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AFR

Reserved on : 14.03.2019

Delivered on : 12.09.2019

Court No. - 34

Case :- JAIL APPEAL No. - 6034 of 2017

Appellant :- Mumtaz

Respondent :- State Of U.P.

Counsel for Appellant :- From Jail, ,Vimlendu Tripathi (A.C.)

Counsel for Respondent :- A.G.A.

Hon'ble Sudhir Agarwal,J.

Hon'ble Rajendra Kumar-IV,J.

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

1. Accused-appellant stood for trial in Sessions Trial No. 54 of 2010

(State v. Mumtaz, Case Crime No. 24 of 2010), under Sections 302, 376

and 201 IPC, Police Station Mugalsarain, District Chandauli, pending in

the Court of Additional District and Sessions Judge, FTC, Court No.1,

Chandauli and came to be convicted by said Court, vide judgment and

order dated 31.08.2016, sentencing him under Section 302 IPC to undergo

imprisonment for life and fine of Rs. 5,000/-, Section 201 IPC to undergo

five years' imprisonment and fine of Rs. 1000/-. Sentence under Sections

302 and 201 shall run concurrently. In default of payment of fine, he shall

further undergo three months additional imprisonment, Trial Court has

acquitted accused-appellant under Section 376 IPC. Appellant sought

interference of this Court by filing this Jail Appeal from Jail through Jail

Superintendent concerned.

2.Prosecution story, in brief, as borne out from First Information

Report (hereinafter referred to as 'FIR') and factual matrix of the case is

that PW-1, Alimuddin, submitted a written report, Ex. Ka-1, in the Police

Mugalsarain, District Chandauli, stating that his daughter (victim name

withheld by us), used to go to read Arbi language and learn Power-loom

work in the house of Mumtaz, who is neighbour of victim. On the fateful

day i.e. 19.01.2010, at about 3:00 pm, victim had gone to house of

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accused-appellant to read Arabi language and to learn Power-loom work,

as usual. When she did not return back from the house of accused-

appellant, PW-1 went to house of accused-appellant to search his

daughter. He found that house of accused-appellant was locked. Then he

made a drastic search of his daughter in the village but found no where. In

the next morning, he again went to the house of accused-appellant and

saw that dead body of his daughter was lying on the earth in the north

street adjacent to the door and window of Mumtaj's house. Dead body

bore sign of injuries around the face and her both hands were tied with her

Scarf in front. He suspected that his daughter has been murdered after

committing rape by accused-appellant. He informed the Policed Station

concerned and submitted an application requesting to register an FIR

against accused-appellant.

3.On the basis of written report Ex.Ka-1, chick FIR, Ex.Ka-17 was

registered by PW-8, Kanhaiya Lal Pathak, as Case Crime No. 24 of 2010

under Sections 376, 302 and 201 IPC against accused-appellant. Entry of

case was made by him in General Diary. Copy whereof is Ex. Ka-18.

4.Immediately after registration of case, PW-7, Ratan Singh Yadav

commenced investigation, proceeded to spot, visited the place of incident,

prepared site plant Ex.Ka-12, recorded statement of witnesses, took Scarf

(Dupatta) in his possession, prepared memo thereof Ex.Ka-3, took blood

stained and simple earth, pieces of brick in his possession and got

prepared memo by PW-6.

5.PW-6, SI Sobha Pandey, on the direction of the then SHO Ratan

Singh Yadav PW-7, held inquest over the dead body of victim and

prepared inquest report Ex.Ka-2 and other papers relating thereto, sealed

the dead body and sent to mortuary for postmortem.

6.PW-5, Dr. Vinod Kumar Singh conducted autopsy over dead body

of victim, aged about 14 years, daughter of Allimuddin, resident of

Muhammadpur Malokhar, Police Station Mugalsarain, District Chanduali

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and prepared postmortem report Ex. Ka-4, expressing his opinion that

death was possible about one day prior to postmortem due to hemorrhage

on account of ante-mortem injuries. Doctor found following ante-mortem

injuries on the body of deceased, which read as under :-

i.No blood from nose, ear and urethra.

ii.No bleeding from vaginal orifice

iii.Lacerated wound 7cm x 6cm right corner of mouth

including upper half lip and lower half lip with

cheek exposing teeth.

iv.Abrasion on right side of neck with left eyebrow.

