This Jail Appeal, under Section 383 Cr.P.C. through Superintendent of Jail, Bareilly has been filed by accused appellant, Shishu Pal, against the judgment and order dated 30.11.2013 passed by Sri Mridulesh Kumar Singh, ...
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AFR
Reserved on 5.4.2019
Delivered on 19.4.2019
Court No. 34
Case : JAIL APPEAL No. 1415 of 2014
Appellant : Shishu Pal
Respondent : State Of U.P.
Counsel for Appellant : From Jail, Ravi Chandra Srivastava (A.C.)
Counsel for Respondent : A.G.A. Rishi Chaddha
Hon'ble Sudhir Agarwal,J.
Hon'ble Vivek Varma,J.
(Delivered by Hon. Vivek Varma, J.)
1.This Jail Appeal, under Section 383 Cr.P.C. through
Superintendent of Jail, Bareilly has been filed by accused
appellant, Shishu Pal, against the judgment and order dated
30.11.2013 passed by Sri Mridulesh Kumar Singh, Additional
Sessions Judge, Court No. 13, Bareilly in Sessions Trial No. 778
of 2011, arising out of Case Crime No. 1303 of 2010, P.S.
Bhamora, District Bareilly, convicting accusedappellant under
Section 302 I.P.C. and sentencing him to undergo life
imprisonment with a fine of Rs. 20,000/ and, in default of
payment of fine, he has to undergo further additional simple
imprisonment of six months.
2.Prosecution story, in brief, is that informant Runka Devi
wife of deceased Netram (PW2) moved written report (ExKa
1) dated 11.10.2010 alleging therein that real nephew of
deceased, namely, Shishupal (accusedappellant) was having a
bad intention on her land and, on that pretext, on 11.10.2010 at
about 9 a.m., when husband of Informant was lying outside at
the back portion of his house, Shishupal armed with a piece of
brick gave multiple blows on his head as a result of which, he
sustained serious injuries. Informant is said to have reached the
Neutral Citation No. - 2019:AHC:65213-DB
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spot and with the help of villagers, namely, Mukesh son of
Rajju, Ahbaran son of Khamani took her husband to District
Hospital but on the way to hospital, he died. She has further
stated that after postmortem examination, she has come to
police station.
3.On the basis of written report (Ext. Ka1) on 11.10.2010 at
17.45., chik F.I.R. was registered against accusedappellant, by
constable Mewaram vide Case Crime No. 1303 of 2010, under
Section 302 IPC, which is (Ext. Ka5) on record. G.D. entry was
also made at the same time in general diary as (Ext. Ka6).
Investigation was entrusted to Sri Rajesh Kumar Tiwari, (I.O.)
concerned. It also appears that after registration of F.I.R., police
started investigation; reached the place of occurrence and
prepared site plan (Ext. Ka 7 & 8), collected plain soil and blood
stained soil, sealed it and prepared recovery memo (Ex Ka3).
4.Accused is said to have been arrested by police on
12.10.2010 at 5.30 a.m. from a closed brickkiln and on
pointing out of accusedappellant, police recovered blood
stained piece of brick from a paddy field, sealed it and prepared
recovery memo (ExKa4). Blood stained clothes, which were
sent by Medical Officer, who had conducted post mortem, were
also sent along with blood stained and plain soil to Forensic
Science Laboratory, Lucknow through constable Jairam Singh
(ExKa9). According to the reports of Forensic Science
Laboratory (ExKa10 & 11), humanblood was found over
contents of the recovered articles, which has been duly proved
by Investigating Officer (P.W.9).
