Subesh Chandra and Others vs State of U.P.

Pratyush Kumar, J.—1. Since all these appeals arise out of the same judgment and order dated 10.01.2007 passed in Sessions Trial No. 961 of 2003 (Subesh Chandra and others) and S.T. No. 962 of 2003 (Subesh Chandra Vs. State), they have been heard together and decided by a common order.

Under challenge in all these appeals are the judgment and order dated 10.01.2007 passed by the learned Additional Sessions Judge/Fast Track Court No. 3, Sitapur in Sessions Trial No. 961 of 2003 (Subesh Chandra and others) and S.T. No. 962 of 2003 (Subesh Chandra Vs. State) whereby each of the appellants have been convicted and sentenced as under:

Appellant-Subesh Chandra

U/Section 148 IPC 2 years RI

U/Section 364 IPC 10 years RI with fine of Rs. 5,000/-

U/Section 302/149 IPC life imprisonment with fine of Rs. 10,000/- and;

Under Section 25(1-B) of the Arms Act, two years rigorous imprisonment with fine of Rs. 1000/-

Appellant-Lal Ji

U/Section 148 IPC 2 years RI

U/Section 364 IPC 10 years RI with fine of Rs. 5,000/-

U/Section 302/149 IPC life imprisonment with fine of Rs. 10,000/-

Appellant-Hari Nam

U/Section 148 IPC 2 years RI

U/Section 364 IPC 10 years RI with fine of Rs. 5,000/-

U/Section 302/149 IPC life imprisonment with fine of Rs. 10,000/-

Appellant-Ved Prakash @ Ved Ram

U/Section 147 IPC 1 years RI

U/Section 364 IPC 10 years RI with fine of Rs. 5,000/-

U/Section 302/149 IPC life imprisonment with fine of Rs. 10,000/-

Appellant-Suresh @ Koche

U/Section 147 IPC 1 years RI

U/Section 364 IPC 10 years RI with fine of Rs. 5,000/-

U/Section 302/149 IPC life imprisonment with fine of Rs. 10,000/-

Appellant-Ram Sagar

U/Section 147 IPC 1 years RI

U/Section 364 IPC 10 years RI with fine of Rs. 5,000/-

U/Section 302/149 IPC life imprisonment with fine of Rs. 10,000/-

In default of payment of fine all the appellants were directed to further undergo six months additional imprisonment.

In these appeals facts of the prosecution case are as under:

That on 19.03.2003 at 11.40 AM Vishnu Kumar, resident of Village Harsinghpur, P.S. Samsabad, District Sitapur gave a written report stating therein that on 18.03.2003 at 7.30 PM the appellants came to the house of the first informant on the occasion of Holi, after embracing each other, they said that they wanted to talk to him, he should accompany them. First informant showed his reluctance at that they forcibly took him with them. When the first informant was in front of the house of his cousin Radhey Shyam, he called his cousin and after he came there the first informant took shelter in his house, he was followed by Radhey Shyam and door was closed. They climbed on the roof of the house and the appellants started to beat the door, whereupon cousin of the first informant, Smt. Jograni in order to pacify them, came out of the door. The appellants exhorted to kill her and of them Subesh Chandra and Lal Chandra fired from their country made pistols, the cousin of the first informant was struck and fell down. The first informant and Radhey Shyam after jumping from the roof made good their escape towards the field and hid themselves in the sugarcane field. From there they returned in the morning and found the dead body of Smt. Jograni. At the time of jumping from the roof they sustained injuries, the appellants bore enmity with the first informant on the suspicion that he was aiding the accused persons implicated in the murder of brother-in-law of appellant Subesh. The occurrence was seen in the street light by Bachchu Lal uncle of the first informant, Arvind Kumar son of the first informant and Surendra Kumar. In the night due to non availability of the conveyance they could not reach the police station.

On this chik FIR was scribed, case crime No. 40 of 2003 under Sections 147, 302 IPC was registered at police station Sadarpur. The investigation was entrusted to Sri Kripa Shankar Dixit, the then Station Officer, P.S. Sadarpur, who after completion of the investigation submitted the charge-sheet against all the named six persons.

