A.F.R.

Reserved on : 29.03.2019

Delivered on : 11.09.2019

Court No. - 34

Case :- JAIL APPEAL No. - 5871 of 2003

Appellant :- Devendra Kumar

Respondent :- State Of U.P.

Counsel for Appellant :- From Jail,Mohd.Afzal A.C.

Counsel for Respondent :- A.G.A. Rishi chadha.

&

Case :- CRIMINAL APPEAL No. - 5422 of 2003

Appellant :- Devendra

Respondent :- State Of U.P.

Counsel for Appellant :- Nasiruzzaman

Counsel for Respondent :- A.G.A., Risha Chadha.

Hon'ble Sudhir Agarwal,J.

Hon'ble Rajendra Kumar-IV,J.

(Delivered by Rajendra Kumar-IV,J.)

1. Both the aforesaid appeals arise out of a common judgement and

order dated 01.10.2003 passed by Sri Rang Nath Pandey, Additional

Sessions Judge, F.T.C. No.3, Muzaffar Nagar in Session Trial No.30 of

2003 (State versus Devendra and Rajpal), Police Station Bhaurakala,

District Muzaffar Nagar convicting accused persons under Sections 364-

A/34 and sentencing them to undergo rigorous imprisonment for life and

also to pay a fine of Rs.1000/- each. In the event of default of payment of

fine, they have to undergo three months additional rigorous

imprisonment. Therefore, both these appeals are being decided by this

common judgement.

2.From record, it appears that initially Jail Appeal No. 5871 of 2003

was filed through Superintendent, District Jail, Muzaffar Nagar on behalf

of accused Devendra and the same was admitted on 18.11.2003.

Thereafter on 29.10.2003, Criminal Appeal No.5422 of 2003 was filed

by Advocate Nasiruzzaman on behalf of same accused Devendra, which

was admitted by this Court on 30.10.2003 and in this criminal appeal

accused-appellant Devendra has been granted bail vide order dated

18.12.2003.

-2-

3.It is also relevant to mention here that co-accused Rajpal has filed

Criminal Appeal No.5057 of 2003. During pendency of appeal Rajpal

died, therefore, his appeal has abated vide order dated 12.02.2019 by this

Court.

4.Brief facts giving rise to the present appeal may be stated as under:-

5.A written report Ex.Ka-1 dated 02.10.2002 was presented by PW-1

Virendra Kumar Sharma at Police Station Bhaurakala, District Muzaffar

Nagar, stating that his servant Devendra Kumar was living in his house

for one and half months. Accused-appellant and one Rajpal son of Munshi

Kumhar, at about 08:00 AM on 02.10.2002, had kidnapped his grand-

daughter Mini (daughter of Sanjeev Kumar), aged about one and half

years for ransom. Karan Sing and Jagendra of the same village witnessed

them with Mini, boarding in the bus. Thereafter at about 09:00 AM,

accused-appellant Devendra made a phone to Shahdeen at his PCO Phone

No.58081 and told that he was leaving service and his shirt is hung in his

Baithak, in the pocket whereof, there is a letter. On being intimated by

Shahdeen, Informant took out the letter from his shirt and read it, wherein

Rs.2,00,000/- was demanded.

6.On the basis of said written report Ex.ka-1; chick FIR Ex.Ka-13

was prepared by Constable Clerk Satyaveer Tyagi and registered the case

as Case Crime No.88 of 2002, under Section 364-A IPC; entry of the case

was made in General Diary (hereinafter referred to as "GD") by the same

Clerk, copy whereof is Ex.Ka-14.

7.Abducted victim (Mini) was recovered from the possession of

accused Devendra by PW-4 Sushil Kumar at Old Delhi, Railway Station.

