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Gyan Chandra vs State Of U.P. on 19 September, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

JUDGMENT RESERVED ON : 05.09.2018

JUDGMENT DELIVERED ON : 19.09.2018

Case :- JAIL APPEAL No. – 2210 of 2014

Appellant :- Gyan Chandra

Respondent :- State Of U.P.

Counsel for Appellant :- From Jail, Sita Ram Sharma, A.C.

Counsel for Respondent :- A.G.A.

Hon’ble Sudhir Agarwal,J.

Hon’ble Om Prakash-VII,J.

(Delivered by Om Prakash-VII, J.)

1. Present jail appeal has been preferred by accused-appellant Gyan Chandra against judgment and order dated 23.5.2001 passed by XIth Additional Sessions Judge, Meerut in Session Trial No. 237 of 1999 arising out of Case Crime No. 666 of 1998 (State of U.P. Vs. Gyan Chandra) under Sections 376, 302, 201 I.P.C., Police Station Baraut, District Baghpat convicting and sentencing the accused appellant under Section 376 IPC for life imprisonment and fine of Rs. 10,000/- and in the event of non payment of fine he has to further undergo two years’ imprisonment; under Section 302 IPC for life imprisonment and fine of Rs. 10,000/- and in the event of non payment of fine further to undergo two years’ imprisonment and for the offence under Section 201 IPC for seven years’ rigorous imprisonment and fine of Rs. 5,000/- and in the event of non payment of fine, accused appellant has to undergo one year’s additional imprisonment. All the sentences were directed to run concurrently.

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

3. On 23.11.1998 informant Subhash Chand son of Lal Singh resident of Village Bijraul, police station Baraut, district Baghpat moved written report (Ext. Ka.-1) scribed by Sukhbir Singh mentioning therein that his daughter (victim) aged about 4-1/2 years was missing on 22.11.1998 since 2 P.M. In the evening they searched in the locality but her whereabouts could not be known. On 23.11.1998, in the morning dead body of the victim girl was found lying by the side of the wall in front of ‘GHER’ of Niranjan son of Imrit. It is also mentioned that Abhi Lal son of Randhir Singh Harijan, Tika Ram son of Nakli have also seen the accused appellant along with the daughter of the informant on 22.11.1998 at 2 P.M. taking her towards his home. Mahipal son of Amar Singh and Ishwar son of Kundan had seen the accused appellant throwing the dead body of the victim girl at 4 A.M. on 23.11.1998 in the morning at the place where dead body was recovered. Accused after committing the rape against the victim killed her by throttling her mouth and neck. Thus request was made to lodge the first information report (F.I.R.).

4. On the basis of written report (Ext. Ka-1) chik F.I.R. (Ext. Ka-3) at police station Baraut, on 23.11.1998 at 11.30 A.M. was registered at crime no. 666 of 1998, under Sections 302, 376, 511 IPC against the accused appellant. Entry was also made in the General Diary (in short G.D.) (Ext. Ka-). Investigation was entrusted to Rameshwar Singh Katheria, Station Officer concerned, Investigating Officer reached the place of occurrence and prepared site plan (Ext. Ka-5) of the place from where the dead body was recovered and also prepared another site plan (Ext. Ka-6) of the place where the incident is said to have taken place. Investigating Officer has also prepared the inquest report (Ext. Ka-7) on 23.11.1998 keeping the dead body in sealed cloth and also prepared the sample seal. Investigating Officer has also prepared the police papers relating to the inquest report at the same time as Ext.-8 to Ka.-11. Dead body was handed over to Constable Sagar Singh and Home Guard Arvind Singh along with relevant documents to carry the same to the mortuary.

5. Post mortem on the dead body of the deceased was conducted on 23.11.1998 at 4.45 P.M. itself. On general examination deceased was found to be 4-1/2 years old. Probable time of death was one day. She was average body built. Rigor mortis was present all over the body.

