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Md. Qamar @ Bablu vs State Of U.P. on 24 January, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Reserved on 28.11.2018

Delivered on 24.01.2019

Court No. – 34

Case :- CRIMINAL APPEAL No. – 1813 of 2011

Appellant :- Md. Qamar @ Bablu

Respondent :- State Of U.P.

Counsel for Appellant :- Haroon Ahmad,Arun Kumar Pathak,Rajesh Kumar Tiwari

Counsel for Respondent :- Govt. Advocate

Hon’ble Sudhir Agarwal,J.

Hon’ble Ram Krishna Gautam,J.

(Delivered by Hon’ble Ram Krishna Gautam,J.)

1. Heard Sri Pradeep Kumar Mishra, learned Amicus Curiae, for the appellant and Sri Nikhil Chaturvedi, learned AGA for the State. Perused the lower court’s record.

2. Present Criminal Appeal under Section 374(2) of Cr.P.C. has been filed by convict appellant Mohd. Qamar @ Bablu against judgment and order dated 3.2.2011 passed by Additional Sessions Judge/ Special Judge (E.C. Act), Court No. 2, Allahabad, in S.T. No. 740 of 1997 (State Vs. Md. Qamar @ Bablu) related with Case Crime No. 79 of 1997, under sections 376, 302, 201 I.P.C. of Police Station Sani, the then District Allahabad, presently District Kaushambi, whereby convicting appellant Mohd. Qamar @ Bablu, under section 302 I.P.C. and sentencing him for life imprisonment along with fine of Rs. 30,000/-, in default of payment of fine additional imprisonment of six months was to be undergone, rigorous imprisonment of ten years with fine of Rs. 20,000/-, in default three years additional imprisonment for offence punishable under section 376 I.P.C. and rigorous imprisonment of three years with a fine of Rs. 5000/-, in default of payment of fine one month’s additional imprisonment for offence punishable under section 201 I.P.C. with a condition that all those sentences shall run concurrently on the ground that the trial court failed to appreciate the facts and law placed before it. Conviction and sentences are against weight of evidence on record, prosecution has failed to prove guilt of the appellant beyond reasonable doubt even then judgment of conviction and order of sentence was made therein. There was no eyewitness account of the occurrence and conviction and sentences are too severe, hence this appeal.

3. Prosecution case was that first information report (Ext. Ka1) under the scribe of Siddikul Hasan resident of village Lehadri Khatib with thumb impression of informant Smt. Sifatun Nisha (PW2) was presented at P.S. Saini on 19.2.1997 at 20.40 hours by the informant against Mohd. Qamar @ Babloo, son of Mohd. Umar, resident of same village Lehadri Khatib of P.S. Saini for offences punishable u/s 302, 201, 376 I.P.C. with this contention that the informant’s daughter Km. Nasreen Bano @ Gudia, aged about 14 years, was out of her house for playing on 18.2.1997 but she did not turn up, till evening. She was being vehemently searched. On 19.2.1997 her dead body was found in a dilapidated room of Amanatullah being used as cowshed. In the evening of 18.2.1997 her daughter was seen inside the house of Mohd. Qamar @ Bablu, while picking flower, where Mohd. Qamar @ Bablu was present, by Km. Sima Bano, daughter of Mohd. Qaiyyum. It was suspected that she was raped and killed by Mohd. Qamar then after her dead body was thrown in the dilapidated house of Amanatullah.

4. On the above report, Case Crime No. 79 of 1997 u/s 302, 201, 376 I.P.C. was registered against accused Mohd. Qamar @ Bablu by PW6- Constable CP 1133 Dev Murti Shukla. Chick F.I.R. (Ext. Ka12) and G.D. Entry prepared under one and common process by fixing carbon under handwriting and signature of this witness, (Ext. Ka13) was prepared by PW6 on 18.2.1997.

5. Inquest proceeding was got conducted by PW5-S.I. Ashok Kumar Singh on 20.2.1997 at abut 7.00 A.M. under direction and supervision of Inspector Incharge of P.S. Saini Uma Shanker Singh by taking witnesses of inquest Abdul Wahab, Prem Chand Maurya , Mohd. Tahir and Sifatun Nisha. The dead body was wrapped in a cloth and sealed properly with preparation of requisite police papers for getting the same examined under autopsy examination. Those papers have been proved to be exhibit Ka6 to exhibit Ka 11 and inquest report as exhibit Ka5.