In the course of investigation, Sri Kripa Shankar Dixit, Investigating Officer, arrested Suresh Chandra @ Koche, Subesh Chandra, Ram Balak, Lalji and Ved Prakash on 21.03.2003 at 11.30 PM. From personal search of appellant Lalji one licensed gun was recovered, from Suresh Chandra Verma one country made pistol and two live cartridges were recovered and rest three of them were unarmed. One person was succeeded in evading arrest by the police party. These two appellants Lalji and Subesh were also charged under Section 25 of the Arms Act.

After committal of the case to the Court of Session, the appellants Subesh, Lalji and Harinam were charged under Sections 148, 364, 302/149 IPC and rest appellants were charged under Sections 147, 364, 302/149 IPC, appellant Subesh was also charged under Section 3/25 Arms Act, they denied the charges and claimed to be tried.

In order to prove the charges on behalf of the prosecution besides other papers in documentary evidence, written reports Ext. Ka-1, Ka-2 (subsequently referred as Ka-2A), recovery memo Ext. Ka-2, Ka-3, Ka-19, copies of the reports of the general diary Ext. Ka-7, Ka-8, Ka-10, Chik FIR Ext. Ka-7 (subsequently referred as Ka-7A), copy of Chik FIR Ext. Ka-9 (relating to Arms Act), inquest report Ext. Ka-12 and site plans Ext. Ka-11 and Ka-20 (relating to recovery of country made pistol and gun).

In the oral evidence on behalf of the prosecution, nine witnesses were examined. After close of prosecution evidence statements of the accused-appellants were recorded under Section 313 Cr.P.C. wherein they disputed the correctness of the prosecution version, denied the facts stated by the prosecution witnesses, though they did not dispute the death of Smt. Jograni, however, they disputed the injuries alleged to have been sustained by the first informant. According to them, eye witnesses were deposing against them due to enmity, they were falsely implicated on the behest of Lallu and police submitted charge-sheet against them on fictitious evidence. In the defence no evidence was given.

After hearing the arguments, the learned trial Judge found the ocular version of the occurrence trustworthy, held the appellants guilty and convicted and sentenced them as above.

Feeling aggrieved each of the appellant has filed separate appeal.

We have heard Sri Nagendra Mohan, learned counsel for the appellants and Sri Umesh Verma, learned Additional Government Advocate for the State and pursed the record.

On behalf of the appellants, Sri Nagendra Mohan, learned counsel for the appellants has submitted that FIR has been lodged with delay which remained unexplained and the learned trial Judge has wrongly treated the delay in FIR to be properly explained. His next ground of attack is that the prosecution version kept on improving right from the FIR upto the trial. According to him, initially the allegations were of forcible abduction of the first informant and subsequently by improving the prosecution version the appellants were charged with the murder of Smt. Jograni. According to him, Smt. Jograni had died else where and her dead body was planted in front of the door of Radhey Shyam to implicate the appellants falsely. According to him, eye witness account is unnatural and improbable. No one had seen Smt. Jograni murdered.

On behalf of the prosecution these arguments have been repelled and it has been argued that delay has been properly explained, FIR is not encyclopedia of the crime, therefore, while giving details some improvement occurring in the original version is natural. According to him, the prosecution has proved the charges against the present appellants beyond reasonable doubt and the findings recorded by the learned trial Judge are based on record and with good reasons.

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 Supreme Court Cases (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."

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. 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."

First we would like to take into the account the medical evidence about the death of Smt. Jograni.

Dr. N.S. Bhadoria P.W. 7 is the doctor, who on 20.03.2003 at 2.00 PM performed the autopsy on the dead body of Smt. Jograni. According to him, deceased was aged 38 years, she had died two days ago, she was of average built, rigor mortis had passed off from upper and lower extremities. Postmortem staining on the back was present. During internal examination her peritoneum was found lacerated, her large intestine and uterus were raptured. According to him, the deceased had died due to shock and haemorrhage as a result of anti mortem gun shot injury. From her dead body 52 small pellets were recovered. The witness has proved the postmortem Ext. Ka-22 wherein the following anti mortem injury was record.

Gun shot entry wound 7 c.m. x 7 c.m. x cavity deep on the right side of the abdomen 11 c.m. on right ant. Sup. iliac spine in 3 O'' clock position, margins were inverted and lacerated.