5.Inquest of dead body was prepared on 11.10.2010 at
District Hospital, Bareilly by the police (ExKa2). Other police
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papers were also prepared at the same time and copies were
attached along with inquest report for post mortem by SI Deeraj
Singh Solanki (P.W.10). Dead body along with required police
papers was dispatched for post mortem through Constable
Vikram Nath and Sharad Kumar. Post mortem of deceased was
conducted on 11.10.2010 at 04.50 P.M. by Dr. Suresh Yadav,
Ortho Surgeon, District Hospital, Bareilly (P.W.11). About the
cause of death, he expressed his opinion as under:
“Cause of death due to coma because of injuries
sustained”
6.He described ante mortem injuries as well as internal
examination of dead body as under:
Contusion 14 cm X 10 cm on back of head 6 cm
behind the right ear, 3cm X 2 cm over contusion 10 cm
behind right ear.
vkarfjd ijh{k.k
flj ds ihNs dh vkDlhihVy gM~Mh o nkfguh
iSjkbZVy gM~Mh VwVh gqbZ FkhA f>fYy;ak QaVh gqbZ Fkh
Hkstk QVk gqvk Fkk vkSj mlesa [wku ds FkDds tesa gq,
FksA nksuksa QsQM+s datfLVM Fks g`n; ds nkfgus fgLls esa [kwu ekStwn
Fkk vkek'k; esa vf/kipk [kkuk ekStwn Fkk NksVh vkar esa o cM+h vakr
esa xSl ekStwn Fkh ;d`r datfLVM Fkk 1260 xzke Fkk vkSj fiRrk'k;
vk/kk Hkjk FkkA Iyhgk 180 xzke dk datfLVM Fkk nksuksa xqnsZ 250 xzke
ds Fks vkSj datfLVM FksA
Internal Examination
The occipital bone of the back of the head
and right parietal bone were fractured. Membrane
was lacerated. Brain was lacerated having clotted
blood. Both the lungs were congested. Blood was
present in the right chamber of the heart. Stomach had
semidigested food. Small and large intestines had gas.
Liver was congested weighing 1260 grams. Gall bladder
was halfful. Spleen was congested weighing 180
grams. Both the kidneys were congested weighing 250
grams.
(Emphasis added)
(English Translation by Court)
7.Investigating Officer also interrogated witnesses. After
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completing all formalities, chargesheet (Ext. Ka12) was
submitted by I.O. namely, Sri Rajesh Kumar Tiwari. Concerned
Magistrate took cognizance and case being exclusively triable by
Sessions Court, it was committed to Court of Sessions on
26.7.2011. The case was registered as Sessions Trial No. 778 of
2011. Accusedappellant appeared and prosecution opened its
case describing entire evidence collected by Investigating
Officer. Trial Court also heard accused and framed charge for
the offence under Section 302 IPC on 2.9.2011, which reads as
under:
vkjksi
eSa fouksn dqekj flag] vij l= U;k;/kh'k] dksVZ la0 13] cjsyh
vki vfHk;qDr f'k'kqiky dks fUkEu vkjksi ls vkjksfir djrk gwa%&
;g fd fnuakd 11@10@10 dks le; djhc 09%00 cts lqcg
ogn xzke nsohiqj Fkkuk HkekSjk ftyk cjsyh esa vkius okfnuh eqdnek
Jherh :udk nsoh ds ifr usrjke tkVo dks tku ls ekjus dh
fu;r ls bV ds VqdM+s ls ekj dj flj esa xaEHkhj pksV
igaqpkbZ ftlls usrjke dh e`R;q gks x;hA bl rjg vkius
usr jke dh gR;k dkfjr dhA bl izdkj vkidk mDr d`R; Hkk0 na0
la0 dh /kkjk 302 ds vUrxZr n.Muh; vijk/k gS] tks bl
U;k;ky; ds izlaKku esa gSA
,rn~ }kjk vkidks funsZf'kr fd;k tkrk gS fd mDr vkjksi ds
fy, vkidk fopkj.k bl U;k;ky; }kjk fd;k tkosxkA
CHARGE
I, Vinod Kumar Singh, Additional Sessions Judge,
Court No. 13, Bareilly do hereby charge you, the accused,
Shishu Pal with the following offence:
That on 11.10.2010 at around 9 a.m., at Village
Devipur, PS Bhamora, District Bareilly, you, with the
intent to kill Netram Jatav, i.e. husband of the
complainant Smt Runka Devi, caused grave injuries on
his head by hitting him with a piece of brick which
resulted in his death. In this way, you have committed
Netram's murder. Hence, this act of yours is punishable
u/s 302 IPC, which is within cognizance of this court.
