Allahabad High Court
Jagan Singh vs State Of U.P. on 12 February, 2019
Equivalent citations: AIRONLINE 2019 ALL 405, 2019 (3) ALJ 87 (2019) 2 ALLCRIR 1835, (2019) 2 ALLCRIR 1835
Bench: Sudhir Agarwal, Ram Krishna Gautam
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 30.11.2018 Delivered on 12.02.2019 Court No. - 34 Case :- JAIL APPEAL No. - 550 of 2013 Appellant :- Jagan Singh Respondent :- State Of U.P. Counsel for Appellant :- From Jail Counsel for Respondent :- A.G.A. Hon'ble Sudhir Agarwal,J.
Hon'ble Ram Krishna Gautam,J.
(Delivered by Hon'ble Ram Krishna Gautam,J.)
1. This Jail Appeal under section 383 Cr.P.C. has been filed by convict appellant Jagan Singh against the judgment and order of conviction and sentence dated 9.12.2011 passed by Sri Piyush Sharma, Additional Sessions Judge, Court No. 8, Shahjahanpur, in S.T. No. 1059 of 2008, State Vs. Jagan Singh, arising out of Case Crime No. 72 of 2008, under section 302, 201 I.P.C., P.S. Madnapur, District Shahjahanpur, whereby the appellant has been convicted for offence punishable under sections 302 and 201 I.P.C. and has been sentenced for life imprisonment with a fine of Rs. 5000/- for offence of murder u/s 302 I.P.C. and in default for making payment of fine one year simple imprisonment and rigorous imprisonment of five years with a fine of Rs. 2000/- and in default five months simple imprisonment for offence punishable u/s 201 I.P.C., on the ground that Trial Court failed to appreciate the facts and law placed before it. Impugned judgment of conviction and sentence is against the settled proposition of law. There was material contradiction in the evidence produced by the prosecution and the case was not proved beyond reasonable doubt. Witnesses were interested and relative. Their testimonies were full of inconsistencies. The trial was based on circumstantial evidence and no motive was against the appellant. He was with no criminal antecedent, but has been falsely implicated in this very case crime number on the basis of political enmity. But the Trial Court failed to appreciate all those facts and materials placed on record. Hence this appeal.
2. Heard Ms. Kanchan Chaudhary, learned Amicus Curiae, for the appellant and Sri Udit Chandra, learned AGA for the State.
3. Written report, scribed by Jaydrath Singh, son of Hakim Singh, resident of Village Barua Patti Sanayak, P. S. Madnapur, District Shahjahanpur, having signature of Neetu Singh, son of Satyapal Singh, resident of the same village, on 26.2.2008 (exhibit Ka-1), was presented by informant-PW1- Neetu Singh at Police Station Madnapur of district Shahjahanpur, on 26.2.2008 at 5.00 P.M., on the basis of which chick F.I.R. (Ext. Ka-3) was lodged at above police station under handwriting and signature of HCP 52 Khemkaran Saroj (PW4) posted as Head Constable Moharrir at above police station on 26.2.2008 as Case Crime No. 72 of 2008, u/s 302, 201 I.P.C. against convict appellant Jagan Singh, son of Bhoop Singh, resident of Village Barua Patti Sanayak, P. S. Madnapur, District Shahjahanpur, with this contention that the informant's father Satyapal Singh had been at the hut of Jagan Singh at 7.00 P.M. of 23.2.2008 for asking back his money due against Jagan Singh. Informant too was accompanying his father Satyapal Singh. After conversation Jagan Singh managed to bring wine and both of them started taking it. Informant came back. But his father did not come back till late night. He went to above hut of Jagan Singh. They were not there. He searched his father in the village but it came to his knowledge that Jagan Singh too was missing since above night. On 26.2.2008 Vijay Vir Singh (presently deceased) and Mangoo Singh (PW2) apprised informant about confession made by Jagan Singh that he had buried dead body of Satyapal Singh at the corner of field of Sardar Mahendra Singh, but this was not to be disclosed to the family members of Satyapal Singh. After getting this information informant along with his maternal uncle Nanhkoo Singh, Bhoore Singh, Akhilesh Singh, Chandrapal Singh and many others of the village, went at the field of Sardar Mahendra