Dismissed

Santosh @ Babu v. State of U.P.

Allahabad HC12 Mar 2019JAPL/601/2013

Case brief

AI extract

What is this about?

In Jail Appeal No. 601 of 2013, the High Court affirmed the conviction and sentence of the appellant for murder and destroying evidence. The Court held that the circumstantial evidence established a complete chain excluding every hypothesis except guilt, rejecting the appellant's claim of discrepancies.

What did the court decide?

The appeal was dismissed; the impugned judgment and order of conviction and sentencing were maintained and confirmed.

Santosh @ Babu Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2019)

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JAIL APPEAL No. - 601 of 2013

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A.F.R.

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Reserved on 28.01.2019 Delivered on 12.03.2019

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Court No. - 34

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Case :- JAIL APPEAL No. - 601 of 2013 Appellant :- Santosh @ Babu Respondent :- State Of U.P. Counsel for Appellant :- A.G.A.,Devendra Pratap Singh (A.C.)

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Hon'ble Sudhir Agarwal,J. Hon'ble Rajendra Kumar-IV,J.

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(Delivered by Hon'ble Rajendra Kumar-IV,J)

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Present Jail Appeal is directed by accused-appeallant-Santosh @ Babu through Superintendent of Jail, against the judgment and order dated 18.10.2012 passed by Additional Session Judge, Court No. 7, District Varanasi in Session Trial No.58 of 2010 (State v. Santosh @ Babu), under Sections 302 and 201 IPC, Police Station Jansa, District Varanasi, whereby Trial Court has convicted accused Santosh alias Babu and sentenced him to life imprisonment and a fine of Rs.15,000/under Section 302 IPC, 5 years R.I. and a fine of Rs. 5,000/- under Section 201 IPC.

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Factual matrix of the case as emerging from First Information Report (hereinafter referred to as “FIR”) as well as material placed on record is as follows.

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A written report Ex.Ka-2 dated 01.11.2009 was presented in Police Station Jansa, District Varanasi by Informant PW-3 Hori Lal, alleging that her daughter Shanti Devi was married to one Suresh but she had been widow eight years prior to occurrence. Her son aged about 10 years lived with PW-1. Victim Shanti Devi lived alone in village Permanandpur and developed illicit relationship with accused Santosh. They were living together after the death of husband of Shanti Devi.

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It is further recited in Ex.Ka-2 that on 31.10.2009 PW-2 Jhagru @ Dinesh (Dewar of deceased) informed PW-3 that victim was not in the house which was locked from outside. On this information PW-3 alongwith his wife went to village Permandpur and found door of house closed. He opened the locked house with the help of some villagers and saw that dead body of her daughter (Shanti Devi) was laid / kept in candal (drum) and body was smelling. It is further stated that his daughter has been killed and corpse was hidden in candal by the accused-appellant.

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On receipt of written report Ex.Ka-2, Chik Report Ex.Ka-10 was prepared by Constable Lalji PW-7, who registered the case under Sections 302, 201 IPC and 7 Criminal Law Amendment Act as Case Crime No. 380 of 2009. An entry of case was made in General Diary on 01.11.2009 at 12:45 PM, a copy thereof is Ex.Ka-11 on record.

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Immediately after registration of case, investigation was undertaken by PW-8 Sri Ramesh Prasad, the then Station Officer at Police Station Jansa, who took copies of written report and Chik FIR and proceeded to place of occurrence. He recorded statements of Informant, Jhagru @ Dinesh PW-2, Sunita Devi PW-1, prepared site plan Ex.Ka-12. Thereafter he apprehended accused, recorded his statement and that of S.I. Lal Babu Mishra, Lalji Yadav, Santosh Giri and Jawahar Prasad.

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S.I. Lal Babu held inquest over the dead body of Shanti Devi, prepared Panchayatnama Ex.Ka-1 and other relevant papers relating thereto. Body was duly sealed and sent to B.H.U. for post mortem examination.

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Dr. Govind Prasad, PW-6 conducted autopsy of deceased Shanti Devi and prepared post mortem report (Ex.Ka-9) under his signature.

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PW-8 took a blood stained shirt of the accused, an employment

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card, identity card no.5771 of accused duly signed by village pradhan and village Development Officer, in his possession from the spot, sealed them, prepared memo Ex.Ka-3 and 4. He also took one drum, one plastic bag with blood, blood stain and simple earth, arrested the accused. All the sealed material was sent to FSL, Lucknow for examination. After completing investigation he submitted charge-sheet Ex.Ka-13 against the accused-appellant under Sections 302, 201 I.P.C. and 7 Criminal Law Amendment Act before C.J.M. concerned.