(Emphasis added)
(English Translation by Court)
8.Charge was read over and explained to accused, who
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pleaded not guilty and claimed to be tried.
9.In order to prove its case, prosecution examined eleven
witnesses, namely, P.W.1 Mukesh, who has been declared
hostile, P.W.2 Runka Devi (informant); P.W.3 Ahbaran, an eye
witness as also witness of inquest; P.W.4 Kishan Lal Gautam,
witness of recovery; P.W.5 Ramnath, witness of inquest; P.W.6
Nanhey Lal, witness of Inquest; P.W.7 Jaipal, witness of
recovery; P.W.8 Constable Mewaram, chik writer; P.W.9 S.I.
Rajesh Kumar Tiwari, Investigating Officer who has also proved
recovery memo, site plan and also submitted charge sheet (Ext.
Ka12) in the matter; P.W10 S.I. Dheeraj Singh, who has
prepared inquest report and other police papers in the matter as
Ext Ka15 to Ext. Ka19; and P.W11 Dr Suresh Yadav, who has
conducted post mortem on the dead body of deceased and has
prepared and proved post mortem report (ExKa 20).
10.On conclusion of prosecution evidence, statement of
accusedappellant under Section 313 Cr.P.C. was recorded in
which he has denied entire prosecution story and specifically
stated that he was falsely implicated in this case; Charge sheet
has wrongly been submitted against him by Investigating
Officer, who has not conducted proper investigation; and
witnesses have deposed falsely against him due to previous
enmity. He denied his participation in the alleged incident.
Appellant has not adduced any other evidence, oral or
documentary in his defence.
11.After hearing learned counsel for the parties and going
through the entire evidence available on record, Trial Court
found that ocular evidence of material witnesses coupled with
medical evidence proves guilt of appellant beyond reasonable
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doubt; and there is no contradiction in the statements of
witnesses to disbelieve their testimony. Therefore, Trial Court
convicted and sentenced appellant, as said above.
12.Being aggrieved by aforesaid judgment and order of
conviction and sentence, appellant has come to this court in this
appeal.
13.We have heard Sri Ravi Chandra Srivastava, learned
Amicus Curiae appearing on behalf of appellant and Sri Rishi
Chaddha, learned Additional Government Advocate for State.
14.Learned Amicus Curiae appearing for appellant has
challenged conviction of accused appellant advancing his
submissions in the following manner:
(i)There is a delay in lodging of FIR as distance between
police station and place of occurrence is only two kilometers,
therefore, the same has been lodged with consultation and
deliberation.
(ii)Prosecution witnesses examined in the matter are
interested witness. P.W.3, who is stated to be an eye witness of
the incident is a close relative of deceased and no independent
witness of the locality had come forward to prove incident,
hence his evidence cannot be relied upon being
interested/related/chance witness.
(iii)Prosecution has not been able to show reason/motive to
commit the crime.
(iv)Medical evidence also does not support ocular version.
Nothing has been recovered from the place of occurrence to
connect accusedappellant with this matter. Findings recorded
by Trial Court are perverse.
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(v)The two eye witnesses i.e. PW2 and PW3, are not
reliable and trustworthy as there was no occasion for PW 3 to
remain present at the place of occurrence, yet his presence has
been shown and he has been cited as an eye witness, which
cannot be believed.
(vi)There are major contradiction in the depositions of
witnesses on material points.
