Badruddin vs State Of U.P.
2017 Latest Caselaw 4112 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 42
 

 
Case :- CRIMINAL APPEAL No. - 3919 of 2014
 

 
Appellant :- Badruddin
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Firdos Ahmad,Khan Shahab Alam,Raghvendra Prakash,S.P. Saroj,Shri Prakash,Zafar Abbas
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Pratyush Kumar,J.

(Per Pratyush Kumar J.)

(1) The instant appeal filed, on behalf of the four accused appellants under section 374 Cr.P.C. is directed against the judgment and orders dated 23rd August, 2014 passed by Badrud Duja Naqvi, Additional Sessions Judge, Court no. 1, District- Azamgarh in Sessions Trial No. 165 of 2005 arising out of Case Crime no. 635 of 2004 (State Vs. Badruddin) under sections 302, 404, 411 IPC, Police Station- Rani Ki Sarai, District Azamgarh whereby, the appellant has been convicted and sentenced under section 302 IPC to undergo imprisonment for life and to pay fine of Rs. 5000/-, under section 404 IPC to undergo rigorous imprisonment of two years and to pay fine of Rs. 2000/- and further under section 411 IPC to undergo rigorous imprisonment for two years and to pay fine of Rs. 2000/-.

(2) Facts giving rise to the present appeal may be noticed as under:-

(3) That on 19th December, 2004 at 3:30 p.m. Patiraj Paswan, Chowkidar of village Rampur Tadva gave a written report at police station Rani ki Sarai stating therein that on that day at 3 p.m. in western Siwan of village Nevrahi alarm was raised that dead body of a male, murdered by cutting his throat was lying in bushes, which on verification he found correct.

(4) At this, Case Crime No. 635 of 2004, under section 302 IPC was registered and investigation was taken over by Station Officer Shamsher Bahadur Singh PW-9, who reached the spot, held the inquest proceedings and sent the dead body for postmortem. Thereafter, he inspected the spot and recovered a pair of hawai chappal and spectacles of the deceased. He also took samples of blood stained and simple earth. From the pocket of the deceased he recovered one voter identity card reflecting identity of the deceased as Abdul Rashid, thereafter, he arrested the present appellant from his house and on his pointing out recovered one iron Daw and Rs. 1000/- belonging to the deceased. Postmortem examination of the dead body was performed, rest of the witnesses were examined, blood stained clothes of the deceased were sent for chemical examination. After receiving the report, charge-sheet was submitted against the present appellant.

(5) After committal, the appellant stood for trial before the Court of Session, there he was charged under sections 302, 404, 401 IPC, which he denied and claimed to be tried. Thereafter, prosecution in order to prove the charges adduced its evidence. Besides other police papers in the documentary evidence, written report Exhibit Ka-1, recovery memo of Daw Exhibit Ka-2, recovery memo of slippers and blood stained and plain earth Exhibit Ka-3, postmortem report Exhibit Ka-4, inquest report Exhibit-Ka 5, diagram of the dead body, form no. 13 (Challan Lash), letter to R.I., letter to CMO, Exhibits Ka-6 to Ka 9, site plan Exhibit Ka-10, site plan of recoveries Exhibits Ka-11 and Ka-12, charge sheet Exhibit Ka-13, check F.I.R., Exhibit Ka-14, report of State Forensic Science laboratory Exhibit Ka-16 were filed. In the oral evidence 9 witnesses were examined. Thereafter, statement of the accused under section 301 Cr.P.C. was recorded wherein he denied the facts stated by the prosecution witnesses. According to him recovery of Daw and money is fictitious. He pleaded ignorance about police papers but disputed the correctness of the recovery memo. According to him, he was given money by his maternal uncle to recover his land. He declined to give any evidence in the defence.

(6) After conclusion of the trial, the learned trial judge relied on the statement of S.I. Shamsher Bahadur Singh PW-9 and held the recovery of incriminating articles to be proved. He also opined that on the Daw blood stained was found, hence, under section 114 of the Evidence Act it might be presumed that for robbing the deceased, he was murdered, thereafter, robbed by the appellant. Accordingly, he convicted and sentenced the accused appellant as mentioned above.

(7) Feeling aggrieved, the instant appeal has been filed.

