Shishupal Singh vs State Of U.P.
2023 Latest Caselaw 14652 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Neutral Citation No. - 2023:AHC:101350-DB
 
Court No. - 44
 
Case :- CRIMINAL APPEAL No. - 7125 of 2007
 
Appellant :- Shishupal Singh
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Brij Raj Singh,H.P.Misra,Rajesh Kumar Dubey,Satya Prakash
 
Counsel for Respondent :- Govt. Advocate,R.K. Yadav
 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Shiv Shanker Prasad,J.

(Per Hon'ble Shiv Shanker Prasad, J.)

1. Present criminal appeal challenges judgment and order dated 15.10.2007 passed by the learned Additional Sessions Judge/Fast Track Court, Court No. 3, Mainpuri, in Sessions Trial No.159 of 2006 (State Vs. Shishupal Singh) arising out of Case Crime No. 118 of 2006 under Sections 498-A, 304B I.P.C.and Sections ¾ D.P. Act Police Station-Bewar, District-Mainpuri, whereby the learned Additional Sessions Judge/Fast Track Court, Court No. 3, Mainpuri has convicted the accused-appellant, Shishupal Singh for commission of offence under Section 302 of Indian Penal Code, 1860 (for short 'IPC') and sentenced him to undergo imprisonment for life with fine of Rs.5,000/- and in default thereof, to further undergo six months additional imprisonment.

2. Heard Sri Shashi Shekhar Mishra, learned Amicus Curiae for the accused-appellant and learned A.G.A. for the State.

3. Brief facts of the case is that the informant/P.W.1 Vidya Devi has given a written report (Exhibit-ka/1) on 4th March, 2006 to the Police Station-Bevar, District-Mainpuri alleging therein that the marriage of her daughter, namely, Laxmi Devi was solemnised with the accused-appellant Shishupal four years ago by giving a lot of dowry. Just after the marriage, the husband of her daughter Laxmi Devi i.e. the accused-appellant, her mother-in-law Gangadevi, father-in-law Subedar Singh and elder-brother-in-law (Jeth) used to harass, torture and beat her for additional demand of dowry, due to which the informant/P.W.-1 did not send her to her in-laws' place and she kept her at her place. It is further alleged that in-laws of her daughter wanted to solemnize the marriage of Shishupal at another place after killing her daughter. Nandoi of daughter of the informant (husband of her sister-in-law), namely, Grish Chandra along with Kishanpal came to her place 20 days ago, to take her daughter along with them to the place of her in-laws and both of them gave an assurance that nothing wrong would happen in future with her daughter and guaranteed her that if anything happens now, it would be their responsibility. On the said persuasion, the informant/P.W.-1 sent her daughter Laxmi Devi with them. Lakshmi herself was a student of B.A. and Lakshmi's husband used to work in P.A.C. On 03.03.2006 at around 8:00 a.m., neighbour of the informant, namely, Ram Kishan informed her that Lakshmi's health is bad, at that time she was at her second daughter Triveni's in-laws house. Neighbour of the informant, namely, Lal Ram and son of her brother-in-law (Jeth) along with his family went to the place of occurrence i.e. Bevar. When they came to know that the daughter of the informant i.e. Laxmi had gone to Government Hospital, Mainpuri, they went to Mainpuri. On reaching Maipuri they saw the daughter of the informant in dead condition at Mortuary. At mortuary, apart from the neighbour of the informant, namely, Lal Ram and son of her brother-in-law (Jeth) along with his family, only the father-in-law of Laxmi was present from the side of her in-laws. After the post-mortem, neighbour of the informant, namely, Lal Ram and son of her brother-in-law (Jeth) along with his family requested the father-in-law of Laxmi to cremate her body after her mother would come but he refused to do the same. After some time, other people came from the side of Laxmi in-laws, who forcefully took her daughter's dead body by a Tempo. Thereafter the family members of the informant came directly to her village and after coming there, they called her from her second daughter in-laws' place and disclosed the entire incident to her. Then the informant has come to lodge the report. It is further alleged that the in-laws of her daughter Laxmi have not even allowed her to see her daughter's dead body. All the people of the daughter in-laws have locked their house and fled. The informant has also came to know that the statement of her daughter Laxmi was recorded in the hospital. After the daughter's marriage, it was revealed that the accused-appellant Shishupal had secretly married with another girl. In the murder of her daughter, all the above accused have conspired and killed her for the sake of dowry. It is further alleged that since the informant/P.W. -1 was helpless, she could not fulfil the demand of motorcyle of her in-laws and that's why all of them have burnt her daughter to death. On reaching the spot, the informant was informed by the neighbours of her daughter's in-laws that all the above accused were beating her daughter and after holding her by the other accused, the accused-appellant Shishupala had poured kerosene oil and set her on fire. 25 years ago the husband of the informant had died and thereafter somehow she solemnized the marriage of their daughters after giving dowries.