During cross-examination the witness was questioned about the absence of blackening and tattooing.

The witness is an official witness. He is impartial to both sides. His testimony has not been challenged on behalf of the defence. His statement is duly supported by the findings recorded in the postmortem report Ext. Ka-22. For these reasons we treat him to be trustworthy and hold that the deceased had died from gun shot wound on the stated date and time as alleged by the prosecution.

Dr. Anoop Kumar P.W. 8 is the doctor, who on 20.03.2003 as Medical Officer, Community Health Centre, Mahmoodabad had examined Vishun Kumar at 3.45 PM. He has found three simple injuries on his person caused by blunt object and according to him they were two days old. He proved injury report Ext. Ka-23. In the injury report, he has recorded the following injuries:

Abrasion 1 c.m. x 0.5 c.m. present on the front side of left knee. Soft scab was present.

Abrasion 1.5 c.m. x 0.5 c.m. present in front of left leg 11 c.m. below left knee. Soft scab was present.

Abrasion 1 c.m. x 0.5 c.m. in front of left leg 3.5 c.m. below injury No. 2.

During cross-examination he has admitted that soft scabs start to harden between 12-24 hours and further stated that he found soft scabs present and admitted the possibility that they were self manufactured.

The question whether Vishnu Kumar sustained the above injuries on 18.03.2003 is a question to be decided on the basis of the eye witness account because the medical opinion is not definite about the duration of the injuries.

In the present case FIR was lodged on 19.03.2003. Subsequently the first informant Vishnu Kumar gave another written report at police station on 27.03.2003 (Ext. Ka-2A). This written report can only be treated to be an information furnished to the Investigating Officer in the course of investigation. It can only be used as former statement of the first informant to contradict himself. In Ext. Ka-2A Vishnu Kumar P.W. 1 has changed his version whereas in the FIR he has stated that he called Radhey Shyam whereat Radhey Shyam came out of the house. In the second application Ext. Ka-2A he has stated that he shouted whereat Radhey Shyam along with others came to the spot and rescued first informant and facilitated his escape into the house. His second major contradiction is that in the FIR Ext. Ka-1 he only refers that his cousin was hit by gun in his stomach and fell down. He came to know about her on the following morning. In the second application it transpires that according to him, to his knowledge Smt. Jograni died on 18.03.2003 and he knew about it that day itself.

During his statement on oath, he has made further improvements to his story. Now he says that he called Radhey Shyam in loud voice, whereat Rdhey Shyam and other villagers came there. Further he says that in the presence of his uncle Bachchu Lai, Smt. Jograni was shot though in rest of his statement he has supported the prosecution version and proved the FIR Ext. Ka-1, however, in the cross-examination he has admitted that village Samsabad is at the distance of one and half kilometer from his village. He has also admitted that in his village 4-5 persons had telephones. According to him out of these two were not functional on the date of occurrence. He did not approach other telephone connection holders. According to him, when he was dragged by the appellants and reached in front of the house of Radhey Shyam, Radhey Shyam was already sitting at the door of his house along with his sister Smt. Jograni, father Bachchu Lal and his wife. In the cross-examination he has stated that he rescued himself and except Bachchu Lal all other went inside the house. In the cross-examination he talks about two fires, one by Lalji and another by Subesh. He has admitted that he did not inform the Investigating Officer that Lalji fired from his gun not from country made pistol, which did not hit Smt. Jograni. He has also admitted that where Smt. Jograni had fallen down that place he had seen in the morning. His testimony is full of contradictions on the point of occurrence and his escape from the roof of the house by jumping. The story as narrated by him has changed several times, which of the version is correct cannot be definitely said, one time he says that he called Radhey Shyam at another time he says Radhey Shyam was sitting at the door of his house. At one time says that he was rescued by Radhey Shyam and another time he says that he made good escape himself, considering these variations we do not think that his testimony can be relied upon. His story in itself appears to be unnatural and improbable. On the evening of the Holi in all public places it is very difficult to believe that from a house one person could be forcibly taken away that too when his house is surrounded by his relatives. We think the learned trial Judge while placing reliance on his testimony has not considered the points noticed by us as above, therefore, on this point his finding appears to be erroneous.