Contusion 4cm x 2cm on forehead.

7.PW-7 after receiving the postmortem report of victim, tried to

apprehend the accused but could not succeed. Later, on 02.02.2010 Police

arrested accused-appellant at Railway Station, Mugalsarain, at about 8:15

pm, recorded his statement. After completing all formalities of

investigation, submitted charge-sheet Ex.Ka-13 against accused-appellant.

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

to Sessions Judge, wherefrom, it was transferred to Additional District

and Sessions Judge, FTC, Court No.1, Chandauli for disposal in

accordance with law.

9.Trial Court framed charges on 23.08.2010 against accused-appellant

under Sections 302, 376 and 201 IPC, which reads as under :-

“vkjksi

eSa] fnyhi dqekj] l= U;k;k/kh'k ] pUnkSyh vki vfHk;qDr eqerkt

dks fuEufyf[kr :i ls vkjksfir djrk gwW%&

izFker~ %& ;g fd fnukad 19-01-2010 dks nksigj esa fdlh le;

cgn~ xzke eqgEeniqj& eyk[kj] Fkkuk& eqxyljk;] tuin& pUnkSyh es

vki ;g tkurs gq;s fd oknh vyheqn~nhu dh iq=h xqyDlk dqekjh mez

14 o"kZ dk xyk nckus ls mldh e`R;q gks ldrh gS] vkius xqyDlk

dqekjh dk xyk nck dj o pksVs igqapk dj mldh gR;k dkfjr dj nh

vkSj bl izdkj vkius Hkk- n- la- dh /kkjk &302 ds vUrxZr n.Muh;

vijk/k fd;k tks bl U;k;ky; ds izlaKku esa gSA

f}rh;r~%& ;g fd mijksDr frfFk] le; o LFkku ij vkius oknh

vyheqn~nhu dh iq=h xqyDlk dqekjh mez 14 o"kZ ds lkFk tcjnLrh

mldh bPNk ds fo:) cykRdkj fd;kA bl izdkj vkius Hkk- na- la- dh

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/kkjk & 376 ds vUrxZr n.Muh; vijk/k fd;k tks bl U;k;ky; ds

izlaKku esa gSA

r`rh;r~%& ;g fd mijksDr frfFk] le; o jkf= djhc 10-00 cts

xqyDlk dqekjh dh gR;k djds lk{; dks foyksfir djus ds mn~ns'; ls

mlds 'ko dks xyh esa Qsad fn;k vkSj bl izdkj vkius Hkk- na- la-

dh /kkjk & 201 ds vUrxZr n.Muh; vijk/k fd;k tks bl U;k;ky;

ds izlaKku esa gSA

vkSj eSa] ,rn~}kjk vki dks funsZ'k nsrk gwW fd mijksDr vkjksi dks

vki dk ijh{k.k bl U;k;ky; }kjk fd;k tk;A

fnukad vxLr 23] 2010 bZ0

mijksDr vkjksi vfHk;qDr dks i<+dj lquk;k o le>k;k x;kA

vfHk;qDr us mDr vkjksiks dks vLohdkj fd;k rFkk ijh{k.k dh ;kpuk

fd;kA

“I, Dilip Kumar, Sessions Judge, Chandauli,

charge you, Mumtaz, with the following:-

First:That at any time on the noon of 19.01.2010

within the limits of village - Muhammadpur - Malakhar,

PS - Mughalsarai, District – Chandauli, you, while

knowing that constricting the throat of the complainant

Alimuddin's daughter Gulaxa Kumari, aged 14 years,

may cause her death, strangulated her and inflicted

injuries, causing her death; thereby you committed an

offence punishable under Section 302 IPC, which is in

the cognizance of this court.

Second:That on the aforesaid date, time and place,

you against her consent forcibly committed rape on the

complainant Alimuddin's daughter Gulaxa Kumari, aged

14 years, thereby you committed an offence punishable

under Section 376 IPC, which is in the cognizance of this

court.

