Ram Subhag And Anr vs State
2018 Latest Caselaw 3138 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

				A.F.R.
 
 JUDGMENT RESERVED ON : 18.09.2018
 
	      JUDGMENT DELIVERED ON : 09.10.2018
 
Case :- CRIMINAL APPEAL No. - 429 of 1983
 

 
Appellant :- Ram Subhag And Anr
 
Respondent :- State
 
Counsel for Appellant :- S.P. Singh,K.M. Tripathi,M.P. Singh, Sagir Ahmad (A.C.)
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Om Prakash-VII,J.

(Delivered by Om Prakash-VII, J.)

1. Present Criminal Appeal has been preferred by accused-appellants against judgment and order dated 16.2.1983 passed by Additional Sessions Judge, Mirzapur in Session Trial No. 99 of 1982 (State of U.P. Vs. Ram Sunbhag and another) under Section 302/34 I.P.C., Police Station Chopan, the then District Mirzapur, presently district Sonbhadra convicting and sentencing accused appellant Ram Subhag for the offence under Section 302 IPC for life imprisonment and accused appellant Banshdhari under Section 302 read with Section 34 IPC for life imprisonment.

2. Prosecution case as mentioned in chik first information report (FIR) (Ext. Ka-1), are as follows:

3. Informant Bhagwan Prasad son of Ram Lakhan gave oral information to the police of Police Station Chopan (the then district Mirzapur) on 7.4.1981 at 12.15 hrs. to the extent that he is resident of village Kaspani, Police Station Chopan, district Mirzapur and there was a complaint regarding illicit relations between the wife of Ram Subhag and informant's younger brother Birbal and on many occasions hot talk took place between them and due to that enmity when Birbal was returning from Obra at about 8 P.M. Ram Subhag and Banshdhari both started beating Ram Subhag and Birbal near the hill of the village. It was also informed by the informant that when Birbal made hue and cry loudly, informant, Amrit Lal, Buddhu, Ram Nath, Bihari and other village people rushed towards the place of occurrence flashing torch light then they saw Ram Subhag causing injury on the chest of Birbal (deceased) by bow and arrow. Accused appellant Banshdhari had caught hold the deceased at the time of incident. When informant and other witnesses reached the place of occurrence accused persons ran away towards hill. Informant and other witnesses reached the place of occurrence also chased accused persons flashing torch light but they could not be apprehended. Bribal died on the spot due to injuries caused by Ram Subhag by an arrow. It was also informed by informant that arrow is stuck in the body of the deceased. Since it was night hour, therefore, informant could not come to lodge FIR. Instead, in wee hours, proceeded to Police Station concerned leaving dead body at the place of occurrence under the supervision of Ram Lakhan, father of deceased and village Chaukidar Jai Prasad. Chik FIR was registered on 7.4.1981 at 12.15 p.m. against accused appellants at crime no. 80 of 1981, under Section 302 IPC. Entry in General Diary (G.D.) was also made at the same time which is Ext. Ka-2.

4. Investigation commenced and Investigating Officer along with other police personnel reached the place of occurrence at about 2.15 p.m. on the same day and recorded statement of informant and inspected dead body of deceased which was lying on the spot under the supervision of above mentioned persons. Arrow was found stuck in the body of deceased. Investigating Officer when tried to take out arrow from the body of deceased only wooden part of arrow could be taken out. Main portion of arrow remained in the body of deceased. The part of arrow taken out from the body of deceased by Investigating Officer was kept in sealed cover and sample seal was also prepared. Recovery memo (Ext. Ka-16) was prepared in this regard. Piece of arrow is material Ext. 8. Bed cover and Gamchha (towel) were also taken out from the body of deceased and kept in sealed cover preparing sample seal and memo (Ext. Ka. 17). Bed cover Gamchha are material Ext. 5 and 6. Investigating Officer has also prepared inquest report in presence of witnesses which is Ext. Ka-2. Other police papers, letter to R.I. (Ext. Ka-4); letter to C.M.O. (Ext. Ka-5); photo lash (Ext. Ka-8); challan nash (Ext. Ka-7) were also prepared by him at the same time and dead body was kept in sealed cloth preparing the sample seal. Dead body along with required documents was dispatched through Constables Raghunath Yadav and Sadanand for post mortem. Investigating Officer has also taken blood stained and plain earth from the place of occurrence and kept it in sealed boxes. Recovery memo (Ext. Ka-18) was prepared. Soil taken from the place of occurrence are Material Ext. 9 and 10. Investigating Officer has also investigated the place of occurrence and has prepared site plan (Ext. Ka-19). Torches said to have been used by witnesses were also taken into custody and after preparing recovery memo same were handed over to witnesses. Fard regarding search made by Investigating Officer of the houses of accused is Ext. Ka-20. Investigating Officer has also recorded statement of witnesses under Section 161 Cr. P.C.

