@JUDGMENTTAG-ORDER
Pratyush Kumar, J.@mdash1. The present appeal filed on behalf of the accused-appellant, is directed against the judgment and order dated 17th February, 2012 passed by Sri Ram Achal Yadav, Additional Sessions Judge/Special Judge, E.C. Act, Faizabad in S.T. No. 118/2007 (State v. Vikas), whereby the appellant was convicted and sentenced under section 302 I.P.C. to undergo imprisonment for life and to pay fine of Rs. 1,20,000/- in default thereof to further undergo two years imprisonment and under section 30 Arms Act to further undergo imprisonment of six months.
2. Briefly stated, in the appeal, prosecution case is that on 10th March, 2007, at 9.45 p.m. Smt. Meera Garg gave a written report at Police Station Kotwali Nagar, stating therein that her only son Tanuj Garg used to run a shop of Audio Video Cassettes and C.D. in the name of ''Geet Ghar'' in her house No. 521 Mohalla Rakabganj. On that day at 9.00 p.m. when his son was preparing to close the shop, she heard some altercation and went inside the shop. There she saw Vikas Agarwal while abusing and threatening his son, took out his pistol and shot his son, who fell down. The occurrence was seen by other customers and servants of the shop. She took her son to the hospital, where he was declared dead.
3. At this chik F.I.R. was scribed. Case Crime No. 304 of 2007 under section 302 I.P.C. was registered. Requisite entry was made in the report of the general diary and investigation was taken over by Inspector Sant Kumar Shukla, who arrested the appellant and on his pointing out, recovered the weapon of murder pistol, hidden beneath the mattress of Dewan, kept in the drawing room of his house. After competing the formalities, he submitted the chargesheet.
4. In the Court of Session, the appellant was charged under section 302 I.P.C. and section 30 Arms Act. He denied the charge and claimed to be tried. During trial, on behalf of the prosecution, besides documentary evidence, nine witnesses were examined. Thereafter statement of the appellant was recorded under section 313 Cr.P.C., whereby he denied the facts stated by the prosecution witnesses. He pleaded ignorance about the medical evidence and claimed that he was falsely implicated due to enmity. The police personnel took him to the District Hospital and challaned him. He gave no evidence in defence.
5. Hearing the arguments, by the impugned judgment and orders, the appellant was convicted and sentenced, as above.
6. On behalf of the appellant, it has been argued that the impugned judgment and order suffer from factual infirmities and legal errors. According to the learned counsel for the appellant, on the sole testimony of Smt. Meera Garg, P.W.-4, the appellant has been convicted, though her presence is highly improbable. F.I.R. is ante-timed but against the material available on record, the learned trial judge rejected this ground. According to him, ballistic report reveals that empty cartridge recovered from the spot is of 32 bore, which could not be fired from the pistol of the appellant.
7. On behalf of the prosecution, these arguments have been repelled and findings recorded by the learned trial judge have been defended and urged that they are well substantiated from the record.
8. In reference to our obligations as an appellate court hearing appeal against conviction we would like to refresh the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni v. 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."
9. 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."
10. Before we enter into the merits of the respective arguments, we would like to have a glance at the medical evidence, which consists of the statement of Dr. Nanak Saran, P.W.-2 and postmortem report, Exhibit Ka-1. Dr. Nanak Saran, P.W.-2 has stated that on 11th March, 2007, at 5.00 a.m., he performed the autopsy of the dead body of Tanuj Garg. According to him, one ante-mortem gun injury was found on his person. During internal examination, a bullet was extracted. In the stomach 150 gm semi digested food was found. His death had occurred due to shock and haemorrhage, as a result of ante mortem gun injury. It could have occurred on 10.3.2007 at 9.00 p.m. He has proved the postmortem report Exhibit Ka-1 wherein the following ante-mortem injuries have been recorded.
11. Lacerated wound with inverted margins and abraded collor 0.5 c.m. X 0.5 c.m. X cavity deep over left side of skull x 4 c.m. posterior to left ear x margins black.
12. On cut fracture occipital bone, brain matter lacerated, huge hematoma present but bullet could not be found, after X-ray, it was recovered.
13. During cross examination, death of the deceased has not been disputed. The witness was asked about place where bullet was found, contents of the stomach and state of rigor mortis. He was also asked about distance from which pistol shot could have been fired.
14. Facts stated by him during his statement are unchallenged, leaving aside his opinion. We rely on his testimony and hold the facts stated by him to be proved.
15. Now we would like to place on record the summary of the testimonies of prosecution witnesses, which reads as under:--
16. On behalf of the appellant, the first ground canvassed before us is the ante-timing of F.I.R. The basis of this ground is that scribe of the written report Vinay Kumar Garg, P.W.-1 during his cross examination has admitted that inspector Kotwali procured his signature on the written report, thereafter procured signature of his sister-in-law Smt. Meera Garg, P.W.-4, the first informant. In support of this ground, number of exhibits filed on behalf of the prosecution have been referred by the learned counsel for the appellant. According to him, specimen seal Exhibit Ka-4, letter to C.M.S. Exhibit Ka-5, diagram of dead body, Exhibit Ka-6, letter to R.I. Exhibit Ka-7, Form No. -13, (Challan lash), Exhibit Ka-8, all these papers do not bear any case crime number or section. Even in challan lash, Exhibit Ka-8, time of death has not been written. When we examine the inquest report, Exhibit Ka-3, we find that case crime number and section were inserted after making cutting in the second line at the top on the first page. The names of the first informant and constable Vinod Kumar also appear to be subsequently inserted. Same is the position on the second page, where first line and second line appear to be subsequently written. From these insertions only one conclusion can be drawn that when autopsy was performed, written report was not in existence it was subsequently prepared and scribed in the register of F.I.R. by showing them ante-dated and ante-timed.