(vii)Prosecution could not prove its case beyond reasonable
doubt
15.On the other hand, learned A.G.A. argued that impugned
judgment and order has been passed by Trial Court on the basis
of correct appreciation of facts and evidence. It is a day light
incident with eye witness account; FIR version stands
corroborated by consistent medical evidence and consequently
entire prosecution story cannot be said to be concocted and
after thought. It is further submitted that delay occurred in
lodging FIR has been properly explained by Informant in the
written report itself, which stands corroborated by the evidence
adduced by prosecution. The judgment passed by Trial Judge
needs be approved as no contrary view then what has been
taken in the impugned judgment is possible.
16.It is further submitted that there is strong motive of
appellant to commit the said offence. The said fact is also
established from depositions of P.W.2 (informant) and P.W.3
Ahbaran. The brick was recovered at the instance of appellant,
duly proved by prosecution. Further Forensic Science Laboratory
found human blood on the brick used in the commission of the
offence; place of occurrence was proved by the presence of
blood stained soil; Medical Officer who has conducted post
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mortem also stated in his deposition that injury caused to the
deceased is possible by use of brick or by use of some hard
object, therefore, medical evidence also supports prosecution
version. There is no reason to disbelieve the same and
appellant's guilt is well established to commit murder of the
deceased, therefore, Trial Court had rightly convicted him.
17.We have considered rival submissions made by learned
counsel for parties and gone through entire record carefully.
18.Incident is alleged to have taken place on 11.10.2010 at
9.00 hrs. The Informant is stated to have taken her husband to
the hospital and on the way he died. The information of death
sent to police station Kotwali. The inquest of dead body was
done at District Hospital, Bareilly. It started at 13.20 hrs and
concluded at 15.20 hrs. The dead body was taken for post
mortem examination by Constable CP 1420 Vikram Nath and CP
839 Sharad Kumar, P.S. Kotwali, District Bareilly. Thereafter,
Informant got prepared a written report and lodged the same on
11.10.2010 at 17.45 hrs. Thus, the delay has been properly
explained by the prosecution.
19.In Ramdas Vs State of Maharashtra, (1977) 2 SCC 124,
it has been observed that:
“.......the question whether the delay in lodging
the report adversely affects the case of the prosecution.
That is a matter of appreciation of evidence. There may
be cases where there is direct evidence to explain the
delay. Even in the absence of direct explanation there
may be circumstances appearing on record which
provide a reasonable explanation for the delay.”
20.Further in State of HP Vs Gian Chand, reported in
(2001) 6 SCC 71, Court has observed thus:
“12. Delay in lodging the FIR cannot be used as a
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ritualistic formula for doubting the prosecution case and
discarding the same solely on the ground of delay in
lodging the first information report. Delay has the effect
of putting the Court in its guard to search if any
explanation has been offered for the delay, and if
offered, whether it is satisfactory or not. If the
prosecution fails to satisfactorily explain the delay and
there is possibility of embellishment in prosecution
version on account of such delay, the delay would be
fatal to the prosecution. However, if the delay is
explained to the satisfaction of the court, the delay
cannot by itself be a ground for disbelieving and
discarding the entire prosecution case.”
21.The contention of Learned Amics Curiae that prosecution
witnesses examined in the matter are interested/related/chance
witness in as much as PW3, who is stated to be an eye witness
of the incident, is a close relative (nephew) of Informant as well
as deceased and no independent witness of the locality had
come forward to prove the incident, the said argument cannot
be accepted in view of the evidence as has come on record.
P.W.2. Informant, in her first statement at the time of lodging
FIR had stated that accused had assaulted her husband with a
piece of brick, and when she heard outcries of her husband, she
rushed and saw the accused giving repeated blows with a piece
of brick on the head of her husband. She supported her first
statement throughout her deposition made before Trial Court.
22.PW3 Ahbaran, while supporting prosecution case has
stated that on the date of incident he was in the house of
deceased, as he was called upon by deceased to look after him.