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

I. Abrasion 1 cm x 0.5 cm on rt side of face, 4 cm away from angle of mouth.

II. Abrasion 2.5 cm x 0.8 cm on mid of forehead, 0.5 cm above upper end of nose.

III. Abrasion 0.5 cm x 0.5 cm on mid of chin.

IV.Abrasion 1 cm x 0.5 cm on rt side of neck, 3 cm below chin.

V. Abrasion (multiple) in an area 3 cm x 1 cm on front of neck, 3.5 cm above upper end of sternum. Smallest 0.3 cm x 0.3 cm, largest 1 cm x 0.5 cm.

VI. ͜͡ Shaped abrasion 5 cm x 3.5 cm on front of pubic area 1.5 cm above urethral mealer

VII. VII.Lacerated wound 3 cm x 1.5 cm x muscle on post part of vagina.

VIII. Clotted blood around valva.

Two glass slides from vaginal smear prepared, sealed and sent to Pathologist, P.L.Sharma, Meerut.

7. On internal examination 300 ml. semi digested food was found in the stomach. Spleen and kidney both were found congested. Bladder was found empty. In the opinion of the Doctor cause of death was found asphyxia due to throttling. Doctor has opined in the post mortem report (ExtKa-02) that rape has also been done against the victim (deceased).

8. Investigating officer concerned also arrested the accused appellant who was medically examined on 24.11.1998 at 11.50 A.M. at Primary Health Centre, Baraut and following injuries were found on his body :

(I) Abrasion 1.5 cm x 1 cm on back of left elbow joint.

(II) Scabed abrasion 0.5 cm x 0.5 cm on right side of back just above the hip bone, soft scab present.

(III)Abrasion 1.5 cm x 1.5 cm on front of rt knee.

(IV) No smegma present.

(V) No stain of seamen or blood present on or around genitals and clothings.

(VI) Scabed abrasion of 0.5 cm x 0.5 cm present on the lower side of glans penis.

(VII) Scabed scratch present on upper side of penis present. Size of scratch 1.2 cm x 0.3 cm.

(VIII) Injury no. 1, 2, 3, 6 and 7 were said to be caused by friction of blunt and hard object. All injuries were simple in nature. Duration of all injuries about 2 days.

9. Injury report is Ext. Ka-12. Investigating Officer has also interrogated the witnesses and after fulfilling entire formality submitted charge sheet (Ext. Ka.-13) against the accused appellant.

10. Cognizance was taken by the concerned Magistrate. Case being exclusively triable by Sessions Court, was committed for trial to the Sessions Judge.

11. Accused appeared. Public Prosecutor opened the prosecution case describing the entire evidence collected by the Investigating Officer in support of the charge sheet and the trial court after hearing the parties framed charge for the offence under Section 376, 302, 201 IPC against the accused appellant on 16.9.1999 to which he denied and pleading not guilty claimed his trial.

12. In order to prove its case, prosecution examined nine witnesses in total. Out of them P.W.-1 Subhash Chand, informant (father of the deceased); P.W.-2 Tika Ram, witness of last seen evidence; P.W.-3 Ishwar is the witness of throwing of the dead body of the deceased by the accused appellant; P.W.-4 Constable Sagar Singh who carried the dead body for post mortem to the mortuary; P.W.-5 Dr. J. K. Jain, who has conducted the post mortem on the body of the deceased and prepared the post mortem report (Ext. Ka-2). P.W.-6 Head Constable Rameshwar Singh who has prepared the chik F.I.R. (Ext. Ka-3) and G.D. Entry (Ext. Ka.-4); P.W.-7 S.O. Digambar Singh, Investigating Officer who has prepared the site plan (Ext. Ka-5 and Ext. Ka-6); inquest report and other police papers Ext. Ka.-7 to Ext. Ka-11) and has also converted the case into the offence under Section 376 IPC. He has also arrested the accused and has sent him for medical examination; P.W.-8 Dr. S. C. Srivastava who has medically examined the accused and prepared the injury report (Ext. Ka-12); P.W.-9 Giriraj Singh who has proved the charge sheet (Ext. Ka-13) as secondary evidence. In this matter, charge sheet had been submitted by the then S.H.O. B. K. Bhardwaj.

