Sadhu Singh vs State Of U.P.
2018 Latest Caselaw 2370 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
AFR
 
Reserved on 20.08.2018
 
Delivered on 07.09.2018
 

 
Case :- JAIL APPEAL No. - 3034 of 2011
 

 
Appellant :- Sadhu Singh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,S.V. Singh,Sudhir Shukla
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Om Prakash-VII,J.

(By Om Prakash-VII, J.)

1. Present jail appeal has been preferred by accused-appellant Sadhu Singh against judgment and order dated 06.04.2006 passed by Additional Sessions Judge, Court No. 3, Etah in Sessions Trial No. 665 of 2003 arising out of Case Crime No. 89 of 2003 (State of U.P. Vs. Sadhu Singh) under Section 302 I.P.C., Police Station Jaithara, District Etah convicting and sentencing accused appellant for the offence under Section 302 I.P.C. with imprisonment for life and also fine of Rs. 3,000/-. In the event of default in payment of fine, accused-appellant was also directed to undergo one year's additional imprisonment.

2. Prosecution story in nutshell, as unfolded in written report Ext. Ka-1, is as follows:

3. Informant PW-1 Kanhaiya Lal moved written report Ext. Ka-1 scribed by Viresh Kumar at police station concerned on 28.06.2003 mentioning therein that Ram Prasad (deceased) and accused-appellant Sadhu Singh both were close friends. Accused-appellant Sadhu Singh had purchased an woman two years back. It was also mentioned that on 27.06.2003 in the evening accused-appellant Sadhu Singh came to house of informant and told the deceased that his wife was not present in his house and asked about whereabouts of his wife. On this, informant's brother i.e. deceased told him that he was not aware about her whereabouts. Accused-appellant told the deceased to accompany him for searching her. Since accused-appellant Sadhu Singh was armed with 'axe', informant and his brother Hari Singh also followed them suspecting accused appellant. At about 11:30 in the night when accused-appellant and deceased both reached the plot in front of house of Ram Autar, accused-appellant caused blows with 'axe' upon deceased, resultant he fell down on earth and cried. Informant and his companion flashing torches reached immediately there and saw accused-appellant causing blows on the mouth of deceased. After seeing informant and his brother, accused appellant ran away towards field. Leaving dead body at the place of occurrence, informant came at police station concerned with prayer to register the case. On the basis of written report (Ext. Ka-1), chik F.I.R. Ext. Ka-12 was registered on 28.06.2003 at 01:15 a.m. at Crime No. 89 of 2003, under Section 302 I.P.C.. G.D. entry Ext. Ka-13 was also made on same day. After registration of F.I.R., police started investigation and reached at the place of occurrence and took bloodstained and plain earth from the place of occurrence and keeping same in sealed boxes prepared sample seal and also fard Ext. Ka-3 in this regard. Concerned police also took torches said to have been used in the matter by witnesses and handing over the same on 28.06.2003 in presence of witnesses, prepared recovery memo Ext. Ka-4. Investigating Officer also prepared inquest report Ext. Ka-5 and other police papers i.e. photo lash, letter to C.M.O., Form no. 13, Form no. 33, ( Ext. ka-6 to ka-9). Dead body of deceased was kept in sealed cloth and preparing sample seal it was handed over to Constable Satyabhan Singh and Homeguard Mahesh Chandra to carry the same to mortuary for post mortem along with relevant papers. Visiting the place of occurrence, Investigating Officer also prepared site plan Ext. Ka-2 and interrogated the witnesses.

4. Autopsy on the dead body of deceased was conducted on 28.06.2003 at 12:45 p.m. at district mortuary concerned.

5. On general examination, probable time of death of deceased was about half day. No defect was found on skull, scalp, vertebra and spinal card. Urinary bladder was empty and no defect was found in generation organ.

6. On examination of dead body of deceased, following injuries were found.

"(I) Lacerated wound 1 cm X 0.5 cm X bone deep, right side chin.

(II) Lacerated wound 1½ cm X 0.5 cm X bone deep left side chin.

