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2016 DIGILAW 719 (ALL)

Ram Sagar v. State of U. P.

2016-02-29

PRATYUSH KUMAR, SURENDRA VIKRAM SINGH RATHORE

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JUDGMENT Pratyush Kumar, J. The instant appeal, filed on behalf of the accused-appellants, is directed against the judgment and orders dated 30.07.2005 passed by Additional Sessions Judge/Special Judge (E.C. Act), Hardoi in Sessions Trial Nos. 725 of 2000 & 156 of 2001, whereby convicting the appellant no. 1 under Section 302 /34 IPC and appellant no. 2 under Section 302 IPC sentencing them to undergo imprisonment for life and to pay fine of Rs.5000/- each and in default thereof further to undergo one year's rigorous imprisonment. 2. In this case the facts of the prosecution version may be summarized as under: That on 27th April, 2000 at 4.00 PM Shri Ram, resident of village Sakaha handed over a written report at P.S. Behta Gokul, District Hardoi mentioning therein that his younger brother Radhey Shyam lives with his family at Rohtak (Haryana) and earned his livelihood there. He came to the village 3-4 days ago and yesterday when wheat were threshed, he asked their father for his share of wheat. His father declined, thereat altercation took place. That day when he and his brother Harish Chandra were taking lunch at about 1.00 PM he heard shouts of his father Guljari, who was lying outside the door under a Chhappar. He along with Harish Chandra and his wife Guddi went outside running there and saw that Radhey Shyam was inflicting knife injuries to his father and Ram Sagar was holding his father to the cot. They raised hue and cry and challenged the assailants, assailants leaving his father ran away from the spot. Meanwhile Satyaveer also came there and they caught hold of Ram Sagar. After returning he found that his father had died. 3. At this, chick FIR was scribed, Case Crime No. 47 of 2000, under Section 302 IPC was registered against Radhey Shyam and Ram Sagar. Requisite entries were made in the report of the general diary. Investigation was taken over by Ajay Singh, the then Station Officer of the police station. After his transfer investigation was concluded and charge-sheet was submitted against both the accused. 4. Before the Court of Session, the appellants were charged, Radhey Shyam under Section 302 IPC and Ram Sagar under Section 302 /34 IPC. They denied the charges and claimed to be tried. 5. After his transfer investigation was concluded and charge-sheet was submitted against both the accused. 4. Before the Court of Session, the appellants were charged, Radhey Shyam under Section 302 IPC and Ram Sagar under Section 302 /34 IPC. They denied the charges and claimed to be tried. 5. In order to prove the charges on behalf of the prosecution in the documentary evidence, besides other papers, FIR Exhibit Ka-1, copy of the report Ext. Ka-2, recovery memo Ext. Ka-10, site plan Ext. Ka-9, report of the Serologist Ext. Ka-13, inquest proceedings Ext. Ka-3 and postmortem report Ext.15 were filed. In the oral evidence on behalf of the prosecution seven witnesses were examined. 6. After close of prosecution evidence, statement of the appellants were recorded under Section 313 Cr.P.C. They denied the facts stated by the prosecution witnesses and claimed that they were falsely implicated. In the defence two witnesses were examined. After concluding the trial and having heard the arguments of the parties, the learned trial Judge convicted the appellants and sentenced them as above. 7. Both the appellants are before this Court. On their behalf it has been argued that evidence has not been properly appreciated. The defence case has not been taken into consideration, material contradictions have been ignored and incorrect findings have been recorded. There is contradiction between medical evidence and oral evidence and FIR is ante timed. 8. On behalf of the State these arguments have been repelled and it has been argued that first informant is the real brother of the appellant no. 2, who is accused of murdering his own father, evidence has been properly appreciated and findings of facts do not suffer from any infirmity. 9. Heard Sri Dhananjai Kumar Singh, learned counsel for the appellants, Sri Dharmendra Singh, learned Additional Government Advocate for the State-Respondent and perused the record. 10. 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 [1995 SCC (Crl) 222]. Para-4 of the judgment reads as under: "4. State of Gujarat [1995 SCC (Crl) 222]. 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." 11. 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. 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." 12. Since one of the ground, in support of appeal canvassed before us is that there is contradiction in between ocular version and medical evidence, we think first we have a glance at medical evidence. 