13. On conclusion of prosecution evidence statement of the accused appellant under Section 313 Cr.P.C. was recorded in which he denied the prosecution case. Facts mentioned in F.I.R. and stated by witnesses were also denied by him. He has also pleaded that he did not commit the present offence nor he has thrown the dead body of the victim (deceased) near the house of Niranjan. Chik F.I.R. and other police papers were wrongly prepared. Charge sheet was submitted on the basis of insufficient evidence. Investigation was per-functory. Accused appellant has also denied about his medical examination (Ext. Ka-12) and showed ignorance about post mortem of dead body of the deceased. He has specifically stated that witnesses examined in the matter have made false statement and he was implicated in this matter by the Police only for the sake of working out of the case. It was also pleaded that F.I.R. was prepared against another person and informant Subhash asked him to be a witness when he denied saying that he will not take enmity with anyone then informant roped the accused appellant in this matter and due to that reason Police also implicated him instead of arresting the actual culprits.

14. It appears that accused appellant did not adduce any evidence (documentary or oral) in support of his defence.

15. Trial Court after appreciating evidence and hearing the parties vide impugned judgment and order convicted and sentenced accused appellant for the charges levelled against him, as above. Hence feeling aggrieved by the same, present appeal has been preferred.

16. We have heard Sri Sita Ram Sharma, Amicus Curiae on behalf of appellant and Sri S. A. Murtaza, A.G.A. for State and have gone through entire record.

17. Submission of learned Amicus Curiae is that F.I.R. is delayed. No plausible explanation has been given by prosecution. None of the witnesses examined on behalf of prosecution have seen the accused appellant along with deceased at any point of time. Entire prosecution evidence is based on suspicion. There is major contradictions in statement of prosecution witnesses on material points. Medical evidence also does not support oral version of appellant. Material witnesses cited in F.I.R. were not examined. Thus presumption shall be raised against the prosecution that if they were examined they would not support the prosecution case. Referring to statement of P.W.-2 and P.W.-3 it was also argued that if they had seen the accused appellant along with deceased and throwing of dead body of deceased by accused appellant they must have informed immediately to family members of deceased. Thus conduct of P.W.-2 and P.W.-3 itself placed them in the category of unreliable witness. Findings recorded by Trial Court on the point of conviction and sentence in the impugned judgment and order are perverse. Prosecution was not able to prove its case beyond reasonable doubt. Thus prayer was made to allow the appeal and acquit the accused appellant.

18. Learned A.G.A. argued that delay in lodging the F.I.R. in suh type of cases is immaterial. Apart to this, prosecution was able to explain the delay occurred in the matter in lodging F.I.R. satisfactorily. F.I.R. was lodged against accused appellant. P.W.-2 and P.W.-3 had told entire facts to the P.W.-1 before lodging the F.I.R. Deceased was taken by accused appellant at 2 P.M. on 22.11.1998 to his residence. Witnesses Abhi Lal and Tika Ram both have seen accused appellant along with deceased going towards the house of accused appellant. P.W.-3 Ishwar and one Mahipal have also seen accused appellant throwing dead body of deceased in the morning of 23.11.1998 at 4 A.M. in the “GHER” of Niranjan. Thus chain of circumstances to form irresistible conclusion about commission of present offence against the accused appellant have been proved by the prosecution beyond reasonable doubt. Chain of circumstances are also linked with each other. Findings recorded by Trial Court on this issue are in accordance with law. There is no enmity between informant and accused appellant to falsely implicate him in this matter. Doctor examined in the matter has clearly stated that offence of rape has been committed against victim. Medical evidence fully support the oral evidence. Thus referring to the entire evidence it was also argued that there is no illegality or infirmity in the impugned judgment warranting interference of this Court.