(III) Two lacerated wound 1 cm X 1/3 cm X muscle deep and 1½ cm X 1/2 cm X muscle deep on lower lip.

(IV) Lacerated wound 2 cm X 0.5 cm X muscle deep right side face.

(V) Lacerated wound 1cm X 0.5 cm X muscle deep right side face below eye.

(VI) Contused swelling on whole of right side face.

(VII) Abrasion 2 cm X 1 cm back of right wrist.

(VIII) Abraded contusion 5 cm X 4 cm front of middle of neck.

Both mandible and fraxilla fractured. Teeth broken. Both corner of hyed fractured. Congestion on neck. All viscra congested. Stomach contains 200 ml liquid material.

Cloth and wearing found on the body of deceased were handed over in sealed cover to constable carrying the dead body to hand over the same to Investigating Officer."

7. In the opinion of doctor, cause of death of deceased was shock and hemorrhage due to ante-mortem injuries. Post-mortem report is Ext. Ka-11.

8. After completing investigation, Investigating Officer submitted charge-sheet Ext. Ka-10 against accused-appellant. Concerned Magistrate took cognizance. Case being exclusively triable by Sessions Court, was committed to the Court of Sessions.

9. Accused-appellant appeared and charge for the offence under Section 302 I.P.C. was framed against him to which he denied and pleading not guilty claimed his trial.

10. In order to prove its case, prosecution examined five witnesses, namely, PW-1 Kanhaiya Lal, PW-2 Hari Singh (brothers of deceased), PW-3 Virendra Singh Investigating Officer, PW-4 Dr. Arun Kumar Upadhyay, who performed autopsy on the body of deceased and prepared post-mortem report and PW-5 Constable Daya Shankar Gautam, chik writer.

11. On closure of prosecution evidence, statement of accused-appellant under Section 313 Cr.P.C. was recorded in which he has stated entire prosecution case false and showed ignorance about preparation of written report (Ext. Ka-1). He has specifically stated that PW-1 and PW-2 both have made false statement before court due to enmity. Accused-appellant has not committed present offence nor had gone to the house of deceased with 'axe'. Manner of incident set-up by prosecution witnesses was also stated to be false. Ignorance was shown about preparation of recovery of torches. Accused-appellant has also specifically stated that he has not committed murder of deceased and charge-sheet was submitted on insufficient evidence. Ignorance was also shown about recovery of clothes from the body of deceased at the time of post-mortem and also regarding preparation of post-mortem report as well as cause of death of deceased shown in the said report. It was further stated that PW-1 and PW-2 both are real brothers, therefore, they have made false statement due to enmity. No evidence, oral or documentary, was adduced by accused-appellant in his defence.

12. Having heard learned counsel for parties and going through the record, trial court found that prosecution has fully succeeded in bringing home the charge against accused-appellant beyond reasonable doubt warranting his conviction and sentence. Hence this appeal.

13. We have heard Sri Sukhveer Singh, learned counsel for appellant and Sri Ratan Singh, learned A.G.A. for State at length.

14. Assailing the findings recorded by Trial Court in the impugned judgment and order it was submitted by learned counsel appearing for appellant that appellant is innocent and has not committed present offence. PW-1 and PW-2 are not eye account witnesses of the incident. None has seen accused-appellant committing the present offence. Medical evidence does not support prosecution case. F.I.R. is ante-timed document, it was not in existence at the time mentioned therein. At this juncture, learned counsel for appellant referred to inquest report and statements of PW-1, PW-2 and PW-3 on this issue and argued that there is major contradiction in the prosecution evidence regarding place of preparation of inquest report. Starting and closing time of preparation of inquest report has also not been mentioned in inquest report. It was further argued that in fact, dead body was taken at the police station concerned and inquest report as well as other police papers were prepared there and by that time F.I.R. was not in existence but it was lodged thereafter. Referring to statement of PW-4 Dr. Arun Kumar Upadhyay, it was argued that this witness has clearly admitted that none of the injuries found on the body of deceased could come with the use of weapon 'axe'. Learned counsel for appellant also drew attention of Court towards post-mortem report as also statement of PW-4. Motive assigned in the matter is also not proved. Prosecution was also not able to prove place of preparation of written report. Weapon said to have been used by accused-appellant in commission of crime was also not recovered. Incident is of night hours. There are contradictions in statement of PW-1 and PW-2 as to when they reached their home. Referring to statement of PW-1 and PW-2, it was also argued that they (PW-1 and PW-2) reached the spot on the basis of information given by some one else. PW-1 and PW-2 have also admitted that when they reached at the place of occurrence, many people were present there and Ram Prasad was lying dead. Findings recorded by Trial Court in the impugned judgment and order are perverse and suffer from infirmity and illegality. In fact, deceased was done to death by some unknown person and none has seen the occurrence, therefore, contradictions occurred in the statement of prosecution witnesses on material points. In support of his submissions, learned counsel for appellant has placed reliance in the case of Murlidhar Vs. State of Rajasthan 2005 SCC 884.