4. On the basis of the written report of informant/P.W.-1, F.I.R. was lodged at Police Station Bewar, District Mainpuri on the same day i.e. 3rd March, 2006 at 15:30 o'clock against the accused persons, namely, accused-appellant Shishupal, Ganga Devi, Gyanpal, Subedar, Grish Chandra and Kishanpal and the investigation was carried out. On investigation being put into motion, the Police recorded the statements of the witnesses and completed necessary formalities. On 3rd March, 2006, P.W.-7 the then Tehsildar Asha Ram under the order of the Sub-Divisional Magistrate Mainpuri, got the inquest of the body of the deceased Laxmi conducted at District Hospital, Mainpuri by the Police and also got the inquest report prepared (Exhibit-ka/8). He also appointed inquest witnesses. He also got the necessary papers prepared like police papers, letter to R.I., letter to C.M.O., Photo lash, chalan lash (Exhibit-ka/9 to Exhibit-ka/12). P.W.-7 also got the body of the deceased sealed and sent for post-mortem.

5. The post-mortem of the dead body of deceased Laxmi was conducted by Dr. K.C. Bhardwaj (P.W.-2), the then Medical Officer at District Hospital, Mainpuri on 3rd March, 2006 at 03:45 p.m. The postmortem report Exh. Ka-2 was prepared and in the opinion of the Autopsy Surgeon (P.W.-2), the death of the deceased Laxmi was due to shock as a result of following ante-mortem superficial burn deep injuries:-

"1. Superficial to deep burn all over the body except ante side abdomen and perineum and top of head, skin pulled off places, whole body blackening present and smell of kerosene oil present at places, line of redness present at places. "

6. After sustaining burn injuries, the deceased was admitted District Hospital, Mainpuri where Doctor U.C. Chaturvedi (P.W.-8) medically treated the deceased Laxmi. During her treatment, on 2nd March, 2006 at 02:05 p.m. the dying declaration of the deceased Laxmi (Exhibit-ka/5) was recorded by the Naib Tehsildar, Mainpuri (P.W.-5) after taking fitness certificate from the Doctor of E.M.O. District Hospital, Mainpuri i.e. (P.W.-8). The dying declaration of the deceased Laxmi is extracted herein-below:

"प्रमाणित किया जाता है कि श्रीमती लक्ष्मी देवी W/o श्री शिशुपाल सिंह निवासी भारती विद्या मन्दिर बेवर अपना व्यान दे ! लिये आपने पूरे होश में है।

हस्ताक्षर

2.3.06

2-05 PM

मृत्यु पूर्व व्यान

आज दिनांक 2-3-06 को समय 2:05 PM पर लक्ष्मी देवी W/o श्री शिशुपाल सिंह निवासी भारती विद्या मन्दिर बेवर थाना बेवर उम्र लगभग 25 वर्ष ने व्यान किया कि मैं उपरोक्त पते की निवासी हूँ। मुझे आज सुबह तीन - चार बजे मुझे मारा था तथा मेरे ऊपर पउआ में रखा मिट्टी तेल डाल दिया और माचिस से आग लगा दी। आग से मेरा पूरा शरीर जगह - जगह जला है। मेरी शादी चार साल पूर्व हुई थी, मेरे कोई बच्चा नहीं है। दूसरी लड़की (पत्नी) के पीछे मुझे जलाया है। और किसी व्यक्ति ने मुझे नहीं जलाया है। इस घटना में केवल मेरे पति का हाथ है। मेरे सास-सुसर हैं। इन्होंने ही अस्पताल में भर्ती कराया है। मेरा पति रात को ही भाग गया। वह साथ नहीं आये मेरे जेठ, नन्दोई और ससुर अस्पताल में आये हैं। इनमें से किसी का कोई दोष नहीं है। यह कारनामा मेरे पति का ही है। मैंने होश में ब्यान दिया है। मुझे और कुछ नहीं कहना। आग मैंने खुद नहीं लगायी है। ब्यान सुनकर तस्दीक किया।

नि0अ0 लक्ष्मी देवी

हस्ताक्षर

02.3.06

ना0 तहसीलदार मैनपुरी

2:20 PM

प्रमाणित किया जाता है कि श्रीमती लक्ष्मी देवी W/o श्री शिशुपाल सिंह अपना ब्यान देने के बाद तक पुरे होश में रही

हस्ताक्षर

2-3-06

2:23 PM

E.M.O.

