Allahabad High Court
Shakuntala vs State on 25 September, 2018
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 11.09.2018 Delivered on 25.09.2018 Case :- JAIL APPEAL No. - 2308 of 2008 Appellant :- Shakuntala Respondent :- State Counsel for Appellant :- From Jail,Akshay Kumar Singh[A.C.],Arvind Kumar Singh,Ashok Kumar Singh (A.C.),Bhaskar Bhadra,P.K. Singh Counsel for Respondent :- A.G.A. Hon'ble Sudhir Agarwal,J.
Hon'ble Om Prakash-VII,J.
(By Om Prakash-VII, J.)
1. Present jail appeal has been preferred by accused-appellant Shakuntala against judgment and order dated 11.07.1994 passed by VIIth-Additional District & Sessions Judge, Muzaffar Nagar in Session Trial No. 485 of 1991, (State of U.P. Vs. Shakuntala) under Section 302 I.P.C., Police Station Bhaurakala, District Muzaffar Nagar convicting and sentencing accused-appellant for the offence under Section 302 I.P.C. with imprisonment for life.
2. Prosecution story, in nutshell, as unfolded in written report Ext. Ka-1, is as follows:
3. Informant Triloki Chand (PW-1) moved written report Ext. Ka-1 dated 05.08.1991 scribed by Dr. Devendra Kumar Sharma mentioning therein that on 05.08.1991, his grand daughter Bandana aged about 4 years was playing outside the house. When she did not return search was made, accused-appellant told that she had seen one person wearing black coat taking the deceased. On this, informant made search of deceased hither and thither but she could not be traced out. At about 12:30 P.M., informant along with Rajpal Sharma son of Jagdish Prasad, Mahendra son of Padam Sen, Dhara Singh son of Bhoola and other persons reached at house of accused-appellant and saw her pushing the deceased on the cot and also throttling her. Accused-appellant was apprehended on the spot. A rope was found in the neck of Bandana (deceased) who had died. Leaving dead body of deceased at the place of occurrence, informant and other person took accused-appellant at police station concerned. On the basis of written report Ext. Ka-1 on 05.08.1991 at 13:15 hours, chik F.I.R. at Crime No. 41 of 1991, under Section 302 IPC was registered against accused-appellant, which is Ext. Ka-2 on record. G.D. entry was also made at the same time in general diary as Ext. Ka-3. Investigation was entrusted to Prabal Pratap Singh (S.O.) concerned. It also appears that after registration of F.I.R., police started investigation; reached the place of occurrence and prepared inquest report and keeping dead body in sealed clothes prepared sample seal. Other police papers were also prepared at the same time and copies were attached along with inquest report for post mortem. Rope, pillow, sleeper and bangles found at the place of occurrence were also taken into custody and keeping the same in sealed cover memo Ext. Ka-12 was prepared. Investigating Officer (in short as 'I.O.') also prepared site plan Ext. Ka-13 mentioning the details of the place of occurrence. Dead body along with required police papers was dispatched for post mortem through Constable Kamal Singh and Prithvi Singh. Post mortem on the dead body of deceased was conducted on 16.08.1995 at 03:40 P.M. On general examination, deceased was found aged about 4 years. Time since death was one day. She was average body built. Rigor Mortis absent in upper and lower extremities. No sign of decomposition was found. Small and large intestine contained faecal matter and gasses.
4. On general examination, following ante mortem injuries were found on the dead body of deceased at the time of post mortem:-
"(i) Ligature mark 21 cm X 5 cm encircling the neck commencing from 4 cm below Rt. ear up to left side back of neck, middle part situated in middle of neck. Blood present under the injury. Trachea, esophagus deeply congested.
(ii) Abrasion 8 cm X 4 cm on front of left upper arm and elbow.
(iii) Abrasion 5 cm X 3 cm on left axillary line 7.5 cm above iliac crest region"
5. As per post mortem report, cause of death is shown as asphyxia due to strangulation as a result of injuries described in the post mortem report.
6. Investigating Officer has also interrogated the witnesses. After completing all formalities, charge-sheet Ext. Ka-14 was submitted in the matter by Sri Ram Pratap Singh, second Investigating Officer. It also appears that during investigation, name of co-accused Pramod was also surfaced in the matter and after investigation Investigating Officer concerned has also submitted charge-sheet against him which is Ext. Ka-15.
7. Concerned Magistrate took cognizance and case being exclusively triable by Sessions Court, was committed to Court of Sessions and trial court consolidating both Trial i.e. Session Trial Nos. 485 of 1991 and 424 of 1992 and concluded jointly.
8. Accused-appellant appeared and prosecution opened its case describing entire evidence collected by Investigating Officer. Trial Court also heard accused and framed charge for the offence under Section 302 IPC against both accused to which they denied and pleading not guilty claimed their trial.
