12 witnesses. 12. Brief summary of prosecution evidence is as under: - Chandrabhan PW-1 is the first informant and the husband of the deceased, though he is not an eye witness but he has deposed about the motive for the murder. 11. In the oral evidence the prosecution has examined the 12 witnesses. 12. Brief summary of prosecution evidence is as under: - Chandrabhan PW-1 is the first informant and the husband of the deceased, though he is not an eye witness but he has deposed about the motive for the murder. According to him he and Jagdish are real brothers. They were living separately for 20 years. The appellant Jagdish used to beat his daughter-in-law with whom he had illicit relations. The daughter-in-law of the appellant had approached him by saying as he was elder to Jagdish and Jagdish being her father-in-law used to force her to have illicit relations with him. He might be persuaded by him to spare her. When he and his wife Smt. Sharda tried to persuade Jagdish Gupta, he become annoyed and he asked them not to interfere in his family matters and beat his daughter-in-law. Who had to take shelter in the house of the deceased. At that the appellant Jagdish also struck the deceased 2-3 blows by danda and after threatening and abusing them had left from there. The daughter-in-law of the appellant on the next following day had gone to her Mayakey, for this reason in his absence his wife was murdered by the appellant. The witness has proved the written report Ext.Ka-1. 13. Lalai Gupta PW-2 is the father of the first informant and the appellant. At the time of his deposition he was aged about 80 years. He has reiterated the facts narrated in the first information report. According to him when Jagdish started to burn Smt. Sarada Devi, the wife of the first informant, she cried, he got up and saw that after putting Smt. Sarada Devi on fire, Jagdish had covered her by cotton mattress. He raised hue and cry, then, villagers came there but Smt. Sarada had died. He had also stated about illicit relationship of the appellant with his daughter-in-law. 14. Vidya Sagar PW-3 is the real brother of the first informant and the appellant. He has turned hostile. 15. Paras PW-4 is the witness of the inquest. He has proved the inquest report but he denied that in his presence the recovery memo was prepared. He was declared hostile. 16. Samiullah PW-5 is the co-villager of the first informant. He is also witness of the inquest. He has turned hostile. 15. Paras PW-4 is the witness of the inquest. He has proved the inquest report but he denied that in his presence the recovery memo was prepared. He was declared hostile. 16. Samiullah PW-5 is the co-villager of the first informant. He is also witness of the inquest. He has proved his thumb impression on the inquest report but denied the other facts and he was declared hostile. 17. Badaruddin PW-6 is the witness of the recovery memo. He has deposed that in his presence near dead body of Smt. Sarda (deceased) one iron rod was recovered and these articles were sealed and recovery memo was prepared. He has also stated that the son of Jagdish was living in Gujarat and his daughter-in-law was living in the house. He has stated that Jagdish wanted to have illicit relations with his daughter-in-law,for this reason he used to beat his daughter-in-law. His daughter-in-law had apprised the wife of the first informant. For this reason she was murdered. 18. During the cross-examination he has admitted that in his presence the appellant had never beaten his daughter-in-law. 19. Ramvilas PW-7 is the witness of inquest. He has proved the inquest report. He has also reiterated the facts indicating the alleged motive for the murder. 20. Shiv Charan Sing PW-8 is the scribe of the check F.I.R Ext.Ka-2 and proved it. 21. Suresh Yadav PW-9 is the head constable. He has entered the details of the Case Crime No. 734 of 2006 in the report of the general diary. He has proved copy thereof Ext.Ka-3. 22. S.H.O, Ram Mohan Singh PW-10 is the first Investigating Officer. He gave details of the steps taken in the course of investigation and proved the inquest report Ext.Ka-4 and other accompanying papers with the dead body Ext.Ka 5 to Ext.Ka-8. He has also proved the site plan Ext.Ka-9 and deposed about the recovery of one iron rod, burnt ropes, burnt clothes and ashes and burnt cot recovered from the spot and taken into possession by him. He has proved the recovery memo Ext-Ka-10. He has identified one iron rod, burnt rope of the cot, burnt cot and ashes Ext 1 to 5. 23. S.I. Sri Harish Chandra Bharati PW-11 is the second Investigating Officer. He gave details of the steps taken by him in the course of investigation and proved the charge sheet Ext.Ka-11. 24. He has proved the recovery memo Ext-Ka-10. He has identified one iron rod, burnt rope of the cot, burnt cot and ashes Ext 1 to 5. 23. S.I. Sri Harish Chandra Bharati PW-11 is the second Investigating Officer. He gave details of the steps taken by him in the course of investigation and proved the charge sheet Ext.Ka-11. 24. Dr. S.P. Mishra PW-12 has conducted the post-mortem examination of the dead body of Smt. Sharada Devi on 6.4.2006 at 3.00 p.m. He has proved the post-mortem report Ext.Ka-12 and deposed that from the head to the sole there were superficial and deep burns on the dead body of the deceased. At some places the skin peeled off, line of redness was present. During internal examination he has found the carbon on the trachea and larynx. He found six ounce fluid in the stomach. The small intestine was empty. Gas and faecal matter were found in the large intestine. He has opined that the death could have occurred within three days due to shock as a result of ante-mortem burn injuries. He has also opined that at the stated date and time the deceased could have died. He denied the suggestion that the deceased could have died due to burn injuries sustained accidentally. 