5. Post mortem on the dead body of deceased was conduced on 8.4.1981 at 10 A.M. Deceased was found aged about 25 years. Probable time of death of the deceased was 1-1/2 day. Post mortem staining was absent. Dead body was swollen. Rigor mortis was passed of and skin was peeled of at certain places.

6. On examination of body following ante mortem injuries were found :

"Punctured wound 5 cm x 2 cm cavity deep on the right side of chest just below 14 cm of the right collar bone. Dimension of the injury was right to left backward".

7. In the internal examination 12th rib was found fractured and stomach was found ruptured in an area of 4 cm x 2 cm and point of the arrow was found inserted in this injury. Digested food was also found in the stomach. Liver was also found ruptured in an area of 5 cm x 2 cm. Fecal matter was found in large and small intestine. Two liter blood was found in the abdomen. Cause of death was shown in the post mortem report due to shock as a result of ante mortem injuries. It was also opined by Doctor concerned that death of deceased could take place on 6.4.1981 at about 8 P.M.

8. Doctor conducting post mortem has taken out arrow from the body of deceased which is Material Ext. 7 and the same was kept in sealed cover along with clothes found on the body of deceased which are Material Ext. 1, 2, 3 and 4. All material found on the body of deceased along with police papers were sent to Investigating Officer concerned.

9. On completion of investigation and fulfilling entire formalities charge sheet (Ext. Ka-21) was submitted against accused appellants. Concerned Magistrate took cognizance and case being exclusively triable by the Sessions Court was committed to the Court of Sessions.

10. Accused appeared and prosecution opened its case describing entire evidence collected during investigation and proposed to be adduced during trial. Trial Court after hearing parties framed charge under Section 302 IPC against appellant Ram Subhag and under Section 302 read with Section 34 IPC against accused appellant Banshdhari. Charges framed against accused appellants were read over to accused. They denied and pleading not guilty claimed their trial.

11. In order to prove its case prosecution examined ten witnesses, P.W.-1 Bhagwan Prasad, informant; P.W.-2 Ram Nath, an eye account witness; P.W.-3 Constable Mohd. Ibrahim; P.W.-4 Bihari Lal, an eye account witness; P.W.-5 Constable Moharrir Baldau Singh; P.W.-6 Sewa Lal, Clerk of District Hospital, Mirzapur; P.W.-7 Ram Avadh Mishra, who has prepared the post mortem report; P.W.-8 Constable Sadanand, who carried the dead body to the mortuary; P.W.-9 Head Constable Udai Raj Singh, Chik Writer and P.W.-10 Yogendra Singh, the then Station Officer of the Police Station concerned.

12. It appears that after completion of prosecution evidence, statement of accused appellants was recorded in which they have stated prosecution case false and also that a pathway (pagdandi) is available which goes to Police Station and only three miles away from village concerned but informant did not opt the same. Papers prepared by police are false and fabricated. Ext. Ka-13 and Ext. Ka-14 relating to material recovered in the incident were also said to be false. Distance between Police Station concerned and place of occurrence, as stated by prosecution as 14 miles, was also said to be false. Ext. Ka-2, Ext. Ka-4 to Ext. Ka-9 were also said to be prepared on the basis of false facts. Facts mentioned in the post mortem report were also denied and it was stated that death of deceased was not result of injuries found on the body of deceased. Recovery of clothes belonging to deceased and the arrow from the body of deceased was said to be false. Recovered material were never kept in Sadar Malkhana, Mirzapur nor it remained intact till production before Trial Court. Accused appellants have also denied the facts mentioned in the report of Forensic Science Laboratory (Ext. Ka-22). Recovery of part of arrow from the body of deceased by Investigating Officer Yogendra Singh and clothes found at the place of occurrence near the body were also said to be false. Preparation of inquest report and other police papers at the place of occurrence were also denied. Recovery of torches said to have been made by Investigating Officer was also false. Charge sheet was submitted on insufficient evidence. Witnesses are related to each other and are belonging to same pedigree, therefore, they have made false statement before the Court. Prosecution was started due to enmity. It was specifically stated that P.W.-1 is resident of Agarhawa Tola which is two miles away from the place of occurrence. Village Kaspani is situated one mile away from the place of occurrence. Deceased had illicit relations with so many females. FIR was lodged on the advice of Station Officer concerned in the night on second day.