6. The dead body was taken to autopsy examination, which was conducted by PW4 Dr. P. K. Singh, Medical Officer, deputed on postmortem duty on 20.2.1997. Autopsy over dead body of deceased Nasreen Bano @ Gudia, aged about 14 years, resident of village Lhadri Khatib, P.S. Saini, was conducted on 20.2.1997 at 5.00 P.M., which was brought under intact sealed condition by CP 145 Devendra Singh and CP 1781 Kuldeep Kumar. Time of death was about 1.5 to 1.75 days. Rigor mortis was passed from both upper limbs but was present over both lower limbs. No symptom of decaying was present. Nail, face and lips were cynosed and congested. There was stool over anus. Blood mixed fluid was oozing from nostrils. There was injury of contusion in an area of 7 cm x 1.5 inch on front and middle of neck. Upon dissection tissues beneath were echymosed. There were congestions in both of lungs, pleura with fracture of hyoid bone where blood was present. Right chamber of heart was filled with blood and left chamber was empty. Blood was present in oral cavity. Two ounce semi digested food was in the stomach. Small intestine, large intestine and gall bladder were semi filled. Liver, spline and kidneys were congested. There was laceration in the genital organ, between Lebia Majora and Lebia Minora, canal towards back side with presence of blood. Blood with semen were seen there. After autopsy examination dead body along sealed clothes of deceased were handed over to those police Constables. Slide of vaginal smear was prepared and was sent for pathological examination. Death was owing to asphyxia by putting pressure over neck. Postmortem examination report was prepared under handwriting and signature of co-Medical Officer Dr. A. K. Gupta. It has been proved as Exhibit Ka-2. Death of deceased may be of the night of 18/19.2.1997. This was by putting pressure over neck, after commission of rape with deceased. Police Constables have handed over eleven police papers to this witness before autopsy examination, over which signatures were put by them, which are paper nos. 7/1 to 7/11 proved and exhibited as Exhibit Ka-3 to Exhibit Ka-13.

7. Investigating officer, on the basis of evidence collected during investigation, concluded that offence of rape followed by murder and hiding of evidence was committed by accused Mohd. Qamar @ Babloo, punishable u/s 302, 376, 201 I.P.C. and submitted charge-sheet (Exhibit Ka-15) over which Magistrate took cognizance on 12.5.1997.

8. As the offences of murder and rape were exclusively triable by Court of Sessions, hence the file was committed to the Court of Sessions vide order dated 1.9.1997, passed by the C.J.M. Allahabad.

9. After hearing learned Public Prosecutor as well as learned counsel for defence following charges against accused Mohd. Qamar @ Babloo, were framed by learned Additional Sessions Judge on 12.1.1998:

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“CHARGE

I, O. P. Srivastava, III Additional Sessions Judge, Allahabad, charge you Mohd. Kamar alias Babloo with following charges:

1. That you on 18.2.1997 in the evening committed rape against consent of Km. Nasrin Bano @ Gudia of village Lehadri Khatib, P.S. Saini, and thereby committed offence punishable u/s 376 I.P.C. within the cognizance of the court.

2. You on above date, time and place committed Km. Nasreen Bano @ Gudiya punishable u/s 302 I.P.C. within the cognizance of the court.

3. You on above date, time and place knowing that you have committed murder Km. Nasrin Bano @ Gudiya with a vie to hide the evidence and saving yourself from the punishments had hidden the dead body, which is punishable u/s 201 I.P.C. and is within the cognizance of the Court.”

(English translation by Court)

10. Charges were read over to accused, who pleaded not guilty and claimed for trial.

11. Prosecution examined PW1-Shabbir Ahmad, PW2- Smt. Sifatun Nisha (informant), PW3-Km. Sima Bano, D/o Qaiyyum (last seen witness), PW4- Dr. P. K. Singh (Medical Officer, who conducted autopsy), PW5- S.I. Ashok Kumar Singh, PW6- Constable Clerk Dev Murti Shukla, PW7- Dy. S. P. Uma Shanker Singh, the then In-charge Police Station Officer P.S. Saini (Investigating Officer).

