Satish vs State
2018 Latest Caselaw 2786 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

						A.F.R.
 
			JUDGMENT  RESERVED ON :  11.09.2018
 
			JUDGMENT DELIVERED ON : 25.09.2018
 

 
Case :- JAIL APPEAL No. - 2997 of 2009
 

 
Appellant :- Satish
 
Respondent :- State
 
Counsel for Appellant :- From Jail, Ms Kanchan Chaudhary (Amicus Curiae).
 
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 Jail Appeal has been preferred by accused-appellant Satish against judgment and order dated 22.3.2005 passed by Additional Sessions Judge, Court No. 3, Kanpur Dehat in Sessions Trial No. 491 of 2003 (State of U.P. Vs. Satish) arising out of Case Crime 167 of 2003, under Section 302 I.P.C., Police Station Derapur, District Kanpur Dehat convicting and sentencing the accused appellant under Section 302 for life imprisonment and fine of Rs. 5,000/- has also been imposed and in the event of non-payment of fine further to undergo two years' rigorous imprisonment.

2. Prosecution story in nutshell, as unfolded in written report (Ext. Ka-1), moved by Ram Kumar, on 13.8.2003 at Police Station concerned, is as follows:

3. Informant's niece Maya Devi @ Kunja aged about 25 years was married six years ago with Satish (accused appellant). One daughter aged about 3 years was born out of their wedlock. On 9.8.2013, accused appellant Satish had come to the house of informant's nephew Arvind. Deceased Maya Devi had also come to the house of her mother for treatment. On 12.8.2003 deceased along with her mother had gone to village Kaprahat at the house of her brother Arvind on the occasion of Raksha Bandhan. On the way deceased's mother Malti Devi had gone to her "mayka". Ram Vilas, uncle of Maya Devi, after leaving Maya Devi in village concerned also returned. After celebrating Raksha Bandhan Arvind along with his wife had also gone to house of his in-laws at Minapur. Raman, daughter of Ram Vilas had also come along with Maya Devi. After having dinner they all slept in the veranda. At about 6 A.M. in the morning room was found bolted from outside and Satish and Maya Devi were not seen there. Informant opened the door of the room and saw dead body of deceased Maya Devi, whose neck was tightened with the string of under-skirt (Peticoat) and Satish (accused appellant) was absconding. It is also mentioned in written report (Ext. Ka-1) that accused appellant after committing murder of deceased Maya Devi had left the place of occurrence.

4. On the basis of written report (Ext. Ka-1) chik first information report (hereinafter referred to as "FIR") no. 105 of 2003 at crime no. 167 of 2003, under Section 302 IPC on 13.8.2003 at 11.30 A.M. was registered against accused appellant at Police Station concerned. G.D. Entry was also made on the same day which is Ext. Ka-4. Investigating Officer reached the place of occurrence and inspected the spot and prepared inquest report, kept the dead body in sealed cloth and prepared sample seal. Other police papers, required to be sent along with inquest report, for post mortem were also prepared at the same time. Inquest report and other police papers are Ext. Ka-7 to Ext. Ka-12. Investigating Officer has also prepared site plan (Ext. Ka-3) mentioning the details of place of occurrence. Dead body was despatched through Constable and post mortem on the dead body was conducted in the mortuary concerned on 14.8.2003 at 12.15 P.M.

5. On general examination deceased was found to be aged about 25 years old. Time of death was about one and half day. She was average built body, rigor mortis passed off from both extremists, both eyes closed, mouth half open, post mortem staining whole of back, buttock and thighs. 'Peticoat' around the neck without knot, face cyanosed, nails polished.

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

(I) A/C ½ cm x ¼ cm rt side face, 2 cm lateral to rt eye.

(II) Contusion 2 cm x 2 cm on left eye.

(III) A/C 1-1/2 cm x 1 cm left angle of mouth.

(IV) A/C 1-1/2 cm x 1 cm rt side face, just below lower lip.

(V) Multiple A/C in area of 7 cm x 4 cm front of neck, 2 cm below chin ten in number semi lunar shape size ¼ to ½ cm. and clotted blood present under the injury.

7. In internal examination, brain was found congested. Semi digested food was found in stomach, small intestine half full with gases, in large intestine faecal matter with gases present. Kidney and spleen both were found congested. In the opinion of Doctor, cause of death was asphyxia as a result of throttling.

