Kusehrideen And Another vs State Of U.P.
2016 Latest Caselaw 103 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved on 25.2.2016
 
Delivered on 09.03.2016
 
Court No. - 28
 
Case :- CRIMINAL APPEAL No. - 335 of 2006
 
Appellant :- Kusehrideen And Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Rajendra Yadav,Alok Kapoor,G.S.Tripathi,Neeraj Sahu,Rajiv Mishra,S.H. Ibrahim,Soniya Mishra,Syed Shabiha Haider,U.N.Tiwari
 
Counsel for Respondent :- Govt.Advocate
 
Hon'ble Surendra Vikram Singh Rathore,J.

Hon'ble Pratyush Kumar,J.

(Per Hon'ble Pratyush Kumar,J.)

The present appeal filed on behalf of the appellants is directed against judgment and orders dated 23.2.2006 passed by Sri Ashok Kumar Tripathi, the then Additional Sessions Judge/Special Judge (S.C.S.T. Act) Unnao in two combined Special Trial Nos. 167 of 1998 (State Vs. Kushehari Deen and others) and 307 of 1998 (State Vs. Ram Kishore) arising out of Case Crime No. 98 of 1998, under sections 302/307 IPC and section 3 (2) (V) The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1988 (hereinafter referred as the S.C.S.T. Act) and relating to P.S. Safipur, District Unnao, whereby they were convicted and sentenced under section 307 IPC read with 34 IPC for life imprisonment and fine of Rs. 1,000/- each in default of payment of fine further six months imprisonment, under section 302 IPC readwith section 34 IPC for life imprisonment and fine of Rs. 2000/- each, indefault of payment of fine further one year's imprisonment and under section 3(2) (V) S.C.S.T. Act for life imprisonment, all the sentences were directed to run concurrently.

In the instant appeal facts of the prosecution case may be summarized as under:

That on 24th April, 1998 at 7.35 A.M. Dhani Ram R/o villager Maniyapur, P.S. Safipur handed a written report at the police station stating therein that 9 months ago his co-villager Ram Kishore along with Shiv Prasad alias Panda had enticed away his wife. After 14 days he brought his wife back from Punjab, thereupon they threatened him that he would not be spared. Due to fear he left his village and started to live with his family in village Gumaria, Mauja Dadlaha. Kusherdeen R/o village Maniyapur also became annoyed with him for that. In the intervening night of 23rd/24th April, 1998 he was sleeping with his wife Urmila under a chappar and his daughters Guddi aged about 14 years, Neelam aged about 10 years and Nirmala aged about 8 years and son Kuldeep after taking their dinner were sleeping on 2 cots in the courtyard. He wore white clothes and his daughter Guddi also wore white clothes. At about 2 A.M. on the sound of fire he and his wife awoke and after turning on flash light saw that in the courtyard Ram Kishore armed with 12 bore countrymade pistol, Shiv Prasad alias Panda and Khushardeen armed with country-made pistols were standing there. Mean time Ram Kishore, mistaking his daughter to be him and, in order to kill him fired from his countrymade pistol. He and his children raised hue and cry thereupon all the three miscreants passing through northern side made good their escape. He, his wife Urmila, daughters Neelam and Nirmla and other neighbours saw the occurrence. Guddi had died on the spot and Neelam was seriously injured.

At this chick FIR was scribed, case crime no. 98/98 under sections 302/307 IPC and 3 (2) (V) SC/ST Act was registered at P.S. Safipur. Its entry was made in the report of the general diary and the investigation was taken over by the circle officer, who after investigation submitted the charge sheet against all the three named accused persons. In the special court the appellants were charged under sections 307/34, 302/34 IPC and section 3 (2) (V) SC/ST Act, which they denied and claimed to be tried.

In order to prove the charges on behalf of the prosecution in the documentary evidence besides other papers, written report Ext. Ka-1, Recovery memo Ext. Ka-2, Injury report Ext. Ka-3, X-ray report Ext. Ka-4, Site plan Ext Ka-5, Postmortem report Ext. Ka-7, F.I.R. Ext. Ka-8, Copy of report Ext. Ka-9, Inquest report Ext. Ka-11, Recovery memo Ext. Ka-16 and Ka-17 were filed and eight witnesses were examined. Thereafter statements of the accused persons were recorded under section 313 Cr.P.C., wherein they admitted that first informant belonged to scheduled caste. Other facts stated by the prosecution witnesses were denied by them. About medical evidence they pleaded ignorance. According to them they were falsely implicated due to enmity. In the defence no evidence was given.