15. Per contra, learned A.G.A. appearing for State argued that PW-1 and PW-2 both are eye account witnesses. When after closing their shops they reached at their houses, they saw accused-appellant having 'axe' talking with deceased. They also saw accused and deceased going together. Both witnesses followed them and saw accused-appellant committing murder of deceased on the date, time and place mentioned in the F.I.R.. Contradictions said to have been occurred in the statement of PW-1 and PW-2 are not fatal to prosecution case. Motive assigned in the matter was also proved by prosecution. Medical evidence fully supports prosecution case. Injuries found on body of deceased could be caused with weapon 'axe'. Prosecution was able to prove date, time and place of occurrence as well as involvement of present accused-appellant in this offence. Findings recorded by trial court in the impugned judgment and order are in accordance with facts, evidence and law. There is no illegality or infirmity in the impugned order warranting interference by this Court.

16. We have considered rival submissions made by learned counsel for parties and have gone through the entire record including case law relied upon by learned counsel for appellant carefully.

17. In this matter, as is evident from record, incident is said to have taken place on 27.06.2003 at 11:30 p.m. in the night at the plot situated in front of the house of Ram Autar in village concerned. Allegation against accused-appellant is that he took deceased to search his wife (appellant's wife) as she was missing. It is also prosecution case that since at that time accused-appellant was armed with 'axe', PW-1 and PW-2 on the basis of suspicion followed them. As and when accused-appellant and deceased both reached at the place of occurrence, accused committed present offence causing blows upon deceased with 'axe'. PW-1 and PW-2, who were following them, flashed their torches and saw the incident. After seeing the witnesses, accused-appellant ran away towards the field. Injuries found on the body of deceased are neither incised nor cut wound. Out of total injuries of deceased, five injuries are lacerated wound and one is contused swelling. Injury no. 7 is abrasion and injury no. 8 is abraded contusion. Charge against accused-appellant was framed for the offence under Section 302 I.P.C.. PW-1 and PW-2 both claimed themselves to be eye account witness. Starting time of preparation of inquest as well as also closing time have not been shown in the inquest report (Ext. Ka-5). As per PW-1 Kanhaiya Lal, informant, accused-appellant Sadhu Singh had come at the residence of deceased at about 09:00 p.m.. PW-1 and PW-2 both after closing their shops returned to their houses in the evening at 07:00 p.m. and 08:30 p.m. respectively. In cross examination, at one point of time PW-1 has stated that information regarding murder of Ram Prasad was received by him at his house from one Subedar resident of village Nagla and then he rushed toward the place of occurrence. When he reached there, his brother had died and people were also gathered there. Written report was prepared outside the police station, police had gone to village concerned and prepared inquest report at the place of occurrence. This witness has also stated that injuries were caused upon the deceased by accused-appellant with weapon 'axe'. PW-2 Hari Singh, who is also brother of deceased, has stated that accused-appellant, armed with weapon 'axe', came to his house and took the deceased with him to search his wife. On suspicion, this witness and his brother PW-1 followed them and saw the incident committed by accused-appellant on the date, time and place of occurrence. In cross examination PW-2 has admitted that dead body was taken to police station concerned and inquest report was prepared there.