Third: That on the aforesaid date and place, you,

having committed the murder of Gulaxa Kumari, disposed

of the body at round 10:00 p.m. in a street with the

intention to destroy the evidence, thereby you committed

an offence punishable u/s 201 IPC, which is in the

cognizance of this court.

I, hereby, direct you that for the aforesaid charges,

you be tried by this court.

The aforesaid charges were read over and explained

to the witnesses. The accused persons denied the said

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charges and sought trial. ”

(English Translation by Court)

10. Accused-appellant pleaded not guilty and claimed trial.

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

eight witnesses in the following manner :-

Sr. No.Name of PWs Nature of witnessPaper proved

1Alimuddin Facts Ex. Ka-1 and 2

2Rukaina Bibi Facts Nil

3Noor Ali Facts Nil

4Julfekar Ansari Formal Ex.Ka-3

5Dr. Vinod Kumar SinghFormal Ex.Ka-5

6Shobha Pandey Formal Ex.Ka-2, 3, 9, 10

and 11.

7Ratan Singh Yadav Formal Ex.Ka-3, 9, 10,

11, 12, 13, 16, 17

and 18.

8K.L. Pathak Formal Ex.Ka-17 and 18.

12.On closure of prosecution evidence, statement under Section 313 of

accused-appellant was recorded. In his statement, accused-appellant

denied prosecution story in toto. Entire story is said to be wrong, he

claimed false implication but did not choose to lead any defence evidence.

13.Ultimately, case came to be heard and decided by Additional

District and Sessions Judge, FTC, Court No.1, Chandauli, who after

hearing learned counsel for parties and analysing entire evidence (oral and

documentary) led by prosecution, found accused-appellant guilty,

convicted and sentenced, as stated above.

14.Sri Vimlendu Tripathi, learned Amicus Curiae assailed order of

conviction and sentence advancing following submissions :-

i.There is no eye witness of murder of victim. Case of prosecution

rests upon circumstantial evidence.

ii.PW-1, 2 and 3 are not independent witness. They are relatives of

deceased, therefore, their evidence cannot be termed as

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independent witness.

iii.There is no strong motive to accused-appellant to commit

murder of victim.

iv.There is no complete chain in the circumstantial evidence

leading the guilt of the accused-appellant.

v.There are material contradictions in the statements of witnesses

rendering prosecution doubtful.

vi.Prosecution failed to prove its case beyond reasonable doubt. All

link of circumstantial is not proved.

vii.Trial Court has not appreciated the evidence in right perspective

and has drawn a wrong conclusion regarding the guilt of the

accused-appellant.

15. Learned AGA opposed submissions and submitted that accused-

appellant is named in FIR; and sufficient motive has been shown in FIR

as well as statements against accused-appellant. It was further submitted

that dead body of victim was recovered in the street adjacent to the house

of accused-appellant. Immediate after incident, accused-appellant was

found absent in the house. He was arrested at Railway Station by Police.

Fleeing away of accused-appellant from his own house immediately after

the incident is an important circumstance against him. Prosecution has

proved complete chain of circumstances leading to the guilt of accused-

appellant. Trial Court rightly convicted accused-appellant and sought

dismissal of appeal.

16.Dead body of victim was found in the street adjacent to the house of

accused-appellant in the next morning of her disappearance; hands of

victim were tied with her own scarf could not be disputed by the accused-

appellant but according to learned counsel for accused-appellant, he is not

responsible for committing murder of victim. Even otherwise from the

statement of PW-1, 2, 3, 5 and 6, recovery of dead body adjacent to house

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of accused-appellant and assassination of victim stands proved.

17.Only two questions remain for consideration; (i) “Whether accused-

appellant committed murder of victim or not?; and (ii) "Trial Court rightly

convicted him under Sections 302 and 201 IPC or not?”

18.Now, we may proceed to consider rival submissions of learned

counsel for parties and evidence, in brief, available on record as well as

some important decisions on this point.

19.Only evidence against the accused-appellant to connect him with

present case is that (i) the last seen theory as set forth by PW-1, 2 and 3 of

victim in association of accused-appellant one day prior to detection of

dead body; (ii) disappearance of accused-appellant from his house

immediately after the incident; (iii) detection of dead body of the victim

in street adjacent to his house; (iv) recovery of Lungi with blood and

semens allegedly belong to accused-appellant from the place of

occurrence.