8.Immediately after registration of case, investigation was undertaken

by PW-5 SI M.M. Chaudhary who commenced investigation, took

necessary papers; recorded statements of witnesses; went to spot and

-3-

prepared site plan Ex.Ka-3; recorded statement of accused-appellant who

was taken to Police Station by complainant himself; thereafter took letter

written by Devendra in his custody, prepared fard thereof Ex.Ka-4;

recorded statement of Sushil Sharma, Shardar Amar Jeet Singh,

Chandralal, Neeraj, Shahdeen, Sanjay @ Sanjeev and Neetu @ Neeraj;

sent letter written by accused Devendra, his specimen writing to FSL,

Agra for examination.

9.After completing entire formalities of investigation, PW-5 SI M.M.

Chaudhary submitted charge sheet, Ex.Ka-12, in the Court of Magistrate

against Rajpal and accused-appellant Devendra under Section 364-A IPC.

10.Cognizance of the offence was taken by Magistrate concerned.

After making compliance of Section 207 Cr.P.C., Magistrate committed

the case of accused persons to Sessions Judge, Muzaffar Nagar for trial,

who framed charge against the accused persons, namely, Devendra and

Rjpal on 31.01.2003 as under:

“I S.P. Verma, Sessions Judge, Muzaffar Nagar

do hereby charge you 1. Devendra S/o Sohan Prasad

Teli, 2. Rajpal S/o Munshi Kumhar as follows:

That you on 02.10.2002 at about 8.00 AM from

the house of complainant Virendra Kumar S/o

Hukamchand situated in Village Adampur, Police

Station Bhora Kalan, District Muzaffar Nagar in

furtherance of common intention kidnapped Mini (aged

about one and a half years) daughter of Sanjeev Kumar

in order that said Mini might be murdered or might be

so disposed of as to be put in danger of being murdered

for ransom and thereby committed an offence

punishable under Section 364-A/34 of the IPC and

within my cognizance.

-4-

And I hereby direct that you be tried by this

Court on the said charge."

11.The accused-appellant denied the charge levelled against him,

pleaded not guilty of charge and claimed trial.

12.To substantiate its case, prosecution examined as many as five

witnesses, out of whom PWs-1 to 4 are witnesses of fact and PW-5 is

formal witnesses of Police i.e. Investigating Officer. PW-1 Vinok Kumar

Sharma is Informant who presented Ex.Ka-1 in the Police Station

concerned; PW-2 Jagendra who has seen the accused-appellant taking the

victim in his lap; PW-3 Intimated Informant about the phone made by

accused-appellant and PW-4 Sushil Kumar who caught hold accused-

appellant at Old Delhi, Railway Station with victim and recovered her

from the possession of accused-appellant.

13.Subsequent to closure of prosecution witnesses, statements of

accused-appellant under Section 313 Cr.PC. was recorded by Trial Court,

explaining entire evidence and incriminating circumstances. In the

statement accused-appellant denied prosecution story in toto as usual. In

response of question no.9, accused-appellant admitted that he was taken

to Police Station and further he stated that he was falsely implicated in the

present case. Accused-appellant examined DW-1, Dr. K.D. Sanwaliya,

Medical Officer of District Hospital, Muzaffar Nagar who conducted

medico examination of accused and found seven blunt object injuries on

his person, prepared medical report Ex.Kha-1. Doctor found all the

injuries of simple nature except injury no.7 which was kept under

observation.

14.On appraisal of evidence on record and after hearing learned State

counsel and counsel for accused, learned Trial Judge recorded verdict of

conviction and sentence against the accused-appellant, as stated above.

-5-

15.Feeling aggrieved with the impugned judgment and order dated

01.10.2003, accused-appellant is before this Court through Jail appeal No.

5871 of 2003 and Criminal appeal No. 5422 of 2003, challenging his

conviction and sentence.

16. We have heard Sri Mohd. Afzal, learned Amicus Curiae for

appellant and Sri Rishi Chhadha, learned AGA for State at length and

have gone through the record carefully with the valuable assistance of

learned Counsel for parties.