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Case, being exclusively triable by Court of Sessions, was committed to Session Judge for trial, wherefrom it was transferred to Additional Sessions Judge, Court No.-9, Varanasi for disposal according to law.

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Trial Court framed charges against accused-appellant on 23.3.2010 under Sections 302 and 201 IPC to which accused denied and claimed trial. Charges reads as under:

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“eSa] mes'k pUnz 'kekZ] vij l= U;k;k/kh'k d{k la0&9 okjk.klh ,rn~}kjk vki vfHk;qDr lUrks"k mQZ ckcw dks fuEu vkjksi ls vkjksfir djrk gWw%&

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izFke %& ;g fd fnukad 31-10-2009 ls iwoZ fdlh fnu] fdlh vKkr le;] xzke ijekuUniqj Fkkuk tUlk ftyk okjk.klh eas 'kkUrh nsoh ds edku esa vkius oknh gksjh yky dh fo/kok iq=h 'kkUrh nsoh] ftlds lkFk vki jgrs Fks] dh gR;k vkius lk'k; dj nhA

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bl izdkj vkius Hkk0 na0 la0 dh /kkjk &302 ds vUrxZr n.Muh; vijk/k fd;k tks esjs laKku ds v/khu gSA

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f}rh;r%& ;g fd fnukad 31-10-2009 ds iwoZ fdlh fnu] fdlh vKkr le;] xzke ijjekuUniqj Fkkuk tUlk ftyk okjk.klh esa oknh eqdnek gksjhyky dh iq=h 'kkUrh nsoh dh gR;k djds mldh yk'k dks lk{; lekIr djus ds vk'k; ls xsgwW ds d.Mky ¼Mªe½

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esa j[kdj <Ddu cUn dj fn;kA bl izdkj vkius Hkk0 na0 la0 dh /kkjk &201 ds vUrxZr naMuh; vijk/k fd;k] tks esjs laKku ds v/khu gSA

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vr,oa eSa ,rn~}kjk vkidks funsZf'kr djrk gwW fd mDr vkjksiks ds vUrxZr vkidk fopkj.k dk U;k;ky; }kjk fd;k tk;A

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I, Umesh Chandra Sharma, Additional Sessions Judge, Court Room No. 9, Varanasi, do hereby charge you, the accused Santosh @ Babu, with the following offence:

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First: That on some day prior to 31.10.2009, you, at an unknown time, at the house of the widow Shanti Devi D/o the complainant Hori Lal, situated in village Parmanandpur, PS Jansa, District Varanasi, with whom you lived, murdered her (Shanti Devi) with an intention to do so.

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In this way, you have committed an offence punishable u/s 302 of IPC, which is within my cognizance.

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Second: That on some day prior to 31.10.2009, you, at an unknown time, after murdering Shanti Devi, the daughter of the complainant Hori Lal, in village Parmanandpur, PS Jansa, District Varanasi, dumped her dead body in a wheat drum and closed its lid with the intention to destroy the evidence. In this way, you have committed an offence punishable u/s 201 of IPC, which is within my cognizance.

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Hence, I do hereby direct you to be tried by this court for the said offences.”

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(English Translation by Court)

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In order to substantiate its case, prosecution examined as many as eight witnesses out of them PW1-Sunita, PW-2-Jhagru @ Dinesh, PW3-Hori Lal, are witnesses of fact and PW4- Constable Govind Kumar, PW-5-Dinesh Kumar Yadav, PW-6- Dr. Govind Prasad, PW-7- Contable Lal Ji and PW-8- S.I. Ramesh Prasad are formal witnesses.

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On closure of prosecution evidence statement of accused under Section 313 Cr.P.C. was recorded by Court explaining all incriminating and other evidence and circumstances. Accused denied prosecution story in toto and all formalities of investigation were said to be wrong. He

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claimed false implication on account of enmity due to partibandi (groupism). He desired to adduce evidence but later on led no defence. In response of question no.27, he denied to live with deceased in her house. Illicit relation with her was also dined by him.

