Allahabad High Court
Vijay vs State Of U.P. on 13 August, 2018
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 25.7.2018 Delivered on 13.8.2018 Case :- JAIL APPEAL No. - 518 of 2015 Appellant :- Vijay Respondent :- State Of U.P. Counsel for Appellant :- From Jail , Pradeep Kumar Mishra (A.C.) Counsel for Respondent :- A.G.A. Hon'ble Sudhir Agarwal,J.
Hon'ble Om Prakash-VII,J.
(By Om Prakash-VII, J.)
1. This jail appeal has been preferred by accused appellant Vijay against judgment and order dated 25/26.9.2014 passed by Additional District & Sessions Judge, Court No.3, Bulandshahr in Session Trial Nos. 889 of 2008 and 106 of 2009 at crime no. 74 of 2008 convicting and sentencing appellant for the offence punishable under Sections 376 (2)(cha) and 304 IPC for imprisonment of life and a fine of Rs. 50,000/- for the offence under Section 376(2)(cha) IPC and also for the offence under Section 304 IPC for 10 years rigorous imprisonment and a fine of Rs. 20,000/-. In default of payment of fine, appellant was also directed to undergo additional imprisonment of two years and one year respectively. All sentences were directed to run concurrently.
2. Facts of case, in nutshell, as unfolded by informant Bablu son of Harvansh Jatav, in First Information Report (in short 'F.I.R.'), are that on 26.4.2008 at about 2-2.30 p.m. appellant was playing with the daughter of informant aged about 2 ½ years' in his lap and when he began to proceed alongwith victim - deceased, informant's wife asked him as to where he was going with daughter, on this appellant told that he was going to provide her toffee. After sometime hearing weeping of a child from sugarcane field of Kale Ram witness Tejveer Singh and Shahid Siddiqui entered into the field and saw that accused appellant was committing rape with victim. Having seen those people, accused appellant ran away despite effort made by them to catch him. Leaving victim in field, both witnesses came to house of informant and told entire facts. Thereafter, informant alongwih Khoob Chandra, Tek Chandra and Raj Kumar proceeded to place of occurrence and witnessed that her daughter was lying in sugarcane field of Kale Ram and there were injuries on her private part as also on the body. Informant alongwith victim went to Police Station concerned for lodging F.I.R.. It was also mentioned that informant had heard that accused appellant due to fear of police had consumed poison to commit suicide and was lying in unconscious condition in the lane of mohalla Jatan.
3. On the basis of written report (Ext. ka-1), chik First Information Report (Ext. Ka-4) was registered at Police Station concerned on 26.4.2008 at 4.25 p.m. against accused appellant for the offence under Sections 376 and 309 IPC mentioning all details as had been described in Ext. Ka-.1. G.D. entry Ext. Ka-5 was also made at the same time. Since distance between place of occurrence and police station concerned was only one kilometer and sugarcane field was adjacent to the town concerned, police had also reached there. Informant on police vehicle took the victim immediately to B.B. Nagar C.H.C., Bulandshahr and after providing first aid, she was referred to District Hospital as is clear from reference slip, majroobi chitthi and statement of PW-5. She was also referred to Medical College, Meerut for better treatment. Police also took bloodstained and plain earth from place of occurrence and keeping same in sealed box prepared fard Ext. ka-8. One underwear of appellant was also taken into possession and was kept in a sealed cloth preparing memo Ext. ka-9. Medico legal examination of victim done at District Hospital, Bulandshahr is Ext. ka-2 wherein height of victim was found 31" (inch), weight 10.5 kilogram. It is also mentioned in the report that child was drowsy and face was soiled with blood. On internal examination blood was oozing from private part. Hymen was found torn. Vaginal tears on both sides also found damaged with muscle deep. On touch blood was oozing. Two smear slides were prepared for examination. She was also referred to Chief Medical Officer for age determination. Majrubi Chithi and reference slip of C.H.C. B.B. Nagar to District Hospital, Bulandshahr is on lower court record. Supplementary report prepared in regard to spermatozoa is Ext. ka-3. Bed head ticket of L.L.R.M. Medical College, where victim was admitted on 26.4.2008 and was discharged on 5.5.2008, is Ext. ka-11. Medical report prepared by Dr. Smt. Shaukeen Singh is Ext. ka-12. Inquest report was prepared on 23.9.2008 (Ext. ka-13) as information regarding death of victim was given by one Kailash, sweeper of Medical College, Meerut to local police. Other police papers are Ext. ka-14 to ka-16. Site plans are Ext. ka-6 and ka-7. Dead body of victim- deceased was kept in sealed cover, which was carried by constable Janeshwar to mortuary. Autopsy on the body of victim - deceased was done on 24.9.2008 at 4.15 p.m. and on general examination she was found aged about 3 years. It is mentioned in the post mortem report (Ext. ka-17) that deceased expired on 23.9.2008 at 4.55 p.m.. She was average built. Rigor mortis was absent. On both elbow, lower part of abdomen and lower part just above ankle surgical stitched wounds were found. Cause of death is shown due to septicemic shock. Surgery regarding injury no.2, found at the time of post mortem, took place thrice as she died during treatment due to septicemic shock.
