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2017 DIGILAW 190 (ALL)

PHOOL CHAND v. STATE OF U. P.

2017-01-13

ALOK KUMAR MUKHERJEE, BHARAT BHUSHAN

body2017
JUDGMENT : (Delivered by Hon'ble Alok Kumar Mukherjee, J.) 1. Since both these appeals have been preferred against a common judgment and order dated 28.04.1983, passed by the then Vth Additional Sessions Judge, Bareilly in Sessions Trial No. 375 of 1982 (State Vs. Phool Chand and another), arising out of Crime No. 67 of 1982, P.S. Aonla, District Bareilly, convicting the appellants Phool Chand and Malkhan under Section 302 and 302 read with Section 34 IPC, respectively and sentencing both of them to undergo imprisonment for life, both these appeals have been heard together and disposed of by common order. 2. It is relevant to mention here that while hearing these appeals, it has been noticed by us that the accused appellant Malkhan has died during the pendency of Criminal Appeal No. 1160 of 1983 (Malkhan Vs. State of U.P.), therefore, his appeal stood abated by a coordinate Bench of this Court vide order dated 07.01.2016, as such the instant appeal (Criminal Appeal No. 1209 of 1983) is being decided by this judgment. 3. The sole appellant/accused Phool Chand has filed this appeal (Criminal Appeal No. 1209 of 1983) against the aforementioned judgment and order dated 28.04.1983 on the ground that the learned trial court has erred in believing the prosecution case and the evidence adduced in support thereof and the conviction of the appellant is against the weight of evidence on record. 4. Brief facts of the prosecution case are that on 04.03.1982 at about 3:45 a.m. in the early morning the informant-complainant Ajudhya Prasad, R/o Phulasi, Police Station Aonla, District Bareilly gave a written report (Ex.Ka-1) at police station Aonla, District Bareilly, stating therein that at about 1:30 a.m. (at night) he (PW1), alongwith Har Pal Singh (PW2) of his village and his son deceased Bhoop Ram were in the hut for protecting their crops of posta from 'Neel Gaya'. They had torches with them. They told the deceased to make a round around the posta field so as to check whether any Neel Gaya is destroying the crop or not . The deceased went to look after the field and he and Harpal Singh were smoking inside the hut. In the meantime they heard the alarm raised by the deceased. On listening the alarm, they went there lighting their torches and from the other side Nem Chand (PW3) and Shiv Kumar also reached there lighting their torches. The deceased went to look after the field and he and Harpal Singh were smoking inside the hut. In the meantime they heard the alarm raised by the deceased. On listening the alarm, they went there lighting their torches and from the other side Nem Chand (PW3) and Shiv Kumar also reached there lighting their torches. They saw that on the exhortation of the appellant Malkhan armed with Lathi, his cousin co-accused Phool Chand, both resident of the nearby village Phulasi ki Gautia, armed with country made pistol fired a shot on his son, which hit on the left side of the chest of his son Bhoop Ram, as a result he fell down in the sugarcane field of Bholey. When the witnesses tried to apprehend the accused persons, the accused Phool Chand had threatened the witnesses brandishing his country made pistol by saying that they would also be killed in case they dared to chase them. Consequently, being frightened the witnesses left chasing them and both the accused persons fled to the Gauntia towards eastern side. Both the accused persons were well recognized by the said witnesses in the light of the torches. On return they saw that the injured Bhoop Ram was dead as a result of the said fire arm injury sustained by him. The witnesses Naubat, Kirpal Singh and Budhi Chaukidar had also reached the place of occurrence on listening the alarm. 5. The written report (Ex. Ka-1) regarding the said occurrence was scribed by one Naugat, brother of the informant Ajudhya Prasad. The said FIR (Ex. Ka-1) was lodged at the police station Aonla on the same day early morning at about 3.45 a.m. then the case was registered as Case Crime No. 67 of 1982, under Section 302 IPC. The dead body was sent to the mortuary and postmortem was conducted by Dr. A.P.Singh (PW7) (Ex. K-17). The case was investigated by the Investigating Officer Sri Sumpat Singh S.I. (PW-4), who has recorded the statements of the witnesses, prepared the inquest report (Ex. Ka-2), and other police papers related to the investigation (Ex.Ka-3 to Ka-13), site plan (Ex. Ka-5) and after completing the investigation submitted the charge sheet (Exts. Ka-14 and Ka-15). 