8. 'Peticoat' and other wearings found on the body of deceased along with police papers were handed over by the Doctor concerned to Constable to return the same to Investigating Officer concerned. It also appears that after receiving the same, Investigating Officer concerned has prepared memo in regard to the "Peticoat" one piece bluish colour. Recovery memo is Ext. Ka-6. Investigating Officer has also interrogated witnesses and after fulfilling entire formality submitted charge sheet (Ext. Ka-12) against accused appellant under Section 302 IPC. Cognizance was taken by concerned Magistrate and case being exclusively triable by Sessions Court, was committed to the court of Sessions.

9. Accused appellant was brought from jail. Prosecution opened its case describing the entire evidence collected during investigation proposed to be adduced in the matter. Trial Court after hearing the accused side also framed charge for offence under Section 302 IPC against accused appellant on 25.5.2004 to which he denied and pleading not guilty claimed his trial.

10. In order to prove its case, prosecution examined P.W.-1 Ram Kumar, informant; P.W.-2 Arvind; P.W.-3 Raman; P.W.-4 Dr. Ram Kishore; P.W.-5 K. K. Mishra, Investigating Officer; P.W.-6 Constable Man Singh, Chik Writer; P.W.-7 Head Constable Ramesh Babu Lal, who has prepared inquest report and other police papers on the direction of S.H.O. concerned.

11. On completion of prosecution evidence, statement of accused appellant under Section 313 Cr.P.C. was recorded in which except relation with deceased all other facts mentioned in the FIR and stated by prosecution witnesses were denied and stated that he has been falsely implicated in this matter due to animosity. FIR was lodged on the basis of false facts. Nothing was stated about inquest report and other police papers. Facts mentioned in post mortem report (Ext. Ka-2) were said to be false and it was stated that charge sheet was submitted on the basis of insufficient evidence. He has specifically stated that P.W.-1 Ram Kumar and P.W.-2 Arvind have falsely implicated him and have made false statement before the Court. P.W.-3 is a tutored witness.

12. It also appears that accused appellant despite opportunity having been given did not adduce (documentary or oral) evidence in his defence.

13. Trial Court having heard learned counsel for both parties and appreciating prosecution evidence vide impugned judgment and order was of the view that prosecution was able to bring home guilt of accused appellant for the offence under Section 302 IPC hence convicted and sentenced him as above.

14. Feeling aggrieved, present jail appeal is preferred by accused appellant.

15. We have heard Ms. Kanchan Chaudhary, Amicus Curiae on behalf of appellant and Sri Udit Chandra, A.G.A. for State and have gone through entire record.

16. Submission of the learned Amicus Curiae is that prosecution was not able to prove its case beyond reasonable doubt. P.W.-2 and P.W.-3 are not eye account witness and no support is found to the prosecution case from their testimony. P.W.-3 is a minor witness. No oath was administered by Court while examining her during trial. She is also a tutored witness and has not seen the accused appellant committing present offence. Thus, it is a no evidence case. Findings recorded by trial court are perverse. Medical evidence is also contradictory to the oral evidence. Thus prayer was made to allow appeal and acquit accused appellant of the charges levelled against him setting aside impugned judgment and order. In support of her submissions learned Amicus Curiae placed reliance on Mohan Singh and another Vs. State of West Bengal, 2015 (1) CalLT 296 and Tomaso Bruno and another Vs. State of U. P, 2015 (1) JT 389.

17. Sri Udit Chandra, learned A.G.A. argued that there is no illegality or perversity in the impugned judgment and order. Findings recorded by Trial Court are based on correct appreciation of facts and evidence. Medical evidence fully supports the prosecution case. Clothes (Peticoat) used in throttling deceased was found tightened on neck of deceased. P.W.-3 was also sleeping in the same veranda. Accused appellant took deceased in the night in the room forcibly, bolted the room from in side and throttled her neck. Accused was not found present on the spot and room was found bolted from outside. Date, time and place of occurrence have also been proved. P.W.-3 has made rational answer, therefore, if oath is not administered to her, testimony of P.W.-3 cannot be discarded. In support of his submissions, learned A.G.A. placed reliance on Dattu Ramrao Sakhare Vs. State of Maharashtra, (1997) 5 SCC 341.

