1

AFR

Reserved on : 12.03.2019

Delivered on : 11.09.2019

Court No. - 34

Case :- JAIL APPEAL No. - 4239 of 2013

Appellant :- Bindhyavasini Gond

Respondent :- State Of U.P.

Counsel for Appellant :- From Jail,Anil Pratap Singh,Lokesh

Kumar Dwivedi,Santosh Dwivedi

Counsel for Respondent :- Ratan Singh (A.G.A.)

Hon'ble Sudhir Agarwal, J.

Hon'ble Rajendra Kumar-IV,J.

(Delivered by Hon'ble Rajendra Kumar-IV,J.)

1. Against judgment and order dated 31.07.2013 passed by

Additional Sessions Judge, Court No. 7, Varanasi in Sessions Trial

No.62 of 2013, Crime No.231 of 2012, under Sections 302 and 201

IPC, Police Station Rohaniya, District Varanasi, accused-appellant

has preferred present jail appeal under Section 383 Cr.P.C. from Jail

through Superintendent District Jail, Varanasi. By impugned

judgement, appellant has been convicted under Section 302 I.P.C.

and sentenced to undergo rigorous imprisonment for life with fine of

Rs. 25,000/- and in default of payment of fine, one year additional

rigorous imprisonment and further he has been convicted under

Section 201 I.P.C. and sentenced to undergo five years rigorous

imprisonment with fine Rs. 5000/- and in default of payment of fine,

six month additional rigorous imprisonment.

2.Factual matrix of case as emerging from First Information

Report (hereinafter referred to as “FIR”) as well as material placed

on record is as follows.

3.P.W.-1 Shyam Lal submitted a written report Ex.Ka-1 in Police

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Station Rohaniya, District Varanasi stating that on 2.6.2011, his

daughter Anju was married with Bindyavasini Gond son of Lalji

Gond village Vishokhar Lathiya, Police Station Rohaniya, District

Varanasi. After marriage PW-1 brought her daughter from her

matrimonial house in Chauthi ceremony. Thereafter, his son-in-law

Bindhyavasini Gond (accused-appellant) never visited his house to

bring his daughter (Anju). It was further stated that character of son-

in-law was not good. He was angry with his family. Many times

Bindhyavasini Gond threatened his son (Rajesh Gond) to kill him.

On 18.8.2012, Rajesh Gond went to the house of his elder daughter

Manju Devi, village Amra, Police Station Rohaniya, and stayed for

two days there. On 20.8.2012 victim Rajesh Gond left for Vidapur

but did not reach his house. On 25.8.2012 at about 8:00 AM, PW-1

was informed by his daughter Manju Devi that dead body of Rajesh

Gond, wrapped in blanket, was lying in the room of Bindhyavasani

Gond (accused). PW-1 along with his daughter Manju Devi, PW-3,

visited house of accused-appellant and identified dead body of

Rajesh Gond who was murdered by Bindhyavasani Gond. Accused-

appellant ran away after locking the room.

4.On the basis of written report Ex.Ka-1, Chick F.I.R. Ex.Ka-4

was registered by PW-5 Babu Ram Yadav as Case Crime No.231 of

2012 against the accused-appellant under Section 302, 201 I.P.C. He

also made an entry of the incident in G.D. on 25.8.2012 at 10:35 a.m.

copy of which is Ex.Ka-5.

5.Immediately, after registration of case, investigation was

undertaken by PW-6, S.I. Ramayan Singh, who proceeded to spot

and held inquest over the dead body of Rajesh Gond, prepared

inquest report Ex.Ka-2 and other papers relating thereto and sent for

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post mortem, visited spot, prepared site plan Ex.Ka-12.

6.PW-4 Dr. Anil Kumar, conducted autopsy over the dead body

of deceased and prepared postmortem report (Ex.Ka-3) under his

signature, expressing his opinion that death was possible one week

prior to postmortem and viscera was preserved for ascertaining cause

of death.

7.PW-6 S.I. Ramayan Singh, after completing entire formalities

of investigation submitted charge sheet Ex.Ka-14 against the

appellant under Section 302 and 201 I.P.C.

8.Case, being exclusively triable by Court of Sessions, was

committed by C.J.M. concerned to Court of Sessions for trial after

compliance of Section 207 Cr.P.C.