9. In order to prove its case, prosecution examined eight witnesses, namely, PW-1 Triloki Chand, informant; PW-2 Rajpal Sharma, who claimed himself to be eye witness; PW-3 Ganga Saran, chik writer; PW-4 Charan Das, who did not support the prosecution case; PW-5 Dr. Mahesh Kumar, who has conducted the post mortem on the dead body of deceased and has prepared post mortem report Ext. Ka-5; PW-6 Kabal Singh, who carried dead body of deceased for post mortem; PW-7 the then S.O. Prabal Pratap Singh, who has investigated the matter at initial stage and has also prepared inquest report and other police papers in the matter as Ext; Ka-6 to Ka-11. This witness has also proved recovery memo Ext. Ka-12 and site plan Ext. Ka-13 mentioned here-in-above and PW-8 Ram Pratap Singh, who has submitted charge sheet Ext. Ka-14 and Ka-15 in the matter.
10. On conclusion of prosecution evidence, statement of accused-appellant under Section 313 Cr.P.C. was recorded in which she has denied entire prosecution story and showed ignorance about preparation of inquest report and other police papers Ext. Ka-6 to Ka-11. She has also shown ignorance about preparation of site plan Ext. Ka-13, recovery memo Ext. Ka-12, post mortem report Ext. Ka-5 and also submission of charge-sheet. She has specifically stated that since informant wanted to establish illicit relation with her to which she denied, therefore she was falsely implicated in this case.
11. Having heard learned counsel for parties and going through the record, trial court has found that prosecution has fully succeeded in bringing home charges against accused-appellant beyond reasonable doubt warranting her conviction and sentence, as above. Hence this appeal.
12. Though vide impugned judgment Trial court has convicted and sentenced appellant yet acquitted co-accused Pramod.
13. We have heard Shri Arvind Kumar Singh, learned Amicus Curiae for appellant and Shri Syed Ali Murtaza, learned AGA for state at length.
14. It was submitted by learned Amicus Curiae appearing for appellant that prosecution could not prove its case beyond reasonable doubt. Appellant is innocent and has not committed present offence. She was not present on the spot at the time of incident. Prosecution witnesses examined in the matter are interested witness. There are major contradiction in their statement on material points. Medical evidence also does not support oral version. Nothing has been recovered from the place of occurrence to connect accused-appellant with this matter. Findings recorded by trial court are perverse. It was next contended that appellant has been released in this matter granting remission by the State Government as she had served more than 21 years in jail. Thus prayer has been made to allow the appeal acquitting accused-appellant.
15. On the other hand, learned A.G.A. argued that impugned judgment and order has been passed by trial court on the basis of correct appreciation of facts and evidence. There is no illegality, infirmity or perversity in the impugned judgment and order warranting interference by this Court.
16. We have considered rival submissions made by learned counsel for parties and have gone through entire record carefully.
17. In this matter, as is evident from record, offence is said to have been committed on 05.08.1991 at 12:30 hours. F.I.R. was lodged on same day at 13:15 hours. Distance between the place of occurrence and police station was four kilometers. F.I.R. was lodged for the offence under Section 302 IPC. It also appears that when accused-appellant was caught red handed committing the present offence at the place of occurrence, informant prepared written report Ext. Ka-1 scribed by Dr. Devendra Kumar Sharma and took the accused-appellant at police station concerned and lodged F.I.R.. PW-1 Trilok Chand and PW-2 Rajpal Sharma are eye account witnesses of the incident. It is also evident from record that when informant was searching victim/deceased, accused-appellant herself has stated to him that one person wearing black coat has taken the deceased. On this information PW-1 and other person made search of deceased, but she could not be traced out. Thereafter PW-1 and PW-2 along with other persons reached at the house of accused-appellant and saw accused-appellant committing present offence. Trial court after analyzing entire evidence was of the view that statement of PW-1 and PW-2 on the point of commission of offence by accused-appellant before these witnesses are consistent and clear. Medical evidence also fully supports the oral version. Deceased was done to death by throttling. In the backdrop of above factual situation and findings of trial court, we have to re-appreciate and analyse entire evidence.
18. Since F.I.R. was lodged in this matter within 45 minutes of tracing out the deceased, distance between the place of occurrence and police station was only 4 kilometers, accused-appellant was also apprehended on the spot, hence, F.I.R. lodged in the matter cannot be said to be too prompt and on this basis testimony of eye account witnesses cannot be discarded.
19. As far as motive is concerned, although we are oblivious of fact that motive relegates into back ground in a case of direct ocular testimony and is not of much significance, but where motive is false and cooked up, then it assumes importance to test veracity of prosecution witnesses. Prosecution did not disclose the specific motive in the F.I.R.. In the instant matter, there are ocular evidence, hence on this ground that specific motive has not been assigned in the prosecution case, prosecution case cannot be disbelieved but other evidence has to be scrutinized minutely.