13. It appears that accused appellants did not adduce any oral or documentary evidence in support of their defence.

14. Trial Court after hearing parties was of the view that prosecution was able to bring home charges framed against accused appellants beyond reasonable doubt and convicted and sentenced them as above, hence this appeal.

15. We have heard Sri Sagir Ahmad, learned Amicus Curiae for appellants, Sri Rishi Chaddha, learned A.G.A. and perused the entire record.

16. Submission of learned Amicus Curiae appearing for accused appellants is that appellants are innocent and have not committed the present offence. Prosecution was not able to prove its case beyond reasonable doubt. Incident is said to have taken place in the night at about 8 P.M. P.W.-1, P.W.-2 and P.W.-4 were not present on the spot nor they have seen the incident. Deceased was done to death in other manner by other persons. Accused appellants were falsely implicated due to enmity. It was next contended that entire prosecution story is improbable and unbelievable. Injuries found on the body of deceased could not be caused in the manner and style stated by the prosecution witnesses. There are major contradiction in their statement on material point. Inquest report and other police papers were prepared at the Police Station concerned. FIR was also lodged on the advise of Station Officer concerned and due to that reason there are discrepancies on the material point in statement of prosecution witnesses. Referring to statement of P.W.-1, P.W.-2 and P.W.-4, it was also argued that there is contradiction in their statement as to whether after hearing hue and cry they gathered at the house of P.W.-1 Bhagwan Prasad at first or they moved directly to the place of occurrence. Learned Amicus Curiae also drew attention of the Court to the site plan and argued that presence of eye account witnesses at the place of occurrence is improbable in the manner stated by them. It is also argued that village Chaukidar is said to be present at the place of occurrence in the night at about 4 A.M. This fact itself indicate that local police had been informed about the incident and it also indicates that all police papers were prepared after consultation with the police. Date, time and place of occurrence has also not been established by the prosecution beyond reasonable doubt. Medical evidence is contrary to the oral version. Thus, prayer was made to allow the appeal, acquit the accused appellants. In support of his submissions Amicus Curiae relied upon the case of Sampath Kumar Vs. Inspector of Police, Krishnagiri, (2012) 4 SCC 124.

17. Sri Rishi Chaddha, learned A.G.A. argued that prosecution was able to prove its case beyond reasonable doubt. Date, time and place have also been proved. P.W.-1, P.W.-2 and P.W.-4 are eye account witnesses. They reached on the spot flashing torch light after hearing hue and cry and they saw the accused appellants committing present offence. Medical version supports the oral version. Inquest and other police papers were prepared at the place of occurrence itself by Investigating Officer, thereafter dead body was taken to the mortuary. Since route for going to mortuary is via Chopan, therefore, on this ground that dead body was carried via Chopan, prosecution case cannot be disbelieved. Motive alleged in the FIR has been proved. Witnesses are natural and probable witnesses. Contradiction or inconsistency said to have been occurred in the prosecution evidence are not fatal to the prosecution case. Findings recorded by Trial Court are based on correct appreciation of facts and evidence. There is no illegality and infirmity.

18. We have considered rival submissions and have gone through the entire record.

19. In this matter, as is evident, from the record that offence is said to have been committed on 6.4.1981 at 8 P.M. near the hill situated in village Kaspani. FIR was lodged on 7.4.1981 at 12.15 P.M. Distance between place of occurrence and Police Station is 14 miles. Prosecution case is also that P.W.-1 Bhagwan Prasad proceeded to Police Station concerned in the morning of 7.4.1981 leaving dead body under the supervision of Chaukidar concerned and family members by foot. Chik FIR is lodged on the basis of oral information given by P.W.-1. It also appears that Investigating Officer concerned after registering the case, fulfilling formalities proceeded to the place of occurrence on jeep. Informant also accompanied him. It is also evident from the inquest report and other police papers prepared at that time that these papers were prepared at the place of occurrence. Towel and bed cover found on the body of the deceased were also taken by Investigating Officer and he has also tried to take out arrow from the body of deceased but it was broken and main part of the arrow remained inserted in the body. Fard is also prepared in regard to Gamcha (Towel), bed cover and arrow.