13. Medical evidence, in the present case, consists of statement of Dr. C.P. Rawat P.W.7 and postmortem report Ext. Ka-15. According to Dr. C.P. Rawat P.W.7 on 28th April, 2000 at 3.30 PM, he conducted the postmortem examination of the dead body of the deceased Guljari, who was aged 70 years, rigor mortis had passed off from the upper extremities but present on lower extremities. Time since death was one day. There was one ante mortem injury, on the dead body of the deceased, caused by sharp edged knife (Chhoori). Death could have occurred on 27.04.2000 at 1.00 PM. Time since death was one day. There was one ante mortem injury, on the dead body of the deceased, caused by sharp edged knife (Chhoori). Death could have occurred on 27.04.2000 at 1.00 PM. This witness was cross-examined only about contents of the stomach and possible time of death. According to him, in the stomach there was two ounces of fluid which becomes after digestion of the food. In the small and large intestine faecal matter was present. There could be variation of six hours on either side in the estimated time of death. He has proved postmortem report Ext. Ka-15, wherein following ante mortem injury has been recorded: 1.Incised wound 4 cm x 1.5 cm x muscle deep present on right side of upper part of neck 2.00 cm below from right ear underneath nerves, veins, arteries were found clean cut. Since the facts recorded by the witness in the postmortem report Ext. Ka-15 have not been challenged, leaving aside his opinion about the time of death, we hold that on the stated time and date death of the deceased could have occurred due to above ante mortem injury caused by the sharp edged knife. Motive The immediate motive has been alleged to be refusal by the deceased to give share into the wheat crop to appellant no. 2 and appellant no. 1 is said to be friend and sympathizer of appellant no. 2. to prove this motive the prosecution has examined Shri Ram P.W.1 and Harish Chandra P.W.2. Both have reiterated the same cause. During the cross-examination Shri Ram P.W.1 has admitted that altercation has not taken place in his presence. However, we notice that Harish Chandra P.W.2 brother of the appellant no. 2 has not been cross-examined at this point. Even he has not been suggested that no such altercation took place, thus, immediate motive for the occurrence is established. Scene of Occurrence On behalf of the appellants it has been argued that blood stained badh of the cot were not taken by the Investigating Officer, blood was found at some distance from the cot. On this ground the appellants challenge that the occurrence did not take place at the place claimed by the prosecution. Scene of Occurrence On behalf of the appellants it has been argued that blood stained badh of the cot were not taken by the Investigating Officer, blood was found at some distance from the cot. On this ground the appellants challenge that the occurrence did not take place at the place claimed by the prosecution. The seat of injury takes care of the second ground as arteries and veins of the neck were found clean cut, it is quite probable that gush of the blood coming out of the body would have fallen at some distance. The Investigating Officer Ajay Singh P.W.4 has not been asked why he did not take samples of the badh of the cot, without giving him an opportunity to explain this reason, the appellants would not get any benefit for the lapses of the Investigating Officer. From the evidence of Ajay Singh P.W.4, we find that he took samples of blood stained earth and simple earth. In the site plan every detail has been shown which is sufficient to establish the fact that occurrence did take place outside the door of the first informant where the deceased was lying on a cot under the Chhappar. First Information Report On behalf of the appellant it has been argued that the FIR has been ante timed, occurrence took place at 1.00 PM and on the same day at 4.00 PM FIR was lodged. Distance from the place of occurrence and the police station is 3 Kms. According to the first informant, he proceeded to the police station at 2.30 PM on foot. This argument has been based on the testimony of Hori Lal D.W.1, according to him, Guljari was murdered before 6.00 A.M. Kamleshwar Singh D.W.2 also supports this version. What we propose to decide is whether at the alleged time FIR was lodged or not. At this juncture we are not concerned whether occurrence took place at 11.00 PM or earlier in the morning. Constable Dinesh Pal Singh P.W.5 is the clerk constable, who scribed the FIR Ext. Ka-1. Even he was not cross-examined at this point nor any suggestion was given to him that FIR was ante timed, therefore, we reject this argument. Oral Evidence Now we come to the ocular version of the occurrence. Shri Ram P.W.1 has stated his reason to be present at the place of occurrence at the relevant time. Ka-1. Even he was not cross-examined at this point nor any suggestion was given to him that FIR was ante timed, therefore, we reject this argument. Oral Evidence Now we come to the ocular version of the occurrence. Shri Ram P.W.1 has stated his reason to be present at the place of occurrence at the relevant time. In that season at 1.00 PM even the farmers took rest, therefore, his presence inside the house is probable and natural. He claims that on hearing the shouts of his father he had gone towards the Chhappar and saw the occurrence. For this reason we find that he had opportunity to see the occurrence. During the cross-examination he successfully with stood the test. His testimony remained unshaken. Going through his testimony we find that he had narrated the events in his own manner. Being of rural background his narration shows his simplicity. For giving his evidence against his own brother, with whom he had no litigation, shows that the only reason for him to implicate his brother and his cousin is that he is speaking the truth. We find him to be a reliable witness. Harish Chandra P.W.2 is the youngest of three brothers, Shri Ram P.W.1 and Radhey Shyam appellant no. 2 are elder to the witness. He has given vivid description of the occurrence. His presence at the spot is natural and probable. He had opportunity to see the occurrence. There is no reason that he would falsely depose against his elder brother. We also find him to be a reliable witness. Evidence of Algu Singh Yadav P.W.3, who submitted the charge-sheet is formal in nature. Evidence of Ajay Singh P.W.4, who is first Investigating Officer also does not help the appellants on any score. Statement of Sub-Inspector Virendra Singh Yadav P.W.6, who conducted the