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

19. In this matter, as is evident from record, deceased along with P.W.-3 had gone to house of P.W.-2, Arvind, on the occasion of Raksha Bandhan. After celebrating festival, Arvind, brother of deceased had gone to his in-laws house along with his wife. P.W.-3 Raman had also come along with deceased to celebrate the festival. She is cousin sister of Arvind. It is established fact in the present matter that accused appellant was present there since 9.8.2003. Dead body of deceased was found inside room. Neck was found tightened with the 'Peticoat' of the deceased itself. Trial Court was of the view that statement of P.W.-3 is fully reliable. She is not tutored witness. Accused appellant took deceased inside the room forcibly and in intervening night committed present offence and after closing door from outside had absconded from the place of occurrence. It is also evident from record that when P.W.-1 opened door of the said room, dead body of deceased was lying in the room, accused appellant was absent therefrom. Thus on the basis of above factual backdrop findings recorded by Trial Court as well as the submissions raised by learned counsel for parties have to be scrutinised.

20. Before dealing with other issues, we would like to discuss the issue regarding administering of oath to P.W.-3. A perusal of statement of P.W.-3 reveals that she was 8 to 9 years old at the time of deposition. Certain questions were put by Court to test competency of this witness and on the basis of rational answers given by her, Trial Court was of the view that witness is enough competent to understand the question and giving rational answer thus, keeping in view her age, oath was not administered by Trial Court to her.

21. Hon'ble Supreme Court in Dattu Ramrao Sakhare (Supra) has held that testimony of a child witness can be relied on in absence of oath if it is found credible in the facts and circumstances of the case. Only requirement under Section 118 of the Evidence Act is that such witness must be tested to ascertain her competency regarding understanding the question and giving rational answer thereto. The evidence of a child witness and credibility there of would depend upon the circumstances of each case. The only precaution which the Court should bear in mind while accessing the evidence of a child witness is that witness must be a reliable one and his/her demeanor must be like any other competent witness and there is no likelihood of being tutored.

 
22.	Ratio laid down in the case of Dattu Ramrao (Supra) has been followed in following cases
 
	(I)	Suryanarayana Vs. State of Karnataka, (2001) 9 SCC 	  		129
 
	(II)     Ratansingh Dalsukhbhai Nayak Vs. State of Gujrat, 			(2004) 1 SCC 64
 
	(III)	Nivrutti Pandurang Kokate and others Vs. State of 	   		Maharashtra, (2008) 12 SCC 565.
 

23. If the above settled legal position is minutely analysed in the light of entire evidence and submissions raised by learned counsel for parties, it is evident that Trial Court has tested competency of P.W.-3 before recording her statement as examination in chief and cross examination. Specific observation has been recorded that she was able to understand the question put to her and giving rational answer. Observation recorded by the Trial Court was also analysed by us in the light of the aforesaid settled proposition of law, no illegality or infirmity is found. P.W.-3 is a competent witness. Her statement made before the Court can be relied upon in absence of oath. Thus submissions raised at the Bar is not acceptable.

24. As far as lodging of FIR in present matter is concerned, admittedly accused appellant was absconding from the place of occurrence. Ram Kumar, first informant, reached the place of occurrence on information. He opened the door. Distance between police station concerned and place of occurrence is 11 kms. Some time could have been taken in preparing written report and reaching police station concerned. Thus delay of about 5-1/2 hours in the present matter in lodging of the FIR is not fatal to the prosecution case. Delay occurred in lodging the FIR is probable and natural. Submissions raised by learned Amicus Curiae on the point of FIR is not acceptable. Findings recorded by Trial Court on this issue is based on correct appreciation of evidence.

25. As far as presence of P.W.-1 and P.W.-2 on the spot is concerned, admittedly P.W.-1 and P.W.-2 were not present in the night in which incident took place. P.W.-1 reached the place of occurrence after information and opened the door. Thus he is the witness only of the factum of receiving of dead body. He is also witness of fact that accused appellant was present at the place of occurrence since 9.8.2003. As far as statement of P.W.-2 Arvind is concerned, he was also not present at the place of occurrence in the night concerned. He had gone to his in-laws house along with his wife and reached the place of occurrence after receiving the information. Thus he is not eye account witness of incident. Statement of this witness is also relevant in regard to conduct of the accused appellant as he had threatened the deceased before this witness earlier.