19. We have considered the rival submissions made by learned counsel for parties.

20. As is evident from record, victim girl was missing since 22.11.1998 at 2 P.M. Informant, P.W.-1 and his wife both had gone to earn their livelihood. When P.W.-1 returned to his house in the evening, he made search of victim girl but in vain. Again search was made in the morning on the information of witnesses and dead body of the deceased was found in the “GHER” of Niranjan. It also appears that thereafter written report (Ext. Ka-1) was prepared with the aid of scribe Sukhbir Singh and informant P.W.-1 went to the Police Station concerned and F.I.R. was lodged. Police thereafter proceeded for the place of occurrence. Statement of P.W.-1 is not material on the point of last seen evidence and throwing the dead body. P.W.-2 Tika Ram claimed that he had seen the deceased along with the accused appellant on 22.11.1998 at 2 P.M. going towards the house of accused appellant. P.W.-3 Ishwar has seen the accused appellant throwing the dead body of the deceased in the “GHER” of Niranjan. As per this witness he also informed this fact immediately to P.W.-1. Dead body of the deceased is recovered at about 8 A.M. in the morning. Thus, on the basis of above factual back-drop of the matter submissions raised by learned Amicus Curiae and learned A.G.A. have to be dealt with.

21. First of all we proceed to deal with the submissions raised on the point of delay occurred in lodging the F.I.R. Admittedly F.I.R. is not lodged on 22.11.1998. Family members were making search of the deceased in the evening but she could not be traced out. Dead body was recovered on 23.11.1998 at about 8 A.M. in the morning from the “GHER” of Niranjan. F.I.R. was lodged at 11.30 A.M. on 23.11.1998. Distance between the place of occurrence and Police Station concerned is about 5 kms. Thus F.I.R. was lodged within 3-1/2 hours from the time of recovery of the dead body. Non lodging of any missing report on 22.11.1998 when family members were searching the deceased will not be sufficient to disbelieve the prosecution case and F.I.R. on this score cannot be said to be lodged belatedly. Generally in the facts and circumstances like this, family members firstly make efforts to search the missing person instead of lodging the F.I.R. immediately. The conduct of the informant and family members in no way was against the normal behaviour of a man. F.I.R. was lodged in the matter within 3-1/2 hours from the time of recovery of the dead body against the accused appellant. Thus on the ground that F.I.R. was not lodged in the matter on 22.11.1998 the statement of P.W.-2 and P.W.-3 cannot be disbelieved. In the instant matter other evidence adduced by the prosecution has to be discussed to ascertain the truth of the prosecution case.

22. Before dealing with any other submission raised by the learned Amicus Curiae, we directly proceed to discuss the medical evidence. P.W.-5 Dr. J. K. Jain has conducted post mortem on the dead body of the deceased on 23.11.1998. Deceased was aged about 4-1/2 years. Time of death was one day. Eight injuries in total were found on the body of the deceased. Injury no. 6,7 and 8 are on the private part of the deceased. P.W.-5 Dr. J. K. Jain has clearly opined that offence of rape had been committed against the victim before killing her. If the statement of P.W.-5 Dr. J. K. Jain are analysed in its entirety it emerges that death of deceased occurred due to throttling and offence of rape had also been committed against the deceased. Since cause of death of deceased has been clarified by P.W.-5 Dr. J.K. Jain, therefore, in our considered opinion medical evidence in the present matter fully supports the facts mentioned in the F.I.R. and stated by P.W.-1. There is no conflict between oral and medical evidence.

23. Now we proceed to deal with the last seen evidence. Informant has not specified in the F.I.R. any motive against accused appellant to commit the present offence. It is also noteworthy that such type of offences is not committed on the basis of any specific motive but committed only to fulfill the lust. Thus motive in the matter has no importance.