17.Learned Counsel appearing for appellant has challenged conviction

and sentence of accused-appellant, advancing his submissions, in the

following manners :-

i.Entire evidence has not been produced from the side of

prosecution, witnesses present at the time of arrest has not

been produced, therefore, presumption under Section 114(g)

of the Indian Evidence Act, 1872 goes against prosecution.

ii.Prosecution story is doubtful, not worthy to credence;

Prosecution had not produced independent witness; PWs 1 to

4 are interested witnesses and they cannot be termed as

independent.

iii.There are many contradiction in the statement of

witnesses rendering prosecution story doubtful.

iv.Accused-appellant has falsely been implicated by

Informant to exploit him, being resident of Jharkhand.

v.Trial Court did not appreciate the evidence available

on file in right perspective as per law. Accused-appellant is

liable to be acquitted.

18.Per contra, learned AGA opposed submissions and urged that

-6-

applicant is named in FIR; FIR is prompt; accused-appellant was seen

with victim by PW-2 at Bus stop of the village; he has been apprehended

with victim by PW-4 and his friends at Old Delhi, Railway Station on the

very same day; and accused-appellant was taken to Police Station by PWs

1 to 4; there are sufficient evidence to connect accused-appellant with

present crime and hence Trial Court has rightly convicted him.

19.Although time, date and place of occurrence could not be disputed

from the side of defence but according to Advocate, he is not responsible

for kidnapping of victim. Even otherwise from the evidence of PWs 1 to 4

time, date and place stand established.

20.Only question remains for consideration is "whether accused-

appellant kidnapped victim or not and Trial Court has rightly convicted

the accused-appellant or not?"

21.We now proceed to consider rival submissions on merit. It will be

appropriate to briefly consider the evidence of prosecution as well as

defence available on record and some important decisions on the point.

22.PW-1 Virendra Kumar Sharma deposed that accused-appellant

Devendra Kumar was his servant who came to him one and half month

prior to incident and accused Rajpal was resident of Adampur, Police

Station Bhaurakala, District Muzaffar Nagar. At about 08:30 AM on

02.10.2002, both the accused persons kidnapped his grand-daughter Mini,

aged about one and half years for ransom. Karan Singh and Jagender,

resident of same village, noticed them taking his grand-daughter to

Shamli by Mini Bus. Accused-appellant Devendra made a phone to him

through STD of Shahdeen that he was going, leaving animals, and told

that his shirt was hung in the Baithak and read the letter which is in the

pocket. He took out the letter from the pocket of shirt and read over, by

which an amount of Rs.2,00,000/- was demanded. The said letter recited

that if information was given to Police, his grand-daughter would have

-7-

been killed. He traced out his daughter every where i.e. Shamli Railway

Station and Bus Stop but found no where. He phoned his son who was

residing in Delhi at that time telling about the incident and submited

written report Ex.Ka-1 in Police Station Bhaurakala. That day his son

Sushil Kumar and his friends apprehended accused Devendra with victim

Mini on Old Delhi, Railway Station and took accused-appellant to village.

He further deposed that Police got signature of accused Devendra for

comparison of ransom letter before him. Later on victim was handed over

to him by Police after completion of legal formalities.

23.PW-2 Jagendra deposed that on the fateful day at about 08:30 PM,

he went to Bus Stop of his village for shaving, Rajpal was standing there.

After 10 -15 minutes, accused Devendra reached there with a girl aged

about one and half years in his lap. Both whispered and boarded the bus

leading to Shamli. He came back to his house after shaving. When at

about 09:30 AM there was a noise in the village that grand-daughter of

Virendra has been kidnapped, he went to house of Informant and told him

that accused Devendra and Rajpal proceeded towards Shamli by Bus

taking child.

24.PW-3 Shahdeen deposed that on the fateful day at about 09:15 AM,

he received a telephone at his PCO No.58081 by which he was told from

other hand that he was the servant of Sanjay Sharma and his Kurta was

hung in his Baithak, in pocket thereof, there was a letter which should be

read by them. He further deposed that he told this fact to father of Sanjay

and came back to his PCO. He did not know what was written in the

letter.