Singh, whereupon a portion was appearing to be newly dug. Upon this suspicion that was dug, from where, dead body of deceased Satyapal Singh was recovered, hence it was fully believed that after murdering Satyapal Singh his dead body was buried there at by Jagan Singh and his friends. Hence, this report for legal action was lodged and dead body of Satyapal Singh was lying at the western side of the field of Sardar Mahendra Singh, besides road. This registration of case crime number was entered in the general diary entry at the time of registration of its crime number i.e. at Entry No. 33 at 5.00 P.M. by PW4 Khemkaran Saroj, who has proved chick F.I.R. (Ext. Ka-3) and G.D. Entry (Ext. Ka-4), of which there is no contradiction, exaggeration or embellishment and while put to accused-appellant as question no. 5 u/s 313 Cr.P.C. this has not been disputed that above case crime number was not registered at above police station at above date, time and place upon report of informant by PW4 Khemkaran Saroj. Rather reply is of his implication owing to political influence. Police machinery took motion and inquest report on the basis of inquest proceedings by S.I. Surendra Singh (PW5) was conducted on 26.2.2008. When this case crime number was got registered at police station in presence of above witnesses and being in-charge Station Officer of police station Madnapur S.I. Surendra Singh (PW5) took the investigation and proceeded at the place where hut was situated, which was at a distance of about 1 Km. from police station. Dead body of Satyapal Singh was kept at the field of Sardar Mahendra Singh and this was not exhumed by the police personnel, rather it was by village persons. There was no apparent external injury over person of the deceased. Inquest report was got prepared and dead body was sealed after wrapping in cloth. Specimen seal was got prepared, relevant police forms including photo of dead body, letter to C.M.O., letter to R.I. etc. were got prepared, under the handwriting and signature of this witness, which were annexed with the file. Spot map, prepared on the pointing out of informant was prepared under the handwriting and signature of PW5 and after completion of investigation charge sheet (Ext. Ka11) was filed, which has been formally proved by this witness.
4. Investigation resulted in filing of charge sheet (Ext. Ka11) for offence punishable u/s 304/201 I.P.C. against convict appellant Jagan Singh. C.J.M., Shahjahanpur, took cognizance vide order dated 8.8.2008.
5. As the charges were exclusively triable by the Court of Sessions, hence the case was committed to the Court of Sessions.
6. Learned Sessions Judge, Shahjahanpur, after hearing learned counsel for the appellant as well as learned prosecutor levelled following charges against the appellant Jagan Singh on 11.11.2008:
"I, S. N. Dwivedi, Sessions Judge, Shahjahanpur, do hereby charge you Jagan Singh as follows:
Firstly: That you on 23.2.2008 at about 9 P.M. in the field of Mahendra Singh, situated in village Barua Patti Sanayak, within the circle of P.S. Madnapur, District Shahjahanpur, did commit murder by intentionally administering poison in liquor to him, and thereby committed an offence punishable under section 302 I.P.C. and within the cognizance of the court of Sessions;
Secondly: That you on the aforesaid date, time and place knowing or having reason to believe that certain offence, to wit, murder of said Satya Pal Singh, punishable with death, has been committed, did cause certain evidence of the said offence to disappear, to wit, burried the dead body of said Satya Pal Singh in the field of Mahendra Singh, with the intention of screening yourself from legal punishment, and thereby committed an offence punishable under section 201 I.P.C. and within the cognizance of the court of sessions.
And I hereby direct that you be tried by this court on the said charge."
7. Charges were read over and explained to accused in Hindi, who pleaded not guilty and claimed to be tried.
8. Prosecution examined PW1-Neetu Singh, PW2- Mangoo Singh, PW3- Dr. K. C. Gangwar, PW4- Khemkaran Saroj and PW5- S.I. Surendra Singh.