12. With a view to have an explanation, if any, and version of accused over incriminating evidence led by prosecution, statement of accused was recorded u/s 313 Cr.P.C. in which accusation was denied with a contention that report was falsely lodged and investigation was erroneous and fraudulent charge-sheet was submitted. He was not aware of inquest, autopsy examination and evidences given by S.I. Ashok Kumar Singh and Dr. P. K. Singh. PW1 and PW2 are inimical to him and have given evidence under influence of police. This accusation was a result of enmity, because two months prior to this occurrence Quaiyyum had beaten mother and sister of the accused in which his mother had sustained fracture injury and for that a criminal case was lodged in which the accused was doing pairvi and owing to this he was falsely implicated.

13. In defence DW1 Constable Kedar Nath was examined to prove lodging of FIR on 14.2.1997, registered as Case Crime No. 72 of 1997 under sections 452, 323, 504, 506 I.P.C. upon report of accused aide against Mohd. Quaiyyum and others.

14. Learned Additional Sessions Judge heard arguments of Public Prosecutor and learned counsel for accused and thereafter passed the impugned judgment and order of conviction and sentence.

15. No doubt this is a trial based on circumstantial evidence because none is eyewitness account of commission of rape or murder or hiding of evidence of these offences by accused/ convict appellant Mohd. Qamar @ Babloo, rather the circumstances have been proved by the prosecution.

16. In a case, which rests on circumstantial evidence, law postulates, twin requirements to be satisfied. First, every link of chain of circumstances, necessary to establish the guilt of accused, must be established by prosecution beyond reasonable doubt; and second, all the circumstances must be consistent with the guilt of accused.

17. In Hanumant Vs. The State of Madhya Pradesh, AIR 1952 SC 343, as long back as in 1952, Hon’ble Mahajan, J. expounded various concomitant of proof of a case based purely on circumstantial evidence and said:

“… 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…… it must be such as to show that within all human probability the act must have been done by the accused.” (emphasis added)

18. In Hukam Singh vs. State of Rajasthan, AIR 1977 SC 1063, Court said, where a case rests clearly on circumstantial evidence, inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with innocence of accused or the guilt of any other person.

19. In Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 SC 1622 Court while dealing with a case based on circumstantial evidence, held, that onus is on prosecution to prove that the chain is complete. Infirmity or lacuna in prosecution cannot be cured by false defence or plea. Conditions precedent before conviction, based on circumstantial evidence, must be fully established. Court described following condition precedent:

(1) 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.

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

(3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) 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.

(emphasis added)

20. In Ashok Kumar Chatterjee vs. State of Madhya Pradesh, AIR 1989 SC 1890, Court said:

“… 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.”

(emphasis added)

21. In C. Chenga Reddy and Others vs. State of Andhra Pradesh, 1996(10) SCC 193, Court said:

“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.” (emphasis added)

22. In Bodh Raj @ Bodha and Ors. vs. State of Jammu and Kashmir, 2002(8) SCC 45 Court quoted from Sir Alfred Wills, “Wills’ Circumstantial Evidence” (Chapter VI) and in para 15 of judgement said:

“(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum;

(2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability;

(3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits;

(4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt,

(5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.” (emphasis added)

23. The above principle in respect of circumstantial evidence has been reiterated in subsequent authorities also in Shivu and Anr. vs. Registrar General High Court of Karnataka and Anr., 2007(4) SCC 713 and Tomaso Bruno vs. State of U.P., 2015(7) SCC 178.

24. In the present case circumstantial evidence commences with the statement of informant that her daughter Km. Nasrin Bano alias Gudiya, aged about 14 years, was playing outside the house on 18.2.1997 and she did not return back to home but she was seen by Seema, daughter of Mohd. Qaiyyum in the house of accused Mohd. Qamar @ Bablu while picking flower inside the house of the accused-appellant, where accused-appellant Mohd. Qamar @ Bablu was present. The accused shut door of his house from inside and Seema came back to her house. Subsequently in the next day her dead body was recovered from a dilapidated house of Amanatullah being used as chow thatcher. The dead body was with suspicion of sexual assault with her, hence the last seen by Kumari Seema of the deceased Nasrin Bano @ Gudiya along with accused Mohd. Qamar @ Bablu inside the house of the accused and bolting the door from inside by the accused then after no trace of deceased Nasrin Bano @ Gudiya till recovery of her dead body under above situation of sexual assault from the dilapidated house of Amanatullah adjacent to the house of accused.