24. P.W.-2 has stated that he has seen accused appellant along with deceased taking her towards his house providing Peanut on 22.11.1998 at 2 P.M. As per this witness, he did not inform P.W.-1 in the night about the last seen evidence. Now the question, whether mere fact that he has not informed P.W.-1 or his family members about last seen evidence in the evening will justify this witness to be kept in the category of unreliable witness. If statement of this witness is analysed in its entirety it emerges that he has specifically stated that he informed about this fact in the next morning to P.W.-1. Statement of P.W.-2 on the point of seeing deceased along with accused appellant at 2 P.M. on 22.11.1998 going towards the house of accused appellant is consistent and clear. There is no contradiction in the statement of this witness on this point. P.W.-3 Ishwar has stated that on 23.11.1998, in the morning at about 4 A.M. when he was going to ease himself towards the field, saw accused appellant throwing dead body of child in the boundary wall of Niranjan. As per this witness, he identified dead body of child as dead body of the deceased the daughter of informant and also noticed injuries on dead body. He also informed this fact to P.W.-1 in the morning itself. In the cross examination also he has specifically stated that he informed about this fact to P.W.-1 in the morning itself at 4 A.M. P.W.-1 has stated that information was given about this fact to him by P.W.-3 at 7 A.M. As far as statement of P.W.-3 about time of information given by him to P.W.-1 is concerned there is variation in the time but one fact is clear and consistent that P.W.-3 has informed about throwing of dead body of deceased by accused appellant in the boundary wall of Niranjan in the morning itself. Villagers when used to go to ease themselves generally they do not have watch. In that situation, there may be variation in actual time of seeing accused appellant throwing dead body of deceased and also the time when information was given. Dead body was traced out at about 8 A.M. In the statement of P.W.-3 that he had seen accused appellant throwing dead body in the “GHER” of Niranjan there is no inconsistency or contradiction. Thus, if statement of P.W.-1, P.W.-2 and P.W.-3 are taken into consideration cumulatively and in entirety, following facts would emerge :

(I) Deceased was missing since 22.11.1998 at 2 P.M.. Informant and her wife both were not present at that time in their house and they had gone to earn their livelihood and they return in the evening.

(II) P.W.-2 Tika Ram on 22.11.1998 had seen accused appellant along with deceased going towards the house of accused appellant.

(III) Search was made by P.W.-1 and his family members when the victim did not return in the evening till 11 P.M. in the night.

(IV) P.W.-2 Tika Ram had gone to see a fair and returned in the evening. Although he has stated that when he reached the village, in the evening, after seeing fair, a public announcement about missing of deceased was being made.

(V) P.W.-2 and P.W.-3 both have informed P.W.-1 about fact of last seen and throwing of dead body of deceased by accused appellant in the morning.

(VI) Dead body of deceased was found in the “GHER” of Niranjan at 8 A.M. in the morning of 23.11.1998.

(VII) As per post mortem report several ante mortem injuries including injuries on the private part of deceased were found in post mortem.

(VIII) Before killing the deceased by throttling her, offence of rape was also committed against her.

25. Trial Court analysing the statement of P.W.-1, P.W.-2 and P.W.-3 reached on a conclusion that prosecution was able to prove last seen evidence beyond reasonable doubt. Chain of the circumstances are fully connected and established and linked with each other.

26. For ready reference, paragraphs no. 17 to 23 of Majenderan Langeswaran Versus State (NCT of Delhi) and Another, (2013) 7 Supreme Court Cases 192 are quoted below.

“17. In Hanumant Govind Nargundkar vs. State of M.P., AIR 1952 SC 343, this Court observed as under:

“10. It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.”

18. In Padala Veera Reddy vs. State of A.P., 1989 Supp (2) SCC 706, this Court opined as under:

“10. Before adverting to the arguments advanced by the learned Counsel, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests:

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra, (1982) 2 SCC 351).

19. In C. Chenga Reddy Ors. vs. State of A.P., (1996) 10 SCC 193, this Court while considering a case of conviction based on the circumstantial evidence, held as under:

“21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In the present case the courts below have overlooked these settled principles and allowed suspicion to take the place of proof besides relying upon some inadmissible evidence.”

20. In Ramreddy Rajesh Khanna Reddy vs. State of A.P., (2006) 10 SCC 172, this Court again considered the case of conviction based on circumstantial evidence and held as under:

“26. It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. (See Anil Kumar Singh v. State of Bihar, (2003) 9 SCC 67 and Reddy Sampath Kumar v. State of A.P., (2005) 7 SCC 603).”

21. In the case of Sattatiya vs. State of Maharashtra, (2008) 3 SCC 210, this Court held as under:

10. We have thoughtfully considered the entire matter. It is settled law that an offence can be proved not only by direct evidence but also by circumstantial evidence where there is no direct evidence. The court can draw an inference of guilt when all the incriminating facts and circumstances are found to be totally incompatible with the innocence of the accused. Of course, the circumstances from which an inference as to the guilt is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.