Radhey Shyam P.W. 2 did not sustain any injuries. Though he supported the prosecution version in his examination-in-chief but his version is at variance with Vishnu Kumar P.W. 1. According to him, his father Bachchu Lal was caught by the appellants and Subesh threatened them that if they would not give Vishnu Kumar to them, their father would be killed, on this Smt. Jograni came out of the house and was murdered. According to him, two shots were fired, one hit Smt. Jograni other did not. After the appellants had departed from the scene of occurrence, why they did not return from the sugarcane field, has not been explained by this witness. These two eye witnesses could not be believed for the reason that in the site plan Ext. Ka-11 we find that in front of the house of Radhey Shyam there are Teenshed and Chhappar whatever happened under these that could not have been seen by the persons who were at the relevant time alleged to be on the roof. The learned trial Judge while placing reliance on the testimony of these two witnesses has not taken into account the topography of the scene of occurrence and presence of Teenshed and Chhappar in front the house of the Radhey Shyam.

From the perusal of the site plan, we find that in the street no lamppost has been shown. Kripa Shankar Dixit P.W. 6 the Investigating Officer has not stated anything about the existence of street light on the place of occurrence. Though he claims that he took samples of blood stained and simple earth but when pointed out that the dead body was lying at the bricks then he admitted that he did not take blood stained bricks and simple bricks. His omission when taken into consideration and the suggestion of defence that Smt. Jograni was killed else where and her dead body was planted in front of the house, we reach to the conclusion that suggestion of the defence may have some substance.

The learned trial Judge while appreciating the evidence did not notice any omission or lapse of the Investigating Officer that he did not take blood stained bricks and simple bricks from the scene of occurrence. Though lapse of the Investigating Officer in itself should not be made the basis of the acquittal, however, in this case due to lapse of Investigating Officer the appellants were prejudiced in their defence as in absence of bricks they could not prove that Smt. Jograni was not murdered at the scene of occurrence as alleged by the prosecution witnesses.

Thus, we find the ocular version of the prosecution story doubtful. We think in the present matter, the defence theory stands not disapproved. There appears reasonable doubt that may be Smt. Jograni had been murdered in a manner other than the claimed by the prosecution. We think prosecution could not prove the charges against the appellants beyond reasonable doubt in reference to the occurrence which had taken place on 18.03.2003.

When this finding is read in juxtaposition with the fact that the FIR was lodged on the next day at 11.40 AM and the first informant could not give any definite reason to explain the delay, we think that the suggestion of the defence is further strengthened from the delay in lodging the FIR.

So far as charge under Sections 3/25 of the Arms Act against the appellant Subesh is concerned, he has been convicted on the basis of testimony of Kripa Shankar Dixit P.W. 6 the then Station Officer, Sadarpur. When the Station Officer of the police station was himself complainant in that case the investigation by his subordinate officer is against the legal position and rules of natural justice. The learned trial Judge has not taken into account this legal position and ignored the violation of rules of natural justice that FIR about recovery was lodged by a superior officer and investigation was conducted by his subordinate officer Sri Imtiyaz Ahmad Sub Inspector. For this reason, we do not think that appellant Subesh Chandra could have been convicted under Sections 3/25 of the Arms Act.

The arguments advanced on behalf of the appellants have substance. All the appeals deserve to be allowed and the impugned, conviction and sentence awarded by the learned trial Judge are liable to be set aside.

Accordingly, all the appeals are allowed. The impugned judgment and order dated 10.01.2007 passed by the learned Additional Sessions Judge/Fast Track Court No. 3, Sitapur in Sessions Trial No. 961 of 2003 (Subesh Chandra and others) under Sections 147, 148, 149, 364, 302, 506(2) IPC and S.T. No. 962 of 2003 (Subesh Chandra Vs. State) under Sections 3/25 Arms Act, P.S. Sadarpur, District Sitapur is set aside. The conviction and sentence of the appellants awarded by the trial court are set aside. The appellants are acquitted from the charges levelled against them. All the appellants except appellant Subesh Chandra are on bail. Their bail bonds are cancelled and the sureties are discharged from their liabilities. The appellant Subesh Chandra be also released forthwith, in case, he is not wanted in any other case.

Office is directed to communicate this order to the court concerned to ensure compliance and further sent back the lower court record.