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Session Trial ultimately came to be heard and decided by Additional Session Judge, Court No.7, Varanasi

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After hearing the counsel for the parties and analyzing entire evidence led by prosecution on record, learned trial court has found the appellant guilty and convicted him as stated above. Feeling aggrieved with impugned order of conviction, the present appeal has been filed through Jail.

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We have heard Sri Devendra Pratap Singh, Advocate (Amicus Curiae) for appellant and Sri Nikhil Chaturvedi, learned A.G.A for State-respondents at length and have gone through the record available on file carefully.

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Learned Amicus Curiae appearing for appellant has challenged conviction of accused-appellant, advancing his submissions, in the following manners :-

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(i) This is a case of circumstantial evidence and there is no motive to accused to commit murder of Shanti Devi.

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(ii) There is no complete chain of evidence so as to indicate that accused is the only person who has committed crime.

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(iii) P.W.-1 is not named witness in F.I.R., but after due deliberation she was made a witness, that too a close relative.

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(iv) There are several contradictions rendering prosecution case doubtful.

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(v) FIR has been lodged by PW-1 (father of victim) close relative of deceased second day of receiving of information

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without explaining sufficient reason for delay in lodging FIR.

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Per contra learned AGA opposed submissions and urged that PWs-1, 2 and 3 are witnesses of fact, who have supported the prosecution and established that deceased used to live with the accused after the death of her husband in her house. Therefore, he is the only person who can be preparator of crime as per his choice and explain the circumstances under which death of Shanti Devi might had occurred. It has also come in evidence that he was seen by P.W.-1 and 2 in the house where dead body was found. Prosecution has established a complete chain of circumstantial evidence to connect the accused with present crime. Accused is the only person who committed murder of Shanti Devi.

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We now proceed to consider rival submissions on merits.

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Admittedly, there is no eye-witness in the present case. This case rests upon circumstantial evidence. It is no doubt a case where there is no eye witness of crime. Prosecution totally rests on circumstantial evidences, which found favour with Court below and finding prosecution version proved beyond reasonable doubt, Trial Court has convicted appellant, as stated above.

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It will be appropriate to briefly consider the evidence on record. PW-1 is the sister-in-law (Dewrani) and PW-2 is the brother-in-law (Dewar) of deceased. They were residing in the house adjacent to house of deceased in the same village. Both of them have deposed that deceased was married to Suresh who died eight years prior to incident. After death of her husband, Shanti Devi developed illicit relationship with accused Suresh who began to live with Shanti Devi in her house as husband and wife. PW-1 deposed that on the fateful night, Santosh, accused and Shanti Devi (victim) had gone to see the fair of ' Bharat

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Milap' and returned back to house. In the morning before sun rise, she heard scream of Shanti Devi whereupon she along with her husband went to the house of Shanti Devi and raised a call but she did not respond. Then Santosh answered that you go and sleep and that she (Shanti Devi) was dreaming. This was answered by Santosh from inside the room and he did not open the door. In the morning PW-1 enquired from accused about Shanti Devi ( didi ). Santosh told that she had gone to her maternal house. Santosh also left the house after closing door. Thereafter, Santosh and sister-in-law (deceased) did not return. Husband of PW-1 went to village Bardaha and enquired from parents of Shanti Devi who told that she had not come there.

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PW-2 supporting the statement of PW-1 deposed that on 29.10.2009, both had gone to see the fair of Bharat Milap in village Jansa and returned in the night. In the morning before sunrise, on hearing scream of Shanti Devi, he along with his wife went to the house of Shanti Devi but Sanotsh answered from inside the house that she was sleeping and dreaming. In the morning on being questioned by her wife, Santosh told that she had gone to her maternal house i.e. village Bardaha and he also left after locking the door. Thereafter, Santosh and Shanti Devi did not return for two days and when it was smelling, he went to village Bardaha but did not found her. He told entire episode to her father. On the second day her parents came and having seen door closed, informed police whereupon police arrived at the house and opened lock, recovered dead body of Shanti Devi in the Kandal (drum). Witness also proved panchayat-nama Ex.Ka-1.

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PW-3 father of deceased narrated prosecution case and stated that on receiving information on second day, he went to the house of her daughter and saw that door was locked and smell was coming from inside. He got scribed written report by one Govind son of Bhagelu, put his thumb impression and presented before the Police Station concerned.

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Inquest of dead body of Shanti Devi was conducted by Police who prepared inquest report before him. In this way, this witness is the witness of inquest as well as written report. Witness has not seen the occurrence.