D.H. Mainpuri"

7. Initially, the investigation was conducted by Circle Officer, Karhal, namely, Ram Chandra Guha (not produced)and thereafter the investigation has been conducted by Circle Offier Shravan Kumar Singh (P.W.-6). After perusal of the investigation conducted by Ram Chandra Guha, he made entry in G.D. of inquest and thereafter recorded the statements of P.W.-2 Dr. K.C. Bhardwaj and P.W.-8 Dr.U.C. Chaturvedi. After that P.W.-6 has recorded the statements of witnesses and made entry in G.D. of dying declaration of the deceased Laxmi after obtaining permission from the C.J.M. On 23rd March, 2006 he recorded the statements of informant Vidya Devi and other witnesses. After conclusion of the statutory investigation under Chapter-XII Cr.P.C. P.W.-6 has submitted the charge-sheet against the accused-appellant Shishupal under Section 498-A, 304-B I.P.C. and Sections 3/4 D.P. Act, exonerating the other accused named in the F.I.R. before the Court of concerned Magistrate, who took cognizance thereon and the case was committed to the court of Sessions as the offence alleged to have been committed were triable by the Sessions Court. Initially on 17th July, 2007 the accused-appellant has been charged under Sections 498-A, 304 B I.P.C. and Section 4 D.P. Act but subsequently on 18th June, 2007, he has been charged under Sections 498-A I.P.C. 304-B and 302 I.P.C. and Section 4 D.P. Act.

8. The charges were read out to the accused-appellant, who denied the accusation and demanded trial.

9. The trial started and the prosecution has examined seven witnesses, who are as follows:-

Vidya Devi, informant/the complainant, mother of the deceased.

PW1

Dr. K.C. Bhardwaj, who conducted the autopsy of the body of the deceased

PW2

Ramendra Singh, Constable Clerk, who prepared the chik FIR and proved the same

PW3

Amar Singh, cousin brother of the deceased

PW4

Laxmi Narain, then Naib Tehsildar, who recorded the dying declaration of the deceased Laxmi at District Hospital, Mainpuri(Investigating Officer)

PW5

Circle Officer Shravan Kumar Singh, Investigating Officer

PW6

Asha Ram, the then Tehsildar, who got conducted the inquest of the body of the deceased at District Hospital, Mainpuri

PW7

Dr. U.C. Chaturvedi, who medically treated the deceased at District Hospital, Mainpuri and gave medical fitness certificate of the deceased before recording her dying declaration

PW8

10. The defence has also adduced Subedar Singh, father-in-law of the deceased as D.W.-1 and also named in the FIR but subsequently, his name was exonerated by the Investigating Officer in the charge-sheet. This witness has also informed the Police about the incident of burning occurred with her daughter-in-law i.e. the deceased .

11. The prosecution in order to establish the charges leveled against the accused-appellant has relied upon following documentary evidence, which were duly proved and consequently marked as Exhibits:

First Information Report dated 4th March, 2003

Ex.Ka.-3

Written report dated 4th March, 2003

Ex.Ka.-1

Memo of dying declaration of the deceased dated 2nd March, 2003

Ex. Ka.-5

Application of Budear Singh (D.W.-1)

Ex.Kha.-1

Post-mortem report of the deceased dated 3rd March, 2003

Ex.Ka.-2

Site plan with index dated 4th March, 2003

Ex. Ka.-7

Charge-sheet

Ex. Ka.-6

12. The accused in his statement recorded under Section 313 Cr.P.C. has denied to have committed the alleged offence. Though he has accepted his marriage with the deceased 4 years ago but he has denied that he had demanded any motorcycle as dowry and because of non-fulfilment of said demand, he has beaten and tortured her. He has also denied that he killed the deceased by pouring kerosene oil and set her on fire. He has also stated that false report has been lodged at Police Station against him and after preparing false site plan, charge-sheet was submitted before the court concerned against him. He has further stated that the witnesses have given false statements against him. He has again stated that in P.A.C. Etah, a departmental proceedings were going on against him to having second wife apart from first wife and the statement given by the deceased Laxmi Devi against him in the said proceedings was altered by the people of his department due to which she was annoyed and she committed suicide by setting her on fire. He has also stated that at the time of incident, he was at his home for which he had to give evidence later.