25. The case of the defence before the trial Court was of a simple denial. The appellant in his statement recorded under section 313 Cr.P.C has denied the facts stated by the prosecution witnesses. According to him due to enmity he was falsely prosecuted. In the defence no evidence was given. 26. The trial Court has found the prosecution version truthful and recorded the finding of guilt against the present appellant. 27. In the present case the prosecution has alleged the motive for the murder. The learned trial Judge has found it to be proved. On this point he has found the testimony of Chandrabhan PW-1 and Lalai Gupta PW-2 trustworthy. The first informant and the appellant are real brothers and Lalai Gupta PW-2 is their father. About motive these two witnesses are natural and probable witnesses. During cross examination on the point of motive Chandrabhan PW-1 was not directly cross examined even he was not suggested that the facts constituting the motive and deposed by him were false. The first informant and the appellant are real brothers and Lalai Gupta PW-2 is their father. About motive these two witnesses are natural and probable witnesses. During cross examination on the point of motive Chandrabhan PW-1 was not directly cross examined even he was not suggested that the facts constituting the motive and deposed by him were false. He was casually asked about the partition and whether he made any report about the acts of the appellant four days ago. The absence of cross examination and suggestion denying the facts constituting the motive, we think that on this point the testimony of Chandrabhan P.W-1 is unchallenged. 28. Lalai Gupta PW-2, the father of the appellant has also deposed about the alleged motive and acts of the appellant. He was only suggested that the appellant had no dispute or disagreement with the deceased. He has not been asked any question about the facts constituting the motive and deposed by this witness. His testimony is also uncontroverted on this point. 29. In view of the above, we concluded that the testimony of Chandrabhan PW-1 and Lalai Gupta PW-2 on the point that the appellant on account of his bad intention used to beat his daughter-in-law who approached the first informant and the deceased to protect her and when they tried to intervene and protect her the appellant became annoyed and had threatened to kill the deceased and struck 2-3 blows by danda. 30. The absence of the first informant along with his two children is not disputed and also the fact that on the fateful night the deceased and Lalai Gupta were the only persons who were present in the house of the informant. 31. In the site plan Ext. Ka-9, the place -A has been marked to indicate where the deceased was sleeping on a cot, at place-B Lalai Gupta PW-2 was sleeping and towards the south of the house of the appellant has been shown. It is also not disputed that from the road side the places-A and B were accessible. 32. Now we come to eye witness account narrated by Lalai Gupta PW-2. He was using spectacles for 8 to 10 years. He has admitted that without spectacles he could not see any thing. According to him, he was sleeping in the Osara and the deceased was sleeping in the Kothari. 33. 32. Now we come to eye witness account narrated by Lalai Gupta PW-2. He was using spectacles for 8 to 10 years. He has admitted that without spectacles he could not see any thing. According to him, he was sleeping in the Osara and the deceased was sleeping in the Kothari. 33. Learned counsel for the appellant has submitted that this witness has seen the dead body in the morning when many villagers came there. It has been further submitted that this witness has admitted that after death of the deceased the police came there. On the strength of these two facts on behalf of the appellant it has been argued that Lalai Gupta had not seen the assailant and F.I.R was ante timed. On careful reading of his testimony, we find ourself unable to accept the first argument advanced on behalf of the appellant that Lalai Gupta remained sleeping and he did not see the assailant and only in the morning he came to know that his daughter-in-law had been murdered. The reason is that the witness has poor eye sight. He says that merely he saw a light. He did not see Jagdish. He merely heard Jagdish uttering words of revenge. He did not claim to have seen the actual occurrence. 34. The evidence of the father against his own son has to be appreciated in the light of the relationship. No father would falsely implicate his own son that too for committing the murder of his Bhabhi. The second point is that it is very easy for a father to identify his son. It requires only glimpse or few words spoken by the son, identification of stranger is difficult but identification of his own son is a matter of instinct. 35. The statement of Lalai Gupta PW-2 is very brief and reason for him to identify his son has not been asked by the defence. How he came to identify his son has been disclosed by Chandrabhan PW-1 where he says that when he asked his father about the incident, his father informed him that Jagdish after tying the deceased burnt her that was how the deceased was murdered. When he further asked his father as to why he could not stop him, the father replied that at the time of occurrence Jagdish had asked him to keep mum otherwise he would also be burnt and killed. When he further asked his father as to why he could not stop him, the father replied that at the time of occurrence Jagdish had asked him to keep mum otherwise he would also be burnt and killed. 