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PW-6 Dr. Govind Prasad, deposed that on 2.11.2009, he was posted as Eye Surgeon in Deen Dayal Upadhyay Hospital and on postmortem duty in BHU. He conducted autopsy on the person of deceased which was brought by Police and prepared postmortem report, Ex-Ka-9, under his signature. He opined that cause of death could not be ascertained. Viscera was preserved and sent for examination to Forensic Science Laboratory. As per report, no poison was found in viscera. He further opined that death might have occurred 4-5 days prior to postmortem. It was further opined that cut of tongue and death might have been by throttling.

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From the evidence adduced by prosecution following circumstances are clearly established :

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A. Smt. Shanti Devi was married to Suresh who died before eight years since incident.

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B. She developed illicit relation with the accused after death of her husband.

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C. Accused Santosh lived with deceased as husband and wife in her house.

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D. In the fateful night both went to see fair of Bharat Milap and returned back in the same night meaning thereby both were present in the house.

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E. PW-1 and 2 heard scream of deceased in the early morning before sun rise. On being questioned accused Santosh gave wrong information that she was dreaming and

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in the morning he answered that she had gone to her paternal house and he himself later on after locking the door, disappeared.

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F. Dead body of Smt. Shanti Devi was kept / laid in the Kandal (drum) in the house. G. Postmortem report reveals that death of Shanti Devi might have occurred 4-5 days prior to postmortem due to compression of neck.

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In case in hand there is no eye witness of occurrence and case of prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that circumstances from which an inferences of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that 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 he should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence.

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Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR

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1952 SC 343 , is the basic judgment of the Supreme Court on appreciation of evidence, when the case depends only on circumstantial evidence, which has been consistently relied in later judgments. In this case 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:

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"... 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

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within all human probability the act must have been done by the accused. "

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In Hukam Singh v. 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 guilt of any other person.

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In Sharad Birdhichand Sarda v. 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 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 :-

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(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.

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(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.

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

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

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(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.

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(emphasis added)

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

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"...when a case rests upon circumstantial evidence such evidence must satisfy the following tests :-

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

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

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(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,

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(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."

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(emphasis added)

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

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"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. "

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(emphasis added)

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In Bodh Raj @ Bodha and Ors. v. 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:

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

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

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

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(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,

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

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(emphasis added)

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

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In State of Punjab versus Karnail Singh, (2003)11 SCC 27, Court observed that law does not enjoying the duty on prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on prosecution is to lead such evidence which it is capable of leading.

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Now the crucial question remain for consideration is who is the prepatrator of this crime.

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It is a case where an offence has taken place inside the privacy of the house in the circumstances where accused has all opportunity to plan and commit the offence at the time and in circumstances of his choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of accused if the strict compliance of circumstantial evidence as noticed above, is insisted upon by Court.

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Here it is necessary to keep in mind Section 106 of Indian Evidence Act, 1872 which says that when any fact is especially within the knowledge of any person the burden of proving that fact is upon him.

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38 . Accused was present in the house with victim in the fateful night as proved by PW-1 and PW-2. Later on he disappeared after locking the door. Dead body of Shanti Devi was found by Investigation Officer in drum in the house, who prepared inquest report. Hence it was only accused who could explain circumstances in which Shanti Devi died. Burden of Section -106 of Indian Evidence Act, 1872 lay upon accused who has failed to discharge.

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It is also note-able that accused, on being asked by PW-1 and 2 had given a false information that Shanti Devi was dreaming and later on informed that she had gone to her maternal house while dead body of Shanti Devi was found kept in drum in the house. This fact also goes against him. The accused by virtue of his special knowledge must offer an explanation which might lead the Court to draw a different inference.

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In Trimukh Maroti Kirkan versus State of Maharashtra , decided on 11.10.2006. Apex Court has held that where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes placed in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstances which indicates that he is responsible for commission of the crime.

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In Nika Ram versus State of Himachal Pradesh, AIR 1972 SC 2077, it was observed that the fact that the accused alone was with his

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wife in the house when she was murdered there with 'khokhri' and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt.

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In Ganeshlal v. State of Maharashtr,a (1992) 3 SCC 106 the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr.P.C. The mere denial of the prosecution case coupled with absence of any explanation were held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife.

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Another argument advanced by learned counsel for the appellant is that witnesses of fact, PW-1 and 2 are the real sister-in-law (dewrani), brother-in-law (dewar) of the deceased , so his testimony can not be said to be reliable and trustworthy.