25.PW-4 Sushil Kumar, uncle of victim, deposed that incident was of

02.10.2002. At the time of incident, he was in his house situated at Delhi,

he received a phone of his father that Devendra had gone with Mini and

tried to search him. He along-with his younger brother and his friends;

first, went to Bus Stop, later on Old Delhi Railway Station. At about

-8-

01:30 PM when a train reached at Station, after some moment, he saw

Devendra boarding the stairs with Mini. He apprehended him with the

help of his friends. First of all, he took his niece in his lap. He informed

his father that we are coming with Mini and proceeded at 05:30 PM to

Village from Delhi and reached the village at about quarter to ten along-

with his friends by Maruti Van of his friend Amarjeet.

26.All four witnesses PWs 1 to 4 have been examined at length by

defence but nothing adverse material have come, so as to disbelieve

statements of witnesses on oath, on the relevant points. Certainly some

minor contradictions and infirmities occurred in their statements but they

are not of such nature which could dent or render the prosecution

doubtful.

27.Statement of PW-2 established that accused was seen going with

victim Mini and boarding the bus leading to Shamli. PW-3 proved that

accused Devendra made a call at his PCO intimating that his shirt was

hung in the Baithak of Informant PW-1 and to see the letter written by

him kept in its pocket. He informed about message to informant PW-1.

On the information of Shahdeen, PW-1 lodged an FIR against the accused

appellant about the kidnapping of his grand-daughter. PW-4 on receiving

the information of kidnapping of his niece Mini from his father, thereafter,

made a search for girl at Bus Stop and Railway Stations along-with his

friends and younger brother. He further proved that he saw the accused

Devendra with Mini boarding stairs and apprehended with the help of his

friends and took Mini from accused Devendra. Thereafter he went to his

village by Maruti Van of his friend with Mini and accused Devendra.

28. From the statements of PWs 1 to 4, it is fully established that

accused-appellant Devendra kidnapped victim Mini, grand-daughter of

Informant PW-1, for ransom at the relevant time and date as stated by

prosecution and he was apprehended with victim at the Railway Station of

Old Delhi, on the same day.

-9-

29.Learned Amicus Curiae appearing for accused-appellant, argued

that it has come in the evidence of PW-4 that accused-appellant was

captured by him with the help of his friends and they came to village by

Maruti Van of Amarjeet Singh but non of his friends have come forward

to support prosecution story, therefore, presumption under Section 114(g)

of the Indian Evidence Act, 1872 goes against him.

30.So far as the argument of learned Counsel for appellant regarding

non-examination of friends of PW-4 is concerned, we are of the view that

this submission is thoroughly misconceived for the reasons that

prosecution is not obliged to adduce witnesses as mentioned in FIR or

charge-sheet, in view of Section 134 of Indian Evidence Act,1872

(hereinafter referred to as 'Act,1872'). Section 134 of Act, 1872, reads as

under:-

"134. Number of witnesses.—No particular number of

witnesses shall in any case be required for the proof of any

fact."

31.Law is well-settled that as a general rule, Court can and may act on

the testimony of a single witness provided he/she is wholly reliable. There

is no legal impediment in convicting a person on the sole testimony of a

single witness. That is the logic of Section 134 of Act, 1872. But if there

are doubts about the testimony, Court will insist on corroboration. In fact,

it is not the numbers, the quantity, but the quality that is material. Time-

honoured principle is that evidence has to be weighed and not counted.

Test is whether evidence has a ring of truth, cogent, credible and

trustworthy or otherwise.

32.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

-10-

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.

33.In Kunju @ Balachandran vs. State of Tamil Nadu, AIR 2008

SC 1381 a similar view has been taken placing reliance on earlier

judgments including Jagdish Prasad vs. State of M.P., AIR 1994 SC

1251; and Vadivelu Thevar vs. State of Madras, AIR 1957 SC 614.