6. Charges were framed against the accused persons Phool Chand and Malkhan for the offence punishable under Section 302 IPC and under Section 302 read with Section 34 IPC, respectively. Ka-2), and other police papers related to the investigation (Ex.Ka-3 to Ka-13), site plan (Ex. Ka-5) and after completing the investigation submitted the charge sheet (Exts. Ka-14 and Ka-15). 6. Charges were framed against the accused persons Phool Chand and Malkhan for the offence punishable under Section 302 IPC and under Section 302 read with Section 34 IPC, respectively. The accused persons denied the charges framed against them and alleged that they have been falsely implicated in this case due to previous enmity. 7. In order to prove the charge, besides other papers, prosecution has filed a copy of the written report (Ex.Ka1), FIR (Ex. Ka-15), inquest report (Ex. Ka-2), sketch of the body (Ex. Ka-3), Challan of the dead body (Ex. Ka-4), recovery memo of blood stained and plain earth (Ex.Ka-6), recovery memo and supurdginama of battery (torches) (Ex. Ka-7, Ex. Ka-8, Ex.Ka-9, Ex. Ka-10), seal sample (Ex. Ka-11), search memos (Ex. Ka.-12 and Ex. Ka-13), Charge-sheets (Ex. Ka-14 and Ex. Ka-15), General Diary (G.D.) report No. 9 dated 04.03.1982 (Ex. Ka-16) and postmortem report of the deceased (Ex. Ka-17) and material exhibits 1 to 8. 8. Prosecution also examined P.W.-1 informant Ajudhya Prashad, P.W.-2 Har Pal Singh, P.W.-3 Name Chand, P.W.-4 S. I. Sumpat Singh, I.O., P.W.-5 Constable C.P.No. 1479 Madan Lal, P.W.6 Constable C.P.No. 205 Krishan Pal Singh and P.W.7 Dr. A.P.Singh, who had conducted postmortem of the deceased. 9. Statements of accused under section 313 Cr.P.C. were recorded after closing of the prosecution evidence. No oral evidence was given in defence, only two certified copies of judgments and two copies of statements of the witnesses were filed. After hearing the arguments of the parties the learned trial Judge by the impugned judgment and orders convicted the sole surviving appellant along with another appellant since deceased and sentenced them as above. Being aggrieved by the aforesaid judgment and order of the trial court, this appeal has been preferred by the appellant Phool Chand. 10. We have heard Sri Jai Narain, learned counsel for the appellant and Sri Syed Ali Murtaza, learned A.G.A for the State and carefully perused the evidence on record. 11. Being aggrieved by the aforesaid judgment and order of the trial court, this appeal has been preferred by the appellant Phool Chand. 10. We have heard Sri Jai Narain, learned counsel for the appellant and Sri Syed Ali Murtaza, learned A.G.A for the State and carefully perused the evidence on record. 11. Sri Jai Narain, learned counsel appearing for the surviving appellant in support of the appeal submits that the learned trial court has not appreciated the evidence in proper perspective while elaborating his argument, he has submitted that there is contradiction between the medical evidence and the ocular version of the occurrence, material contradictions have been ignored and the eye witnesses account has been erroneously believed the witnesses are relative witnesses, their testimonies without corroboration from independent evidence could not have been believed. Learned counsel has further submitted that there was no light on the spot, witnesses are planted and FIR has been lodged with delay and this too in collusion with the police personnel. Thus he has submitted that the impugned judgment and order are illegal, against the weight of the material on record and deserve to be set aside. 12. Sri Syed Ali Murtaza, learned A.G.A. on behalf of the State has repelled these arguments. He has submitted that the findings recorded by the learned trial judge are duly supported by the cogent evidence available on record. The learned trial court has given cogent reasons in support of these findings. He has not committed any error, while applying the legal principles in this regard. The impugned judgment and order need no interference by this Court and appeal of the surviving appellant deserves to be dismissed. 13. 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. 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." 14. 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. 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." 15. Therefore, it is the settled proposition of law that High Court, while exercising appellate jurisdiction in criminal appeal, is expected to appraise the credibility of evidence available on record and to draw the inference on the basis of material available on record and would not be guided by the finding of acquittal or conviction recorded by the learned court below, bearing in mind the basic principle of criminal law regarding innocence of the accused. 