9. With a view to provide opportunity for explanation, if any, of accused over incriminating article produced and evidence furnished by prosecution, he was examined and his statement was recorded u/s 313 Cr.P.C. in which he has answered as under:-
"eSauas u gh nzO; inkFkZ es tgj feyk;k u gh lk{; u"V djus ds vk'k; ls 'ko dsk x< s "kM;a= es >wBk Qalk;k x;kA eaS etnwj O;fDr gWwaA uhrw dh etnwjh djus ls euk fd;k D;ksafd og fcuk etnwjh fn;s etnwjh djkrs jgsA blh jaft'k es >wBk Qalk;kA Lkk{kh eaxw flag lk{kh uhrw flag ds fj'rsnkj gSA blfy;s uhrw flag dk feF;k leFkZu dj jgs gSaA jktuSfrd izHkko ls fjiksVZ ntZ dh xbZA izFke lwpuk ys[kd t;nzFk flag oknh uhrw flag ds fj'rsnkj Fks tks ftyk iapk;r lnL; FksA mudh iRuh xzke Ikz/kku gSA mudk Fkkus ij izHkko gS mlh izHkko es >wBh fjiksVZ fy[kdj foospd ls feydj >wBk eqdnek fy[kok;kA esjh iSjoh djus okyk dskbZ ugh gSA lk{; cpko ugh nsuk gSA^^ "I never mixed any poison in any liquid nor did buried the dead body for evading any evidence against me. I 70 years old, weak person, had been falsely implicated in this case. I am labourer but had refused to do work of labour of Neetu because of the fact that he never made adequate payment. Rather he takes Begar for which he (appellant) refused and as a result he has been implicated in this case, falsely. Witness Mangoo Singh and informant Neetu Singh are in relations and that is why Manoo Singh is corroborating Neetu Singh. This implication and lodging of report was under political influence. FIR was scribed by Jaydrath Singh, a relative of informant Neetu Singh, who was a member of District Panchayat and his wife was Village Pradhan having influence at police station and this report was under above influence. He is with no one to do pairvi, hence will not give any evidence in defence, but is innocent and has been falsely implicated under enmity."
(English translation by Court)
10. Learned Additional Sessions Judge heard learned counsel for defence and learned Government Counsel, passed the impugned judgment of conviction and order of sentence therein, as above.
11. This is a case based on circumstantial evidence coupled with confessional statement made by convicted appellant Jagan Singh to PW2- Mangoo Singh and deceased Vijay Vir Singh, followed by recovery of dead body of deceased Satya Pal Singh from the field of Sardar Mahendra Singh.
12. In a case, which rests on circumstantial evidence, law postulates, twin requirements to be satisfied. First, every link of chain of circumstances, necessary to establish the guilt of accused, must be established by prosecution beyond reasonable doubt; and second, all the circumstances must be consistent with the guilt of accused.
13. In Hanumant Vs. 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)
14. In Hukam Singh vs. 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 the guilt of any other person.
15. In Sharad Birdhichand Sarda vs. 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 the 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)
16. In Ashok Kumar Chatterjee vs. 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)
17. In C. Chenga Reddy and Others vs. 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)
18. In Bodh Raj @ Bodha and Ors. vs. 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)
19. The above principle in respect of circumstantial evidence has been reiterated in subsequent authorities also in Shivu and Anr. vs. Registrar General High Court of Karnataka and Anr., 2007(4) SCC 713 and Tomaso Bruno vs. State of U.P., 2015(7) SCC 178.