25. Learned counsel for appellant contended that circumstances relating to last seen have wrongly been applied in the case in hand for the reason that in the entire night deceased may have gone elsewhere and somebody else may have killed and there is a long gap of time.

26. We may examine as to what is the concept of last seen and in what circumstances it is a relevant crucial circumstantial evidence for proving culpability of a person of crime.

27 The circumstance of last seen of deceased with accused person, as a relevant circumstantial evidence, when can be taken into account, has been discussed time and again. In Bodh Raj @ Bodha and Ors. vs. State of Jammu and Kashmir (supra) Court said that last seen theory comes into play where the time gap between the point of time when accused and deceased were seen last alive and when deceased is found dead is so small that possibility of any person other than accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that deceased was last seen with accused when there is a long gap and possibility of other persons coming in between exists.

28. Theory of last seen is a relevant circumstance when corroborated by other evidence to prove guilt against accused person. In State of U.P. vs. Satish, 2005(3) SCC 114, Court said:

“The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.”

29. In Jaswant Gir vs. State of Punjab, 2005(12) SCC 438 Court also said that in absence of any other links in chain of circumstantial evidence it is not possible to convict the appellant solely on the basis of last seen evidence even if version of witness of fact in this regard is believed.

30. In State of Goa vs. Sanjay Thakran and others, 2007(3) SCC 755 Court said that circumstance of last seen together would normally be taken into consideration for finding the accused guilty of offence charged with when it is established by prosecution that the time gap between the point of time when accused and deceased were found together alive and when deceased was found dead is so small that possibility of any other person being with deceased could completely be ruled out. The time gap between accused persons seen in the company of deceased and detection of crime would be a material consideration for appreciation of evidence and placing reliance on it as a circumstance against accused. Evidence of last seen together is not to be rejected merely because time gap between accused persons and deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for duration of time gap in this regard and it would depend upon the evidence led by prosecution to remove the possibility of any other person meeting 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 accused, being the author, 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 prosecution proves that in the light of facts and circumstances of the case, there was no possibility of any other person meeting or approaching 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. If it may be demonstrated by showing that the accused persons were in exclusive possession of the place where incident occurred or where they were last seen together with deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case.

31. The above observation on the theory of “last seen” has been followed in Tipparam Prabhakar vs. The State of Andhra Pradesh, 2009(13) SCC 534; Rishi Pal vs. State of Uttarakhand, 2013(12) SCC 551; Krishnan vs. State of Tamil Nadu, 2014(12) SCC 279; State of Karnataka vs. Chand Basha, 2016(1) SCC 501; Rambraksh vs. State of Chhattisgarh, 2016(12) SCC 251; Anjan Kumar Sarma and Ors. vs. State of Assam, 2017(14) SCC 359; and, Ganpat Singh vs. State of Madhya Pradesh, 2017(16) SCC 353.

32. Above authorities show that the term “time gap” is not to be measured in terms of length of period but it has to be seen whether in a given facts and circumstances the time at which accused and deceased were seen alive together and till the detection of death whether there is any possibility of crime being committed by someone else or not, that is relevant. In the present case we find that last seen theory has been applied as one of the several circumstances that deceased was seen last alive in the company of appellant at around 6.00 P.M. by PW3- Km. Seema Bano and thereafter in the night itself she was sexually assaulted and killed. The dead body was recovered on the next day in the morning at about 10.00 A.M. from dilapidated house of Amanatullah in the same village. She was being searched by the informant and other family members in the night but she could not be found. Nobody in the village had seen the deceased or the accused-appellant in that night. Meaning thereby having gone to the house of the accused-appellant where the deceased was last seen alive, thereafter till detection of her dead body in the next morning there was nothing to show that she had moved outside the house of the accused-appellant and the crime would have been committed by somebody else. We may also notice at this stage that here last seen principle is not the only weighty reason but it is one of the several other circumstances completing entire chain.