34.In Yakub Ismailbhai Patel Vs. State of Gunjrat reported in (2004)

12 SCC 229, Court held that :-

"The legal position in respect of the testimony of a solitay

eyewitness is well settled in a catena of judgments inasmuch

as this Court has always reminded that in order to pass

conviction upon it, such a testimony must be of a nature

which inspires the confidence of the Court. While looking

into such evidence this Court has always advocated the Rule

of Caution and such corroboration from other evidence and

even in the absence of corroboration if testimony of such

single eye-witness inspires confidence then conviction can be

based solely upon it."

35.In State of Haryana v. Inder Singh and Ors. reported in (2002) 9

SCC 537, Court held that it is not the quantity but the quality of the

witnesses which matters for determining the guilt or innocence of the

accused. The testimony of a sole witness must be confidence-inspiring

and beyond suspicion, thus, leaving no doubt in the mind of the Court.

36.Learned Counsel for appellant next contended that no independent

witness has been produced by prosecution. PWs 1 to 4 are interested and

relative to victim, therefore, there evidence could not be termed as

reliable.

37.So far as the question of relative witness and non-examination of

any independent witness is concerned, we are not impressed with the

submissions of learned Counsel for appellant for the reasons that it is

-11-

often seen that in heinous offences like murder, dacoity, kidnapping etc.,

no villagers or independent witness come forward to give evidence in

support of prosecution against accused-appellant due to fear of evil.

38.So far as relative witness is concerned, in Dalip Singh v. State of

Punjab, AIR,1953, SC 364, Court has held :-

“A witness is normally to be considered independent

unless he or she springs from sources which are likely

to be tainted and that usually means unless the witness

has cause, such as enmity against the accused, to wish

to implicate him falsely. Ordinarily, a close relative

would be the last to screen the real culprit and falsely

implicate an innocent person. It is true, when feelings

run high and there is personal cause' for enmity, that

there is a tendency to drag in an innocent person

against whom a witness has a grudge along with the

guilty, but foundation must be laid for such a criticism

and the mere fact of relationship far from being a

foundation is often a sure guarantee of truth. However,

we are not attempting any sweeping generalisation.

Each case must be judged on its own facts. Our

observations are only made to combat what is so often

put forward in cases before us as a general rule of

prudence. There is no such general rule. Each case

must be limited to and be governed by its own facts.”

39.In Dharnidhar v. State of UP (2010) 7 SCC 759, Court has

observed as follows :-

“There is no hard and fast rule that family members can

never be true witnesses to the occurrence and that they

will always depose falsely before the Court. It will

always depend upon the facts and circumstances of a

given case. In the case of Jayabalan v. U.T. of

Pondicherry (2010) 1 SCC 199, this Court had occasion

to consider whether the evidence of interested witnesses

can be relied upon. The Court took the view that a

pedantic approach cannot be applied while dealing with

the evidence of an interested witness. Such evidence

cannot be ignored or thrown out solely because it comes

from a person closely related to the victim”

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

-12-

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).”

41.It is settled that merely because witnesses are closed relatives of

victim, 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 whether it is cogent and

credible evidence.

42.Learned Counsel for appellant further contended that there are

many contradictions in the statements of witnesses which rendered

prosecution doubtful and accused-appellant is entitled to benefit of doubt

and deserves acquittal.

43.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. All the

witnesses, PWs 1 to 4 have supported prosecution case. All the four

witnesses withstood lengthy cross-examination but nothing adverse

material could be brought on record so as to disbelieve their statements.

There is nothing in cross-examination which may render their statements

doubtful. Naturally some minor contradictions and discrepancies have

occurred in their examination-in-chief but they do not go to the root of

-13-

case.

44.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.

45.In Sachin Kumar Singhraha v. State of Madhya Pradesh in

Criminal Appeal Nos. 473-474 of 2019 decided on 12.3.2019, Supreme

Court has observed that Court will have to evaluate evidence before it

keeping in mind the rustic nature of depositions of the villagers, who may

not depose about exact geographical locations with mathematical

precision. Discrepancies of this nature which do not go to the root of the

matter do not obliterate otherwise acceptable evidence. It need not be

stated that it is by now well settled that minor variations should not be

taken into consideration while assessing the reliability of witness

testimony and the consistency of the prosecution version as a whole.