20. In the present case inquest proceeding and its report (Ext. Ka5) coupled with autopsy examination and its report (Ext. Ka2) along with testimony of PW3-Dr. K. C. Gangwar established that cause of death could not be ascertained and for ascertaining the cause of death viscera was preserved and sent for chemical examination. This has further been corroborated by the testimony of Medical Officer PW3 Dr. K. C. Gangwar that while being posted as Medical Officer at District Hospital, Shahjahanpur, on 27.2.2008 he was deputed on postmortem duty and he performed autopsy examination over dead body of Satyapal Singh, son of Ramadheen at 4.00 P.M., upon bringing the same under sealed and intact position by CP 589 Rakesh Kumar and Homeguard 318 Maiyadeen, of police station Madnapur. Deceased was of about 55 years of age and death was of 3-4 days old. There was no antemortem injury. Dead body was of average body built with passing of rigor mortis from whole of the body with loose hair, nail, bone joints and blisters on whole of body. There was mud on dead body. Both hand and legs were tied by rope. In internal examination teeth were 14/13, brain, lungs, and liver were congested. Stomach contained 200 ml. food, mixed with liquor. Inner membranes, liver, kidneys and spleen were congested. The cause of death could not be ascertained, hence, viscera was preserved. Autopsy examination report (Exhibit Ka2) was prepared at the time of examination, under his handwriting and signature and was proved by this witness. There is no exaggeration, contradiction and embellishment in the testimony of this witness nor there was any dispute in the answer to question regarding it put to convict appellant u/s 313 Cr.P.C. But there had been no mark of antemortem injury over person of deceased. Meaning thereby it was not the use of force or violence against person of deceased for commission of his murder in any way, except the suspected administration of poison, which was subsequently said by informant- PW1, in the liquor, which was consumed by the deceased along with accused when informant had left the scene i.e. hut of accused in the evening of 23.2.2008 at about 7.00 P.M. for coming to his home. The chemical examination report, which is on record and has been tendered by learned Prosecutor and is admissible in evidence, is with the finding of presence of Ethyl Methyl Alcohal in the viscera i.e. no poison except spuriated liquor was found in the viscera and this spuriation was of Methyl Alcohol and Ethyl Alcohol i.e. both were alcohol but Methyl Alcohol being poisonous. The deceased and the accused were consuming country made liquor when informant left them at the hut of the accused where the deceased was voluntarily consuming liquor with accused.
21. Hon'ble Supreme Court while interpreting murder by poisoning in Sarda Bridhi Chandra Vs. State of Maharashtra, AIR 1984 SC 1622 has propounded that in a trial of offence of murder by poisoning the prosecution will prove (a) clear motive for the accused to administer poison to deceased; (b) death of deceased by poison; (c) accused had poison in his possession; and (d) accused had an opportunity to administer poison to deceased.
22. Though these elements being under knowledge of accused being tried for offence of murder by poisoning, rather very difficult for prosecution to proof by cogent express evidence as has been propounded by Hon'ble Supreme Court in Mohan Vs. State of U.P., AIR 1960 SC 659 "murder by poisoning is invariably committed under the cover and cloak of secrecy. Nobody will administer poison to another, in the presence of another. He, who administers poison in secrecy will not keep a portion of it for investigating officer to come and collect. Person committing such murder could naturally take case to eliminate and destroy the evidence against him in such case. It would be impossible for prosecution to prove possession of poison with accused."
23. But in the present case there is no saying of prosecution that some poison was added in the liquor, which resulted this murder. Though, it has been developed in the testimony of PW1- informant that he suspected adding of some poison in the liquor by the accused. No such poison except spuriated liquor was found in the viscera of the deceased and this liquor was taken in the presence of informant by both accused and deceased and till the presence of informant no addition in it was made by convict appellant nor it was so proved by prosecution.
24. Regarding motive, there was no previous enmity between deceased and convict, otherwise the deceased might not have taken liquor with accused and informant might not have left the scene when this liquor was being consumed by the deceased and convict nor report of this missing was lodged till the recovery of dead body, though, three days had lapsed whereas it had come to the notice of the informant that in the same night the deceased had not returned to home and accused too was missing from the village. But neither untoward was suspected nor any report was made either to the Village Pradhan or to police. Police machinery was put under motion upon recovery of dead body, that too in lieu of furtherance of information given by Vijay Vir Singh (now deceased) and Mangoo Singh to the informant that accused Jagan Singh had confessed before them that he had buried dead body of the deceased in the field of Sardar Mahendra Singh, as has been written in the first information report and as stated in the statement recorded u/s 161 Cr.P.C. as well as in the testimony of PW1 in examination in chief:
"vkt fnukad 26&2&08 dks mlh xkao ds fot;ohj flag o eaxw flag us crk;k fd tkxu vkt gels dg jgk Fkk fd lR;iky dh yk'k dks geus ljnkj egsUnz flag ds [skr ds fdukjs x< "Today i.e. on 26.2.2008 Vijayvir Singh and Mangoo Singh of the same village informed him that Jagan Singh was saying to them that he had buried the dead body of Satyapal Singh in the field of Sardar Mandra Singh after digging it in the corner, but the same might not be said to his family members."
