Allahabad High Court
Preetam Singh vs State on 6 September, 2019
Equivalent citations: AIRONLINE 2019 ALL 1409, 2020 (110) ACC (SOC) 63 (ALL)
Bench: Sudhir Agarwal, Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on : 11.03.2019 Delivered on : 06.09.2019 Court No. - 34 Case :- JAIL APPEAL No. - 8577 of 2008 Appellant :- Preetam Singh Respondent :- State Counsel for Appellant :- From Jail,Jai Singh Parihar,Noor Mohammad,Rajshree Malviya (A.C.) Counsel for Respondent :- Rishi Chadha (A.G.A.) Hon'ble Sudhir Agarwal,J.
Hon'ble Rajendra Kumar-IV,J.
(Delivered by Hon'ble Rajendra Kumar-IV,J.)
1. This jail appeal has been filed by accused-appellant, Preetam Singh through Senior Superintendent of Jail, Lalitpur against judgment and order dated 23.01.1998 passed by Sri Jai Singh, Additional Sessions Judge/Special Judge E.C. Act, Lalitpur in Session Trial No. 99 of 1997, (State v. Preetam Singh), arising out of Case Crime No. 19 of 1997, Police Station Saujna, under Sections 302 and 201 IPC. By impugned judgment, accused-appellant has been convicted and sentenced under Section 302 IPC for life imprisonment and under Section 201 IPC for one year rigorous imprisonment. Both the sentences shall run concurrently.
2. Prosecution story, in brief, is that on 10.05.1997, PW-3 Kalyan Singh submitted a written report Ex.Ka-1 in the Police Station Saujana, District Lalitpur stating that accused Preetam Singh was working in his house for Rs.300/- per month and payment was to be made after completion of one year. Accused, left his house after working two months only. Accused came back and told him to settle the amount whereupon he answered that when it was decided that payment would be made after completion of one year, why he was demanding in between. Thereupon accused-appellant pressurized him before PW-1 Swaroop and one Dhuman Singh (not examined) to pay at once and extended threat that in the event of nonpayment, he would take life of one of his sons. Information took it lightly. On 08.05.1997 at about 10:00 AM accused took his son (victim) aged about eleven years to Mahrauni, at the pretext of wearing shoes. Witness Janki Prasad and Bhagirath resident of same village saw victim Nanhey Raja in the company of accused-appellant, taking by the bus. When victim did not come back, Information asked Preetam Singh about the boy and traced out his son but accused-appellant did not give satisfactory response. It was suspected that accused-appellant abducted victim with intention to kill. Accused was taken to Police Station by informant with the help of Swaroop Singh, Amrit Singh and Kalyan Singh.
3. On the basis of Written Tehrir Ex Ka-1, chick FIR, Ex.Ka-5 was registered in Police Station concerned by Constable Clerk Nanhey Lal PW-6 as Case Crime No. 19 of 1997, under Section 364 IPC against accused-appellant, entry of case was made in General Diary, copy whereof is Ex. Ka-6.
4. Immediately after registration of case, PW-8, SI Mahaveer Singh, commenced investigation on the direction of C.O., took relevant papers, recorded statement of witnesses, recorded disclosure statement of accused in Police custody before Kalyan Singh and Chhatrapal, recovered dead body of Nanhey Raja from river and knife allegedly to be used in commission of offence from root of tree at pointing out of accused-appellant before PWs 3 and 5, prepared recovery memo of dead body and knife Ex.Ka-3. Inquest over the dead body of deceased was held by SI Syed Ali Hashmi who prepared inquest report Ex.Ka-4 and other papers relating thereto and sent body for postmortem, prepared site plan Ex.Ka-14 and converted case under Section 302 and 201 IPC.
5. PW-4 Dr. Khem Chandra, posted as Medical Officer on 12.05.1997 in District Hospital, Lalitpur, conducted autopsy over the dead body of Nanhe Raja, aged about 12 years and prepared postmortem report Ex. Ka-2, expressing his opinion that death was possible at about three days prior to postmortem and death might have been caused due to asphyxia as a result of ante mortem strangulation. Doctor found following ante-mortem injuries on the body of deceased, which read as under :-
i. Wound 2cm x 0.5cm x muscle deep over the left side of the chest between 4th and 5th intramuscular space 2.5cm medial from the left nipple. ii. Wound 2.5cm x 1cm x 1cm deep over the middle of upper abdomen 3cm below from the xiphisternum. Nature of wound injury no.1 and 2 cannot be given due to putrefied body. iii. During dissection of front of neck the right side of communication of hyoid bone found fractured and ecchymosis found around it.