Briefly stated, prosecution witnesses in brief deposed as under:

Dhani Ram P.W.1

He is the first informant, father of the deceased, supported the version contained in the FIR and proved written report Ext. Ka-1 and inspection memo of the flash light Ext Ka-2.

2.

Km. Neelam P.W.

She is an injured eye witness who supported the prosecution version of the occurrence.

3.

Dr. K.P. Mishra P.W.3

He is the doctor who on 24th April, 1998 at 8.30 A.M. medically examined Km. Neelam and found five gun shot injuries on her person and proved injury report Ext. Ka-3 and X-ry Ext- Ka-4.

4.

Vijay Narayan Singh P.W.4

He is the investigating Officer and gave details about the steps taken in the course of investigation and proved site plan Ext. Ka-5 and charge sheet Ext. Ka-6.

5.

Dr. Arun Saha P.W.5

He on 24th April, 1998 at 4.45 p.m. performed autopsy on the dead body of deceased Guddi and recorded two ante mortem injuries on her person and proved postmortem report Ext. Ka-7.

6.

H.C. Ram Kumar Varma P.W.6

He is the scribe of the chick FIR. He proved chick FIR Ext. Ka-8 and copy of the report of the general diary Ext. Ka-9, chitthi majaroobi Ext. Ka-10

7.

S.I. Ram Pyara P.W.7

He conducted the inquest proceedings, proved inquest report Ext Ka-11, recovered empty cartridge and cap of bullet. Proved its memo Ext. Ka-16, took samples of blood stained and simple earth, proved recovery memo Ext Ka-17. He also explained discrepancy about distance between scene of occurrence and police station occurring in the chick FIR and inquest report.

Note: In Ext. Ka-8 distance has been mentioned 10 km in Ext. Ka-11. It is mentioned as 9 km.

Reason given by him is that he wrote the distance on the information of the villagers.

8.

Smt. Urmila P.W.8

Mother of the deceased supported the version contained in the FIR.

The learned special Judge after hearing the arguments found the ocular version of the occurrence trustworthy. He believed the medical evidence adduced by the prosecution and further held that motive stood proved. He rejected the argument that in the darkness of night miscreants could not be identified and convicted the present appellants and sentenced the present appellants as above. He acquitted Shiv Prasad alias Panda on the ground he was not assigned any specific role.

Heard Sri Rajiv Mishra and Ms. Soniya Mishra, learned counsel for the appellants and Sri M.Y. Ansari, learned AGA for the State and perused the record.

Briefly summarized the arguments advanced in support of the appeal are that FIR is ante timed. There was no source of light. In the statements of the eye witnesses there are contradictions. Their evidence has been erroneously believed and the incident was not fairly investigated.

On behalf of the State-respondent the learned AGA has replied that the FIR is prompt, presence of the eye witnesses is natural and probable. Contradictions are minor and the findings recorded in the impugned judgment are well substantiated from the record.

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 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."

Further before we enter into the merits of the respective arguments, we would like to refer the medical evidence which consists of statement of Dr. K.P. Mishra who medically examined the injured Km. Neelam on 24th April, 1998 at 8.30 A.M. and proved injury report Ext. Ka-3 and X-ray report Ext. Ka-4 and statement of Dr. Arun Saha P.W.5 who conducted the postmortem examination of the dead body of Guddi on 24th April, 1998 at 4.45 p.m. and proved the postmortem report Ext. Ka-7

Since homicidal death of Km. Guddi by gun shot has not been disputed before the trial court and even he was not suggested otherwise, we would like to take note of the fact that two ante mortem injuries were found on the dead body of Guddi. They read as under:

1. Fire-arm wound 3 cm. x 2-1/2 cm. x cavity deep on (LT) side of neck. 4 cm. above the (LT) clavicle. Margins inverted. Blackening and tattooing present. (wound of Entry)

2. Blacking and tattooing present on the (RT) forearm just above the (RT) wrist in an area of 8 cm. x 4 cm.

According to doctor death had occurred due to shock and haemorrhage as a result of antemortem gun shot injury. She could have died in the intervening night of 23rd/24th April, 1998 at 2 A.M.