(English translation by Court)
25. Meaning thereby this was a confession of burying dead body of Satya Pal Singh in the field of Sardar Mahendra Singh and upon this information and clue the spot was surveyed and newly dig clay was found in the field and when exhumed dead body was recovered i.e. it was a confessing regarding burial of dead body of deceased Satyapal Singh in the field of Sardar Mahendra Singh i.e. an offence punishable u/s 201 I.P.C. in which separate charge has been framed.
26. PW2- Mangoo Singh is a witness of extra judicial confession in which he has stated that the convict appellant confessed his guilt of murder and burial of dead body at above place but this was not disclosed by him to the informant because confession of murder was not disclosed in the F.I.R. (Ext. Ka1). Rather it was suspected to be a murder by adding some poison in liquor and other witness of extra judicial confession Vijay Vir Singh was no more, hence he could not be examined.
27. Confession is a piece of evidence admissible u/s 30 of Evidence Act.
28. Supreme Court in Kashmira Singh Vs. State Maharashtra, AIR 1952 SC 159, Jayendra Saraswati Vs. State of Tamil Nadu, 2005(1) JIC 193 (SC) and Privi Council in Bhuboni Sahu Vs. King, AIR 1949 PC 257 has propounded law over confession.
29. In Hari Charan Kurmi Vs. State of Bihar, AIR 1964 SC 1182 Supreme Court has propounded that "Court cannot start with conviction of a co-accused person, it must begin with other evidence adduced by prosecution and after it has formed its opinion with regard to cruelty and effected by said evidence then it is permissible to turn to the conviction in order to receive assurance to the conclusion of it."
30. In the present case learned Sessions Judge has passed his judgment for offence of murder on the basis of last seen evidence of PW1 and recovery of dead body upon confessional statement made by convict to PW2, whereas the information in FIR (Ext. Ka1) and statement recorded u/s 161 Cr.P.C. thereby the statement recorded in examination in chief as PW1 in trial has not stated that confession regarding offence of murder was apprised by PW2- Mangoo Singh or deceased Vijay Vir Singh to him. Rather this has been stated by PW2-Mangoo Singh. Death has been established due to use of spurious liquor (country made liquor) having Ethyl and Methyl Alcohol and not of any poison or not of any antemortem use of force or injury. Meaning thereby the offence of murder is based on the extra judicial confession proved by PW2- Mangoo Singh. Though Supreme Court in Baliwinder Singh Vs State of Punjab, 1995 Supp. (4) SCC 259 has propounded that "extra judicial confession by its very nature is rare and weak type of evidence and requires appreciation with a great deal of care and caution. Where an extra judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it looses its importance. Courts generally look for independent, reliable and corroboration before placing its reliance upon an extra judicial confession."
31. In Shakharam Shankar Bansode Vs. State of Maharashtra, AIR 1994 SC 1594 the Supreme Court has propounded that "it is well settled now that a retracted extra judicial confession, though a piece of evidence on which reliance can be placed, but the same has to be corroborated by independent evidence. If evidence of witness before whom confession was made was unreliable and his conduct is also doubtful and there is no other circumstance to connect accused with crime, convicted based solely on retracted extra judicial confession is not proper and the accused is entitled to acquittal."