18. Before analyzing prosecution evidence in light of submissions raised by learned counsel for parties, we find it necessary to quote settled legal propositions propounded in Gangabhavani Vs. Rayapati Venkat Reddy and others (2013)15 SCC 298. Apex Court in paragraphs 7 to 13 has held as under.

Medical evidence

7. It is a settled legal proposition that where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistics expert, it amounts to a fundamental defect in the prosecution case and unless it is reasonably explained may discredit the entire case of the prosecution. However, the opinion given by a medical witness need not be the last word on the subject. Such an opinion is required to be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all an opinion is what is formed in the mind of a person regarding a particular fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts, it is open to the Judge to adopt the view which is more objective or probable. Similarly, if the opinion given by one doctor is not consistent or probable, the court has no liability to go by that opinion merely because it is given by the doctor. "It would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the ''variable' keeping the medical evidence as the ''constant' ".

Where the eyewitnesses' account is found credible and trustworthy, a medical opinion pointing to alternative possibilities cannot be accepted as conclusive. The eyewitnesses' account requires a careful independent assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility.

(Vide: Ram Narain Singh v. State of Punjab, AIR 1975 SC 1727; State of Haryana v. Bhagirath, AIR 1999 SC 2005; Abdul Sayeed v. State of M.P., (2010) 10 SCC 259; and Rakesh v. State of M.P., (2011) 9 SCC 698).

8. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence stands crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.

CONTRADICTIONS IN EVIDENCE:

9. In State of U.P. v. Naresh, (2011) 4 SCC 324, this Court after considering a large number of its earlier judgments held:

"In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.

Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.

Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited."

A similar view has been re-iterated by this Court in Tehsildar Singh & Anr. v. State of U.P., AIR 1959 SC 1012; Pudhu Raja & Anr. v. State, Rep. by Inspector of Police, JT 2012 (9) SC 252; and Lal Bahadur v. State (NCT of Delhi), (2013) 4 SCC 557).

10. Thus, it is evident that in case there are minor contradictions in the depositions of the witnesses the same are bound to be ignored as the same cannot be dubbed as improvements and it is likely to be so as the statement in the court is recorded after an inordinate delay. In case the contradictions are so material that the same go to the root of the case, materially affect the trial or core of the prosecution case, the court has to form its opinion about the credibility of the witnesses and find out as to whether their depositions inspire confidence.

EVIDENCE OF A RELATED/INTERESTED WITNESSES:

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 U.P., AIR 2011 SC 2292; and Dhari & Ors. v. State of U. P., AIR 2013 SC 308).

12. In State of Rajasthan v. Smt. Kalki & Anr. AIR 1981 SC 1390, this Court held:

"5A. As mentioned above the High Court has declined to rely on the evidence of P.W. 1 on two grounds: (1) shewas a "highly interested" witness because she "is the wife of the deceased"......For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence. True it is she is the wife of the deceased; but she cannot be called an 'interested' witness. She is related to the deceased. 'Related' is not equivalent to 'interested. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be 'interested'. In the instant case P.W.1 had no interest in protecting the real culprit, and falsely implicating the respondents."

(Emphasis added)

(See also: Chakali Maddilety & Ors. v. State of A. P., AIR 2010 SC 3473).

13. In Sachchey Lal Tiwari v. State of U.P., AIR 2004 SC 5039, while dealing with the case this Court held:

"7. .....Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers-by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere 'chance witnesses'. The expression 'chance witness' is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence."

19. In the instant matter, as is clear from record, F.I.R. was lodged on 28.06.2003 at 01:15 a.m.. Incident is said to have taken place on 27.06.2003. It is also evident from record that leaving the dead body of deceased at the place of occurrence, informant PW-1 Kanhaiya Lal had gone to police station concerned to lodge F.I.R. Prosecution case is also that on receiving written report, police immediately proceeded to place of occurrence. PW-1 Kanhaiya Lal has stated that inquest report and other police papers were prepared at the place of occurrence itself. PW-2 Hari Singh at one point of time in cross examination has admitted that dead body of deceased was taken to police station concerned and all police papers were prepared there. PW-3 Investigating Officer has stated that inquest report and other police papers were prepared at the place of occurrence itself.