On the date of incident, after hearing outcries of deceased, he
rushed to the spot and saw accusedappellant hitting deceased
with a piece of brick. When he tried to apprehend him, accused
appellant fled away. He further stated that deceased was taken
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to hospital and on the way to hospital he died. He further
clarified in deposition that first accusedappellant threw
deceased on the floor and then gave him repeated blows. He has
also deposed that deceased used to say that he would give all
his property to him. However, accused appellant used to feel
bad whenever he heard it and due to this reason accused
appellant bore animosity against deceased. In cross
examination, he remained very firm and nothing could be
elicited from him by the defence to make his evidence
untrustworthy or doubtful.
23.It is trite law that nonexamination of an independent
witness by itself is not sufficient to raise any suspicion or doubt
as regards the case of the prosecution, if otherwise quality of
evidence of the interested witnesses so examined, is found
credible. It is also well settled legal position that the quality and
not the quantity of witnesses which is material and conviction
can be based even on a single testimony if it is found to be
trustworthy.
24.Thus, we find that the evidence of PW2 Runka Devi, wife
of deceased and that of P.W. 3Ahbaran (nephew of deceased)
on record is trustworthy and reliable. Once Court is satisfied
that witnesses were present at the scene of occurrence and their
evidence inspires confidence then the same cannot be discarded
on the sole ground of relationship with the deceased. Therefore,
there is no reason to disbelieve their testimony merely for the
reason that they are an interested/chance witnesses.
25.In Dalip Singh and others Vs State of Punjab, AIR 1953,
SC 364, Court has observed:
“ We are unable to agree with the learned Judges
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of the High Court that the testimony of the two
eyewitnesses requires corroboration. If the foundation for
such an observation is based on the fact that the
witnesses are women and that the fate of seven men
hangs on their testimony, we know of no such rule. If it is
grounded on the reason that they are closely related to
the deceased we are unable to concur. This is a fallacy
common to many criminal cases and one which another
Bench of this court endeavoured to dispel in Rameshwar
Vs State of Rajasthan, AIR 1952 SC 54. We find,
however, that it unfortunately still persists, if not in the
judgments of the courts, at any rate in the arguments of
counsel. ”
26.Again in Masalti and others VS State of UP, AIR 1965,
SC 202, Court said as below:
“But it would, we think, be unreasonable to contend that
evidence given by witnesses should be discarded only on the
ground that it is evidence of partisan or interested witnesses.
Often enough, where factions prevail in villages and murders
are committed as a result of enmity between such factions,
criminal Courts have to deal with evidence of a partisan
type. The mechanical rejection of such evidence on the sole
ground that it is partisan would invariably lead to failure of
justice. No hard and fast rule can be laid down as to how
much evidence should be appreciated. Judicial approach has
to be cautious in dealing with such evidence; but the plea
that such evidence should be rejected because it is partisan
cannot be accepted as correct.”
27.So far as the contention of Learned Amicus Curiae
appearing for appellant that motive as alleged by the
prosecution is very weak and alleged motive could not have
been the reason for causing murder of deceased Netram, we find
that there is no dispute with the legal proposition that if ocular
version coupled with medical evidence inspires confidence then
even total absence of motive will not have any deleterious effect
upon the prosecution case.
28.However, in the instant case, there appears to be strong
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motive for appellant to commit murder of his uncle (deceased).
P.W.2 Runka Devi in her deposition stated that she does not
have any children; all the three brothers of her husband died
earlier; and her sister's son (P.W.3) always came to her house
and used to take care of his Mausa (deceased). Shishupal
accusedappellant is her real nephew, who lived separately and
had an eye on their land and wanted to get it transferred in his
name. She further deposed that accusedappellant was under
impression that her husband who was real uncle of accused
appellant, would give his entire property to Ahbaran (P.W.3).