(8) Heard Sri Jafar Abbas, Advocate, learned counsel appearing for the appellant, Sri P.S. Yadav learned Additional Government Advocate appearing for the State and perused the lower court record.

(9) Learned counsel for the appellant submits that this is a case of no evidence. All witnesses of fact have turned hostile. They have not supported the prosecution version. Only Dr. Anoop Kumar Singh, PW-8 and S.I. Shamsher Bahadur Singh PW-9 stuck with the prosecution version, testimony of the Dr. Anoop Kumar Singh merely shows homicidal death of the deceased. It is not indicative of the guilt of the appellant and testimony of S.I. Shamsher Bahadur Singh PW-9 is inadmissible in evidence because his examination-in-chief was not concluded. Appellant was not provided any opportunity to cross examine him and the court below committed grave illegality in placing reliance of his testimony. Thus, his submission is that the prosecution has succeeded only to prove homicidal death of the deceased but there is no evidence to indicate that appellant murdered the deceased.

(10) On behalf of the State these arguments have been repelled and it has been submitted by learned A.G.A. that it is a case of circumstantial evidence. From the testimony of S.I. Shamsher Bahadur Singh PW-9 all incriminating circumstances stood proved. Learned A.G.A. further submitted that on 7th June, 2010 testimony of S.I. Shamsher Bahadur Singh PW-9 was recorded examination-in-chief was continued for next date, thereafter, he did not appear and coercive process was issued against the witness. He appeared on 6th July, 2012 but on that day due to absence of the appellant his testimony could not be completed and only on 14th August, 2012 presence of the appellant could be procured and case was fixed for his statement under section 313 Cr.P.C. Submissions of learned A.G.A. is that it was a lapse of accused-appellant due to which his testimony could not be completed. Therefore, his statement in question has been rightly taken into consideration by the Court below and for cogent reasons it has been rightly relied on. According to him the impugned judgment and orders suffer with no infirmity either legal or factual, hence, they need no interference.

(11) In reference to our obligation as an Appellate Court hearing appeal against conviction, we would like to refresh our mind by recalling the observation in this reference 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."

(12) 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 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."

(13) Now we come to the controversy involved in the matter in hand : In the present case homicidal death of the deceased has not been disputed on behalf of the appellant. Doctor Anoop Kumar Singh PW-8 has deposed that on 21st December, 2004 at 3:15 p.m. He conducted the postmortem examination of the said robbery of the body of an unknown male. According to him, deceased was aged about 55 years. He had died before 2-3 days ago. In his opinion death had occurred due to shock and hemorrhage as a result of ante-mortem injuries. He has proved the postmortem report Exhibit Ka-4, wherein the following ante-mortem injuries have been noticed.

(i) Incised wound 15cm x 8cm x muscle and bone deep, trachea and other pipes were cut, muscles and bones were exposed. Cut at level for lower border of C-2 vertebra.

(ii) Incised wound 5cm x 1cm x bone deep, right side back of head, 2cm behind right ear.

(iii) Incised wound 10cm x 2 cm, left side head, brain deep, 2cm behind left ear.

(14) These injuries have not been challenged on behalf of the defence nor correctness his testimony. The witness in discharge of his official duty had performed the autopsy on the death body of the deceased. At the time of autopsy he had prepared the postmortem report. His testimony is corroborated by postmortem report Ex.Ka-4, it is credible, hence, it was rightly relied on by the learned trial Judge to hold that deceased had died homicidal death.

(15) Before the further proceedings we think that brief account of the testimonies of the prosecution witnesses should be placed on record. Summary of the statements of the prosecution witnesses is as under:-

Pati Raj PW-1, is the first informant. He proved the written report Exhibit Ka-1. He merely deposed about recovery of the dead body and giving information about it at the police station.

Tabrez Ahmad PW-2, he is supposed to be witness of the 'last seen' but he has not supported the prosecution version and declared hostile.

Mehtab Alam PW-3, he is also supposed to be witness of 'last seen' but he has also not supported the prosecution version and declared hostile.

Shiraz PW-4, he is supposed to be witness of recovery of Banke and looted money. He has not supported the prosecution version. He has been declared hostile.

Mohd. Arshad PW-5, he is supposed to be witness of recovery of one pair Hawai Chappal, one spectacle and one cycle and samples of blood stained and simple earth. He has not supported the prosecution version and delared hostile.