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 in Criminal Appeal

No. 56 of 2018, Smt. Shamim v. State of (NCT of Delhi), decided on

19.09.2018.

47.When such incident takes place, one cannot expect a scripted

version from witnesses to show as to what actually happened and in what

manner it had happened. Such minor details normally are neither noticed

nor remembered by people since they are in fury of incident and

apprehensive of what may happen in future. A witness is not expected to

recreate a scene as if it was shot after with a scripted version but what

material thing has happened that is only noticed or remembered by people

-14-

and that is stated in evidence. Court has to see whether in broad narration

given by witnesses, if there is any material contradiction so as to render

evidence so self contradictory as to make it untrustworthy is Minor

variation or such omissions which do not otherwise affect trustworthiness

of evidence, which is broadly consistent in statement of witnesses, is of

no legal consequence and cannot defeat prosecution.

48.In all criminal cases, normal discrepancies are bound to occur in the

depositions of witnesses due to normal errors of observations, namely,

errors of memory due to lapse of time or due to mental disposition such as

shock and horror at the time of occurrence. Where the omissions amount

to a contradiction, creating a serious doubt about truthfulness of the

witness and other witnesses also make material improvement while

deposing in the court, such evidence cannot be safe to rely upon.

However, minor contradictions, inconsistencies, embellishments or

improvements on trivial matters which do not affect the core of the

prosecution case, should not be made a ground on which the evidence can

be rejected in its entirety. Court has to form its opinion about the

credibility of witness and record a finding, whether his deposition inspires

confidence. Exaggerations per se do not render the evidence brittle, but

can be one of the factors to test credibility of the prosecution version,

when entire evidence is put in a crucible for being tested on the

touchstone of credibility. Therefore, mere marginal variations in the

statement of a witnesses cannot be dubbed as improvements as the same

may be elaborations of the statements made by the witnesses earlier. Only

such omissions which amount to contradictions in material particulars i.e.

go to the root of the case/materially affect the trial or core of the

prosecution's case, render the testimony of the witness liable to be

discredited. [Vide: State Represented by Inspector of Police v.

Saravanan & Anr., AIR 2009 SC 152; Arumugam v. State, AIR 2009

SC 331; Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11

SCC 334; and Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State

-15-

of Maharashtra, JT 2010 (12) SC 287].

49.In the entirety of the facts and circumstances and legal preposition

discussed herein before, we are satisfied that prosecution has successfully

proved its case beyond reasonable doubt against accused-appellant and

Trial Court has rightly convicted him for having committed an offence

under Section 364-A read with 34 IPC.

50.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.

51.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

-16-

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].

52.Hence, applying the principles laid down in the aforesaid judgments

and having regard to the totality of facts and circumstances of case,

motive, nature of offence, weapon used in commission of murder and the

manner in which it was executed or committed, we find that punishment

imposed upon accused-appellant by Trial Court in impugned judgment

and order is not excessive and it appears fit and proper and no ground

appears to interfere in the matter on the point of punishment imposed

upon him.

53.In view of above discussion, both the appeals lack merit and are

dismissed.

54.Accused-appellant is on bail, he shall be taken in custody forthwith

to serve out the sentence awarded by learned Trial Court.

55. Lower Court record alongwith a copy of this judgment be sent back

immediately to District Court concerned for compliance and further

necessary action and to apprise the accused-appellant through Jail

Authority.

56.Before parting, we provide that Mohd. Afzal, Advocate, who has

appeared as Amicus Curiae for appellant in present Jail Appeal, 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, without any delay and, in

any case, within one month from the date of receipt of copy of this

judgment.

Order Date :- 11.09.2019

I.A.Siddiqui