16. Since in the present matter appreciation of evidence has been questioned on behalf of the surviving appellant, it is our legal obligation to re-appreciate and reassess the evidenciary value of the statements of the prosecution witnesses before doing that we would like to notice to prove features of their depositions. 17. Ajudhya Prasad PW-1 is the first informant and the father of the deceased, he has proved the written report Ex. Ka-1. He has stated that 15 days before the fateful night his son had altercation with Phool Chand on asking him to pay back his loan, as a result thereof the murder of his son took place. 17. Ajudhya Prasad PW-1 is the first informant and the father of the deceased, he has proved the written report Ex. Ka-1. He has stated that 15 days before the fateful night his son had altercation with Phool Chand on asking him to pay back his loan, as a result thereof the murder of his son took place. He has reiterated the facts mentioned in the FIR and further stated that after dictating the written report he had handed over at the police station and on his pointing out spot was inspected by the Investigating Officer, inquest proceedings were held in his presence and the Investigating Officer had inspected his torch with the help of which he had identified the assailants. 18. Har Pal Singh PW-2 is the Sajhidar (partner) of the first informant on whose field these two and the deceased were keeping watch of their field of posta to prevent damage by Neel Gaya. He has also reiterated the facts stated by Ajudhia Prasad PW-1, he has also stated that he had a torch at the time of incident, the said torch was inspected by the Investigating Officer and it was given to him in the supurdgi. 19. Nem Chand, PW-3 is the third eye witness, who has also reiterated the facts, stated by other two witnesses as mentioned herein below. 20. S.I. Sampat Singh PW-4 is the Station Officer of the Police Station Aonla at the relevant time. He has conducted the investigation, he gave details of the steps taken in the course of the investigation. He has also held the inquest proceeding, he has proved the inquest report Ex.Ka-2, Challan and Diagram of the dead body Ex.Ka-3, Ex. Ka-4, site plan Ex. Ka-5, recovery memo of blood stained and simple earth Ex. Ka-6. He has identified the containers, in which samples of such earth were taken. They were exhibited as Ex. Ka-7 and Ka-8 (wrongly exhibited they should have been exhibited as material exhibit 1 and 2) other accompanying papers of the dead body Ex. Ka-7 to Ka-10 specimen seal Ex.Ka-11, search memo Ex. Ka-12, Ex. Ka-13, charge-sheet Ex.Ka-14. 21. C.P., Madan Lal PW-5 is the bearer of the dead body, he has deposed that dead body was safely taken to the mortuary in sealed condition. 22. Constable Krishan Pal Singh PW-6, who has scribed chek FIR. He has proved the check report Ex. Ka-7 to Ka-10 specimen seal Ex.Ka-11, search memo Ex. Ka-12, Ex. Ka-13, charge-sheet Ex.Ka-14. 21. C.P., Madan Lal PW-5 is the bearer of the dead body, he has deposed that dead body was safely taken to the mortuary in sealed condition. 22. Constable Krishan Pal Singh PW-6, who has scribed chek FIR. He has proved the check report Ex. Ka-15, copies of the report of the General Diary Exts. Ka-16 and Ka-17. 23. Dr. A.P.Singh, PW-7 is the Medical Officer, who on 5th March, 1982 at 3.00 p.m. performed the autopsy of Bhoop Ram. During external examination, he found the following ante-mortem injuries; (I) A gun shot wound of entry 2 cm x 2 cm x chest cavity deep on left side of the chest and 14 cm. below mid point of left clavical 3.5 cm. away forearm median plain, blackening and scorching present margins are inverted. He has further deposed that till that date it was cold and rainy during internal examination ribs and plura were found fractured from the dead body. 13 pellets were recovered. Doctor has proved the postmortem report as Ex. Ka-17 and opined and stated that date and time of death could have occurred. According to him the cause of death was ante-mortem injuries caused by fire arm. 24. The case of the defence before the trial court was of total denial. According to the defence Harpal was inimical to the accused. For this enmity they were falsely implicated. 25. The surviving appellant Phool Chand as also co-accused Malkhan (deceased) had denied the correctness of the facts stated by the prosecution witnesses and reiterated the defence version on their behalf and no evidence in the defence was given. 