9.Trial Court framed charges against accused-appellant on

12.2.2013 under Sections 302 and 201 IPC which read as under:

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Charge

I, Om Prakash, Sessions Judge, Varanasi hereby charge

you Vindhyavasini Gond with following charges :-

First -That at any time during the period from 20.08.2012 upto

8.00 o’clock of the morning of 25.08.2012, you committed the

murder of Rajesh- the son of the complainant of the case Shyam

Lal Gond within village Vishokhar (Lathiya) under Police

Station- Rohaniya, District- Varanasi and thus you committed

the offence punishable under Section 302 I.P.C. which is in the

cognizance of this Court.

Second -That on 25.08.2012, for the purpose of saving yourself

from the legal punishment you had kept hidden the deadbody of

Rajesh wrapped in a blanket at your room within village

Vishokhar (Lathiya) under Police Station- Rohaniya, District-

Varanasi, which was the evidence of this offence and thus you

have committed the offence punishable under Section 201 I.P.C.

which is in the cognizance of this Court.

Therefore, I direct that you be tried by this court for

aforesaid charges.

(English Translation by Court)

10.Accused-appellant denied the charges and pleaded not guilty

and claimed to be tried.

11. In order to substantiate its case, prosecution examined as many

as six witnesses, out of whom PW-1 Shyam Lal, PW-2 Anju Devi

and PW-3 Manju Devi are witnesses of fact and PW-4 Dr. Anil

Kumar, PW-5 Babu Ram Yadav and PW-6 Ramayan Singh are

formal witnesses.

12.On closure of prosecution evidence, statement of accused-

appellant under Section 313 Cr.P.C. was recorded by the Court

explaining entire evidence and other incriminating circumstances. In

the statement under Section 313 Cr.P.C., accused-appellant denied

prosecution story in toto and facts of case were stated to be wrong. In

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response of question no. 16, he answered that he was ignorant of

fact. He desired to produce defence evidence but later on did not

produce defence evidence.

13.Trial Court after appreciating entire evidence led by

prosecution on record and hearing counsel for the parties, found

appellant guilty and convicted him as stated above. Feeling

aggrieved and dissatisfied with impugned judgement, present appeal

has been filed through Jail.

14.We have heard Sri Lokesh Kumar Dwivedi, learned counsel

for appellant and Sri Ratan Singh, learned A.G.A for State-

respondent at length and gone through the record available on file

carefully.

15.Learned counsel for appellant refuting the impugned

judgement, advanced his submissions, in the following manners :-

(i) This is a case of circumstantial evidence and there is

no motive to accused to commit murder of Rajesh Gond.

(ii) There is no complete chain of evidence so as to

indicate that accused is the only person who has

committed crime.

(iii) There are several contradictions rendering

prosecution case doubtful.

(iv)FIR has been lodged by PW-1 (father of victim)

close relative of deceased on the same day of receiving of

information.

(v)PW-1, 2 and 3 are close relatives of the deceased

and interested witnesses. No public witness has come

forward to supporting the prosecution case.

(vi)It has come in the prosecution evidence that father

and elder brother of accused, at first, informed PW-3 that

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foul smell was coming out of room of accused but they

have not been produced from the side of prosecution.

(vii)Prosecution has failed to prove complete chain of

circumstance and trial court committed error in holding

the accused-appellant guilty.

16.Per contra learned AGA opposed submissions and urged that

PWs-1, 2 and 3 are witnesses of fact, who have supported

prosecution and established that accused-appellant was angry with

victim, dead body of victim was found in the room belonged to

accused-appellant and accused disappeared from there. Accused did

not offer any explanation as to how dead body of victim was found

in his house which was locked from out side. Circumstances show

that accused-appellant is the only and only person who committed

murder of Rajesh Gond.

17.We now proceed to consider rival submissions on merits.

18.Admittedly, there is no eye-witness in the present case. This

case rests upon circumstantial evidence. It is no doubt a case where

there is no eye witness of crime. Prosecution totally rests on

circumstantial evidences, which found favour with Court below and

finding prosecution version proved beyond reasonable doubt, Trial

Court has convicted appellant, as stated above.

19.It will be appropriate to briefly consider the evidence on

record. PW-1 is the father of deceased and PW-2 and 3 are real

sisters of deceased. PW-2 Manju Devi was residing in the same

village. PW-1 supporting prosecution case, deposed that, his

daughter Anju Devi was married to accused-appellant on 2.6.2011.

After marriage she had gone to her matrimonial house. She came

back to her parental house in Chauthi ceremony, since then she was

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living in his house and accused-appellant became annoyed with

victim, who was in private job in Gujrat. Accused-appellant

threatened victim Rajesh to take his life many times. When victim

Rajesh Gond came from Gujrat on 18.8.2012 and went to the house

of his sister Manju Devi in village Amra which is at a distance of one

kilometer from the house of accused, and stayed there for two days.