In view of above, on the basis of statement of Dr. Arun Shah, P.W.5 and postmortem report Ext. Ka-7, we hold that the facts stated by the witness stand proved and deceased could have died on the stated date and time in the manner opined by the witness.

Dr. K.P. Mishra, P.W.3 has deposed that he found five injuries on the person of Km. Neelam at the time of medical examination. All were fresh caused by fire arm. In the x-ray no foreign body or bony injury could be found. In the cross examination he was asked about the variation in the duration of the injuries and distance from which they could have been caused. Thus injuries sustained by Neelam were not disputed by the defence before the trial court. These injuries read as under:

1. Multiple skin deep wounds situated on the face Lat at & below left side of the mouth, covering 6 cm. x 5.0 cm. area extending from left cheek to the chin, Blackening & Charring present.

2. Multiple Abrasions small sized situated on the outer surface of the neck & upper part of the chest, blackening & charring of the skin present due to unburnt gun powder.

3. Gun-shot wound 0.5 cm x 0.4 cm x depth not probed situated on the neck 3.0 cm. above medial end of right clavicle, collar of abrasion present, margins inverted, blackening present.

4. Multiple small sized abrasions on the anterior lateral surface area 10.0 cm. x 5.0 cm. right arm blackening and charring present.

5. Gun-shot wound 0.5 cm. x 0.4 cm. x depth not probed, on the inter scapular area right side to the main on the back. Collar of abrasion present, blackening present.

Leaving aside his opinion, we hold on the basis of the testimony of Dr. K.P. Mishra that on the stated date and time Km. Neelam could have sustained five gun shot simple injuries.

Now we have to see whether FIR was lodged promptly or it was actually antetimed.

On behalf of the prosecution Dhaniram P.W.1 and Ram Kumar Verma P.W.6 have been examined on this point. Ram Kumar Verma P.W.6 is the scribe of chick FIR who proved chick FIR Ext. Ka-8 and copy of the report of the general diary Ext. Ka-9 and also chitthi majaroobi Ext. Ka-10. He has been suggested that he ante-timed the registration of the case. In the cross examination he admitted that on that date no other case was registered.

Dhani Ram P.W.1 also reiterates the prosecution version and claims that written report was dictated by him on his way to Safipur.

On behalf of the appellants attention of the Court has been drawn to the inquest report Ext Ka-11 which does not contain names of the accused and weapons used by them. The document referred by learned counsel for the appellant is not indicative of ante timing of the FIR. In the inquest report we find case crime number and sections were correctly written. There is no overwriting. In the last as enclosures copies of necessary documents were attached and one of them is copy of chick FIR. letter to C.M.O. Ext. Ka-12, letter to R.I. Ext. Ka-13, diagram dead body Ext. Ka-14, form no.13 (chalan las) Ext. Ka-15, recovery memo Ext. Ka-16, Ka-17. All bear case crime number and sections. There is no overwriting or cutting in these papers.

Though it is true that in chitthi Majaroobi Ext. Ka-10 case crime number and sections have not been mentioned but we find name of the injured has been mentioned therein. The possibility cannot be ruled out that considering five gun shot wounds while the chick was being scribed and all formalities were completed, the constable took the injured with him for medical examination and treatment. She was medically examined at 8.30 A.M. on that day that shows that efforts were made for her immediate treatment. In this background we do not think omission to mention case crime number in the chitthi majaroobi is material.

