Ram Sewak vs State of U.P.

P. Venkatarama Reddi and P.P. Naoleker, JJ.—The Appellant Ram Sewak was tried on the charge of murdering Surendra Pal Singh a teacher in a school in Village Khera Bhajera. According to the prosecution case, on 13.2.1992 at about 5 p.m. the deceased was returning on a bicycle with his 15 years old daughter, P.W. 1 from the school and when they came near the fields of Liladhar, the accused Ram Sewak attacked the deceased with a lathi as a result of which the deceased fell down. P.W. 1 Vinita the daughter of the deceased then fled away from the scene, informed her maternal uncle Virendra Singh, P.W. 2 and when they came back to the scene of occurrence, they found the deceased in unconscious and badly injured condition. From there, the deceased was carried to his house wherefrom he was shifted to the hospital. Soon after reaching the hospital Surendra Pal Singh succumbed to the injuries. Virendra Singh, P.W. 2 filed a report in the Police Station Faridpur which seems to be almost opposite to Primary Health Centre Hospital at Faridpur. The F.I.R. was registered at 7.10 p.m., i.e., within two hours of the occurrence. The F.I.R. was forwarded through a constable to the Police Station Fatehgarh (East) which is the jurisdictional police station in respect of the village concerned. Then P.W. 3 Tejpal Singh, Sub-Inspector, in charge of Fatehgarh Police Station started investigation and recorded statements of P.W. 2 Virendra Singh and Vinita, P.W. 1 while they were at the hospital on the intervening night of 13/14.2.1992. Dr. Nursingh Bahadur, P.W. 5 conducted the autopsy on the dead body of Surendra Pal Singh on 14.2.1992. The post-mortem report reveals that there were as many as five lacerated wounds on or near the head ; the last being 10 cm. ? 1 cm. ? bone deep on the back side of the head which caused the fracture of occipital bone and congestion of brain membranes. P.W. 5 deposed that the deceased died out of shock and haemorrhage as a result of ante-mortem injuries.

The accused took the plea that he was implicated on account of enmity with P.W. 2 Virendra Singh and that he was not present in the village on the day of occurrence. He examined D.W. 1 Mohd. Mobin Khan who testified that sister-in-law of the accused had undergone the tubectomy operation at P.H.C. Faridpur on 13.2.1992 and that he was in the hospital in that connection. The accused also examined D.W. 2 Roop Prakash in order to establish that the presence of P.W. 1 Vinita at the time of occurrence was highly doubtful.

The eye-witness of the occurrence is P.W. 1 Vinita the daughter of the deceased. The trial court disbelieved her evidence on the ground of certain contradictions and discrepancies and acquitted the accused of the charge. The trial court also disbelieved the evidence of P.W. 2 Virendra Singh mainly on the ground that he was inimically deposed towards him on account of an incident of burglary committed three months earlier allegedly by the accused. The trial court also commented on the fact that the report was initially filed at Faridpur Police Station though it did not have the jurisdiction.

On appeal filed by the State, the High Court allowed the appeal and held the Appellant guilty u/s 302 and sentenced him to undergo life imprisonment. Pending the appeal, it appears that the Appellant was sent to prison pursuant to a non-bailable warrant directed to be issued by the High Court. It is against the verdict of the High Court the present appeal was filed by the Appellant while serving sentence in the jail.

As regards the deposition of P.W. 1 Vinita, the trial court discarded her testimony, broadly speaking, for three reasons :

(1) that the reason given by P.W. 1 Vinita for going to the school in which her father was a teacher on the crucial date cannot be accepted ;

(2) that there was a discrepancy between the versions given by P.W. 1 and P.W. 2 as regards the object by which the deceased was carried from the scene of occurrence to the house. According to P.W. 1, the deceased was put in a cart, whereas P.W. 2 stated that he was carried in a cot.

(3) that there was a discrepancy in the versions of P.W. 1 and the Investigating Officer as regards the date of recording P.W. 1's statement u/s 161.

The High Court has discussed each one of these grounds and found that P.W. 1 was a truthful witness and none of the factors pointed out above would warrant discrediting the testimony of P.W. 1 Vinita. The High Court was not inclined to give any weight to the evidence of defence witnesses.

As regards the first aspect pointed out by the trial court, we concur with the High Court that the reasoning cannot be sustained. Assuming that P.W. 1 could not satisfactorily explain the purpose of going to her father's school, we find nothing improbable or incongruous in P.W. 1 going to the school where her father was a teacher and both of them coming together after the school hours. In the F.I.R., lodged within two hours of the occurrence, the fact that P.W. 1 Vinita was an eye-witness and she was returning from the school with her father on the same bicycle was conspicuously brought out. This gives an additional assurance to the Court that P.W. 1 Vinita is not a got-up witness. The second point which weighed with the High Court in discarding the testimony of P.W. 1 is equally untenable. P.W. 3, the Investigating Officer, categorically stated that he recorded the statement on the same night. It is highly improbable that examination of the crucial witness whose name was disclosed in the F.I.R. itself would be postponed for such a long time, that too, when there was only one eye-witness to the occurrence. It may be that in the course of investigation, P.W. 1 Vinita would have been interrogated more than once and it would be difficult to expect P.W. 1 who was examined after two years to come forward with the correct date when the statement was formally recorded by the police. Lastly, the alleged discrepancy in the versions of P.W. 1 and P.W. 2 as regards the mode by which the deceased was carried to his house is too feeble a discrepancy on the basis of which the evidence of P.W. 1 could not be rejected. At any rate, it is not an irreconcilable contradiction. The High Court has rightly viewed it as a minor discrepancy.

Learned Counsel for the Appellant then pointed out that the cycle of the deceased was not recovered at the spot. The High Court commented that it would have been removed by somebody by the time the police arrived at the place. Whether this comment is justified or not, the fact remains that the cycle was not found on the spot does not cut at the root of the prosecution case unfolded by the evidence of P.W. 1. Even if there was a defect in the investigation, that is no ground to categorise the evidence of P.W. 1 as unreliable. It was then pointed out that P.W. 2 Virendra Singh was inimical towards the accused and, therefore, he was implicated. The alleged enmity is said to be on account of oral report given by P.W. 2 in connection with the theft committed by the accused in the house of the deceased. Far from creating a doubt on the reliability of the evidence of P.W. 2, this fact stated by P.W. 2 would throw light on the possible motive for attacking the deceased. On the facts apparent from the evidence, it cannot be reasonably concluded that P.W. 2 would have had strong reason to unnecessarily implicate the accused in the crime.

Learned Counsel appearing for the Appellant then strenuously contended that this is an appeal against acquittal based on clear findings of the trial court and the High Court ought not to have interfered. But it is well-settled that the High Court, as an appellate court, can reappreciate the evidence and interfere with the findings, if they are perverse or the reasons given by the trial Judge are palpably untenable. We do not think that the view taken by the trial court could be considered to be a reasonably possible view precluding interference against the verdict of acquittal. The High Court has rightly taken the view that the evidence of the eye-witness has been discarded on feeble and untenable grounds and unnecessary doubts were entertained by the trial court despite the clear and cogent evidence linking the Appellant to the crime. We, therefore, find no merit in this appeal. The appeal is dismissed.