6. PW-7 SI Bhagwat Singh under took further investigation of the case, perused record, visited spot, prepared site plan Ex.Ka-7, recorded statements of Dhuman Singh, Janki Prasad, Bhagirath, Kalyan Singh, Sumer Singh and Smt. Munni, Chattrapal Singh and other witnesses and after completing entire formalities of investigation submitted charge-sheet Ex.Ka-8 against accused-appellant under Section 302 and 201 IPC.
7. Case, being exclusively triable by Court of Sessions, after making compliance under Section 207 Cr.P.C. by Chief Judicial Magistrate concerned, case was committed to Sessions Judge, Lalitpur where from it was tranferred to Court of Special Judge (E.C. Act), Laliptur.
8. Trial Court framed charges on 05.11.1997 against accused Preetam Singh under Sections 302 and 201, which reads as under :-
"eSa] t; flag] vij l= U;k;k/kh'k@fo'ks"k U;k;k/kh'k ¼bZ0 lh0 ,DV½] yfyriqj vki vfHk;qDr izhre flag iq= eku flg fuoklh xzke nr;k Fkkuk cjkBk ftyk lkxj e0 iz0] ij fuEu vkjksi yxkrk gwWA izFke& ;g fd fnukad 8-5-97 dk le; djhc 10 cts vki oknh dY;k.k flag fuoklh xzke lkStuk Fkkuk lkStuk] yfyriqj ds yM+ds uUgs jktk dks twrk iguus ds cgkus xzke NijV ls tkequh unh ds fdukjs taxy eas ys x;s vkSj pkdw ls mldh gR;k dj nh o blds }kjk vkius ,slk vijk/k fd;k tks Hkk0 na0 la0 dh /kkjk 302 ds vUrxZr n.Muh; gS o bl U;k;ky; ds laKku esa gSA f}rh;& ;g fd mijksDr fnukad LFkku o le; ij vkius oknh ds yM+ds uUgs jktk dh pkdw ls gR;k djus ds mijkUr ] lk{; u"V djus ds mn~ns'; ls vkSj vius vki dks dkuwu ls cpkus ds mns~n'; ls e`rd uUgs jktk dh yk'k dks unh eas /kdsy fn;k o blds }kjk vkius ,slk vijk/k fd;k tks Hkk0 na0 la0 dh /kkjk 2010 ds vUrxZr n.Muh; gS o bl U;k;ky; ds laKku esa gSA vr,o ,rn }kjk eSa ;g funsZ'k nsrk gwW fd mDr vkjksi ds fy, vkidk ijh{k.k bl U;k;ky; }kjk fd;k tk;sxkA fnukad 5-11-97 vkjksi vfHk;qDr dks i<+dj lquk;k o le>k;k x;kA vfHk;qDr us vkjksi ls bUdkj fd;k vkSj fopkj.k dh ekax dhA "
"I, Jai Singh, Addl Sessions Judge/ Special Judge (E.C. Act), Lalitpur, charge you, accused Pritam Singh s/o Maan Singh r/o Village Dataya, P.S. Varatha, Distt Sagar, MP, with the following offence:-
First- That on 8.5.97 at around 10 am you took Nanhe Raja son of the complainant Kalyan Singh r/o Village Saujna, Lalitpur from Village Chhaprat to the jungle along the bank of Jamuni river on the pretext of putting on shoes and killed him with a knife, thereby committing an offence punishable u/s 302 IPC which is in the cognizance of this court.
Second- That on the aforesaid date, place and time you, after having killed complainant's son Nanhe Raja with a knife, pushed his body in the river with an intent to destroy evidence and to save yourself from the clutches of law. Thus, you have committed an offence punishable u/s 201 IPC; which is in the cognizance of this court.