33. In the present case the informant is not the witness of either last seen or the first person to discover the dead body of her daughter. She being mother of the deceased would have been aware of the fact as to whom her daughter used to meet, her friends and other persons and therefore, as per first information report version, the informant said that her daughter Nasrin Bano @ Gudiya was playing outside her house at 4-5 P.M. about 2- 2½ years back but she did not turn up. She was searched but with no clue and in the next morning at about 10.00 A.M. her dead body was recovered and at that time she was about 13-14 years old. Her neighbour Km. Seema Bano had seen her in the house of accused-appellant Mohd. Qamar @ Bablu where she was picking flower and the accused-appellant shut the door of the house from inside. The report was thereafter got scribed by Siddikul Hasan with thumb impression of the informant, who was present at the police station, which is Exhibit Ka-1.

34. Now the accused-appellant, with whom the deceased was lastly seen alive, was to give explanation within his knowledge but nothing has been said by him except that he has been falsely implicated with a false report on the ground of enmity owing to registration of a case crime number with regard to assault upon his mother against Mohd. Qaiyyum. No other defence other than above enmity has been taken by this accused-appellant. Testimony of Dr. P. K. Singh and the autopsy examination report (Exhibit Ka2), police papers regarding inquest proceeding and autopsy examination report proved as Exhibit Ka-6 to Exhibit Ka-11 have not been controverted by the accused-appellant in his statement recorded under section 313 Cr.P.C. except that the accused-appellant was not known about those facts whereas Exhibit Ka-2 proves sexual assault with the deceased, a girl of minor age and then after her culpable homicide by putting pressure over her neck. It was a culpable homicide and murder after commission of sexual assault with her. These links were fully proved.

35. PW1-Shabbir Ahmad, who is not an eyewitness account, has categorically stated that accused Mohd. Qamar @ Bablu is a resident of his village but he is not aware of the alleged offence or murder of deceased. His testimony is of no avail i.e. neither proved nor disproved the prosecution case.

36. PW2-Sifatun Nisha is the witness of the link of chain that her daughter Nasrin Bano @ Gudiya aged about 14 years was missing since 4 to 5 P.M. of the day and was being searched but with no clue. Her dead body was found in the next morning in the dilapidated house of Amanatullah in the same village having symptoms of sexual assault over her for which case crime number was got lodged by presenting Exhibit Ka1 under her thumb impression and this testimony is with no exaggeration, embellishments and with no contradiction.

37. PW3- Km. Seema Bano is the next door neighbour and a family member of PW2. This witness had last seen the deceased Nasrin Bano @ Gudiya in the house of the accused-appellant having flower and door of the house was closed by the accused-appellant and then after she was not seen. This link of the chain has been cogently proved by PW3 in her testimony in which there is no exaggeration, embellishment or contradiction.

38. PW-4 Dr. P. K. Singh by his oral testimony and documentary evidence (Exhibit Ka2) has proved the commission of rape followed by murder by putting pressure over neck of the deceased in the night of 18/19.2.1997 at any time was apparent from the autopsy examination on the dead body of the deceased. Even after opportunity given this witness was not cross-examined by the defence side nor there is any explanation or answer to questions put under section 313 Cr.P.C. The documents proved and exhibited as Exhibit Ka-3 to Exhibit Ka-13 were not controverted by the defence.

39. S. I. Ashok Kumar Singh (PW-5) has proved the link of chain regarding inquest proceeding and report (exhibit Ka-5) along with police papers exhibit Ka-6 to exhibit Ka-11 prepared in the inquest proceeding held at 7.00 P.M. on 20.2.1997 over dead body of Nasrin Bano @ Gudiya, aged about 14 years, at above village. There is no exaggeration, embellishment or contradiction in his testimony.

40. PW6- C.P. Dev Murti Shukla has formally proved the chick report (Exhibit Ka12) and G.D. Entry (Exhibit Ka13) registered at case crime number. There is no exaggeration, embellishment or contradiction in his testimony.

41 PW7- Uma Shanker Singh is the Investigating Officer, who has proved the investigation made by him, preparation of inquest report under his direction and supervision by S. I. Ashok Kumar Singh, preparation of site map (Exhibit Ka-14), the arrest of accused Mohd. Qamar @ Bablu and submission of charge-sheet (exhibit Ka-15) under his handwriting and signature. There is no exaggeration, embellishment or contradiction in his testimony.