36. This evidence strictly speaking is hearsay but considering the alleged occurrence at 4 a.m and return of the first informant to his house in the morning before 7-10 a.m, we think that there is a close proximy between the occurrence and the event narrated by Lalai Gupta to his son, who is the husband of the deceased. The relationship, short interval of time and identity of place would make them part of the same transaction. If in between these two events, there would have been long interval of time or absence of the relationship between the witness, first informant and the deceased, the two events could not have been treated to be part of the same transaction. For the reason mentioned herein above we think here section 6 of the Evidence Act can be applied and the incident narrated by Lalai Gupta PW-2 to his son is relevant and admissible and can used to corroborate the statement of Lalai Gupta PW-2. 37. Though we are quite aware that on the basis of hearsay a person should not be held guilty but rule of exclusion of hearsay evidence has certain exception, one such exception is provided in section 6 of the Evidence Act. We are aware that Chandrabhan PW-1 has been examined by the prosecution and the appellant was given an opportunity to cross examine him. The basic objection against hearsay evidence is that the accused had no opportunity to cross examine the maker of the statement, here the appellant had opportunity to cross examine Chandrabhan PW-1 and Lalai Gupta PW-2 both. For these reason statement of Chandrabhan PW-1 to this extent can be taken into consideration to show how Lalai Gupta PW-2 identified the appellant at the time of occurrence. 38. For these reason statement of Chandrabhan PW-1 to this extent can be taken into consideration to show how Lalai Gupta PW-2 identified the appellant at the time of occurrence. 38. We agree with the submission of Sri A.N.Mulla, learned A.G.A for the State that due to advanced age and infirmity, it is quite possible that Lalai Gupta either did not remember that fact or was not physically able to give longer statement.Taking into consideration all these facts and circumstances we are satisfied that for the purpose that how Lalai Gupta PW-2 had identified his son to be the murderer or the conversation which had taken place between the first informant and his father Lalai Gupta PW-2, explaining as to how Lalai Gupta PW-2 could not prevent the murder of the deceased; due to the threat given by the appellant to Lalai Gupta at the time of occurrence shows that Lalai Gupta had heard the voice of his son and identified him sufficiently to understand that he meant business and could not be taken lightly. 39. The Hon'ble Apex Court in the case of Lok Pal Singh Vs. State of Madhya Pradesh AIR 1985 SC 891 has observed that the accused can be identified with the help of the voice by a witness, who fully knew the accused. In the light of the law laid down by the Hon'ble Apex Court and the reasons given by us herein above, we have no hesitation to hold that Lalai Gupta PW-2 was present at the relevant time at the spot and after waking up he identified the appellant by his voice when the appellant had threatened him to keep mum or be killed. 40. We do not find any substance in the submission made on behalf of the appellant that the learned trial Judge has not appreciated the evidence in proper perspective and Lalai Gupta PW-2 is not trustworthy witness. 41. For the reason indicated hereinbefore, we find him to be absolutely trustworthy witness. His testimony is reliable and fully inspires the confidence of the Court. 42. The delay in F.I.R is one of the ground which has been urged on the strength of the facts stated by Lalai Gupta PW-2, in his cross examination that the police came before the day broke but this ground is misconceived. Lalai Gupta also said that the police personnel and his son Chandrabhan had come. 42. The delay in F.I.R is one of the ground which has been urged on the strength of the facts stated by Lalai Gupta PW-2, in his cross examination that the police came before the day broke but this ground is misconceived. Lalai Gupta also said that the police personnel and his son Chandrabhan had come. According to Lalai Gupta the dead body was sent for post-mortem examination at 8-10 a.m on that day. He is an old man of rural back ground, his sense of time cannot be taken to be with the same exactitude as of city bred young man. For this reason we did not think that on this ground the F.I.R can be said to be ante timed. The first informant promptly returned back took stock of the situation, doused the fire and lodged the F.I.R. His statement is satisfactory explanation for the delay in lodging the F.I.R. We do not think that there was time for consultation and deliberation for false implication. 43. The last ground in support of the appeal is that the prosecution version is improbable and unnatural. It does not find favour with us. For motive for the crime has been successfully established. The absence of the first informant in the house and presence of only one very old man and middle aged woman in the house provide temptation and opportunity. We do not think that a man prone to aberration would not hesitate to forego this opportunity to take revenge from the deceased. We do not find any improbability in the prosecution version therefore. 44. The other evidence by the police personnel is formal in nature. No other argument has been raised on behalf of the appellant. 45. The finding recorded by the learned trial Judge are well substantiated from the record. The findings do not suffer from any illegality or infirmity. The appeal has no substance and the conviction and sentence awarded to the appellant are hereby confirmed and the appeal is dismissed. 46. The appellant is in jail. He is directed to serve out his sentence. 47. Office is directed to communicate this decision to the court concerned forthwith and to send back the record.