4. Initially after completion of investigation, police submitted charge-sheet Ext. ka-10 for the offence under Sections 376 and 309 IPC. Later on, after death of deceased another supplementary charge-sheet Ext. ka-18 for the offence under Section 304 IPC was also submitted. Cognizance was taken on charge-sheets submitted in the matter and case being exclusively triable by sessions court, was committed to Court of sessions.
5. Accused/appellant appeared and at the first instance on 6.8.2008 on the basis of first charge-sheet in session trial no.889 of 2008 charges under Sections 376(2)(cha) and 309 IPC were framed against appellant to which he denied and claimed his trial. On the basis of supplementary charge-sheet in session trial no. 106 of 2009 separate charge for the offence under Section 304 IPC was also framed and accused also denied and claimed his trial. Since both sessions trial were related to same crime number, aforementioned trials were consolidated and S.T. No. 889 of 2008 was made leading file.
6. Trial proceeded and in order to prove it case prosecution examined nine witnesses, namely, PW-1, Bablu (informant), PW-2 Smt. Babita, mother of victim - deceased, PW-3 Tejveer Singh, PW-4 Shahid Siddiqui, PW-5 Dr. Vandana Sharma, PW-6 Sub-Inspector Dinesh Kumar Sharma, PW-7 Dr. Smt. Shaukeen Singh, PW-8 Sub-Inspector Suresh Chandra Sharma and PW-9 Dr. Narendra Pal, Senior Consultant.
7. After closure of prosecution evidence, statement of accused appellant under Section 313 Cr.P.C. was recorded in which he denied entire allegations levelled by prosecution and showed his innocency about offence and death of victim - deceased. He stated that witnesses have made false statement. Accused appellant has also specifically stated that prosecution was started due to enmity as a drain was situated in front of his house, which was covered by stone. Mother of victim-deceased used to throw garbage there and accused appellant had objected her and due to that reason appellant was falsely implicated in this case. He has also taken plea of alibi stating that he was not present in village concerned on the date of incident and had gone Farid Nagar, District Ghaziabad and returned in the night. No evidence was adduced by appellant in his defence.
8. Having heard learned counsel for parties and going through the record, trial court has found that prosecution has fully succeeded in bringing home the charges against accused appellant for the offence under Sections 376(2)(cha) and 304 IPC beyond reasonable doubt and convicted and sentenced accused appellant, hence this appeal.
9. We have heard Shri Pradeep Kumar Mishra, learned amicus curiae appearing for appellant and Shri Rishi Chaddha, learned AGA for State at length.
10. It was submitted by learned amicus curiae appearing for appellant that prosecution has not been able to prove its case beyond reasonable doubt. Neither PW-1 is witness of incident occurred near his house nor is witness of incident occurred in sugarcane field where victim - deceased was found. It was further submitted that PW -3 and PW-4 are also not eye account witnesses of the incident occurred in sugarcane field. Their presence on the spot at the time of occurrence is improbable and unbelievable. At this juncture, referring to statement of PW-3 and PW-4, learned amicus curiae submitted that since height of sugarcane crop was more than height of a man, person present about 10-20 feet away in the field cannot be seen from the place where PW-3 and PW-4 are said to be present. There are major contradictions in statement of prosecution witnesses on point of taking away girl by accused, lodging of F.I.R., distance between place where PW-3 and PW-4 were present and actual place of incident. Prosecution has suppressed this fact that police had already reached at place of occurrence before reaching of PW-1 and other witnesses. It was further submitted that PW-4 Shahid Siddiqui was a worker in workshop of PW-3. No leave was sanctioned to PW-4, therefore, his presence at place of occurrence is also improbable. There is also contradiction in statement of prosecution witnesses as to whether at first they went to police station to lodge F.I.R. or they went directly to hospital. Referring to plea taken in statement recorded under Section 313 CrPC as well as suggestion put to prosecution witnesses, it was also submitted that appellant was falsely implicated in this case due to enmity. Medical evidence does not support prosecution case. Doctor, who examined victim, has admitted that injuries found on body of victim - deceased could come by blunt object. It was also submitted that incident took place on 26.4.2008 whereas victim - deceased died on 23.9.2008 i.e. after a gap of five months. There is no evidence to connect death of victim - deceased with incident said to have taken place on 26.4.2008. Thus, it was submitted that prosecution was not able to prove offence under Section 304 IPC. Trial court due to misappreciation of evidence reached on a wrong conclusion and convicted and sentenced appellant for the offence under Sections 376(2)(cha) and 304 IPC. Findings recorded by trial court in impugned judgment and order are illegal and perverse and said order suffers from infirmity and illegality warranting interference by this Court.