20. Dead body was despatched through Constable to Mortuary. Post mortem was conducted on the next day i.e. 8.4.1981. It is also evident from record that P.W.-1, P.W.-2 and P.W.-4 had reached on the spot hearing hue and cry flashing torch light and had seen the incident. Role assigned to accused appellant Ram Subhag is that he inflicted arrow injuries upon deceased which hit in right chest and the role assigned to Banshdhari is of catching hold of Birbal. Cause of death of deceased shown in post mortem report is due to ante mortem injuries.

21. It is also evident from record that there is contradiction in the statement of P.W.-1 and P.W.-2. Whether P.W.-2 firstly reached at the house of P.W.-1 and thereafter they proceeded collectively to the place of occurrence or P.W.-2 directly moved towards the place of occurrence making hue and cry. Nothing is disclosed in the prosecution evidence how the Chaukidar concerned received information about the incident. Time consumed by the witnesses in reaching the place of occurrence after hearing hue and cry also vary in their statement. P.W.-1 Bhagwan Prasad has also admitted that at one point of time that when he reached second time at police station then his thumb impression was got there.

22. If the law laid down in Sampath Kumar (Supra) case is taken into consideration the fact of the present matter is entirely different with the fact of Sampath Kumar case. Minor contradiction are bound to appear in the statement of truthful witness as as memory some time plays false and sense of observation differs from person to person. Thus discrepancies in testimony of a witness caused by memory lapses are acceptable. In the present matter there is no material improvement in the prosecution case. P.W.-1, P.W.-2 and P.W.-4 are natural and probable witnesses. Their testimony on material points are constant and clear. There is no contradiction in their statement on material point, therefore, they are wholly reliable witnesses. Minor variations on some point in their statement are not sufficient to place them in the category of unreliable witness. Motive has also been proved. Motive alone can hardly be a ground for conviction but on comparing facts of the present matter with the facts of the case of Sampath Kumar (Supra), we are of the view that the appellants cannot get any benefit from the law laid down in the case of Sampath Kumar (Supra).

23. Thus on the basis of above factual backdrop submissions raised by the learned Amicus Curiae has to be analysed.

24. Incident is said to have taken place on 6.4.1981 at about 8 P.M. in the night near the hill of village Kaspani when deceased was returning from the Obra after selling wood. FIR was lodged on 7.4.1981 at 12.15 P.M. Distance between place of occurrence and Police Station is 14 miles. It is also prosecution case that P.W.-1 Bhagwan Prasad proceeded for Police Station in the morning on 7.4.1981. Thus in the present matter FIR came into existence after a gap of about 16 hrs. Explanation regarding delay in lodging FIR has been given by prosecution that P.W.-1 did not proceed to Police Station concerned in the night just after incident as the way to reach Police Station was via forest. P.W.-1 has also proceeded to Police Station concerned by foot. Certainly in covering of distance of 14 miles (21 kms) much time would have been consumed by P.W.-1. Prosecution case is that it takes five to six hours to reach Police Station. If informant proceeded from place of occurrence in the morning of 7.4.1981 and five to six hours is consumed in reaching Police Station concerned and if these facts are taken into consideration, existence of FIR at the time mentioned in it is not doubtful. Delay occurred in lodging of FIR has been properly explained by the prosecution which also stands fit in the present matter. It is immaterial whether other route available to reach Police Station via Obra was not opted by P.W.-1. He has also explained this fact that if gone via Obra then much expenses would incurred. If entire facts and evidence available on record are minutely analysed with the submission raised by the learned counsel for the parties it can also not be held that FIR is the result of consultation/after thought with the police. If the contents of chik FIR are taken into consideration, P.W.-1 had categorically stated every facts to the police concerned in his language. Chik FIR is also registered in the language of P.W.-1. This fact also falsify the submissions raised by learned Amicus Curiae. Opinion formed by Trial Court regarding existence of FIR on the date and time mentioned in it is based on correct appreciation of facts and evidence and no interference is required by this Court on this issue. Inquest report and other police papers have been prepared on the spot.

25. As far as motive is concerned, in the FIR it is mentioned that deceased had illicit relations with the wife of accused appellant Ram Subhag. Quarrel also took place between them before the festival of Holi and due to that enmity accused appellants committed the present offence. This fact was also supported by P.W.-1 in the statement made before the Court on oath. P.W.-2 and P.W.-4 are not related to the family of deceased and they are not witness of this fact. Thus there remains only statement of P.W.-1 on this issue. Trial Court while passing impugned judgment and order was of the view that it is amply proved that accused appellant had every motive to commit murder of Birbal which has been proved by the prosecution beyond reasonable doubt. Suggestion of the defence has no substance. If the findings recorded by Trial Court on this issue is compared with the evidence available on record, no illegality is found in the finding. Prosecution has established motive assigned to accused appellant to commit the present offence. There is ocular evidence in the present matter, therefore, medical evidence as well as statement of eye account witnesses have to be scrutinized carefully and cogently because some time such type of motive become a ground for false implication also.