Thereafter, he left for his house but did not reach. At about 8:00 AM

on 25.8.2012, PW-3 Manju Devi informed him that dead body of

Rajesh was lying wrapped in blanket in the house of accused-

appellant. Then he and his daughter Manju Devi went to the house of

accused and identified dead body of Rajesh which was decomposed.

It was further stated by him that Rajesh was murdered by accused-

appellant Bindhyavasini on account of ill-will and dead body was

hidden in the room wrapping it in blanket. Dead body was taken out

breaking the lock. He submitted written report Ex.Ka-1 in police

station concerned, getting it scribed by one Ram Asrey Gond. He

further stated that inquest over dead body was held by Sub Inspector

of Police in his presence at spot. In cross-examination, he stated that

his daughter, when came back from his matrimonial house, told him

that accused-appellant harassed and tortured her in demand of dowry

but he did not complain anywhere.

20.PW-2 Anju Devi, daughter of PW-1 and wife of accused

deposed that she was married to accused Bindhyawasini in June,

2011 and recognized accused in the Court as her husband. She

further deposed that when she went with her husband after marriage,

she found that his character was not good. In Chauthi ceremony, she

came back to her house with her father, her maternal uncle and her

brother Babloo. Since then she was living in her parental house.

Since her father and brother took her to his house, her husband got

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annoyed with her father and brother on this count. She witnessed

dead body of her brother in Police Station Rohaniya and identified

the dead body. This witness stated nothing regarding the incident

hence her statement does not require any further scrutiny.

21.PW-3 Manju Devi deposed that her younger sister Anju was

married to accused Bindhyawasini in June, 2011. She came back to

her maternal house in Chauthi ceremony and since then living there

for the reasons that her husband (accused-appellant) was not a man

of good character. Her brother Rajesh Gond was in private job in

Gujrat and had come to her house at the time of Rakshabandhan and

remained for two days in her house. On 20.8.2012, at about 8:00 AM

in the morning, he left her house saying that he would go to his

village after seeing his brother-in-law (accused). Five days after,

Lalji (father-in-law of Anju PW-2) and Girish (Jeth of Anju) came to

her house and told that foul smell was coming out of Bindhyavasini's

room and it was locked from out side. Thereupon she went to house

of Bindhyavasini along with them and witnessed that house of

accused-appellant was locked from out side and foul smell was

coming from inside. Then they broke open the lock and saw inside

that dead body of Rajesh was lying wrapped in a blanket and

smelling. She felt that her brother Rajesh was murdered by accused

Bindhyavasini Gond. She informed to her father about the incident.

22.PW-6 S.I. Ramayan Singh Investigating Officer deposed that

on 25.8.2012 he was posted as Station Officer in P.S. Rohaniya and

undertook investigation of Case Crime No. 231 of 2012 under

Sections 302, 201 I.P.C., proceeded to spot, held inquest over the

dead body of Rajesh, prepared inquest report Ex.Ka-2 and other

papers relating thereto, took shirt of deceased and blanket, in which

body was wrapped, in his possession, prepared memo whereof

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Ex.Ka-10, recorded statement of Shyam Lal, PW-1, and prepared site

plan Ex.Ka-12. Thereafter, he recorded statement of PW-3 Manju

Devi and other witnesses, sent viscera of deceased to FSL, Lucknow

for examination through constable Ram Asrey, arrested accused-

appellant with one Tamancha and two live cartridges on 29.9.2012,

recorded statement and after completing entire formalities of

investigation submitted charge sheet Ex.Ka-14 against the accused.

Witness withstood lengthy cross-examination. In his cross-

examination, he deposed that there was no key of lock, therefore,

lock of room was broken. Informant, witness of inquest and other

person of village were present on spot. The room in which body

found, was situated after Varamdhah which was on the road and dead

body of Rakesh was kept on concrete in the room, wrapped in a

blanket. Body was decomposed and smelling. Dead body was

identified by family members on the basis of cloths and appearance

(Huliya). It was further deposed that meal was cooked in the room.

23.From the evidence of PWs-1, 3 and 6 adduced by prosecution

following circumstances are clearly established :

A.Smt. Anju Devi was married to accused-appellant

in 2011 but relations between them were strained and she

did not go to her matrimonial house after Chauthi

ceremony for the reasons that her husband (accused) was

not a man of good character.

B.Victim went to the house of his elder sister Manju

Devi on the festival of Rakshabandhan, prior to incident

and stayed there for two days.

C.Victim Rajesh left her house saying that he would

go to his village after seeing his brother-in-law

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(accused).