Hence, it is hereby directed that you be tried by this court for the aforesaid charges."
(English Translation by Court)
9. Accused-appellants pleaded not guilty and claimed trial.
10. In order to substantiate its case, prosecution examined as many as eight witnesses in the following manner :-
Sr. No. Name of PWs Nature of witness Paper proved 1 Swaroop Singh Fact Nil 2 Janki Prasad Fact Nil 3 Kalyan Singh Fact Ex.Ka-1 4 Dr. Khem Chandra Formal Postmortem Report Ex.Ka-2 5 Chhatrapal Singh Fact Recovery memo of dead body Ex.Ka-3 6 Constable Nanhe Lal Formal Ex.Ka-5 & 6 7 SI Bhagwati Singh Formal Inquest Ex.Ka-4, Site Plan Ex.Ka-7 & Charge sheet Ex.Ka-8 8 SI Mahaveer Singh Formal Ex.Ka-14
11. Subsequent to closure of prosecution evidence, statement of accused under Section 313 was recorded by Trial Court, explaining entire evidence and other incriminating circumstances. In the statement, accused-appellant denied prosecution story in toto; entire story is said to be wrong, claimed false implication but did not chose to lead any defence evidence.
12. Trial Court after hearing learned counsel for parties and analysing entire evidence (oral and documentary) led by prosecution, found accused-appellants guilty, convicted and sentenced, as stated above.
13. We have heard Smt. Rajshree Malviya, learned Amicus Curiae for appellant and Sri Rishi Chaddha, learned AGA for State and travelled through record with valuable assistance of learned counsel for parties.
14. Learned counsel for accused-appellants assailed order of conviction and sentence, took us through the record and advanced following submissions :-
i. There is no eye witness of murder of Nanhey Raja. Case of prosecution rests upon circumstantial evidence. ii. PW-2 Janki Prasad is the only witness who has last seen the deceased in association with accused. iii. PW-3 proved disclosure statement of accused and recovery of dead body and knife which bears no signature of accused. iv. There is no strong motive to commit murder of Nanhey Raja. Motive shown by prosecution is not sufficient to commit murder. v. Witness Bhagirathi mentioned in the FIR has not been produced from the side of prosecution. vi. There is no complete chain of circumstantial evidence leading guilt of accused.
vii. Prosecution did not proved its case beyond reasonable doubt.
viii. Trial Court has not appreciated the evidence in right perspective as per law and wrongly convicted the accused.
15. Learned AGA opposed the submission and submitted that accused is named in FIR; there is sufficient motive to the accused to commit the crime; dead body of victim was recovered at the pointing of accused from river and according to postmortem report victim was assassinated, hence there is complete chain of circumstantial evidence leading to guilt of accused. Trial Court has rightly convicted accused-appellant.
16. Recovery of dead body of deceased from river and knife allegedly used in the commission of offence at the pointing out of accused as stated by prosecution could not be disputed by the accused-appellant but according to Advocate he is not responsible for committing murder of Nanhey Raja. From the statement of Doctor and I.O., recovery of dead body from the river at the pointing of accused-appellant and murder of Nanhey Raja stands established.
17. The only question remains for consideration is "whether accused-appellant committed murder of Nanhey Raja or not and Trial Court has rightly convicted him under Section 302 IPC or not?"
18. We may now proceed to consider rival submission of learned Counsel for partied and evidence in brief available on record.
19. Only evidence from the side of prosecution to connect the accused-appellant with the present crime is threat given by accused to Informant, last seen theory of victim in association of accused-appellant as disclosed by PW-2, disclosure statement of accused before Police and recovery of dead body and knife, allegedly used in commission of murder, at the pointing out of accused whereupon Trial Court believed and found accused guilt for committing murder of Nanhey Raja, an offence punishable under Section 302 IPC.
20. PW-1 has deposed that he was sitting in the home of Kalyan Singh along-with one Jhuman Singh at about 10:00 AM on the fateful day; accused Preetam Singh came there and told Kalyan Singh to settle the amount whereupon Kalyan Singh said that it was decided that payment would be made after completion of one year; Preetam Singh pressurized him to make payment at once and threatened that in the event of non payment, he would kill one of his child; Preetam Singh left from there; after two days PW-1 went to Mehrauni Bazar along-with one Kalyan Singh son of Sumer Singh, Kalyan Singh who Informant met him and asked about his child; Preetam Singh was also enquired by them in the house of accused but he did not say anything; and then he was taken to Police Station where Kalyan Singh PW-3 lodged FIR against him (Preetam Singh).