P.W.3 in his testimony also claimed that deceased Netram was
his real Mausa, who was prone to illness and as such he was
called upon to stay there and look after him. He further stated
that deceased had been talking of giving his property to him,
and accused appellant used to feel bad whenever he heard it. In
such view of the matter, prosecution in our opinion has
established a strong and compelling motive to commit crime.
29.In State of UP Vs Babu Ram, reported in (2000) 4 SCC
515 in para11 & 12, Court has observed as follows:
"11. We are unable to occur with the legal proposition
adumbrated in the impugned judgment that motive may
not be very much material cases depending on direct
evidence whereas motive is material only when the case
depends upon circumstantial evidence. There is no legal
warrant for making such a hiatus in criminal cases as for
the motive for committing the crime. Motive is a relevant
factor in all criminal cases whether based on the testimony
of eye witnesses or circumstantial evidence. The question in
this regard is whether a prosecution must fail because it
failed to prove the motive or even whether inability to
prove motive would weaken the prosecution to any
perceptible limit. No doubt, if the prosecution proves the
existence of a motive it would be well and good for it,
particularly in a case depending on circumstantial
evidence, for, such motive could then be counted as one of
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the circumstances. However, if cannot be forgotten that it
is generally a difficult area for any prosecution to bring on
record what was in the mind of the respondent. Even if the
Investigating Officer would have succeeded in knowing it
through interrogations that cannot be put in evidence by
them due to the ban imposed by law."
12. In this context we would reiterate what this court has
said about the value of motive evidence and the
consequences of prosecution failing to prove it, in
Nathuni Yadav Vs State of Bihar, {1998 (9) SCC 238}
and State of Himachal Pradesh Vs Jeet Singh {1999
(4 SCC 370}. Following passage can be quoted from the
latter decision:
"No doubt it is a sound principle to remember
that every criminal act was done with a motive
but its corollary is not that no criminal offence
would have been committed if the prosecution
has failed to prove the precise motive of the
accused to commit it. When the prosecution
succeeded in showing the possibility of some ire
for the accused towards the victim, the inability
to further put on record the manner in which
such ire would have swelled up in the mind of
the offender to such a degree as to impel him to
commit the offence cannot be construed as a
fatal weakness of the prosecution. It is almost
an impossibility for the prosecution to unravel
the full dimension of the mental disposition of
an offender towards the person whom he
offended."
30.So far as medical evidence is concerned, Dr. Suresh Yadav
(P.W.11), had conducted postmortem (vide ExKa20) on the
body of the deceased. He noticed fracture of occipital and
parietal skull bone. In his opinion, cause of death was due to
coma because of injuries sustained. Medical officer has opined
in his deposition that injuries sustained were ante mortem in
nature, which might be caused by hard and blunt object like
brick. If the opinion expressed by P.W.11 Dr. Suresh Yadav is
compared with facts and evidence of present matter, findings
recorded by Trial Court on this issue need no interference as
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prosecution case is that when P.W2 (informant) reached on the
spot, she saw accusedappellant hitting deceased on his head
with a piece of brick and when she tried to save her husband,
accused fled from the spot. P.W.3 Ahbaran (nephew of
informant) has also deposed before Trial Court that on hearing
cries of deceased, he reached the spot and saw accused
appellant hitting deceased on his head with a piece of brick and
when he tried to apprehend the accused, he fled from the spot.
The version in F.I.R. about manner of incident finds support
with medical evidence. On close scrutiny of evidence on the
issue of medical evidence, we are of the view that deceased died
due to injuries sustained by him and caused by appellant. There
is no conflict between ocular and medical evidence.
31.Learned Amicus Curiae appearing for appellant in the last
contended that injuries sustained by deceased could be due to
sudden fall on the ground as P.W.3 in his testimony stated that
deceased was not keeping well. This argument of appellant also
cannot be accepted inasmuch as no defence evidence has been
adduced by appellant, either oral or documentary, to
substantiate this plea. Therefore, there is no substance in the
argument of Learned Amicus Curiae appearing for appellant that
injuries sustained by deceased were not sufficient, in ordinary
course of nature, to cause his death and also there is no reason
to disbelieve the testimony of P.W.11 Dr Suresh Yadav, which is
otherwise trustworthy.