20. Referring to these facts as also inquest report (Ext. Ka-5), learned counsel for appellant has urged that non mentioning of starting time and closing time in inquest report itself indicates that F.I.R. was not in existence at that time. If submission raised by learned counsel for appellant is minutely analyzed in light of entire evidence adduced in the matter, the same is not acceptable. Crime number has been clearly mentioned in the inquest report. Non-disclosure of starting and closing time of inquest itself is not sufficient to disbelieve that F.I.R. was not in existence at the time mentioned therein, especially when PW-3 Investigating Officer has clearly stated that entire police papers were prepared at the place of occurrence itself. Statement of PW-3 also finds support with the statement of PW-1. Statement made by PW-2 on this point may be contrary to the statement of PW-1 and PW-3 but only on this ground statement of PW-1 and PW-3 can not be disbelieved. It might be possible that due to pressure of lengthy cross-examination, such type of statement was given by PW-2. Statement made by PW-2 in this regard is not supported by any other evidence. Thus, we are of the view that neither F.I.R. was lodged belatedly nor its existence on the date and time mentioned in chik F.I.R. is doubtful.

21. As far as motive assigned in the matter is concerned; it is a very simple motive. Accused-appellant had purchased his wife with the help of deceased. On the day of incident she was missing and accused-appellant had suspicion upon deceased. Due to that reason, he took deceased along with him to search his wife. Although it is a very simple nature of motive yet some time this type of motive itself becomes a ground to commit offence. It may be mentioned here that where there are eye account witness of any incident, motive loses its significance. It is also pertinent to mention that since there was no previous enmity between accused-appellant and deceased, other evidence adduced by prosecution has to be analyzed carefully.

22. So far as medical evidence is concerned, prosecution case is that accused-appellant caused injuries upon deceased with weapon 'axe'. Learned counsel for appellant referring to post mortem report as well as statement made by PW-4 Dr. Arun Kumar Upadhyay has argued that medical evidence is contradictory to oral version. On comparison of submission raised at the bar with the evidence available on record, it is evident that in the written report, informant PW-1 Kanhaiya Lal has clearly mentioned that accused-appellant gave blows upon deceased with weapon 'axe'. If injuries detailed in post-mortem report as well as proved by PW-4 before the court on oath are compared with weapon assigned to accused-appellant, it emerges that none of the injuries found on body of deceased are cut or incised wound. Meaning thereby injuries found on the body of deceased were not caused from front side of 'axe'. Either it was caused from its back side or from any other weapon. PW-4 in examination-in-chief has stated that injuries found on body of deceased could come with weapon 'axe', if it was used from its back side. In cross examination, he has admitted that none of the injuries found on the body of deceased were caused by sharp edged weapon. It is general presumption that weapon assigned to accused would have been used in its natural way, until and unless contrary to this fact is proved by parties. No fixed standard/parameter has been provided anywhere regarding shape and size of 'axe' and its front and back side may be of different shape and size. Generalization in regard to shape and size of 'axe' is not possible. Prosecution case is consistent and clear that 'axe' was used by accused-appellant in committing the crime. In the fact and circumstances of the case, looking to the shape and size of injuries found on the body of deceased, it shall be presumed that accused had used weapon assigned to him in committing the crime from its back side. If shape and size of back side of 'axe' were of same size as injuries found on the body of deceased then injuries could come in the shape and size as has been shown in the post mortem report. Prosecution case on the ground that no incised or cut wound were found on the body of deceased cannot be discarded. Prosecution witnesses no-where have mentioned or stated that weapon 'axe' was used from its front side. Keeping in view size and nature of injuries found on the body of deceased, there is every possibility that weapon 'axe' was used by accused-appellant from its back side. Thus, on the basis of statement of PW-4, it can be said that medical evidence does not fully belie prosecution case. Medical evidence is also not contrary to oral evidence rather supportive to ocular testimony. Reference may also be taken of Gangabhavani (supra) case wherein Court has clearly held that in the situation like this primacy shall be given to ocular testimony. Thus findings recorded by Trial Court in the impugned judgment and order on this issue is in accordance with law and no interference is required by this court.