11. On the other hand, learned AGA appearing for State submitted that offence of rape was committed by accused appellant against a two and half years old child. PW-3 and PW-4, who were going on the way near the place of occurrence, heard noise of victim and they entered into field and saw the accused committing present offence. Medical evidence fully supports the prosecution case. Doctor examined in the matter has clearly stated that injury found on body of victim -deceased was result of rape. Victim was operated thrice. She died during treatment due to septicemic shock. Presence of PW-3 and PW-4 on the spot is probable and believable. They are independent witnesses. Contradictions elucidated in the matter do not affect prosecution case on material points. Trial court has rightly convicted and sentenced accused appellant for the offence under Sections 376(2)(cha) and 304 IPC. All ingredients of offences have been proved by prosecution beyond reasonable doubt. Child was taken by accused appellant in presence of PW-1 and PW-2. When PW-2 objected, accused on the pretext of providing toffee took her from the place of first incident. Within few minutes of taking child by accused appellant, second incident took place. Thus, prosecution was able to prove its case beyond reasonable doubt. Findings recorded by trial court in impugned judgment and order regarding guilt of accused appellant for alleged offences are in accordance with law and evidence. There is no infirmity or illegality in impugned order warranting interference by this Court.
12. We have considered rival submissions made by learned counsel for parties and have carefully gone through entire record and evidence.
13. Before dealing with submissions raised by learned counsel for parties, we may mention findings of trial court recorded in the impugned judgment and order, which are as under:
(i) Victim - deceased was taken by accused appellant on 26.4.2008 at about 2.30 p.m. from lane adjacent to her house in the presence of PW-1 and PW-2 on pretext of providing toffee.
(ii) Information about commission of second incident was received by PW-1 and PW-2 through PW-3 and PW-4. Thereafter, they reached in sugarcane field, where victim - deceased was lying.
(iii) Contradictions in statements of witnesses are not fatal to prosecution case.
(iv) F.I.R. on date and time mentioned in Ext. ka-4 is possible one. Inconsistencies in statement of PW-1 and PW-2 on this score are not fatal.
(v) Although PW-3 and PW-4 are chance witnesses, yet their presence at place of occurrence at the time of incident is fully established. They have seen the incident.
(vi) Medical evidence fully supports prosecution case.
(vii) Omission and laches, if any, on the part of police are not fatal to the prosecution case.
(viii) Deceased died during treatment due to injuries received in the offence.
14. After outlining findings recorded by trial court in impugned judgment and order, we are proceeding to deal with submissions advanced by learned counsel for parties.