32. As far as presence of P.W.2 and P.W.3 is concerned, we
find no reason to doubt it. P.W.2 Informant of the case is the
wife of deceased and incident took place at her house therefore
her presence is most natural. P.W.3 Ahbaran, who is son of
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Informant's sister had also deposed before Trial Court that he
used to visit house of his Mausa (deceased) to look after him,
who was issueless, and he reached the place of occurrence after
hearing cries of deceased and saw accusedappellant committing
the present offence. This fact is also supported by statement of
PW2 (informant). We find nothing unnatural and unusual
therein.
33.The site plan (ExKa8) shows that houses of deceased as
well as accused appellant are adjacent to each other. At the back
portion there is an open place, which opens at the field of Nafis
Khan, from where blood stained brick was recovered. Thus, the
perusal of site plan also supports prosecution version.
34.Therefore, we are of the view that findings recorded by
Trial Court about presence of PW2 and PW3 at the place of
occurrence cannot be termed to be perverse and same is based
on correct appreciation of facts and evidence. There are eye
account witnesses and their statements made before Court on
oath regarding involvement of accused appellant in the present
offence and the same are consistent, clear and cogent. There is
no contradiction in the statement of P.W.2 and P.W.3, which
also finds support with medical evidence. Even in their cross
examination, P.W.2 and P.W.3 have supported prosecution
version. Prosecution was also able to prove beyond reasonable
doubt the manner in which present offence was committed by
accusedappellant as also date, time and place of incident. Thus,
findings recorded by Trial Court about guilt of accusedappellant
for committing murder of deceased Netram need no
interference.
35.P.W5 & P.W. 6 are the witness of inquest. They have duly
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proved the inquest to have been prepared in their presence.
36.P.W4 & P.W7 are witnesses of recovery and have proved
the recovery memo (Ex Ka3 & Ka 4) and have duly supported
prosecution version. P.W.4 Kishan Lal Gautam and P.W.7
Jaipal in their depositions admitted that the piece of brick (Ex
Ka10) soaked in blood was recovered at the instance of accused
appellant on 12.10.2010.
37.P.W8 is a formal witness, who has prepared chick report
on the basis of the written report (ExKa1).
38.PW9 is Investigating Officer of the case, who has duly
supported prosecution case.
39.As per FSL report (Ex. Ka 10), blood was found on the
brick recovered from the paddy field at the disclosure of
accusedappellant.
40.Close scrutiny of the evidence makes it clear that on
11.10.2010 it is the accusedappellant who had murdered
husband of Informant by repeated blows on his head with a
piece of brick. Eye witnesses to the incident, PW2 and P.W.3,
have categorically stated the manner in which deceased was
assaulted by accusedappellant. Both these witnesses (PW2 &
PW3) have duly supported prosecution version. The evidence of
witnesses finds due corroboration from medical evidence
(postmortem report of the deceased), according to which
corresponding injuries by hard and blunt object were noticed on
the person of deceased. This apart, from the paddy field, a blood
stained piece of brick (ExKa4) was recovered which has been
duly proved by prosecution and according to FSL report (Ex. ka
10) presence of human blood on the brick was confirmed.
41.P.W.4 Kishanlal Gautam, who is also resident of same
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village, in his statement before court stated that after arrest of
accusedappellant on 12.10.2010. Police recovered the brick,
which was soaked with human blood, from the paddy field of
one Nafees Khan on the basis of his disclosure statement. P.W7
Jaipal also corroborated the said fact and there is nothing
contradictory to disbelieve their testimonies otherwise. Further
even in the testimony of P.W.9, I.O. Rajesh Kumar Tiwari, the
said fact gets corroborated.