17. When we notice that F.I.R. was ante-dated and ante-timed, very genesis of the prosecution story becomes doubtful. The evidence of prosecution specially eye witness account stands in no better position. Statement of Smt. Meera Garg, P.W.-4 though purports to be an eye witness account but we agree with the arguments advanced by the learned counsel for the appellant that there are several reasons to doubt the presence of the witness at the time of occurrence. First reason is that place of her presence in the site plan Exhibit Ka-9 has not been shown. From the site plan, we also gather that the scene of occurrence situates on the northern side of the house of the first informant inside the shop. The shop has opening towards north and also one door of entry and exit on the eastern side. On the southern side of the shop, there is a courtyard of the first informant. Thereafter on the extreme southern side, the room has been shown from where the first informant was when, the altercation started. When considered in the background that shop is facing towards northern side on a public road, there were several persons in the shop and the first informant was at the far the rest end of the house on the southern side, we doubt that first informant could have heard sound of any altercation inside the room coming from the shop.
18. The learned counsel for the appellant has also drawn our attention to the contradictions occurring in the testimony of Smt. Meera Garg, P.W.-4. Before the Court she has stated that inside the house, she heard altercation taking place in loud voice, there at she came to the shop. To the investigating officer, she had stated that when she came to the shop, Vikas had already shot his son in the head. This contradiction is material one touching the occurrence. Thus, we find that there are reasons indicating ante-dating and ante-timing of F.I.R., presence of Smt. Meera Garg at the spot improbable and her testimony contains contradictions and also discrepancies with the version given by other witnesses. We notice that the learned trial judge has not taken into account these facts into consideration and erroneously placed reliance on her testimony.
19. Sanjay Gupta, P.W.-1 did not support the prosecution version and was declared hostile. Vinod Kumar, P.W.-3 also did not support the prosecution version. He was also declared hostile. Manoj Kumar Garg, P.W.-8, uncle of the deceased reached the shop after hearing altercation and sound of fire. He found the deceased lying in injured condition and appellant was leaving the shop while keeping back his pistol. He has not seen the actual occurrence but his testimony is very close to eye witness account. During cross examination, he gave account discrepant with the account given with Smt. Meera Garg, P.W.-4. His testimony to some extent became incoherent during cross examination. At one time he says when he reached, there was no customer in the shop. Only two servants were there and Smt. Meera Garg was sitting holding the head of the deceased. He does not remember who brought the rickshaw to take the injured to the hospital. In his statement recorded under section 161 Cr.P.C., he has stated that servant brought the rickshaw and took the deceased to the hospital. He followed them. Smt. Meera Garg says that she remained at the hospital. The witness says she left after 45 minutes.
20. Vinay Kumar Garg, P.W.-9 is also uncle of the deceased. He has written report Exhibit Ka-2, according to him, he lives separately and on telephonic information, he reached the hospital directly. He is mostly witness of the recovery which does not support the prosecution version because in ballistic examination, the empty cartridge 32 bore recovered from the spot was not fired from the pistol 7.65 mm of the appellant.
21. Testimony of Smt. Meera Garg, P.W.-4 is not trustworthy. The evidence of Manoj Kumar Garg, P.W.-8 also does not inspire confidence, as he had not seen the occurrence and as per site plan, Exhibit Ka-9, the manner in which he claims to have reached the spot negates the possibility that he could have seen the appellant leaving the shop. His version as contained in the cross examination that when he reached there, only two servants were present and Smt. Meera Garg was holding the head of the deceased, appears to be correct.
22. For these reasons, we are not inclined to believe the prosecution version trustworthy. The learned trial judge has not critically examined the eventual value of the prosecution witnesses and wrongly placed reliance on their testimony.
23. Report of Forensic Science Laboratory dated 21st July, 2007 reveals that in no case the deceased could have died from the shot fired from the pistol of the appellant.
24. The learned counsel for the appellant has referred the case of Puran Singh v. State of Uttaranchal , (2008)3 SCC, 795. In this case empty cartridges recovered from the spot did not match with the alleged weapon of murder. Only on this ground, the Hon''ble Apex Court has allowed the appeal and acquitted the appellant after extending benefit of doubt. Only for this reason, we find that the appellant is also entitled to be acquitted after giving him benefit of doubt.
25. The impugned judgment contains material infirmities on the point of appreciation of evidence and application of law. The learned trial judge has erroneously believed the charges to be proved against the present appellant beyond reasonable doubt. Appeal has substance. The impugned judgment and order deserve to be set aside and conviction and sentence of the appellant also deserves to be set aside.
26. Resultantly, Criminal Appeal No. 327 of 2012 (Vikas v. State of U.P.) is allowed. The impugned judgment and order dated 17th February, 2012 as also conviction and sentence awarded to the appellant are set aside. The appellant Vikas @ Vikas Agarwal is acquitted from the charges under sections 302 I.P.C. and Section 30 Arms Act. He is in jail, if he is not wanted in any other case, he be released forthwith provided, he files his personal bonds and two surety bonds in the like amount to the satisfaction of the trial court in pursuance of section 437-A Cr.P.C. within 30 days from the date of his release.