23. Since PW-1 and PW-2 both claimed themselves to be eye account witness, their presence at the place of occurrence at the time of incident has to be analysed carefully, especially keeping in view the medical evidence.

24. PW-1 and PW-2 both were present in the day hour at their shops and after closing same they reached their houses in the evening at about 07:00 p.m. and at 08:30 p.m. respectively. Incident is said to have taken place at about 11:30 p.m. in the night. Both PW-1 and PW-2 have stated that when they reached their houses, they saw accused-appellant along with deceased in front of house of deceased. Houses of PW-1, PW-2 and deceased are adjacent to each other. Prosecution case is also that deceased and accused-appellant both went together from the place of occurrence. PW-1 and PW-2 also followed them as accused-appellant was armed with an 'axe'. There is no inconsistency or contradiction about this fact in the statement of PW-1 and PW-2. Statement of PW-1 and PW-2 to this extent is clear, cogent and reliable. PW-1 in cross examination at one point of time has admitted that he received information about murder of deceased at his house and when he reached the place of occurrence, deceased was found dead. This fact stated by PW-1 is contradictory to statement made by this witness in examination-in-chief. Trial Court's finding is that if statement of PW-1 and PW-2 are taken cumulatively, testimony of these two witnesses on material point as to accused-appellant took deceased on the pretext of search of his wife before these witnesses is consistent and clear. On close scrutiny of evidence on this aspect we are of the view that Trial Court's finding on this issue is also in accordance with law. When deceased and accused-appellant left the first place of occurrence, accused-appellant was having 'axe' is also clear and consistent in the statement of PW-1 and PW-2. Presence of these two witnesses at the place of occurrence where-from accused-appellant took deceased is not doubtful. They are natural and probable witnesses. Incident at second place happened within a little span of time. When PW-1 and PW-2 reached the place of occurrence, dead body of deceased was found there. The fact that PW-1 and PW-2 both have not seen the accused-appellant causing injuries upon deceased if taken to be true then also there is little gap during the intervening period when the accused-appellant and deceased were seen together and when dead body of deceased was found (last seen evidence). Deceased was also not seen along with any other person during that intervening period. Thus, prosecution evidence about last seen theory is believable. Chain of circumstances of last seen evidence are fully established and connected with each other.

25. In Anjan Kumar Sarma Vs. State of Assam 2017 SCC 622 Court in paragraphs 14 to 23 has held as under..

14. Admittedly, this is a case of circumstantial evidence. Factors to be taken into account in adjudication of cases of circumstantial evidence laid down by this Court are:

(I) 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.

(II) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not the explainable on any other hypothesis except that the accused is guilty;

(III) The circumstances should be of a conclusive nature of tendency;

(IV) They should exclude every possible hypothesis except the one to be proved; and

(V) 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 shown that in all human probability the act must have been done by the accused (See: Sharad Birdhichand Sarda V. State of Mahrashtra (1984) 4 SCC 116 153: M.G. Agarwal V. State of Maharashtra AIR 963 SC 20018).

23. It is clear from the above that in a case where the other links have been satisfactorily made out and the circumstances point to the guilt of the accused, the circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. In the obsence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory explanation cannot be made the basis of conviction. The other judgments on this point that are cited by Mr. Venkataramani do not take a different view and, thus, need not be adverted to. He also relied upon the judgment of this Court in State of Goa Vs. Sanjay Thakran (2007)3 SCC 755 in support of his submission that the circumstance of last seen together would be a relevant circumstance in a case where there was no possibility of any other persons meeting or approaching the deceased at the place of incident or before the commission of crime in the intervening period. It was held in the above judgment as under;

"34. From the principle laid down by this Court, the circumstance of last seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the decease were found together alive and when the decease was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after (sic of) a considerable long duration. There can be no fixed or straitjacket formula for the duration of time gap in this regard and it would depend upon the evidence let by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not effect the prosecution case."