13. The trial court on the basis of evidence so led by the prosecution has found the guilt of the accused-appellant to have been proved beyond reasonable doubt. The trial Court has found the witnesses to be reliable and the dying declaration has also been found credible and reliable which formed the basis for conviction of the accused. Accordingly, the trial court has held that, accused-appellant Shishupal Singh is liable to be acquitted for the offence under Sections 498A, 304B IPC and Section 3/4 Dowry Prohibition Act and is liable to be convicted/punished under Section 302 I.P.C. It is against this judgment that the present appeal has been preferred by the accused-appellant Shishupal.

14. The submission made by the counsel for the accused appellant is that the informant is the mother of the deceased and was inimical to the accused. In the statement recorded under Section 313 Cr.P.C., the accused-appellant has stated that he has not committed any offence. It is further submitted that in the statement under Section 313 Cr.P.C. the accused-appellant has stated that in P.A.C. Etah, a departmental proceedings were going on against him to having second wife apart from first wife and the statement given by the deceased Laxmi Devi against him in the said proceedings, got altered by the people of his department due to which she was annoyed and she committed suicide by setting her on fire. He further submits that the dying declaration is not reliable in the facts of the present case since the deceased was not in a position to give any statement. He next submits that no satisfaction is recorded by the Doctor about the deceased being in a fit mental state to give her statement. He also submits that the condition of the victim was critical and her trachea was blocked for which operation was proposed and, therefore, the victim otherwise was not in a position to speak or to get her dying declaration recorded.

15. Learned counsel, therefore, submits that this is a case of suicide not homicidal, as the deceased being a shot temper lady and she had not borne any child for four years during the marital life, she committed suicide by pouring kerosene oil on herself and set her on fire and the family members of the deceased have taken advantage of it to falsely implicate the accused and thereby settle their goal in garbing money from the accused-appellant. It is urged that the evidence on record has not been examined in correct perspective by the trial Court. It is also urged on behalf of the accused-appellant that the FIR is delay of two days which was lodged, as an after-thought for falsely implicating the accused-appellants on the basis of which the accused-appellant have been convicted.

16. Learned counsel for the State has submitted that there is no reason for false implication of the accused and the complainant had no motive to falsely implicate the accused. There is clinching evidence to support the prosecution's case; there is dying declaration of the deceased and the statements given by the deceased therein have been supported by the prosecution witnesses including P.W.-1, P.W.4, independent prosecution witness P.W.3; the prosecution version has also been supported by the medical evidence; the place of occurrence has not been disputed by the defence; and the accused-appellant has strong motive or intention as he had second wife and the same has also been explained by the evidence of prosecution. Therefore, the prosecution has proved the charge levelled against the accused-appellant beyond reasonable doubt. Evidence of prosecution witnesses will not permit this Court to show any leniency in the matter.

17. On the cumulative strength of the aforesaid submissions, learned A.G.A. submits that as this is a case of direct evidence, the impugned judgment and order of conviction does not suffer from any illegality and infirmity so as to warrant any interference by this Court. As such the present jail appeal filed by the accused appellants who committed heinous crime by murdering the deceased is liable to be dismissed.

18. We have considered the submissions made by the learned counsel for the parties and have carefully examined the original records of the case as well as the impugned judgment and order of conviction challenged before us.

19. We are in full agreement with the findings recorded by the trial court after relying upon the statements of P.W.-5, P.W.-8 and the dying declaration of the deceased itself that the circumstances in which the dying declaration of the deceased Lakshmidevi has been recorded by P.W.5 is quite natural, which makes it clear that the deceased Lakshmidevi was in her senses and in full consciousness while making the dying declaration. The dying declaration has been made of her own free will. He has further recorded that there was no scope for any pressure and manipulation because the dying declaration was made by Lakshmidevi before her death, wherein she has only taken the name of her husband i.e. accused-appellant Shishupal Singh and she has told that her husband had beaten her first at 3 to 4 o'clock in the night, then poured kerosene oil on her and set her on fire with matches. The trial court has also recorded that in the dying declaration the deceased Lakshmidevi has stated that her whole body was burnt due to fire at several places. Her marriage was solemnized 4 years ago of the incident. She did not have any child. Due to his second wife, the accused-appellant Shishupal had set the deceased on fire and no other in-laws has set her on fire. The deceased has further stated in her dying declaration that in this incident her husband is only responsible. Her mother-in-law and father-in-law were there, who admitted her to the hospital. Her husband escaped in the night itself. He didn't come along with them. She has also stated that her brother-in-law (Jeth), Nandoi, father-in-law had come to the hospital. There is no fault of anyone in this incident. This feat is of her husband only. The deceased made her statement in her senses. Apart from the above, she had nothing to tell. She has also stated that she did not set herself on fire.