Mohd. Khalid PW-6, he is also supposed to be witness of 'last seen' but he has not supported the prosecution version and declared hostile.

Hardeen Yadav PW-7, he is also supposed to be witness of 'last seen' but he has not supported the prosecution version and declared hostile.

S.I. Shamsher Bahadur Singh PW-9, he is the Investigating Officer and recovery officer of the case he gave details of the steps taken in the course of investigation. He proved police papers including recovery memo of daw Exhibit-Ka2 and recovery memo of slippers and blood stained and plain earth Exhibit-ka3. He has also deposed that on 21st December, 2004 at 10 a.m. he arrested the appellant from his house and on his pointing out recovered one iron daw and looted money from the madhai of the appellant.

(16) Except Pati Raj PW-1, Dr. Anoop Kumar Singh PW-8 and S.I. Shamsher Bahadur Singh PW-9 all other witnesses have not supported the prosecution version. Evidence of Pati Raj PW-1 and Dr. Anoop Kumar Singh PW-8 is formal in nature. The only evidence which reflects complexity of the appellant in the said crime is recovery of iron daw and looted money on the pointing out of the appellant. Exhibit-Ka2 is the recovery memo. Mehtab Alam PW-3 and Sheraz Alam PW-4 are the witnesses who appended their signatures on the recovery memo but they have not supported the prosecution version and denied that on that day iron daw was recovered on the pointing out of the appellant.

(17) Thus, there remains only testimony of S.I. Shamsher Bahadur Singh PW-9 which could not be completed even his examination-in-chief remained incomplete. Though, it is true that after two years, when the witness appeared on that day due to absence of the appellant his testimony remained incomplete but the question is whether his deposition fulfills the requirements of section 137 of the Evidence Act, which provides examination of witness in three part examination-in-chief, cross examination and re-examination, if any.

(18) In the present case even his examination-in-chief remained incomplete. The right to cross examination arises only when examination-in-chief has been completed. Therefore, we are of the view that on the day when the appellant absented himself and witness was present his absence from the court cannot be taken by us as waiver of a right to cross examine the witness. Thus, we are unable to accept the arguments advanced by the learned A.G.A. that the evidence of S.I. Shamsher Bahadur Singh Pw-9 has been rightly taken into consideration by the learned trial judge. Taking absence of the appellant on 6th July, 2012 as waiver of a right to cross examine the witness the Court below has committed legal error, more so in relying on the statement of S.I. Shamsher Bahadur Singh PW-9 which was never subjected to cross examination. Section 138 of the Evidence Act embodies a principle of natural justice that evidence not tested on by cross examination is no evidence. In the case of Gopal Singh Vs. Satya Narayan AIR 1989 SC 1141 the Hon'ble Apex Court has stated that where a party has not subjected himself to cross examine, it would not be safe to rely on his examination-in-chief which has not been subjected to cross examination.

(19) We are in respectful agreement that the view expressed by the Hon'ble Apex Court and come to the opinion that in the present case testimony of S.I. Shamsher Bahadur Singh PW-9 is no deposition in the eye of law and it cannot be taken into consideration to hold the appellant guilt of the charges framed against him.

(20) In view of above, we find that prosecution could not adduce any admissible evidence against the present appellant to prove charges framed against him. Prosecution has failed to discharge its burden, finding of guilt recorded by the learned trial judge is legally incorrect and perverse. Appeal has substance and the impugned judgment and orders are liable to be set aside.

(21) Accordingly, appeal is allowed. Impugned judgment and orders dated 23rd August, 2014 passed by learned Additional Sessions Judge, Court no. 1, District- Azamgarh in Sessions Trial No. 165 of 2005 arising out of Case Crime no. 635 of 2004 (State Vs. Badruddin) under Sections 302, 404, 411 IPC, Police Station- Rani Ki Sarai, District Azamgarh as also conviction and sentences of the appellant are set aside.

(22) Accused-appellant Badruddin is acquitted from the charges framed against him under sections 302, 404 and 411 IPC. He is in jail since 23.08.2014. He be released forthwith if he is not wanted in any other case.

(23) Office is directed to communicate this order to the Court below for compliance and send back the lower court record.

[Pratyush Kumar,J]    [Ramesh Sinha,J]
 
Order Date :-   September  8th,  2017
 
Nisha