On behalf of the appellants in order to show the ante timing of FIR and consultation of the first informant with the police, the learned counsel for the appellant has referred the statements of Dhaniram P.W.1 and Neelam P.W.2. Dhani Ram P.W.1 has stated in his cross examination that police reached his house at 7 A.M. He could not say whether police came after he lodged the FIR or before that. When his testimony is read as a whole we notice that he has stated that he departed from his house before 6 A.M. and reached there at 6 A.M. This shows that FIR was lodged prior to the visit of the police to his house. The learned counsel for the appellant has also referred the statement of Km. Neelam P.W.2 where she says that police came to her house two hours before sun rise and they took her and her father in the Jeep to Safipur. She is a child witness having rural background. At the time of incident she had sustained five gun shot injuries. Her memory after the incident may have become hazy on account of trauma so we don't think that on the basis of her statement, statement of her father and Ram Kumar Verma P.W.6 can be discarded. After giving our anxcious consideration we come to the conclusion that FIR was not ante timed.

Motive has been proved successfully. This fact has not been disputed before us, however, we find that statement of Dhaniram P.W.1 and Urmila P.W.8 are categorical in this regard and this fact has been successfully proved that Urmila was taken by the appellant no.2 with Shiv Prasad Panda from the house of the first informant. Her cash and ornaments were misappropriated and she was brought back by her husband. For that reason the appellants and Shiv Prasad alias Panda were annoyed with the first informant.

On behalf of the appellants time of occurrence has also been challenged on the basis of testimony of Dr. Arun Shah P.W.5 who noted in the postmortem report that in the stomach 100 gm semi digested food, in the small intestine paste and gases were found. According to him in the rural area dinner is usually taken at about 7-8 p.m. presence of semi digested food shows that before her death deceased must have taken food 2-3 hours earlier. Therefore, alleged time of occurrence 2 a.m. is doubtful.

The Hon'ble Apex Court in reference to rustic witnesses has made a very illuminating observation in the case of Dimple Gupta Vs. Rahiv Gupta AIR 2008 SC 239. According to this observation villagers are prone to misjudge time and distance and they are not skilled in narrating the chain of events with precision.

Keeping in view this observation time of 2 a.m. may not be taken literally, there may be variation of one or two hours. Father and mother of the deceased were not cross examined about when the deceased had taken her last meal and what her meal consisted of. In absence of these facts we don't think that on the basis of contents of the stomach categorical statement of Dhaniram P.W.1, and Ram Kumar P.W.6 can be discarded. Here we would recall the observation of the Hon'ble Apex Court made in the case of Jitender Kumar Vs. State of Haryana 2012 SCC 204 para 61.

"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 Court should examine the collective or cumulative effect of the prosecution evidence along with the medical evidence to arrive at the correct conclusion."

This settles the challenge to dispute time of occurrence.

Now we come to ocular version of the occurrence. Dhani Ram P.W.1 is the first informant. He has lodged the FIR without undue delay. His presence during the night at the spot is natural and probable. The only criticism about him is that he had no opportunity to see the occurrence because deceased and injured were lying in the courtyard and the first informant was sleeping inside an improvised chamber raised by thatched walls (tatiya). In the site plan Ext. Ka-5 by letter ''A' the place has been indicated where the deceased and injured were sleeping on a cot and by letter ''B' the place has been indicated where the first informant and his wife were sleeping. It is clear from the site plan that the first informant and his wife were sleeping near to the northern side of the improvised chamber which has way for entry and exit on northern side. From this entry and exit point place ''A' is directly visible. Argument contrary to this cannot be accepted by us.

There is one more objection to his opportunity to see the occurrence that the night was dark and no source of light was disclosed in the FIR but we find that in the FIR flash light has been mentioned. The existence of flash light has been disputed on the basis of one contradiction occurring between inspection memo of torch Ext. Ka-2 and statement of Dhani Ram P.W.1. In the inspection memo reference has been made to flash light of two cells with normal glass having small reflector whereas in the cross examination the witness has stated that his flash light was of three cells with a broad glass having big reflector. Here we have to remember that occurrence had taken place on 24th April, 1998 and the witness on this point was cross examined on 5th December, 2003 on this point. More than five years had lapsed which tends to show that memory of the witness may have faded. We don't think this contradiction is a material one rather it shows that this witness has not been tutored and he was deposing what he recollected in his memory. For this reason we also reject the argument that at the time of occurrence due to no light the witness had no opportunity to see the occurrence and identify the miscreants.