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Admittedly, PW-1 and 2 are the real sister-in-law (dewrani), brother-in-law (dewar) of the deceased, who claimed to be witness of occurrence. PW-1 and 2 established the presence of accused in the fateful night in the house where Smt. Shanti Devi was killed and her body was hidden in drum and house of PW-1 and 2 is adjacent to the house of deceased, therefore, their presence on the screme of Shanti Devi is quit natural and they are natural witness as they are real sister-inlaw (dewrani), brother-in-law (dewar) of the deceased. We are not impressed with the submission of counsel for appellant in this regard.

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In Ganga Bhawani v. Rayapati Venkat Reddy and Others, 2013(15) SCC 298, the Supreme Court has held as under :-

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“11. It is a settled legal proposition that the evidence of closely related witnesses is required to be carefully

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scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon.

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(Vide: Bhagalool Lodh & Anr. v. State of UP, AIR 2011 SC 2292; and Dhari & Ors. v. State of U. P., AIR 2013 SC 308 ).”

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It is settled law that merely because witnesses are closely relative to deceased, their testimonies cannot be discarded. Relationship with one of the parties is not a factor that affects credibility of witness, more so, a relative would not conceal the actual culprit and make allegation against an innocent person. However, in such a case Court has to adopt a careful approach and analyse the evidence to find out that whether it is cogent and credible evidence.

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In so far as discrepancies, variation and contradiction in the prosecution case are concerned, we have analysed entire evidence in consonance with the submissions raised by learned counsel's and find that the same do not go to the root of case.

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In Sampath Kumar v. Inspector of Police, Krishnagiri, (2012) 4 SCC 124, the Apex Court has held that minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and sense of observation differs from person to person.

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We lest not forget that no prosecution case is foolproof and the same is bound to suffer from some lacuna or the other. It is only when such lacunae are on material aspects going to the root of the matter, it may have bearing on the outcome of the case, else such shortcomings are to be ignored. Reference may be made to a recent decision of the Apex Court (3 Judges) in Criminal Appeal No. 56 of 2018, Smt. Shamim v. State of (NCT of Delhi), decided on 19.09.2018.

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In the present case, it is fully established that Shanti Devi was found dead in the house evidence showed that the accused and Shanti Devi were noticed together in the house in the fateful night and body of deceased was purposely placed in a drum and accused came out in the morning, disappeared after locking the door. The medical evidence showed that death of Shanti Devi might have occurred by compression of neck and it was not natural, accused-appellant in his statement under Section 313 Cr.P.C. did not offer any explanation as to how Shanti Devi died, recovery of blood stained shirt, job card and identity card of the accused was made from the house therefore, there cannot be any hesitation to come to conclusion that it was only the accused who was the preparator of crime.

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In the entirety of the facts and circumstances and legal preposition discussed herein before, we are of considered view that prosecution has successfully proved its case beyond reasonable doubt against accusedappellant and Trial Court has rightly convicted him for having committed an offence under Section 302 and 201 IPC. No interference is warranted. Appeal lacks merit and liable to be dismissed.

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So far as sentence of accused-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 cases.

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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

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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 ].

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54 . Hence, applying the principles laid down 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-Santosh @ Babu by Trial Court in impugned judgment and order is not excessive and it appears fit and proper and no question arises to interfere in the matter on the point of punishment imposed upon him.

¶152

In view of above discussion, the appeal lacks merit and is dismissed . Impugned judgement and order dated 18.10.2012 passed by Additional Session Judge, Court No.7, Varanasi in Session Trial No. 58 of 2010 (State v. Santosh @ Babu) under Sections 302 and 201 IPC, Police Station Jansa, District Varanasi, is maintained and

¶153

¶154

JAIL APPEAL No. - 601 of 2013

¶155

confirmed .

¶156

Lower Court record along with the copy of this judgment be sent immediately to Court and Jail Superintendent concerned for necessary compliance and to apprise the accused forthwith. Compliance report be also submitted to this Court.

¶157

Before parting we provide that Sri Devendra Pratap Singh, learned Amicus Curiae for appellant who assisted the Court very diligently, 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 him without any delay and, in any case, within one month from the date of receipt of copy of this judgment.

¶158

Order Date:-12/03/2019 I.A. Siddiqui

Santosh @ Babu v. State of U.P.

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Santosh @ Babu v. State of U.P.

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