26. Now we have to find out probative force of testimonies of the prosecution witnesses. 27. Dr. A.P.Singh is a public servant, who in discharge of his official duty had conducted the postmortem examination. Though he has been cross examined on two dates but in reference to the facts noticed by him during the autopsy his testimony remains unshaken. He was only cross examined on the point of distance between barrel of the fire arm with which deceased was shot. In this way fact of homicidal death of Bhoop Ram by gun shot injury remains un-controverted. He was only cross examined on the point of distance between barrel of the fire arm with which deceased was shot. In this way fact of homicidal death of Bhoop Ram by gun shot injury remains un-controverted. Time of death is a matter of opinion of the witness but during cross-examination his opinion has not been seriously questioned and considering the presence of rigor mortis the opinion appears to be well founded the only ground to challenge this opinion is that in the stomach of the deceased semi-digested food was found. To strengthened this fact the learned counsel for the surviving appellant has submitted that in the villages' people take their food before sunset. Thus according to him the murder could have occurred between 9.00 to 10.00 p.m. not at 1.30 a.m.. We find ourselves unable to accept this argument because it has specifically been come in the testimony of the Ajudhya Prasad PW-1 that they used to take meal late in the night as they were required to be awaken during the night in order to keep watch over the field, thus rather presence of semi-digested food goes to strengthened the opinion of the doctor about time of death. 28. The serious challenge on behalf of the surviving appellant has been made about the trustworthiness of the ocular version given by the three witnesses. Grounds are none of the eye witnesses were present, they are planted witnesses, there was no light to identify the assailants. Ante timing of FIR 29. In this reference, first point to be considered and examined is as to whether the FIR has been promptly lodged or it is delayed. Occurrence took place at 1.30 a.m. FIR was lodged on the same day at 3.45 a.m. the distance from the place of occurrence to the police station is five kilometers. 30. On this point, the most important evidence is of CP Krishan Pal Singh PW-6, who scribed the check FIR, he has been merely suggested that the FIR was ante-timed but during his cross examination it has come out that on the same day at 11.30 a.m. one case under Section 380 IPC was registered. 31. During cross examination of Ajudhya prasad PW1 the first informant on this point nothing adverse could be extracted. 31. During cross examination of Ajudhya prasad PW1 the first informant on this point nothing adverse could be extracted. The FIR was promptly lodged this fact can also be gathered from the inquest report and other papers accompanying the dead body. There is no omission or interpolation in the inquest report, as case crime number has been written, name of informant has been disclosed. Time of concluding the inquest proceeding has been given, all other papers have been duly filled in without any cutting or overwriting. After perusing these, we come to the conclusion that FIR was not ante timed it was promptly lodged in the light of the facts of the case and argument contrary to this, is rejected. Source of light 32. Next point is the presence of the light though it has been disputed by the defence but right from the FIR source of the light has been disclosed. All the witnesses have stated the availability of the torches in whose light the assailants were identified by them on the day when murder took place. The Investigating Officer had inspected the torches carried by Ajudhya prasad PW-1, Harpal PW-2, there inspection memo are exhibited as Ex. Ka-8 and Ka-7, respectively. For these reasons, we are unable to accept the argument of the surviving appellant that there was no light for the witnesses to identify the assailant. Presence of eye witnesses 33. The most potent argument advanced on behalf of the surviving appellant is that the witnesses were planted but we are also unable to accept this argument, it has not been disputed by the defence that at the relevant time crop of posta was not standing in the field of Harpal, due to menace of Neel Gaya, it is usual for the villagers to keep watch over their crops. Ajudhya Prasad PW-1 disclosed the reasons of his presence on the spot very promptly, the other two witnesses have been named by him in the FIR, during cross