D.Dead body of Rajesh Gond was found lying

wrapped in blanket in the house of accused-appellant and

his father and elder brother informed PW-3 first about

the smell, coming out of house.

E.As per statement of PW-6, meal was cooked in the

room and it was locked from out side. I.O. found blood

on the spot and body was wrapped in a blanket.

F.When dead body was found in the room of

accused, it was locked and accused had disappeared.

G.Postmortem report reveals that death of Rajesh

Gond might have occurred one week prior to

postmortem. Body was decomposed and smelling.

H.Rajesh Gond was murdered and his body was

wrapped in blanket, kept in room which was locked from

out side.

24.In the case in hand, there is no eye witness of occurrence and

case of prosecution rests on circumstantial evidence. The normal

principle in a case based on circumstantial evidence is that

circumstances from which an inferences of guilt is sought to be

drawn must be cogently and firmly established; that those

circumstances should be of a definite tendency unerringly pointing

towards the guilt of the accused; that 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 he should be incapable of explanation

on any hypothesis other than that of the guilt of the accused and

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inconsistent with his innocence.

25. Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR

1952 SC 343, is the basic judgment of the Supreme Court on

appreciation of evidence, when the case depends only on

circumstantial evidence, which has been consistently relied in later

judgments. In this case 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."

26.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.

27.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

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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)

28.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)

29.In C. Chenga Reddy and Others v. State of Andhra

Pradesh, 1996(10) SCC 193, Court said:

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"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)

30.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)

31.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.

32.In State of Punjab versus Karnail Singh, (2003)11 SCC 27,

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Court observed that law does not enjoying the duty on prosecution to

lead evidence of such character which is almost impossible to be led

or at any rate extremely difficult to be led. The duty on prosecution is

to lead such evidence which it is capable of leading.

33. Now the crucial question remain for consideration is “whether

accused-appellant has committed crime or not?”

34.It is a case where an offence has taken place inside the privacy

of house where accused was residing. Accused has all opportunity to

plan and commit offence at the time and in circumstances of his

choice. It will be extremely difficult for prosecution to lead evidence

to establish guilt of accused if strict compliance of circumstantial

evidence as noticed above, is insisted upon by Court.

35.Here it is necessary to keep in mind Section 106 of Indian

Evidence Act, 1872 (hereinafter referred to as 'Act, 1872') which

says that when any fact is especially within the knowledge of any

person the burden of proving that fact is upon him.

36.Dead body of Rajesh was found wrapped in a blanket in the

house of accused. House, in which dead body was found, belonged to

him has not been disputed by accused. Room was evidently found

locked out side and accused disappeared for a long time until he was

arrested. Fleeing away of accused from spot is a additional link

evidence against him. Hence it was only accused who could explain

circumstances in which Rajesh Gond died. In view of Section-106 of

Act, 1872, burden of proof lay upon accused who has failed to

discharge. The accused by virtue of his special knowledge must offer

an explanation which might lead a Court to draw a different

inference.

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37.In Trimukh Maroti Kirkan versus State of Maharashtra,

decided on 11.10.2006, Court has held, where an accused is alleged

to have committed murder of his wife and the prosecution succeeds

in leading evidence to show that shortly before commission of crime

they were seen together or the offence takes placed in the dwelling

home where husband also normally resided, if accused does not offer

any explanation how the wife received injuries or offers an

explanation which is found to be false, it is a strong circumstances

which indicates that he is responsible for commission of the crime.

38.In Nika Ram versus State of Himachal Pradesh, AIR 1972

SC 2077, it was held that the fact that the accused alone was with his

wife in the house when she was murdered there with 'khokhri' and

the fact that the relations of the accused with her were strained

would, in the absence of any cogent explanation by him, point to his

guilt.

39.In Ganeshlal v. State of Maharashtra, (1992) 3 SCC 106, the

appellant was prosecuted for murder of his wife which took place

inside his house. It was observed by Court that when death had

occurred in his custody, appellant is under an obligation to give a

plausible explanation for the cause of her death in his statement

under Section 313 Cr.P.C. The mere denial of prosecution case

coupled with absence of any explanation were held inconsistent with

the innocence of the accused, but consistent with the hypothesis that

appellant is a prime accused in the commission of murder of his

wife.

40.Another argument advanced by learned counsel for appellant is

that witnesses of fact, PW-1, 2 and 3 are the relatives of deceased, so

their testimony can not be said to be reliable and trustworthy.

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41.Admittedly, PW-1 is father of deceased and PW-2 and 3 are the

real sisters of deceased, who established the circumstances that

victim Rajesh had gone to the village of her sister Manju Devi at the

time of Rakshabhandan and his dead body was found in the locked

house of accused.