20. On the basis of the aforesaid statement of the deceased in her dying declaration, the trial court has opined that on seriously reviewing the said dying declaration of deceased Lakshmidevi, it is found to be creditworthy that if the deceased wanted, she could have taken the name of all family members of in-laws in her dying declaration as well, but she has told the name of her husband, who poured kerosene oil on her and set her on fire with matches. Apart from this, it is also very important that the dying declaration made by the deceased Lakshmidevi was not given due to any pressure or any other reason because when the deceased Laxmidevi was admitted to the District Hospital in a burnt condition, at that point of time no member of her family i.e. her mother and any other person were present and those who were present there in the hospital to take care of her was her in-laws only. Under these circumstances, the trial court has opined that there is valid reason to consider the verbal declaration of death made by the deceased. The trial court has also recorded that it is also clear from the dying declaration of Lakshmidevi that her husband Shishupal Singh was married to another woman and had a child from the said wedlock. This fact is undisputed because the defence witness (D.W.-1) i.e. her father-in-law has himself accepted this fact in his testimony. This statement of the deceased that her husband was already married has also been supported by her widow mother i.e. P.W.1/informant and her cousin brother (P.W.-4) in their testimony. Thus, on the basis of dying declaration of the deceased and statements of the prosecution witnesses i.e. P.W.-1, P.W.4, P.W.-5 and P.W.-8 and the evidence on record, the trial court has come to the conclusion that the prosecution has succeeded to prove the guilt of the accused-appellant that due to his second wife the accused-appellant used to beat and harass the deceased before the incident and after that he poured kerosene oil on her and set her on fire and the said criminal act of accused Shishupal Singh comes under the category of murder. On the basis of such finding, the trial court has come to the conclusion that this is not a case of murder of dowry, but is a direct murder case, which the prosecution has successful proved.

21. While considering the evidence of P.W.1 to P.W.8 in cumulative nature, the death can be said to be homicidal death. Postmortem report goes to show that the superficial deep burn injuries on the body of the deceased would be the cause of death and that it was homicidal death. There is also dying declaration which was given by the deceased in her senses and not under any pressure as is evident from the statements of independent prosecution witnesses i.e. P.W.-5, who recorded the dying declaration after taking medical fitness certificate from P.W.-8, who was medically treating the deceased when she was admitted in the hospital and was alive. It is settled law that the dying declaration made by a person on the verge of his/her death has a special sanctity as at that solemn moment a person is unlikely to make any untrue statement.

22. In the case of Bijoy Das Versus State of West Bengal reported in (2008) 4 SCC 511, wherein in paragraph-11, the Apex Court has held as follows:

"11. As observed by this Court in Narain Singh v. State of Haryana AIR vide para 7: (SCC p. 267, para 7) A dying declaration made by a person on the verge of his death has a special sanctity as at that solemn moment a person is most unlikely to make any untrue statement. The shadow of impending death is by itself guarantee of the truth of the statement of the deceased regarding the circumstances leading to his death. But at the same time the dying declaration like any other evidence has to be tested on the touchstone of credibility to be acceptable. It is more so, as the accused does not get an opportunity of questioning veracity of the statement by cross-examination. The dying declaration if found reliable can form the base of conviction.

8. In Babulal v. State of M.P. (2003 (12) SCC 490) this Court observed vide in para 7 of the said decision as under: (SCC p.

494) A person who is facing imminent death, with even a shadow of continuing in this world practically non-existent, every motive of falsehood is obliterated. The mind gets altered by most powerful ethical reasons to speak only the truth. Great solemnity and sanctity is attached to the words of a dying person because a person on t as she had not borne any child for four years during the marital life he verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person. The maxim is a man will not meet his Maker with a lie in his mouth (nemo moriturus praesumitur mentiri). Mathew Arnold said, truth sits on the lips of a dying man. The general principle on which the species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and mind induced by the most powerful consideration to speak the truth; situation so solemn that law considers the same as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice.