15. In this matter, incident is said to have taken place on 26.4.2008 at 2.30 p.m.. F.I.R. was lodged on 26.4.2008 itself at 4.20 p.m. Distance between place of occurrence and police station concerned is only one kilometer. Prosecution case is that accused appellant at about 2-2.30 p.m. took child from lane adjacent to her house and within a short span of time, PW-3 and PW-4 informed PW-1 and PW-2 that victim-deceased was lying in sugarcane field of Kale Ram in injured condition and accused appellant has committed offence of rape against her. On this information they reached at place of occurrence. It has also come in evidence that when witnesses reached at place of occurrence, local police had already reached there. Victim was taken to hospital immediately with aid and assistance of local police, where she was examined and was referred to District Hospital, Bulandshahr. As per prosecution, written report was prepared in hospital concerned where victim-deceased was first examined. This fact is supported by PW-2 also. In this case, as is evident from record, F.I.R. was lodged before proceeding to District Hospital, Bulandshahr. A perusal of record also reveals that one chitthi majroobi to Medical Officer, B.B. Nagar hospital was prepared by local police for medical examination of victim. In the examination of prosecution witnesses, it has also come that victim was also present at police station concerned at the time of lodging F.I.R. and this fact has also come that written report was prepared at police station concerned. If all these facts are taken into consideration in light of nature of offence, reaching of local police at place of second incident before reaching the witnesses, when victim was taken to hospital with aid and assistance of local police at first instance itself, then on the basis of chitthi majroobi prepared in the matter without any detail of crime number, date and time of lodging F.I.R. and also on the basis that at one point of time in cross examination of PW-1 and PW-2 place of preparation of written report is shown as police station, the genuineness of F.I.R. cannot be doubted. Prosecution evidence is clear and consistent about preparation of written report by one Satish on dictation of PW-1 and submission of same at police station concerned before proceeding to District Hospital Bulandshahr. Chitthi Majroobi might have been prepared before lodging of F.I.R. and this fact is not unusual or creates any doubt about truthfulness of prosecution case. Hence, keeping in view distance between place of occurrence and police station concerned and also this fact that at first victim was taken to hospital, F.I.R. in no way can be said to be lodged belatedly or it is a ante-timed document. Contradiction in cross examination of witnesses on this point may be the result of pressure of cross examination and also due to being rustic witnesses. F.I.R. is not an encyclopedia. Every minute detail of crime is not necessary in F.I.R. If there is omission in F.I.R. on the point of presence of PW-1 at place of first incident and also the fact that where written report was prepared, genuineness of F.I.R. cannot be doubted, especially when an offence of rape against a child aged about two and half year was committed. Some sort of deviation in statement made before Court may occur as it will not be possible to a rustic witness to have memories of every minute details of facts.
16. As regards incident occurred at first place is concerned, accused appellant took victim-deceased from lane adjacent to her house where she was playing in presence of PW-1 and PW-2. PW-2 has clearly stated that victim was being played by accused appellant in his lap and she was taken by him for providing toffee. PW-2 objected him but accused appellant took her. This fact is supported not only by PW-2 examined before Court on oath but by PW-1 also. There is no contradiction on this point in the statement of these two witnesses. If submission advanced by learned amicus curiae that PW-1 is not eye account witness is taken into consideration then also statement of PW-2, who is mother of victim-deceased, is not doubtful on this point. When victim-deceased did not come back, PW-1 searched her and within a short while information about commission of offence at second place of incident was given by PW-3 and PW-4. Thus, submission raised by learned amicus curiae about truthfulness of statement of PW-1 and PW-2 on the point of first incident said to have taken place at first place of occurrence is not acceptable. It is pertinent to mention here that if a person, well-known and familiar to a family, takes a child for playing, the family is not supposed to predict that he shall commit any offence with child. Thus, on this basis that PW-2 did not make hue and cry due to missing of her child immediately or presence of PW-1 at that place was not disclosed in F.I.R., fact of taking away the victim - deceased by accused appellant cannot be doubted. Hence, findings recorded by trial court on this point is in accordance with facts and evidence and there is no infirmity, illegality or perversity warranting interference by this Court.
17. So far as presence of PW-3 and 4 at the place of occurrence where offence of rape was committed is concerned, stand of PW-3 and PW-4 is that they were going to search machine for harvesting / threshering work. PW-4 was a worker in the workshop of PW-3. Prosecution witnesses have also admitted that no leave was sanctioned to PW-4 by PW-3. Thus, it is evident that PW-3 and PW-4 both are chance witnesses. Now we have to analyze as to whether presence of PW-3 and PW-4 at the place of occurrence is probable and believable. It is pertinent to mention here that workshop owned by PW-3 was situated in same locality. Search of harvesting / threshering machine by PW-4 alongwith PW-3 in month of April is not improbable and unbelievable. Looking to nature of works done in the workshop of PW-3, it cannot be said that owner will not accompany the worker without sanction of leave. It is also noteworthy that if worker accompanies his master for master's work it also amounts work done for master. Thus, on this score, presence of PW-3 and PW-4 at place of occurrence cannot be doubted. PW-3 and PW-4 both have clearly and consistently stated before Court on oath that when they reached near place of occurrence they heard hue and cry of a child. They entered in sugarcane field and saw accused appellant committing present offence and thereafter accused appellant ran away. They chased him but he could not be apprehended. Learned amicus curiae pointed out that presence of these two witnesses at place of occurrence also becomes doubtful on this score that neither they informed local police immediately nor took victim girl but directly proceeded to inform PW-1. If this submission raised by learned amicus curiae is minutely analyzed, PW-3 and PW-4 have stated that since it was a police case, they did not take girl with them and thought proper to inform her parents. Act done by PW-3 and PW-4, mentioned here-in-above, in no way make them unreliable or untrustworthy. Response / reaction from people after witnessing a crime differs man to man. Thus, presence of PW-3 and PW-4 on the spot on this ground cannot be doubted. If details mentioned in site plan are compared with topographical details given by PW-3 and PW-4 about distance between path and place of occurrence, height of sugarcane crop, response made by these witnesses immediately after hearing hue and cry of victim then also there is no major contradiction or inconsistency in statement of these two witnesses. In the circumstances, findings recorded by trial court about presence of these two witnesses on the spot on date, time and place of occurrence is in accordance with facts and evidence. There is no infirmity or illegality in the said findings.