42.In Ganga Bhawani v. Rayapati Venkat Reddy and Others,

2013(15) SCC 298, Court has held as under :-

“11. It is a settled legal proposition that the evidence of

closely related witnesses is required to be carefully scrutinised

and appreciated before any conclusion is made to rest upon it,

regarding the convict/accused in a given case. Thus, the

evidence cannot be disbelieved merely on the ground that the

witnesses are related to each other or to the deceased. In case

the evidence has a ring of truth to it, is cogent, credible and

trustworthy, it can, and certainly should, be relied upon.

(Vide: Bhagalool Lodh & Anr. v. State of UP, AIR 2011 SC

2292; and Dhari & Ors. v. State of U. P., AIR 2013 SC

308).”

43.It is settled law that merely because witnesses are closely

relative to deceased, their testimonies cannot be discarded.

Relationship with one of the parties is not a factor that affects

credibility of witness, more so, a relative would not conceal the

actual culprit and make allegation against an innocent person.

However, in such a case Court has to adopt a careful approach and

analyse the evidence to find out that whether it is cogent and credible

evidence.

44.Next argument of learned counsel for the accused-appellant in

so far as discrepancies, variation and contradiction in the prosecution

case are concerned, we have analysed entire evidence in consonance

with the submissions raised by learned counsel's and find that the

same do not go to the root of case.

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45.In Sampath Kumar v. Inspector of Police, Krishnagiri, (2012)

4 SCC 124, Court has held that minor contradictions are bound to

appear in the statements of truthful witnesses as memory sometimes

plays false and sense of observation differs from person to person.

46.We lest not forget that no prosecution case is foolproof and the

same is bound to suffer from some lacuna or the other. It is only

when such lacunae are on material aspects going to the root of the

matter, it may have bearing on the outcome of the case, else such

shortcomings are to be ignored. Reference may be made to a recent

decision of Apex Court (3 Judges) in Criminal Appeal No. 56 of

2018, Smt. Shamim v. State of (NCT of Delhi), decided on

19.09.2018.

47.Next argument of the learned counsel for the appellant is that

prosecution has not produced father and brother of accused-appellant

from the side of prosecution, therefore, presumption under Section

114(g) Act, 1882 goes against the prosecution.

48.We are not impressed with the argument of learned counsel for

the accused-appellant for the reasons that prosecution is not obliged

to produce entire witness in its support.

49.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

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ring of truth, cogent, credible and trustworthy or otherwise.

50.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 necessary for proving or disproving a

fact. 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 inspite of testimony of several

witnesses if it is not satisfied about the quality of evidence.

51. In the present case, it is fully established that dead body of

Rajesh was found wrapped in a blanket in the house of accused-

appellant which was locked from out side and accused had

disappeared remained so until his arrest. The medical evidence

showed that death of Rajesh Gond might have been occurred one

week prior to post mortem, accused-appellant in his statement under

Section 313 Cr.P.C. did not offer any plausible explanation as to

how Rajesh Gond died, recovery of blood stained concrete and shirt

of deceased was made from the house of accused-appellant therefore,

there cannot be any hesitation to come to conclusion that it was only

the accused who was the preparator of crime.

52.In the entirety of the facts and circumstances and legal

preposition discussed herein before, we are of considered view that

prosecution has successfully proved its case beyond reasonable doubt

against accused-appellant and Trial Court has rightly convicted him

for having committed murder of Rajesh Gond, an offence punishable

under Section 302 and 201 IPC. No interference is warranted. Appeal

lacks merit and liable to be dismissed.

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53.So far as sentence of accused-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 cases.

54.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].

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55.Hence, applying the principles laid down 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-Bindhyavasini Gond by Trial Court in impugned

judgment and order is not excessive and it appears fit and proper and

no question arises to interfere in the matter on the point of

punishment imposed upon him.

56.In view of above discussion, the appeal lacks merit and is,

accordingly, dismissed. Impugned judgement and order dated

31.7.2013 passed by Additional Session Judge, Court No.7, Varanasi

in Session Trial No. 62 of 2013 (State v. Bindhyavasini Gond) under

Sections 302 and 201 IPC, Police Station Rohaniya, District

Varanasi, is maintained and confirmed.

57.Lower Court record along with the copy of this judgment be

sent immediately to Court and Jail Superintendent concerned for

necessary compliance and to apprise the accused forthwith.

Compliance report be also submitted to this Court.

Order Date :-11.09.2019.

Manoj