examination, their statements on this point could not be demolished, therefore, we hold that all the three witnesses are natural and probable witnesses, they are not planted witnesses and in the light of torches they had opportunity to see the occurrence. During cross examination only the minor contradiction could be extracted, no major contradiction has occurred in their testimonies. Credibility of eye witness account 34. During cross examination only the minor contradiction could be extracted, no major contradiction has occurred in their testimonies. Credibility of eye witness account 34. Now the question remains whether only on account that they being relatives of the deceased, their testimonies could be discarded. The logic says that father of the deceased son would not spare real culprits, who had murdered his son, and falsely implicate innocent persons that too on account of enmity of his Sajhidar, therefore, we find that testimony of Ajudhya prasad PW-1 is fully reliable and it cannot be discarded only because he was the father of the deceased. 35. Harpal PW-2 has been alleged to be enemical to the appellants but otherwise his testimony has been found on the touchstone of probability to be worthy of reliance. The Apex Court in the case of Sajjan Singh and others Vs. State of M.P. (1999)1 SCC 315 has observed that testimony of the witness, who is inimical to the accused has to be scrutinized with the core, but only on account of enmity, it cannot be thrown out though it is without any blemish. 36. After carefully going through the testimony of Harpal PW-2, we find that his testimony is without any blemish. We also find him to be a reliable witness. 37. The third eye witness Nam Chand for the reasons discussed in reference to other two witnesses also appear to be a reliable witness. 38. Now we have to decide whether only on account of witnesses being relative, we should interfere with the finding of conviction recorded against the surviving appellant. 39. We have pondered upon this question and we think that there is difference between the interested witnesses and relative witnesses, this Court in the case of Dalsingar Vs. State of U.P. 1995 ALJ 1007 has clarified the distinction between these two types of witnesses. The Apex Court has observed in the case of Kartik Malhar Vs. State of Bihar 1996 SCC (Cri) 188 that a close relation, who is a natural witness cannot said to be the interested witness. In the case of Ram Gopal Vs. State of Rajasthan (1998) 6 SCC 441 the Apex Court has treated them to be worthy of reliance. 40. In view of the legal position discussed above, on account of they being relatives, evidence of prosecution witnesses in the present case cannot be disbelieved. 41. In the case of Ram Gopal Vs. State of Rajasthan (1998) 6 SCC 441 the Apex Court has treated them to be worthy of reliance. 40. In view of the legal position discussed above, on account of they being relatives, evidence of prosecution witnesses in the present case cannot be disbelieved. 41. The last argument is effect of contradiction occurring in the testimonies of the prosecution witnesses the learned counsel for the surviving appellant during arguments has pointed out various contradictions, it is natural that three persons who had seen the same occurrence would relate the occurrence in their own language on the basis of their own perception. The discrepancies among their narration cannot said to be contradictions. Except these discrepancies we do not find any contradictory statement made by these witnesses from their previous statements therefore, this argument is also rejected. 42. No other argument has been advanced on behalf of the surviving appellant. The argument advanced before us have found by us without any substance. The appeal is bereft of merit and is liable to be dismissed. 43. Accordingly, the appeal is dismissed. Conviction and sentence of the surviving appellant are hereby affirmed. The surviving appellant Phool Chand is on bail, he is directed to surrender before the trial court within thirty days from the date of the judgment and serve out his sentence, in case he fails to surrender, the judge presiding the trial court shall procure his attendance by passing an appropriate order and issue coercive process and send him to jail. Any period spent by the surviving appellant in jail in the present matter shall be adjusted against the sentence affirmed by us in accordance with the provision contained in section 428 Cr.P.C. 44. Office is directed to certify a copy of this judgment to the court concerned forthwith for information and to send back the lower court record.