20. So far as medical evidence is concerned, doctor conducting the post mortem on the dead body of deceased when examined before court has clearly stated that death of deceased might have been taken place on 05.08.1991 at 12:30 hours due to throttling. If the opinion expressed by PW-5 Dr. Mahesh Kumar is compared with facts and evidence of present matter, findings recorded by trial court on this issue need no interference as prosecution case is that when witnesses reached on the spot, they saw accused-appellant throttling the neck of deceased on the cot. When they apprehended the accused-appellant on the spot found the girl dead. Whatever version has been taken by prosecution in the F.I.R. about manner of incident, finds support with medical evidence. On close scrutiny of evidence on the issue of medical evidence, we are of the view that deceased died due to throttling and there is no conflict between oral and medical evidence.
21. As far as presence of PW-1 and PW-2 on the spot is concerned that initially PW-1 asked the whereabouts of the deceased from accused-appellant and she told him that deceased was taken by a person wearing black coat. PW-1 on this information also searched her but she was not traced out. Thereafter PW-1 and PW-2 along with other persons reached at the house of accused-appellant and saw her committing the present offence. This fact is also supported by statement of PW-2. House of accused-appellant is situated in the same village. Since information had already been given by accused-appellant regarding whereabouts of deceased and on that basis search was also made by PW-1, therefore going of PW-1 and PW-2 along with other persons at the house of accused-appellant is not unnatural or unbelievable as girl could not be traced out earlier. Only explanation in the statement under Section 313 Cr.P.C. has been given by accused-appellant that PW-1 wanted to establish illicit relation with her and when she denied, she was falsely implicated in this matter. Explanation given by accused-appellant in our considered view is not believable. It is out of imagination that PW-1 will falsely implicate accused-appellant on this ground, especially when at no point of time accused-appellant had made any complaint in this regard to any one. It is also pertinent to mention here that dead body of deceased was found on the kotha of accused-appellant. Inquest report and other police papers were prepared on that place. Thus, we are of the view that findings recorded by trial court about presence of PW-1 and PW-2 at the place of occurrence cannot be termed to be perverse and same is based on correct appreciation of facts and evidence. Reason explained by accused-appellant about her false implication is unbelievable. There are eye account witnesses and their statement made before court on oath regarding involvement of accused appellant in the present offence is consistent, clear and cogent and on this issue there is no contradiction in the statement of PW-1 and PW-2, which also finds support with medical evidence. Prosecution was also able to prove beyond reasonable doubt the manner in which present offence was committed by accused-appellant as also date, time and place of incident. Thus, findings recorded by trial court about guilt of accused-appellant for committing murder of deceased Bandana need no interference. Minor variations and inconsistencies in the prosecution evidence on trivial issues are not fatal to prosecution case on material points. Laches on the part of investigating agency also do not vitiate the prosecution case.
22. 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].
23. In view of above propositions of law, the paramount principle that should be the guiding laser beam is that punishment should be proportionate to gravity of offence.
24. Hence, applying the principles laid down by 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 accused-appellant by trial court in the impugned judgment and order is not excessive or exorbitant and no question arises to interfere in the matter on point of punishment imposed upon the appellant.
25. Hence, in these circumstances, after close scrutiny of entire evidence, we are of the opinion that PW-1 and PW-2 were present at the place of occurrence on the date and time of incident, deceased was done to death by accused appellant before these witnesses. There is no conflict between oral and medical evidence. F.I.R. is genuine document. Ingredients of offence under Section 302 IPC have been proved in the present matter. Thus, on the point of conviction of appellant for the offence under Sections 302 IPC, we are also of the opinion that prosecution was able to establish guilt of appellant for the aforesaid offence beyond reasonable doubt. Findings recorded by trial court against appellant in the impugned judgment are based on correct appreciation of evidence and same do not warrant interference by this Court.
26. In light of foregoing discussions, this jail appeal is liable to be dismissed and conviction and sentence imposed upon appellant for the offence under Section 302 IPC is liable to be upheld and impugned judgment and order dated 11.7.1994 is liable to be affirmed.
27. Accordingly, jail appeal is dismissed. Conviction and sentence of appellant Shakuntala under Section 302 IPC is upheld and impugned judgment and order dated 11.7.1994 is affirmed.
28. Let a copy of this judgment along with lower court record be sent to Sessions Judge, Muzaffarnagar for compliance. A compliance report be also sent to this Court.
29. Shri Arvind Kumar Singh, 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 Arvind Kumar Singh, amicus curiae without any delay and in any case within 15 days from the date of receipt of copy of this judgment. Copy of this judgment be also supplied to accused appellant through concerned Superintendent of Jail.
Order Date:-25.09.2018//Sanjeet