18. In Lallu Manjhi & another vs State of f Jharkhand, (2003) 2 SCC 401, Hon'ble Supreme Court has classified oral testimony of witnesses into following three categories:
(a) Wholly reliable
(b) Wholly unreliable
(c) Neither wholly reliable nor wholly unreliable It has also been held that in third category of witnesses, Court has be cautious and has to see that statement of such witness is corroborated either by statement of other witnesses or by documentary or expert witnesses.
19. Hence, on close scrutiny of statement of PW-1, PW-2, PW-3 and PW-4 in light of settled legal proposition as well as submission raised by learned counsel for parties, in our view, deposition of these witnesses is fully supported by medical evidence and they cannot be placed in the category of unreliable witness.
20. As far as submission regarding medical evidence is concerned, victim-deceased died during treatment on 24.9.2008 due to septicemic shock occurred on account of injuries sustained by her in the incident (offence of rape) dated 26.4.2008. Prosecution case is also that victim was operated thrice and she succumbed to her injuries when she was operated last time for the injury on her private part. It is also evident from prosecution evidence that initially victim was medically examined at C.H.C. B.B. Nagar Bulandshahr. Injuries described in post mortem report were also reported by Doctor at B.B. Nagar C.H.C.. When victim - deceased was examined at District Mahila Hospital, Bulandshahr on the same day, same injuries were also reported. Although no spermatozoa (dead or alive) was found in the smear slide sent for chemical examination, yet from a perusal of statement of PW-5, PW-7 and PW-9, it is clear that injury found on private part of victim-deceased occurred in commission of offence of rape. At one point of time in medical evidence it has come that injury found on private part of victim-deceased could also be caused due to blunt object but witness concerned has made it clear that injury found on private part of victim-deceased could also occur in committing offence of rape by penetration. Trial court while analyzing entire evidence in this respect was of the view that medical evidence fully supports prosecution case. If finding recorded by trial court on this point is analyzed in consonance with submission raised by learned amicus curiae appearing for appellant as well as evidence available on record, it emerges that injuries found on the body of victim-deceased were caused by accused appellant by committing offence of rape. It may be mentioned here that if spermatozoa in smear slide was not found, on this ground prosecution case cannot be disbelieved. Injury found on private part of victim-deceased was operated thrice. Prosecution was also able to establish that treatment continued in regard to injury found on private part of victim-deceased and at the time of third operation, she succumbed to her injuries. Though time gap between the incident and death of victim-deceased is about five months yet on analysis of entire evidence minutely, it is evident that death of victim-deceased took place due to septicemic shock occurred in injuries on private part of victim-deceased. Hence, in our view, medical evidence fully supports prosecution case. Findings recorded by trial court in the impugned judgment and order in this regard are based on correct appreciation of evidence. There is no infirmity or illegality in the impugned order on this score.
21. Accused appellant has been acquitted for the offence under Section 309 IPC. Since there is no appeal either on behalf of State or victim, there is no need to discuss evidence in respect of offence under Section 309 IPC. Charge framed against accused appellant for the offence under Section 376 (2)(cha) IPC was found established by trial court beyond reasonable doubt. Trial court has also convicted and sentenced accused appellant for the offence under Section 304 IPC. Since presence of PW-3 and PW-4 on the spot at the time of incident is fully proved and they saw accused appellant committing present offence; medical evidence fully supports prosecution case; injuries found on body of victim-deceased could come by committing rape, in our view, trial court's findings in regard to guilt of accused appellant for the offence under Section 376(2)(cha) IPC is based on correct appreciation of facts and evidence. We do not find any error in the said findings.