26. So far as relation of PW-1 and PW-2 with deceased is concerned, they cannot be termed to be interested witnesses. They are natural and probable witnesses at the first place of occurrence. There is no infirmity in their testimony on this point. It is settled position of law that statement of these witnesses shall be seen very carefully and cautiously, as has been held by Apex Court in Gangabhavani case (supra). Prosecution evidence on the point of last seen evidence and finding of dead body within a short span of time is firm, consistent and cogent. Deceased was not seen along with any other person during that intervening period. Thus last seen theory is fully established from prosecution evidence and reliance can safely be placed on it. Since there is ocular evidence and presence of eye account witnesses at the place of occurrence is not doubtful, manner of incident stated by witnesses also fit in the case, then testimony of eye account witnesses cannot be disbelieved.

27. As far as contradiction variation, exaggerations and omissions occurred in prosecution evidence as elucidated by learned counsel for appellant are concerned, normal discrepancies are bound to occur in deposition of witnesses due to normal errors of observation i.e. errors of memory, due to lapse of time or due to mental deposition such as shock and horror at the time of occurrence. If such discrepancies are not creating serious doubt about truthfulness of witness and also do not affect the core of prosecution case then on that ground prosecution evidence cannot be rejected in its entirety. In the present matter, discrepancies elucidated are merely of marginal nature which are not fatal to testimony of prosecution witnesses on material points. Thus, prosecution evidence on material points as has been discussed here-in-above, cannot be disbelieved. View taken by this Court also finds support with the law laid down by Apex Court in Gangabhavani case (supra).

28. It is also noticeable that contradictions are of minor nature and same are liable to be ignored. Findings recorded by Trial Court on these issues are in accordance with law and need no interference by this Court.

29. Laches on the part of Investigating Officer are also not sufficient to disbelieve ocular testimony of PW-1 and PW-2 as last seen evidence and no prejudice has been caused to deceased on this score. Appellant does not get any help with the law laid down in Murlidhar case (supra), as facts of present matter are entirely different with the facts of Murlidhar case (supra).

30. So far as sentence 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.

31. 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 marginalized. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminals 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].

32. In view of above propositions of law, the paramount principle that should be the guiding laser beam is that punishment should be proportionate to gravity of offence.

33. In the instant case as per the medical evidence deceased died due to injuries sustained by him instantaneously. Thus, keeping in view the entire facts and circumstances of the case and evidence available on record, we are of the view that Trial Court has rightly convicted and sentenced accused-appellant for the offence under Section 302 I.P.C. and case clearly comes under the definition of Section 300 I.P.C.. Minimum sentence as imprisonment for life has been imposed by Trial Court for the offence under Section 302 I.P.C., which needs no interference.

34. In the circumstances, on close scrutiny of entire evidence and discussions made here-in-above, we are of the view that prosecution was able to prove its case against the accused-appellant beyond reasonable doubt. Accused-appellant has committed present offence on the date, time and place mentioned in the F.I.R.. Medical evidence fully supports prosecution case. Trial Court has rightly convicted and sentenced accused-appellant for the offence under Section 302 I.P.C..

35. Considering the entire aspects of the matter and looking to the circumstances, under which the present offence has been committed, this Court is of the opinion that impugned judgment and order dated 06.04.2006 passed by Trial Court is well thought and well discussed and Trial Court has rightly held that prosecution has succeeded to prove the guilt of accused appellant beyond reasonable doubt. As such, impugned judgment and order passed by Trial Court is liable to be upheld and appeal having no force is liable to be dismissed.

36. Accordingly present Jail Appeal is dismissed. Conviction and sentence imposed upon accused appellant vide impugned judgment and order is affirmed. Accused-appellant, if not in custody in this matter, is directed to surrender before Court below immediately to serve-out remaining sentence imposed by Trial Court vide impugned judgment and order. Personal bond and sureties bonds are hereby canceled and sureties are discharged from their liability.

37. Copy of this judgment alongwith lower court record be sent forthwith to the court concerned for compliance and a compliance report be sent to this Court.

Order Date :- 07.09.2018

Sanjeet