During cross examination some normal discrepancies have occurred in his statement. We could not find any of them to be major contradiction between his statement on oath and the version contained in the FIR. Thus his testimony during long cross-examination remained unshaken.

We are not prepared to believe that he would spare real culprits for murdering his young daughter and injuring the other and on whose account he had to leave his native village. There is no reason for him to implicate any other person except the real culprits. We find his testimony worthy of reliance.

Km. Neelam P.W.2 is a child witness who was administered oath after the trial Judge satisfied himself about her understanding. She has fully supported the prosecution version. She is an injured witness. Her testimony appears to be natural. Though on behalf of the appellants last para of her statement has been referred to show that she was tutored by public prosecutor. In this para the witness has stated that public prosecutor had refreshed her memory by reading her statement but she further said that whatever statement was read over that statement was truth. We do not think that the part of her statement referred by learned counsel for the appellants diminishes the evidential value of her statement. Had she not been a child witness it might have mattered but due to her tender age the public prosecutor had a right to ensure that the witness he was going to examine had sufficient understanding or not, whether she had seen the occurrence or not. A child may not understand the technicalities of law. Whatever she was asked she replied that before the Court. Her statement reveals that she had actually seen the occurrence. We found her to be a truthful witness.

Third eye witness is Smt. Urmila, P.W.8 mother of the deceased and the injured. She is more a witness of the motive then the occurrence. But she has fully corroborated the prosecution version. Her presence is natural and probable in the night in her house near her children. After hearing the shot she was awakened and seen the incident. She had opportunity to see the occurrence and identify the miscreants. We also found her to be a reliable witness.

Thus murder of Km. Guddi and attempted murder of Km. Neelam stand proved by medical evidence. These offences were committed by the appellants. This fact stands proved by the testimonies of three eye witnesses named above.

There is one more ground that investigation was not fairly conducted. In support of his ground learned counsel for the appellants could not indicate a single fact from the record. This argument is not substantiated from the record hence rejected.

Now remains one illegality noticed by us that in addition to their conviction under sections 302 and 307 IPC the appellants have also been convicted under section 3 (2) (V) SC/ST Act and they have been sentenced separately under this section also.

Before we discuss this point it would be gainful to reproduce provisions contained in section 3 (2) (v) of the Schedule Caste and Schedule Tribe Act. They read as under:

"Commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine"

It is evident from the plain reading of these provisions here that no distinct separate offence is created by them. They only enable the court, while convicting a person not being member of a scheduled caste or scheduled tribe who have committed any offence punishable under the Indian Penal Code, to award enhanced sentence. However, conviction and sentence under section 3 (2) (V) of the S.C.S.T. Act simplicitor is not permissible and the offender has to be convicted for the offence under the Indian Penal Code read with this section and he can be sentenced to undergo imprisonment for life and to pay fine also. Our view gets fortified from the observations made by the division Bench of this Court in Majaja Lal Vs. State of U.P. 2009 (65) ACC 446 (All)

In the present case under both sections of Indian Penal Code the appellants have been awarded sentence of imprisonment for life with fine. Thus the maximum sentence prescribed under section (3) (2) (v) of the S.C.S.T. Act has already been awarded to the appellants. There remains no further area for the applicability of the said section.

Except this all other findings recorded by the learned trial Judge are well substantiated from the record supported by cogent reasons. We are in agreement with him on other points. We conclude except the defect noticed by us the impugned judgment requires no interference.

In view of above the conviction and sentence awarded to the appellants under section 3 (2) (V) of the said Act are not warranted by law. To this extent the impugned judgment and orders require to be modified.

Criminal appeal no. 335 of 2006 is dismissed. We affirm the conviction and sentences of the appellants awarded under section 307/34 and 302/34 IPC whereas their conviction and sentence under the Scheduled Caste and Scheduled Tribe Act are set aside. The appellants are in jail. The Special Judge shall send their modified conviction warrants to the jail, where they shall serve out their sentences in accordance with law.

Office is directed to certify this order to the court concerned forthwith and send back the lower court record.

     [Pratyush Kumar,J.]    [S.V.S. Rathore,J.]
 
Order Date :-09.03.2016
 
MT**