26. So far as medical evidence is concerned, prosecution case is that accused appellant Ram Subhag caused injuries upon deceased with the help of arrow. When Investigating Officer reached the place of occurrence he found arrow stuck in the body of deceased. He tried to remove arrow but it was broken and main part remained present in the body itself. Post mortem report prepared in the matter also reveals that one punctured wound of the size of 5 cm x 2 cm x cavity deep on right side of chest below right collar was found. In internal examination twelth rib was found fractured. Stomach was also found ruptured in an area of 4 cm x 2 cm and point of the arrow was found stuck in the said injury. Liver was also found ruptured in an area of 5 cm x 2 cm. In the opinion of Doctor cause of death of deceased was due to ante mortem injuries found on the body of deceased and also injuries found on stomach and liver. He has also stated that death of deceased took place at about 8 P.M. on 6.4.1981. If prosecution stand taken in FIR and stated by prosecution witnesses as well as medical evidence are taken cumulatively, it emerges that deceased died due to injuries caused upon him on 6.4.1981 at 8 P.M. and medical evidence supports prosecution version. Trial Court while forming opinion on this issue was also of the same view. Thus finding recorded by Trial Court on this point need no interference by this Court.

27. As far as the presence of P.W.-1, P.W.-2 and P.W.-4 at the place of occurrence on date and time of the offence is concerned, at initial stage none of them were present over there. Deceased was returning from Obra market after selling wood. When he reached the place of occurrence he was said to be assaulted by accused persons. Prosecution evidence is also that on hue and cry of deceased, informant and other witnesses within few minutes reached at the place of occurrence. If the statement of P.W.-1, P.W.-2 and P.W.-4 about their presence at the place of occurrence is compared with the topographical details shown in the site plan it is evident that house of P.W.-1 is about 150 yards away from the place of occurrence. Houses of other witnesses were also situated in the same locality. It was night hour at about 8 P.M. thus their presence in their houses cannot be said to be unnatural and improbable. Although P.W.-2 in his statement before the Court on oath has stated that when he was returning from his field he heard hue and cry from the place of occurrence and he rushed directly towards that place. There is contradiction in the statement of P.W.-1 and P.W.-2 on this point as to whether P.W.2 also initially gathered at the house of P.W.-1 along with other witnesses and thereafter they rushed together towards the place of occurrence or P.W.-2 had directly moved towards the place of occurrence. If this situation is analysed in the light of entire evidence this fact is consistent and clear that all the witnesses almost at a time reached at the place of occurrence hearing hue and cry flashing their torches. As has been mentioned herein above, it was night hour at about 8 P.M., therefore, presence of P.W.-2 and P.W.-4 at the place of occurrence in the manner and style stated by them cannot be disbelieved. Although they are chance witness but they reached on the place of occurrence hearing hue and cry, thus they come under the category of natural witnesses. Hue and cry made from the place of occurrence by deceased could easily be heard from the houses where the witnesses were present. It is also noteworthy that P.W.-1 is brother of deceased, P.W.-2 and P.W.-4 are also related to deceased. Their statement is consistent and clear on this point that they were present at the time of occurrence either in their houses or on the way which is within a distance of about 150 paces from the place of occurrence. If such is the position these witnesses will respond immediately after hearing hue and cry raised from the place of occurrence. Thus reaching of witnesses at the place of occurrence cannot be disbelieved only on the ground that they are closely related to deceased. Since they are natural and probable witnesses, their statement is also supported by medical evidence, thus presence of P.W.-1, P.W.-2 and P.W.-4 on the spot at the time of occurrence cannot be disbelieved. Findings recorded by Trial Court on this issue is also based on correct appreciation of evidence. Contradiction in statement of these witnesses on some point may be the result of non understanding of question put in the cross examination or loss of memory or may be due to the reason that they are rustic witnesses. It is not possible for a witness to recapitulate every minute detail of incident occurred at the place of occurrence. Exaggeration, embellishment or contradiction are bound to occur in the statement of truthful witnesses. No criminal case is free from such discrepancies. If there are minor variation which do not affect the root of the case on material point, the statement cannot be disbelieved. In the instant matter oral version on material point of these three witnesses find full support with the medical evidence.