20.Argument Nos. 1 and 3 of learned counsel for accused-appellant are

being discussed altogether. Now, we would like to proceed to consider the

statements of witnesses. PW-1 deposed that his daughter (name withheld),

aged about 14 years used to go to learn the work of Powerloom and study

of Arabi language to the house of accused-appellant-Mumtaz, where Smt.

Jaida (mother of accused-appellant) taught her Arabi language and

accused-appellant, in his own house, taught her Power-loom work. On the

fateful day, as usual, his daughter (victim) went to learn Arabi language in

the house of accused-appellant and came back by 12 O'clock in the noon.

Mother of accused-appellant and his wife went their maternal home in

afternoon same day. On 19.01.2010, accused-appellant came to his house

and took victim with him on the pretext of study. When she did not come

back late in the evening, he along with his other family members tried to

search her but despite drastic search, she was found no where. House of

accused-appellant was locked from outside and there was nobody in the

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house. Nest morning, they again went to the house of accused-appellant-

Mumtaz and found a dead body of his daughter in the street adjacent to

north door of accused-appellant's house. It appeared that she was raped by

accused-appellant-Mumtaz and on being opposed by her, murdered by

accused-appellant, who ran away from the spot after throwing dead body

in the street. He got scribed report of incident by one Anil Kumar Pandey

and presented it to Police Station concerned.

21.In his cross examination, he deposed that when accused-appellant

came to his house to take his daughter, he was present in the house with

his other family members.

22.PW-2, Rukaina Bibi (mother of victim) deposed that her daughter

used to go to house of accused-appellant for learing Power-loom work.

On the fateful day, his daughter, aged about 14 years, went to house of

accused-appellant to learn Arabi language from Smt. Jaida (mother of

accused-appellant), which one day prior to detection of dead body of

victim. Accused-appellant-Mumtaz came to her house to call victim and

took her, on the pretext of learning Arbi language, to his house. When

victim did not return back to her house by late evening, they went to

house of accused-appellant-Mumtaz, where door was locked outside and

there was nobody in the house. Despite drastic search, she was found no

where. In the next morning, at about 7:00 Am, corpse of victim was found

in the street adjacent to the house of accused-appellant. It was further

deposed that she was raped. Her Paijama bore semen and there was injury

on her face. Her hands were tied with her own scarf. She was assassinated

in cruel manner.

23.PW-3, Noor Ali (brother of victim) deposed that. as usual, at about

9:00 am, victim used to go to learn Arabi language to the house of

accused-appellant and come back at about 12:00 O'clock in the noon and

again she had to go at 1:00 pm and come back at 5:00 pm. This was her

usual time. On the fateful day i.e. 19.01.2010, at about 9:00 am, her sister

(victim) went to house of accused-appellant to learn Arabi language and

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came back at 12 O'clock in the noon. At about 2:00 pm, accused-

appellant came to his house and took victim to his house on pretext of

learning Arabi language. When victim did not come back to house by late

evening. They went to house of the accused-appellant-Mumtaz and found

his house locked outside. Next morning, on 20.01.2010, dead body of

victim was found lying in street adjacent to accused-appellant's house. He

came to know that mother of accused-appellant had gone in relation when

accused took victim. He further deposed that victim was cruelly

assassinated after rape.