42.Court in State of Maharashtra vs. Damu, JT 200 (5) SC
575: 2000 (6) SCC 269, has held:
"13. While dealing with the fundamental facet of Section 27
of the Evidence Act, the Court observed that the basic idea
embedded in the said provision is the doctrine of confession
by subsequent events, which is founded on the principle that
if any fact is discovered in a search made on the strength of
any information obtained from a prisoner, such a discovery
is a guarantee that the information supplied by the prisoner
is true. It further stated that the information might be
confessional or noninculpatory in nature, but if it
results in discovery of a fact it becomes a reliable
information and, therefore, the legislature permitted
such information to be used as evidence by restricting
the admissible portion to the minimum.
14. Thus, if an accused person gives a statement that
relates to the discovery of a fact in consequence of
information received from him is admissible. The rest
part of the statement has to be treated as inadmissible. In
view of the same, the recovery made at the instance of the
accusedappellant has been rightly accepted by the trial
Court as well as by the High Court, and we perceive no flaw
in it."
(Emphasis added)
43.Thus, on the basis of aforesaid ocular and medical
evidence involvement of the accusedappellant in commission of
the offence stands proved beyond all reasonable doubt. The
accused/appellant assaulted the deceased repeatedly with a
18
piece of brick on his head, thereby causing fracture of occipital
and parietal bone of skull and two contusions on the head. If the
act of the accusedappellant is seen in the background of facts
and circumstances of the case, it is quite evident that the
accusedappellant acted in a cruel manner, he had intention to
cause death of deceased and also had every knowledge that the
injuries being so inflicted by him on deceased would result in his
death. The prosecution has successfully proved the guilt of the
accusedappellant on the basis of evidence adduced by it and
the Trial Court was fully justified in holding the appellant guilty
under Section 302 of IPC.
44.Finally, learned Amicus Curiae for the appellant while
pointing out that accusedappellant has served more than eight
years in jail, pleaded for leniency. We are unable to accept the
above claim for the appellant as the prosecution has established
his case beyond reasonable doubt. Since we are affirming the
conviction under Section 302 IPC, Court cannot impose a lesser
sentence than what is prescribed by law.
45.So far as sentence regarding appellant Shishu Pal 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.
46.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
19
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].
47.Hence, applying the principles laid down by the Apex
Court in the aforesaid judgments and having regard to the
totality of facts and circumstances of case, nature of offence and
the manner in which it was executed or committed, we find that
punishment imposed upon accusedappellant Shishu Pal by Trial
Court in impugned judgment and order is not excessive or
exorbitant and no question arises to interfere in the matter on
the point of punishment imposed upon him.
48.In view of above discussion, the appeal is dismissed.
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Impugned Judgment and order dated 30.11.2013 passed by Sri
Mridulesh Kumar Singh, Additional Sessions Judge, Court No.
13, Bareilly in Sessions Trial No. 778 of 2011, arising out of
Case Crime No. 1303 of 2010, P.S. Bhamora, District Bareilly
awarding sentence of imprisonment for life to accused
appellant, Shishu Pal for the offence under Section 302 IPC, is
maintained and confirmed.
49.Lower Court record along with the copy of this judgment
be sent back immediately to court concerned for necessary
compliance. A Copy of this judgment be also sent to accused
appellant through Jail Superintendent concerned for initiation
forthwith. Compliance report be also submitted to this Court.
50. Mr. Ravi Chandra Srivastava, learned Amicus Curiae has
assisted the Court very diligently. We provide that he shall be
paid counsel's fee as Rs.10,000/. State Government is directed
to ensure payment of aforesaid fee through Additional Legal
Remembrancer posted in the office of Advocate General at
Allahabad to Mr Ravi Chandra Srivastava, Amicus Curiae,
without any delay and, in any case, within 15 days from the
date of receipt of copy of this judgment.
Order Date : 19.4.2019
Ravindra Kr. Singh
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