21. PW-2 Janki Prasad deposed that about seven months prior to date of statement i.e. 02.12.1997 he was sitting at his door at about 10:00 AM and saw that accused Preetam Singh and Nanhey Raja (victim) were going some where. His house is adjacent to house of Kalyan Singh (Informant). When he enquired from Preetam Singh where he was going, he told that, he was taking Nanhey Raja to Mehrauni for wearing shoe. Thereafter Nanhey Raja did not come back to village and nobody has seen him. On third day he came to know that accused Preetam Singh has assassinated Nanhey Raja. He identified accused-appellant in the Court.
22. PW-3 deposed that at about 10:00 AM, seven months ago, he was sitting in his house along-with Dhuman Singh and Swaroop Singh, accused Preetam Singh came there and demanded money whereupon he said that you have not completed my work whereas Rs.300/- per month along-with food was settled and payment was to be made after completion of one year, though he worked only two months; accused Preetam Singh demanded money at once and threatened that he would kill one of his son; next day at about 10:00 AM accused Preetam Singh came to his house when he was not present; accused took his son Nanhey Raja (victim) aged about eleven years on the pretext of purchasing shoe; witnesses Janki Prasad and Bahgirath saw accused Preetam Singh taking Nanhey Raja; his son Nanhey Raja did not come back to his house; third day he went to father of accused, where he inquired of Preetam Singh about his son but Preetam Singh told nothing; he met Swaroop Sing PW-1 and Kalyan Singh son of Sumer Singh in Mehrauni Bazar; he told both of them that his son is missing; he enquired of Preetam Singh but he did not disclose any thing; thereafter they took Preetam Singh to Police Station Saujana and FIR was lodged by PW-3.
23. PW-5 deposed that accused Preetam Singh in his disclosure statement admitted his guilt stating that he took victim Nanhey Raj son of Kalyan Singh on the pretext of getting shoe at Mehrauni Bazar and showed a picture in Talkies. After seeing picture, they slept out of Talkies and took Nanhey Raja on foot and killed him by inflicting knife injury and pushed dead body in river and knife used in the commission of offence was hidden in the root of tree after cleaning the blood from it. He led Police party to river and showed the place where dead body was pushed, took out knife from root of tree and handed over to Police. Police prepared recovery memo Ex.Ka-3 before him, held inquest over the dead body, prepared inquest report Ex.Ka-4 before him, put his signature.
24. In a case, which rests on circumstantial evidence, law postulates, twin requirements to be satisfied. First, every link in chain of circumstances, necessary to establish the guilt of accused, must be established by prosecution beyond reasonable doubt; and second, all circumstances must be consistent only with guilt of accused.
25. In the case in hand there is no eye witness of occurrence and case of prosecution rests on circumstantial evidence. There cannot be any dispute as to the well settled proposition that circumstances from which conclusion of guilt is to be drawn must or "should be" and not merely "may be" fully established. The facts so established should be consistent only with the guilt of the accused, that is to say, they should not be explicable through any other hypothesis except that the accused was guilty. Moreover, the circumstances should be conclusive in nature. There must be a chain of evidence so complete so as to not leave any reasonable ground for a conclusion consistent with the innocence of the accused, and must show that in all human probability, the offence was committed by the accused.
26. In Hanumant v. The State of Madhya Pradesh, AIR 1952 SC 343, as long back as in 1952, Hon'ble Mahajan, J. expounded various concomitant of proof of a case based purely on circumstantial evidence and said:
"... circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved...... it must be such as to show that within all human probability the act must have been done by the accused. " (emphasis added)"
27. In Hukam Singh v. State of Rajasthan, AIR 1977 SC 1063, Court said, where a case rests clearly on circumstantial evidence, inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with innocence of accused or guilt of any other person.
28. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, Court while dealing with a case based on circumstantial evidence, held, that onus is on prosecution to prove that chain is complete. Infirmity or lacuna, in prosecution, cannot be cured by false defence or plea. Conditions precedent before conviction, based on circumstantial evidence, must be fully established. Court described following condition precedent :-
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(emphasis added)
29. In Ashok Kumar Chatterjee v. State of Madhya Pradesh, AIR 1989 SC 1890, Court said:
"...when a case rests upon circumstantial evidence such evidence must satisfy the following tests :-
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively; should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and, (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
(emphasis added)
30. In C. Chenga Reddy and Others v. State of Andhra Pradesh, 1996(10) SCC 193, Court said:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. "
(emphasis added)
31. In Bodh Raj @ Bodha and Ors. v. State of Jammu and Kashmir, 2002(8) SCC 45 Court quoted from Sir Alfred Wills, "Wills' Circumstantial Evidence" (Chapter VI) and in para 15 of judgement said:
"(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted."
(emphasis added)
32. The above principle in respect of circumstantial evidence has been reiterated in subsequent authorities also in Shivu and Another v. Registrar General High Court of Karnataka and Another, 2007(4) SCC 713 and Tomaso Bruno v. State of U.P., 2015(7) SCC 178.
33. In State of U.P. vs. Satish, 2005(3) SCC 114, Court said :-
"The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."
34. So far as the argument no.3 of learned Amicus Curiae for appellant is concerned, it is evident from record that accused was taken by Informant and other person to Police Station concerned before registration of case. Case was registered on written report Ex.Ka-1 submitted by Informant, PW-3, under Section 364 IPC. On being interrogated by Police accused-appellant made disclosure statement on which Police recovered dead body of Nanhey Raja from Jamuni River at the instance of accused-appellant. Non signature of accused on recovery memo may be a slip of the Police Officer. At the most it can be termed as fault by Police in investigation.
35. It is well settled that any infirmity committed by Police Officer or faulty investigation would not help accused. Recovery of dead body is well supported by public witnesses. We are not impressed with the argument of learned Amicus Curiae for appellant and rejected the same.
36. PWs 1 and 3 established the threat extended by accused-appellant to PW-3. Both PWs deposed that accused-appellant has extended threat to Informant to kill any of his son, prior to incident. Immediately thereafter accused took victim Nanhey Raja with him on the pretext of wearing shoe. This fact was established by PW-2 Janki Prasad, who had last seen the victim Nanhey Raja in the company of accused. Accused in his disclosure statement admitted this fact before Police and PW-5. On the basis of disclosure statement recovery of dead body was made by Police from Jamuni River on the pointing of accused himself. Entire circumstantial evidence leading to guilt of accused has been completely established from the side of prosecution. Prosecution has established that accused is only and only person who has committed the murder of Nanhey Raja.
37. So far as motive is concerned, it is well settled that where direct evidence is worthy, it can be believed, then motive does not carry much weight. It is also notable that mind set of accused persons differs from each other. Thus merely because that there was no strong motive to commit the present offence, prosecution case cannot be disbelieved. We do not find any substance in the argument advanced by learned counsel for appellants.
38. In Lokesh Shivakumar v. State of Karnataka, (2012) 3 SCC 196, Court has held as under :-
"As regards motive, it is well established that if the prosecution case is fully established by reliable ocular evidence coupled with medical evidence, the issue of motive looses practically all relevance. In this case, we find the ocular evidence led in support of the prosecution case wholly reliable and see no reason to discard it."
39. So far as legal position for non-examination of entire witnesses is concerned, it is well settled principal of law that it is not necessary for the prosecution to produce all the witnesses in support its case. Quality of witnesses is material not the quantity of witnesses. In view of Section 134 of Indian Evidence Act,1872 (hereinafter referred to as 'Act,1872'), we do not find any substance in the submission of learned counsel for the appellant. Section 134 of Act, 1872, reads as under:-
"134. Number of witnesses.--No particular number of witnesses shall in any case be required for the proof of any fact."
40. Law is well-settled that as a general rule, Court can and may act on the testimony of a single witness provided he/she is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of Act, 1872, but if there are doubts about the testimony, Court will insist on corroboration. In fact, it is not the numbers, the quantity, but the quality that is material. Time-honoured principle is that evidence has to be weighed and not counted. Test is whether evidence has a ring of truth, cogent, credible and trustworthy or otherwise.