24.PW-1, 2 and 3 withstood lengthy cross-examination by learned

counsel for accused-appellant but nothing adverse material could be

brought so as to discredit their statements. PW-1, 2 and 3 are natural

witness. They must be present at the time, when accused-appellant took

victim from her house on the pretext of learning Arabi language. PW-1, 2

and 3 saw victim in association of accused-appellant last. Later on, she

did not come back and nobody has seen him alive till detection of dead

body. Accused-appellant offered a routine answer in his statement under

Section 313 Cr.P.C., although he did not admit fact of taking victim with

him. PW-1, 2 and 3 established that accused took with him and they saw

victim last, in the company of accused-appellant. He did not offer any

proper explanation. On the other hand, PW-1, 2 and 3 established that

victim was taken by accused-appellant from the house. at 12:00 O'clock in

the noon. Accused-appellant was under obligation to offer a proper

explanation, what had happened with victim and who murdered her. It is

also relevant to mention here that accused-appellant disappeared from his

house till his arrest and his house remain locked. This fact also finds

support from statement of PW-1, 2 and 3. Conduct of accused-appellant

fleeing away from his house becomes relevant and is an additional link

evidence against him. Dead body of victim and one Lungi, allegedly

belonged to accused-appellant, have been recovered from street adjacent

to house of accused-appellant and accused-appellant was not present in

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the house, if the victim was murdered by someone else, accused-appellant

could have informed first, but he did not do so. Accused-appellant has

also not offered any explanation how his Lungi was found there. All the

circumstances indicate, guilt of accused-appellant and proved that

accused-appellant is only and only person who committed murder of

victim and threw the body in the street adjacent to his house.

25.In 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 inference 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 accused-appellant; 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-appellant and he should be

incapable of explanation on any hypothesis other than that of the guilt of

the accused-appellant and inconsistent with his innocence.

26. 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."

27.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

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circumstances are found to be incompatible with innocence of accused-

appellant or guilt of any other person.

28.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 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)

29.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

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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)

30.In C. Chenga Reddy and Others v. 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)

31.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;

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(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)

32.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.

33.Learned counsel for accused-appellant argued that all the three

witness PW-1, 2 and 3 are relative of deceased, therefore, they cannot be

termed as independent witness and they are not worthy to credence. We

are not impressed with the argument of learned counsel for accused-

appellant and reject the same. Argument made by learned counsel for

accused-appellant is thoroughly misconceived for the reasons that PW-1,

2 and 3 being father, mother and brother of deceased are natural witness.

Their presence must have been in the house, when accused-appellant took

victim from house on the pretext of learning Arabi language

34.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”

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35.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).”

36.It is settled that merely because witnesses are close 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 that whether it is cogent

and credible evidence.

37.In so far as motive is concerned, it is also notable that mind set of

accused persons differs from each other. Thus, merely because that there

was no strong motive to commit the present offence, prosecution case

cannot be disbelieved. We do not find any substance in the argument

advanced by learned counsel for appellant.

38.Next argument advanced by learned counsel for accused-appellant,

in so far as discrepancies, variation and contradiction in the prosecution

case is concerned, we have analysed entire evidence in consonance with

the submissions raised by learned counsel for the accused-appellant and

find that the same do not go to the root of case and accused-appellant is

not getting its benefits.

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39.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.

40.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 the Apex Court (3

Judges) in Criminal Appeal No. 56 of 2018, Smt. Shamim v. State of

(NCT of Delhi), decided on 19.09.2018.

41.In Sachin Kumar Singhraha Vs. State of Madhya Pradesh in

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

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

it keeping in mind the rustic nature of the 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.

42.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 Sections 302 and 201 IPC. Appeal is devoid of merit and liable to

be dismissed.

43.So far as sentence of accused-appellant is concerned, it is always a

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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.

44.It is settled legal position that appropriate sentence should be

awarded after giving due consideration to 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].

45.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 and the manner in which it was executed or

committed, we find that punishment imposed upon accused-appellant by

17

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.

46.We, therefore, find no merit in appeal. Present Jail Appeal lacks

merit and is, accordingly, dismissed. Judgement and order dated

31.08.2016 passed by Additional Sessions Judge, FTC Court No.1,

Chandauli in Session Trial No. 54 of 2010, (State v. Mumtaz), arising out

of Case Crime No. 24 of 2010, Police Station Mugalsarain, under

Sections 302 and 201 IPC, is maintained and confirmed.

47.Lower Court record along with a copy of this judgment be sent back

immediately to District Court and Jail concerned for compliance and

apprising the accused-appellant.

48. Before parting, we provide that Sri Vimlendu Tripathi, Advocate,

who has appeared as Amicus Curiae for appellant in present Jail Appeal,

shall be paid counsel's fee as Rs. 11,500/- for his valuable assistance.

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 :- 12.09.2019

KA/Akram