This Court further observed in the aforesaid decision that:

17. At this stage, we also deem it proper to observe that in exercise of power under Article 136 of the Constitution, this Court will be extremely loath to upset the judgment of conviction which is confirmed in appeal. However, if it is found that the appreciation of evidence in a case, which is entirely based on circumstantial evidence, is vitiated by serious errors and on that account miscarriage of justice has been occasioned, then the Court will certainly interfere even with the concurrent findings recorded by the trial court and the High Court – Bharat v. State of M.P., (2003) 3 SCC. In the light of the above, we shall now consider whether in the present case the prosecution succeeded in establishing the chain of circumstances leading to an inescapable conclusion that the appellant had committed the crime.

22. In the case of State of Goa vs. Pandurang Mohite, (2008) 16 SCC 714, this Court reiterated the settled law that where a conviction rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.

23. It would be appropriate to consider some of the recent decisions of this Court in cases where conviction was based on the circumstantial evidence. In the case of G. Parshwanath vs. State of Karnataka, (2010) 8 SCC 593, this Court elaborately dealt with the subject and held as under:

23. In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The court thereafter has to consider the effect of proved facts.

24. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. 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 show that in all human probability the act must have been done by the accused, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court.”

27. Similar view has also been reiterated in Rajendra Pralhadrao Wasnik vs. State of Maharashtra, (2012) 4 SCC 37 as well as in Brajendrasingh vs. State of M.P., (2012) 4 SCC 289.

28. In this matter medical examination of accused appellant was also conducted on 24.11.1998 and some injuries were found on the private part of the accused appellant and Trial Court was of the view that injuries found on the private part of the deceased also indicate that he has committed offence of rape on victim in intervening night of 22/23.11.1998. Doctor concerned who has medically examined accused appellant was also examined before Court. He has also stated that injuries found on private part of accused appellant were two days old and same may come while committing offence of rape. Although in cross examination, this witness i.e. P.W.-8 has opined that injuries may have come in other manner. If medical report in regard to the accused appellant is excluded from total evidence adduced by prosecution then also last seen theory, in the form of going of accused-appellant along with deceased towards his house on 22.11.1998 at 2 P.M. and thereafter deceased was not seen at any other place by any other witness along with other persons, can not be disbelieved. Only dead body of deceased was found in the ‘GHER” of Niranjan which was also thrown by accused appellant himself as per statement of P.W.-3.

29. So far as omissions or contradictions occurred in prosecution evidence on certain points are concerned, same are neither material nor fatal to prosecution evidence, hence, on this count as well as on the ground of laches on the part of Investigating Officer prosecution case cannot be disbelieved.

30. Thus on close scrutiny of entire evidence in the light of the submissions raised by learned Amicus Curiae, we are also of the view that all the circumstances summarised herein above have been proved cogently, firmly and independently and they are of definite tendency and also unerringly pointing towards guilt of the accused appellant. Chain of the circumstances are also complete and there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. Findings recorded by the Trial Court on the basis of circumstances established by P.W.-2 and P.W-3 in order to sustain conviction are correct and hypothesis of the guilt of the accused appellant formed by the Trial Court is in accordance with the facts, evidence and settled proposition of law. Thus findings recorded by the Trial Court about guilt of the accused appellant for the offence under Section 376, 302, 201 IPC and conviction held for these offences need no interference.

31. 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.

32. 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].

33. 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.

34. 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.

35. 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 23.5.2001 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.

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

37. Copy of this judgment along with lower court record be sent forthwith to the Sessions Judge, Meerut 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.

38. Sri Sita Ram Sharma, learned amicus curiae has assisted the Court very diligently. We provide that he shall be paid counsel’s fee as Rs. 10,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad to Sri Sita Ram Sharma, Amicus Curiae without any delay and in any case within 15 days from the date of receipt of copy of this judgment.

Order dated : 19-09-2018

Sachdeva

 

 

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