42. DW1 is a witness of fact that some case crime number was previously registered against present informant side upon the pretext of accused side and owing to this enmity this false accusation was made. But this motive false accusation is not a cogent one because the deceased was lastly seen with the accused in his house, where he has put the door locked from inside and then after her dead body was recovered having symptoms of sexual assault and murder from the dilapidated house of Amanatullah adjacent to the house of the accused-appellant.

43. In view of above discussion, we may summarize our observation and place various circumstantial evidence in chain and in our view prosecution without reasonable doubt has been able to prove guilt of accused-appellant and chain of circumstantial evidence in this regard has been summarized as under:

I. Deceased Nasrin Bano @ Gudiya, her mother Sifatun Nisha, PW3 Km. Seema Bano and accused-appellant Mohd. Qamar @ Bablu were residents of the one and same village and they were fully aware to each other.

II. Deceased Nasrin Bano @ Gudiya was last seen in the house of the accused-appellant by PW3 Seema Bano in the evening at about 6.00 P.M. where she was picking flower planted inside house of accused-appellant where the accused-appellant was present and he shut the door of the house from inside.

III. When Nasrin Bano @ Gudiya did not return to home, she was vehemently searched by her mother and other family members but they did not saw the accused-appellant or the deceased coming out from the house of the accused in that night. Hence no chance for intervention by other ever arisen.

IV. Dead body of the deceased was recovered in the next day morning from dilapidated house of Amanatullah adjacent to the house of the accused-appellant, being used as cow thatcher.

V. The deceased was a minor girl was having injury over private part in form of laceration with mixed semen and blood and injury was found on her neck. This was a murder after sexual assault with her proved by medical evidence.

VI. First information report (Exhibit Ka1) was instantly lodged after recovery of dead body against accused-appellant and prior to this Village Pradhan was complained, who was present at the time of registration of this case crime number and no allegation of any enmity against Village Pradhan has ever been made by the accused-appellant.

VII. After registration of case crime number the Investigating officer along with S.I. Ashok Kumar Singh had rushed at the spot. Inquest proceeding was conducted, police papers were prepared, dead body was properly sealed and autopsy examination was got done. Investigation resulted in submission of charge-sheet against the accused-appellant, which was proved by the Investigating Officer. Incriminating evidence were put to convict appellant in statement recorded u/s 313 Cr.P.C. but no answer was given except general and blatant denial.

44. Aforesaid events, their link and chain, is complete and shows culpability of appellant in offence and we find no reason to take a different view than what has been taken by Court below.

45. In view of above discussion, we are clearly of the view that Court below has rightly found appellant guilty of offences with which the appellant was charged and prosecution has successfully proved its case beyond doubt against appellant, hence he has been rightly convicted and sentenced.

46. So far as sentence regarding appellant 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 case.

47. 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 persons 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 with the crime has been perpetrated, enormity of crime warranting public abhorrence and it should ‘respond to society’s cry for justice against the criminal’. [Vice Sumer Singh Vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder Vs. Puran, (1990) 4 SCC 731, M.P. Vs. Saleem, (2005) 5 SCC 554, Ravji Vs. State of Rajasthan, (1996) 2 SCC 175].

48. 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 the appellant by Trial Court in impugned judgment and order is not excessive or exorbitant and no question arises to interfere in the mater on the point of punishment imposed upon them.

49. In view of the above facts and circumstances, impugned judgment and order dated 3.2.2011 deserves to be affirmed and appeal is liable to be dismissed.

50. In the result, the Criminal Appeal is dismissed. Impugned judgment and order dated 3.2.2011 passed by Additional Sessions Judge/ Special Judge (E.C. Act), Court No. 2, Allahabad, in S.T. No. 740 of 1997 (State Vs. Md. Qamar @ Bablu) related with Case Crime No. 79 of 1997, under sections 376, 302, 201 I.P.C. of Police Station Sani, the then District Allahabad, presently District Kaushambi, is hereby confirmed/affirmed. The appellant, who is in jail, shall serve out the sentence awarded to him by the Trial Court.

51. Copy of this order along with lower Court record be sent to Court concerned forthwith.

52. A copy of this order be also sent to Appellant through concerned Jail Superintendent.

Order Date :-24.01.2019/ Pcl

 

 

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