28. As far as involvement of accused appellants in the present matter and role assigned to them is concerned, admittedly at the place of occurrence before reaching the witnesses there was no source of light. If prosecution case is taken into consideration, accused appellants and the deceased were only present there. Prosecution witnesses examined on this point have stated that accused appellant Ram Subhag was about 8 to 10 paces away from the deceased. Site plan (Ext. Ka-19) indicates that distance between deceased and accused appellant Ram Subhag was about 20 paces. Distance shown in site plan and stated by Pws are based on assumption therefore, contradiction in the prosecution case on this point is not fatal to the prosecution case. Prosecution case is also that accused appellant Ram Subhag from the place shown as 'A' in the site plan caused injuries by the arrow to deceased at place 'X'. Role assigned to accused-appellant Banshdhari is of catching hold of left hand of deceased and injuries is found on right side of chest of deceased.

29. Learned Amicus Curiae appearing for appellants has urged that it appears improbable and unbelievable that a person aged about 25 years would remain in static condition at the place of occurrence only by catching hold of a hand by a person aged about 50 years. He has also argued that no other role is assigned to accused appellant Banshdhari except of catching hold of the left hand of deceased. If prosecution evidence about involvement of accused appellant Banshdhari, as stated by prosecution witnesses are taken into consideration then there was chance/apprehension that arrow shot by accused appellant Ram Subhag might hit the co-accused Banshdhari also. Injury caused by accused appellant could come in the manner and style stated by prosecution witnesses only when deceased was standing in static motion. If entire prosecution case about involvement of Banshdhari is minutely scrutinized in its entirety, no other role is assigned to him except catching hold of left hand of deceased, thus, prosecution evidence about his involvement appears to be doubtful.

30. As far as involvement of Ram Subhag is concerned, prosecution evidence about role assigned to him is clear, consistent and cogent. Injury was caused by arrow by this accused and this fact is not only supported by P.W.-1, P.W.-2 and P.W.-4 as also by the statement of Doctor concerned who conducted post mortem. Blood found at the place of occurrence and earth taken by Investigating Officer concerned also establishs correctness of this fact.

31. Thus finding recorded by Trial Court about involvement of appellant Ram Subhag is based on correct appreciation of evidence, but, applying rule of caution, we are of the view that involvement of accused appellant Banshdhari in the present matter appears to be doubtful especially when except to catching hold of one hand no other role is assigned to him nor he has caused any injury to the deceased.

32. Findings recorded by Trial Court about involvement of accused appellant Banshdhari is perverse and conviction and sentence awarded to appellant Banshdhari is liable to be set aside.

33. Thus, appeal in respect of the appellant Banshdhari is liable to be allowed. Appellant Banshdhari is liable to be acquitted from the charges framed against him under under Section 302 read with Section 34 IPC.

34. So far as sentence regarding appellant Ram Subhag 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.

35. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide : (Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].

36. 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 accused appellant Ram Subhag by the Trial Court in the 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 the appellant Ram Subhag.

37. In view of the facts and circumstances discussed above, appeal in respect of appellant Ram Subhag is liable to be dismissed.

38. Accordingly present Appeal is partly allowed. Conviction and sentence imposed upon accused appellant Ram Subhag vide impugned judgment and order is affirmed. Accused-appellant is in jail. He shall serve out the remaining sentence.

39. Appellant Banshdhari is not found guilty and he is acquitted from the charges framed against him under Section 302 read with Section 34 IPC. He is in jail. He shall be released forthwith after completing all the formalities, if not required in any other case.

40. Copy of this judgment along with lower court record be sent forthwith to the Sessions Judge concerned for compliance. A copy of this order be also sent to appellants through concerned Jail Superintendent. Compliance reports be also sent by all concerned to this Court.

41. Keeping in view provisions of Section 437-A Cr.P.C., appellant Banshdhari is directed to forthwith furnish a personal bond of the sum of Rs. fifty thousand and two reliable sureties each in the like amount before Trial Court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the appellant on receipt of notice thereof shall appear before Hon'ble Supreme Court.

42. Sri Sagir Ahmad, learned Amicus Curiae has assisted the Court very diligently. We provide that she 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 Sri Sagir Ahmad, Amicus Curiae without any delay and in any case within 15 days from the date of receipt of copy of this judgment.

Order Dated :09-10-2018

Sachdeva