41. In Namdeo v. State of Maharashtra (2007) 14 SCC 150, Court re-iterated the view observing that it is the quality and not the quantity of evidence which is material. Quantity of evidence was never considered to be a test for deciding a criminal trial and emphasis of Court is always on quality of evidence. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence.
42. In Kunju @ Balachandran vs. State of Tamil Nadu, AIR 2008 SC 1381 a similar view has been taken placing reliance on earlier judgments including Jagdish Prasad vs. State of M.P., AIR 1994 SC 1251; and Vadivelu Thevar vs. State of Madras, AIR 1957 SC 614.
43. In Yakub Ismailbhai Patel Vs. State of Gunjrat reported in (2004) 12 SCC 229, Court held that :-
"The legal position in respect of the testimony of a solitay eyewitness is well settled in a catena of judgments inasmuch as this Court has always reminded that in order to pass conviction upon it, such a testimony must be of a nature which inspires the confidence of the Court. While looking into such evidence this Court has always advocated the Rule of Caution and such corroboration from other evidence and even in the absence of corroboration if testimony of such single eye-witness inspires confidence then conviction can be based solely upon it."
44. In State of Haryana v. Inder Singh and Ors. reported in (2002) 9 SCC 537, Court held that it is not the quantity but the quality of the witnesses which matters for determining the guilt or innocence of the accused in the criminal case. The testimony of a sole witness must be confidence-inspiring, leaving no doubt in the mind of the Court.
45. In the present case, it is fully established from the statement of PW-2 that deceased Nanhey Raja was last seen alive in the company of accused-appellant, who was seen taking victim to Mehrauni Bazar and on being asked by PW-2, accused-appellant told that they were going for wearing shoe. It is further established from the statement of Investigating Officer and Chattrapal that at the pointing of accused dead body of Nanhey Raja was recovered from Jamuni River on the next day of registration of case. Time gap between the last seen and murder of Nanhey Raja and detection of dead body in the Jamuni River is so short that it cannot be said that crime could have been done by some one else. Accused-appellants in statement under Section 313 Cr.P.C. has failed to offer any explanation, what had happened with the deceased and who murdered. There is sufficient evidence to hold that accused-appellant is only and only person who is responsible for committing murder of Nanhey Raja.
46. In the entirety of the facts and circumstances and legal preposition discussed herein before, we are satisfied that prosecution has successfully proved its case beyond reasonable doubt against accused-appellant and Trial Court has rightly convicted him for having committed an offence under Section 302 read with 201 IPC. Appeal is devoid of merit and liable to be dismissed.
47. So far as sentence of accused-appellants is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases.
48. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide: Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].
49. Hence, applying the principles laid down in the aforesaid judgments and having regard to the totality of facts and circumstances of case, motive, nature of offence, weapon used in commission of murder and the manner in which it was executed or committed, we find that punishment imposed upon accused-appellants by Trial Court in impugned judgment and order is not excessive and it appears fit and proper and no ground appears to interfere in the matter on the point of punishment imposed upon him.
50. We, therefore, find no merit in appeal. Present jail appeal lacks merit and is accordingly, dismissed and judgement and order dated 23.01.1998 passed by Additional Sessions Judge/Special Judge E.C. Act, Lalitpur in Session Trial No. 99 of 1997, (State v. Preetam Singh), arising out of Case Crime No. 19 of 1997, Police Station Saujna, under Sections 302 and 201 IPC., is maintained and confirmed.
51. Lower Court record along with a copy of this judgment be sent back immediately to District Court and Jail concerned for compliance and apprising the accused-appellant.
52. Before parting, we provide that Smt. Rajshree Malviya, Advocate, who has appeared as Amicus Curiae for appellant in present Jail Appeal, shall be paid counsel's fee as Rs. 10,000/- for her valuable assistance. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer, posted in the office of Advocate General at Allahabad, without any delay and, in any case, within one month from the date of receipt of copy of this judgment.
Order Date :- 06.09.2019 I.A. Siddiqui