9. In Ravi v. State of T.N. ((2004 (10) SCC 776) this Court observed that: (SCC p. 777, para 3) If the truthfulness of the dying declaration cannot be doubted, the same alone can form the basis of conviction of an accused and the same does not require any corroboration, whatsoever, in law."

(Emphasis supplied by us)

23. The death occurred because of the ante-mortem burn injuries. Learned counsel for the appellant has not been able to establish that the dying declaration is not natural dying declaration we concur with the learned Judge that the deceased died out of ante-mortem burn injuries. The contours for accepting the dying declaration are fulfilled in the facts of the case, therefore, we conclude that it was a homicidal death. The next question is whether the accused was the sole perpetrator of the offence. The dying declaration, which we have held to be fulfilled on contours of dying declaration goes to show that the deceased was in a full consciousness and has named only her husband and no other in-laws have been named in the dying declaration. The cause of the incident was that as she had not borne any child for four years during the marital life and that the appellant had some illicit relations prior to the marriage that was the cause behind killing the deceased by the accused-appellant.

24. Therefore, on totality of the facts and circumstances and the oral testimony of the prosecution witnesses specifically the dying declaration of the deceased coupled with the medical evidence, we find that the judgment and order impugned passed by the trial court in convicting the accused-appellant under Section 302 I.P.C. and sentenced him to life imprisonment with fine of Rs, 5,000/- cannot be said to be illegal or perverse.

25. However, considering the total period of incarceration undergone by the accused-appellant i.e. more than 15 years is just and proper. In the case of Vikash Yadav Vs. State of Uttar Pradesh & Others reported in (2016) 9 SCC 541, the Apex Court has opined that there was lack of uniformity in award of death sentences and life convicts got released after 14 years due to remission provisions mentioned in the Code of Criminal Procedure. Fixed term non-remittable imprisonment beyond 14 years barred the statutory remission (not constitutional remission under Articles 71 and 161. Fixed term non-remittable sentence came to rescue of court when death sentence fell short of rare-rest of rare category and court felt reluctant to endorse death sentence. Therefore, there is no bar to fix non-remittable term beyond the minimum of 14 years up to the end of one's life.

26. The relevant portion of the judgment of the Apex Court in the case of Vikash Yadav is read as under:

"To elaborate, though the power exercised under Article 71 and Article 161 of the Constitution is amenable to judicial review in a limited sense, yet the Court cannot exercise such power. As far as the statutory power under Section 433-A is concerned, it can be curtailed when the Court is of the considered opinion that the fact situation deserves a sentence of incarceration which be for a fixed term so that power of remission is not exercised. There are many an authority to support that there is imposition of fixed term sentence to curtail the power of remission and scuttle the application for consideration of remission by the convict. It is because in a particular fact situation, it becomes a penological necessity which is permissible within the concept of maximum and the minimum. There is no dispute over the maximum, that is, death sentence. However, as far as minimum is concerned the submission of the learned counsel for the appellants is courts can say "imprisonment for life" and nothing else. It cannot be kept in such a strait-jacket formula. The court, as in the case at hand, when dealing with an appeal for enhancement of sentence from imprisonment of life to death, can definitely say that the convict shall suffer actual incarceration for a specific period. It is within the domain of judiciary and such an interpretation is permissible. Be it noted, the Court cannot grant a lesser punishment than the minimum but can impose a punishment which is lesser than the maximum. It is within the domain of sentencing and constitutionally permissible."

27. The accused has been in jail for more than 15 years, he has already undergone sufficient incarceration for the incident occurred in 02.03.2006. We therefore, apply the fix term sentencing policy of 14 years at par with the judgment of the Apex Court in the case of Vikas Yadav (Supra). Accordingly, accused-appellant is liable to be released from jail.

28. The accused-appellant, namely, Sheeshu Pal Singh, who is reported to be in jail since 2007 shall be released on compliance of Section 437-A Cr.P.C., unless he is wanted in any other case forthwith.

29. This appeal stands disposed off subject to the observations/directions made herein above.

30. Let a copy of this judgment be sent to the Chief Judicial Magistrate, Mainpuri henceforth, who shall transmit the same to the concerned Jail Superintendent for release of the accused-appellants in terms of this judgment.

31. Sri Shashi Shekhar Mishra, learned Amicus Curiae for the sole appellant has ably assisted this Court and would be entitled to his fee for a sum of Rs. 15,000/- from the High Court Legal Services Authority.

Order Date :- 10.5.2023

SK Srivastava