22. So far as charge for the offence under Section 304 IPC is concerned, we find it necessary to refer relevant portion of provisions of Section 299 IPC, which are as under:
"299. Culpable homicide.--Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
Illustrations
(a) ...................................
(b).....................................
(c)......................................
Explanation 1.--...............
Explanation 2.--Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented.
Explanation 3.--.................."
In the present matter, as is evident from record, treatment of victim-deceased was continued till 24.9.2008 and she died when she was operated third time. It is also evident from prosecution evidence that victim-deceased sustained injuries on 26.4.2008 in main incident (offence of rape) and she was operated thrice for the said injuries. Cause of death of deceased is septicemic shock due to injuries sustained by her on private part in the offence. Resort to proper remedies and skilful treatment was done but her life could not be saved. Thus, in our considered opinion, ingredients of offence under Section 299 IPC punishable under Section 304 IPC have been proved by prosecution against accused appellant. This also finds support from explanation -II to Section 299 IPC. Hence, on the basis of aforesaid analysis and discussions, we are of the view that prosecution was able to prove guilt of accused appellant for the offence under Section 304 IPC also beyond reasonable doubt.
23. As regards laches on the part of Investigating Officer in investigation, presence of police personnel on the spot before reaching informant, discrepancies in prosecution evidence on the point of F.I.R. are concerned, they are not of such nature, which are fatal to prosecution case. Omissions elicited on behalf of appellant are not material to disbelieve the statement of prosecution witnesses. PW-1 and PW-2 both were present on the date, time and place of first incident. Victim girl was taken by accused appellant before them. Prosecution was also able to prove the incident occurred at second place in the sugarcane field of Kale Ram by the statement of PW-3, PW-4 and doctors. Offence of rape was committed against a girl aged about two and a half years, medical evidence fully supports this fact.
24. As far as punishment imposed upon accused appellant for the charges framed against him is concerned, there is no appeal either by State or by victim against impugned judgment and order. A minor child aged about 2 ½ years was helpless in the cruel hands of accused. She was raped by accused appellant and died during treatment. Pain and agony caused to deceased is beyond imagination and is the limit of viciousness. Accused appellant took the victim girl in a relationship of 'trust-belief' and 'confidence' and by his conduct has belied the said relationship. He left victim-deceased in a badly injured condition in an open field. This reflects most unfortunate and abusive facet of human conduct for which he has to blame no one else than his own self. Accused appellant committed the crime in most brutal manner and opted not to explain any circumstance and just took plea of false implication, which is unbelievable and unsustainable. Barbaric act done by accused appellant is not only shocking to bereaved family but also to conscience of society. Trial court while imposing punishment for the offence under Section 304 IPC has adopted lenient view, therefore, we are of the opinion that no further leniency can be extended to accused appellant. As regards punishment imposed for the offence under Section 376(2)(cha) IPC is concerned, for the reasons discussed here-in-above, appellant does not deserve to any leniency.
25. Considering the entire aspects of the matter and looking to the circumstances, under which the present offence has been committed, we are of the view that impugned judgment and order dated 25/26.9.2014 passed by trial court is well thought and well discussed and trial court has rightly held that prosecution has succeeded to prove guilt of accused appellant beyond reasonable doubt. As such, impugned judgment and order passed by the trial court is liable to be upheld and appeal having no force is liable to be dismissed.
26. Accordingly present jail appeal is dismissed and conviction and sentence imposed upon accused appellant vide impugned judgment and order dated 25/26.9.2014 is affirmed.
27. Copy of this judgment alongwith lower court record be sent forthwith to the Sessions Judge, Bulandshahr for compliance. Compliance report be also submitted to this Court. A copy of this order be also sent to appellant through concerned Jail Superintendent. Compliance report be also sent by concerned Jail Superintendent.
28. Shri Pradeep Kumar Mishra, learned amicus curiae has assisted the Court very diligently. We provide that he shall be paid counsel's fee as Rs. 10,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad to Shri Pradeep Kumar Mishra, amicus curiae without any delay and in any case within 15 days from the date of receipt of copy of this judgment.
Order date : 13.8.2018 safi