32. Hence, in the present case based on circumstantial evidence, last seen testimony is of informant PW1 Neetu Singh, who by his own unimpeachable testimony has proved that the deceased was left by him at the hut of convict appellant on 23.2.2008 at 7.00 P.M. where convict appellant brought country made liquor and shared with deceased. When both of them were taking the same, this informant came back to his house. Then after deceased as well as convict appellant were missing till recovery of dead body upon extra judicial confession made by convict appellant to PW2 Mangoo Singh and this dead body was buried on the place, which was clued/ disclosed by convict appellant to PW2 Mangoo Singh and Vijay Vir Singh in his extra judicial confession. Dead body was under tied position of his hands and lower limbs and in its autopsy examination cause of death could not be ascertained, whereas the same was ascertained in Forensic Science Laboratory examination of viscera by positive finding of presence of Methyl and Ethyl Alcohol in the contents of viscera, which was the cause of death. Methyl Alcohol being poisonous adulterated and spuriated in Ethyl Alcohol caused this death. This liquor was lastly seen to be taken by convict appellant Jagan Singh and upon his offer sharing by deceased, but this did not cause death of appellant Jagan Sinngh, but the deceased died because of it. There was no explanation of convict appellant Jagan Singh as to from where and from whom this liquor was brought or arranged, which further adds a link of his guilty mind mensrea for this occurrence of murder. Motive for making demand of money back from convict appellant by deceased has been cogently proved by PW1 and there is no inconsistency in his testimony on this point. This motive was added by above link of mensrea. The other link of death owing to consumption of poisonous and spurious country made liquor having Methyl and Ethyl Alcohol in it, which was offered and shared by convict appellant to deceased, but convict appellant was with no adverse effect and deceased died of it. Hence, this was a death by administering Methyl Alcohol under the garb of country made liquor i.e. Ethyl Alcohol to deceased amounting to culpable homicide i.e. amounting to murder punishable under section 302 I.P.C., which was further added by additional link of hiding evidence of offence of murder by burial of dead body after tying its upper and lower limbs by rope, which was recovered on the basis of extra judicial confession made by convict appellant to PW2 Mangoo Singh as well Vijay Vir Singh, who died during trial and could not be examined, but this confession has been fully proved by PW2- Mangoo Singh.
33. This was proved by PW2- Mangoo Singh that Jagan Singh made extra judicial confession before him and Vijayvir Singh regarding burial of dead body of deceased Satyapal Singh in the field of Sardar Mahendra Singh, which was instantly apprised to informant Neetu Singh, who along with his family members, relatives and villagers rushed on the spot and found suspicious situation of new digging of soil in a limited sphere of field, where it was dug and dead body of Satyapal Singh was exhumed. Hence, these links of the chain are fully proved. Thus, the offence punishable u/s 201 I.P.C. was also fully proved by prosecution and learned Trial Judge has rightly convicted and sentence the appellant for it.
34. There was no failure of learned Sessions Judge in appreciation of facts and law placed before it.
35. In view of above discussion, we are clearly of the view that Trial Court below has rightly found appellant guilty of offences with which the appellant was charged and prosecution has successfully proved its case beyond doubt against appellant, hence he has been rightly convicted and sentenced.
36. So far as sentence regarding appellant 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 case.
37. 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 persons 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 with the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to society's cry for justice against the criminal'. [Vice Sumer Singh Vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder Vs. Puran, (1990) 4 SCC 731, M.P. Vs. Saleem, (2005) 5 SCC 554, Ravji Vs. State of Rajasthan, (1996) 2 SCC 175].
38. Hence, applying the principles laid down by the Apex Court in the aforesaid judgments and having regard to the totality of facts and circumstances of case, nature of offence and the manner in which it was executed or committed, we find that punishment imposed upon the appellant by Trial Court in impugned judgment and order is not excessive or exorbitant and no question arises to interfere in the matter on the point of punishment imposed upon them.
39. In view of the above facts and circumstances, impugned judgment and order dated 09.11.2011 deserves to be affirmed and appeal is liable to be dismissed.
40. In the result, the Criminal Appeal is dismissed. Impugned judgment and order dated 09.12.2011 is hereby confirmed/affirmed. The appellant, who is in jail, shall serve out the sentence awarded to him by the Trial Court.
41. Copy of this order along with lower Court record be sent to Court concerned forthwith.
42. A copy of this order be also sent to Appellant through concerned Jail Superintendent.
43. Before parting, we find it appropriate to place on record our commendation to learned counsel, who has argued this appeal as Amicus Curiae with ability and actually assisted the Court effectively. We provide that she shall be paid counsel's fee as Rs. 11,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad, to Ms. Kanchan Chaudhary, Amicus Curiae, without any delay and, in any case, within 15 days from the date of receipt of copy of this judgment.
Order Date :- 12.02.2019 Pcl