26. As far as motive is concerned, although we are oblivious of fact that motive relegates into back ground in a case of direct ocular testimony and is not of much significance, but where motive is false and cooked up, then it assumes importance to test veracity or other wise of prosecution witnesses. In this matter, specific motive has not been assigned in the FIR but in statement of witness examined before Court this fact had come that accused was pressurizing the deceased to take her back. It may be mentioned here that some time on the basis of such simple motive offences are committed. Therefore, in our view, prosecution case cannot be disbelieved only on this score. As stated above, though motive is an essential ingredient to constitute the crime but where there are eye account witnesses, motive loses its significance. The effect of motive attributed in the present matter has to be seen in the light of other evidence.

27. In the present matter, star witness is P.W.-3. As has been discussed herein above, she is a competent witness. Her testimony can be relied upon. As per this witness, she was sleeping in veranda on a cot along with daughter of deceased. Deceased was also sleeping on another cot. Accused appellant took the deceased forcibly inside the room causing threat. Room was also bolted from inside and in the morning it was found bolted from outside but accused appellant was not found present there. P.W.-3 also saw the accused leaving place of occurrence after committing the present offence in the night itself but she could not raise alarm as there was heavy rain and thunder storm. Since presence of this witness is not doubtful on the spot on the occasion of Raksha Bandhan festival, she was sleeping in the night in veranda along with deceased, she has seen entire incident happened in veranda and also seen accused appellant leaving place of occurrence in the night itself, thus, her statement only on this basis that she did not make hue and cry in the night itself cannot be disbelieved. Prosecution was also able to establish from its evidence beyond reasonable doubt that accused appellant was present on the spot at the time of occurrence in the night itself and in the morning he was not found present there and only dead body of deceased was found inside the room. It is true that P.W.-3 did not see what happened inside the room where accused appellant and deceased were present but the 'peticoat' recovered from the body of the deceased itself revealed that deceased was done to death by throttling. This fact also finds support from medical evidence. Except deceased and accused appellant none other were present inside the room in the night and accused appellant was absconding in the morning bolting the door from outside. Thus provision of Section 106 of Indian Evidence Act will come in to play, which reads as under :

"106. Burden of proving fact especially within knowledge : When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

28. If in the light of the provisions of Section 106 of the Evidence Act the facts established by the prosecution are compared, it emerges that burden lies upon the prosecution was discharged from its evidence beyond reasonable doubt but the accused appellant did not explain the reason how her wife died. Death of the deceased is not natural one. Accused appellant and deceased only were present in the room concerned in the night in which incident took place and dead body of deceased was found in the room in morning but accused appellant was not present there, no information had been given by him to any one in this regard then presumption in all situation shall be drawn against appellant that he and he only has committed the present offence. Thus finding recorded by Trial Court about involvement of present appellant in committing present offence cannot be termed to be perverse or illegal and same is based on correct appreciation of fact and evidence.

29. As far as case laws relied upon by the learned Amicus Curiae in support of her submission is concerned, facts of present matter are entirely different with the facts of cases relied upon by her. Chain of circumstances on which basis accused appellant was found guilty, were proved by the prosecution firmly, cogently and independently. Deceased was forcibly taken in the night by the accused inside the room which was bolted from inside. Statement of P.W.-3 on this issue is clear, consistent and firm. No other person was present in the room in the night concerned except the accused appellant and deceased. Accused appellant was not present on the spot in the morning but room was found bolted from outside. When it was opened, dead body of deceased was found in it. Thus, prosecution has fully established the link evidence. Chain of circumstantial evidence is also fully linked with each other to form conclusion of guilt of accused appellant. There is no scope of innocence of accused.

30. 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].

31. 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 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.

32. Considering the entire aspects of the matter and looking to circumstances, under which present offence has been committed, this Court is of the opinion that impugned judgment and order dated 22.3.2005 passed by Trial Court is well thought and well discussed and trial court has rightly held that prosecution has succeeded to prove 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.

33. Accordingly present Jail Appeal is dismissed. Conviction and sentence imposed upon accused appellant Satish vide impugned judgment and order is affirmed. Accused-appellant is in jail.

34. 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 appellant through concerned Jail Superintendent. Compliance reports be also sent by all concerned to this Court.

35. Ms. Kanchan Chaudhary, 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 Ms. Kanchan Chaudhary, Amicus Curiae without any delay and in any case within 15 days from the date of receipt of copy of this judgment.

Order dated : 25-09-2018.

Sachdeva