inquest proceedings, does not support the defence case. Now remains two points. Defence evidence and indicated discrepancies between the ocular version and medical evidence about the time of occurrence and death of the deceased. Hori Lal D.W.1 is the witness of inquest proceedings. He claims that about the death of Guljari he came to know at 6.00 AM. During cross-examination he was suggested that he was falsely deposing the time as 6.00 AM instead of 6.00 PM. Hori Lal D.W.1 is the witness of inquest proceedings. He claims that about the death of Guljari he came to know at 6.00 AM. During cross-examination he was suggested that he was falsely deposing the time as 6.00 AM instead of 6.00 PM. From the answers given by this witness we notice that he is not speaking the truth even he denied that the dead body was sealed in his presence. The second witness Kamleshwar Singh D.W.2 is also a witness to the inquest proceedings. He also said that information about the death of Guljari was received by him at 6.00 AM. This witness was suggested that he was deposing falsely to save Ram Sagar-appellant no. 1. Kamleshwar Singh D.W.2 and Hori Lal D.W.1 are the inquest witnesses. Inquest was concluded at 6.35 PM at 27.04.2000. Both the witnesses are villagers, one of them admits that he was asked to depose by appellant no. 1 Ram Sagar. Neither they can be treated to impartial witnesses nor their testimonies carry enough weight to make the testimonies of eye witnesses doubtful. So far as discrepancies about the time of death between medical evidence and ocular version is concerned, first we would like to place on record that medical opinion is not a direct evidence. No finality can be attached to an opinion expressed by an expert. Our view gets fortified from the observation of the Hon'ble Apex Court made in the case of Jitender Kumar Vs. State of Haryana [ 2012 (6) SCC 204 . In para-61of the report the Hon'ble Apex Court as observed as under: "61. In view of the above medical references, the view expressed in Modi's book (supra) and the principles stated in the judgments of this Court, it can safely be predicated that determination of the time of death solely with reference to the stomach contents is not a very certain and determinative factor. It is one of the relevant considerations. The medical evidence has to be examined in light of the entire evidence produced by the parties. It is certainly a relevant factor and can be used as a significant tool by the Court for coming to the conclusion as to the time of death of the deceased but other factors and circumstances cannot be ignored. The medical evidence has to be examined in light of the entire evidence produced by the parties. It is certainly a relevant factor and can be used as a significant tool by the Court for coming to the conclusion as to the time of death of the deceased but other factors and circumstances cannot be ignored. The Court should examine the collective or cumulative effect of the prosecution evidence along with the medical evidence to arrive at the correct conclusion." 14. When we subjected the testimonies of two eye witnesses to critical examination on this point, we notice that the deceased Guljari used to wear clothes of saffron colour. He was aged more than 70 years. He was living with the family of his youngest son. Though Shri Ram P.W.1 has stated that his father had taken food 10-15 minutes before death. How much an aged person would eat has not been clarified on behalf of the appellants during the trial. It is not uncommon for aged persons to eat very little or forgo their meals altogether. The reply given by Shri Ram P.W.1 is that his father ate Roti, Dal and Chawal appears to be his conjecture, because the lady who cooked food and gave it to the deceased is the wife of his youngest brother. In the villages the wives of younger brothers generally do not converse with elder brothers of their husbands. Had these answers been given by Harish Chandra P.W.2, we would have more inclined to believe that certainly on the date of death his father actually ate something in the lunch. For these reasons, we do not think that there is any discrepancy in between the ocular version and the medical opinion regarding time of death exists in the present matter. 15. The arguments advanced in support of the appeal are not substantiated from the record. Appeal has no force. The findings recorded by the learned trial Judge are based on correct appreciation of evidence. Motive is proved. FIR is not ante timed. We think that the impugned judgment and orders do not require any interference by this Court. Therefore, appeal deserves to be dismissed. 16. Accordingly, the Criminal Appeal is dismissed. The conviction and sentence awarded by the learned trial Judge vide judgment and orders dated 30.07.2005 are hereby affirmed. The appellant no. 1 Ram Sagar is on bail and the appellant no. Therefore, appeal deserves to be dismissed. 16. Accordingly, the Criminal Appeal is dismissed. The conviction and sentence awarded by the learned trial Judge vide judgment and orders dated 30.07.2005 are hereby affirmed. The appellant no. 1 Ram Sagar is on bail and the appellant no. 2 is in jail. The appellant no. 1 Ram Sagar is directed to surrender his bail before the Sessions Judge, Hardoi, who shall take him into custody and send him to jail to serve the sentence awarded to him. In case, appellant no.1 Ram Sagar does not surrender within the stipulated time, the Sessions Judge, Hardoi, shall take appropriate steps to procure his attendance so that he will serve the sentences awarded to him along with appellant no. 2 Radhey Shyam. 17. Office is directed to certify this order to the court concerned forthwith for compliance and to send back the lower court record.