Hon'ble Rajendra Kumar-IV,J.
(Delivered by Hon'ble Rajendra Kumar-IV,J.)
1. This jail appeal under Section 383 Cr.P.C. has been filed by accused-appellant Inayatullah through Senior Superintendent of Jail, Gorakhpur against judgment and order dated 08.01.2015 passed by Sri P.K. Srivastava, Additional Sessions Judge, Court No. 03, Gorakhpur in Session Trial No. 178 of 2012, under Section 302 IPC. By the impugned judgment accused-appellant has been convicted under Section 302 IPC and sentenced him with Rigorous Imprisonment (hereinafter referred to as 'RI') for life imprisonment and fine of Rs. 10,000/-. In the event of default in payment of fine, he has to undergo further two year's Simple Imprisonment.
2. The facts emanating from First Information Report (hereinafter referred to as "FIR") and the material available on record may briefly be stated as under for adjudication of this appeal:-
3. A written report Ex.Ka-1 was presented before Station Officer of Police Station Gorakhnath, District Gorakhpur by Informant PW-1 Ranjeet stating that he is resident of Village Manbela (Bangla), Post Office Jhungiya Bazar, Police Station Chiluatal, District Gorakhpur. He had a fruits shop near Fertilizer Gate, Jhungiya, and adjacent to it there was fruit shop of accused-appellant Inayatullah also. Father of Informant Shri Lal Ji Nishad used to sit on the Fruit shop. Few days earlier, an altercation had taken place between father of Informant and accused-appellant Inayatullah @ Bhonu for the reason that sale in the shop of the informant was much more, on account of which, accused-appellant bore jealousy with his father, which often resulted in altercation. Accused-appellant used to threaten Informant's father to settle the score. On 03.10.2011, in the morning, when Informant's father along-with informant was going to Fal-mandi (fruit market), Gorakhpur for purchase of fruits and they hardly reached Kaurihawa by tempo at about 08:30 A.M., accused-appellant Inayatullah @ Bhonu met and stopped tempo. After stopping the tempo, he called Informant's father for conversation. Informant's father alighted from tempo and went to him, and indulged in conversation. All of sudden accused-appellant took out a knife and started stabbing his father. As a result thereof he fell down. Thereafter, Informant got down from tempo, ran towards his father but by that time, accused-appellant had fled away from the place of occurrence along-with knife. Informant sent message of the incident at his home. In the meantime, police reached the place of occurrence and with their help, Informant took his father to District Hospital, where he breathed his last. Dead body of deceased was lying in the hospital.
4. On the basis of written report, Ex.Ka-1, PW-3 Head Moharrir Pramod Kumar registered a case at Case Crime no. 475 of 2011, under Section 302 IPC at Police Station Gorakhnath, District Gorakhpur and prepared Chick FIR Ex.Ka-3. Simultaneously, he also made entry of the incident in General Diary (hereinafter referred to as "GD"), a copy of which is Ex.Ka-4.
5. After registration of Case, Investigation was initiated by PW-4, Anand Kumar Shahi, the then Station Officer (hereinafter referred to as 'SO') of Police Station Gorakhnath, District Gorakhpur. He visited the place of occurrence; prepared site plan Ex.Ka-5 on pointing out of Informant; recorded statement of witness Dharamveer; collected blood stained and simple soil of place of occurrence and prepared recovery memo Ex.Ka-6 in respect thereof. He arrested accused-appellant and recovered weapon used in the murder, he prepared recovery memo Ex.Ka-2 in respect of knife. He also prepared site plan Ex.Ka-7 of the place of recovery of knife. Investigating Officer (hereinafter referred to as "IO") prepared inquest Ex.Ka-13 as also necessary documents i.e. letter to R.I.; document form 33; letter of C.M.O.; Photo Nash and Chalan Nash etc. are marked as Ex.Ka-8 to 12 on record.
6. Autopsy on the dead body of Lal Ji Nishad was conducted by Dr. A.N. Trigun, PW-5, on 30.10.2011 at 3:30 P.M. According to him, deceased was aged about 50 years and his body was average built, rigor mortis was present, eyes and mouth were closed. He found following ante-mortem injuries on his person which reads as under :-
1. Incised wound of size 2½ cm x 0.8 cm, bone deep, present on left side of face 3½ cm below left lower eyelid. Blood clot present.
2. Incised wound of size 2½ cm x 0.8 cm x muscle deep, present on left face. 0.6 cm lateral to left angle of mouth.
3. Incised wound of size 5 cm x 2½ cm into bone deep, present on left side of neck just below left ear.
4. Incised wound of size 4 cm x 1.5 cm x cavity deep present on left side of chest, 12 cm below left axilla. On opening cavity underlying lung was found punctured and about 1 liter blood and clotted blood present in chest cavity.
5. Incised wound of size 3 cm x 1 ½ cm into muscle deep present on left side of lower abdomen just above left iliac crest.
7. On internal examination, heart weighed 50 gms. and was empty; stomach contained 100 gms. matter; small intestine was empty; large intestine contained faecal matter and gases; liver weighed 1250 gms. with gall bladder half filled; kidney weighed 200 gms.
8. Doctor opined that duration of death was about half a day and caused due to shock and hemorrhage as a result of ante-mortem injuries. He prepared post-mortem Ek.Ka-14.
9. In the meantime, first I.O. was transferred and investigation was continued by S.O. Amar Singh who after completion of investigation submitted charge-sheet Ex.Ka-14 in Court against the accused-appellant under Section 302 IPC.
10. Cognizance of the offence was taken by Chief Judicial Magistrate (hereinafter referred to as "CJM"), Gorakhpur on 02.01.2012. Since the case was triable by Court of Sessions, learned CJM committed matter to Sessions Judge, where it was registered as Sessions Trial no. 178 of 2012. Session Trial was transferred to the Court of Additional Sessions Judge, Court No. 03, Gorakhpur who framed charge against the accused-appellant on 28.08.2012. The charge reads as under :-
"eSa vej ukFk flag] vij l= U;k;k/kh'k d{k la[;k 3 xksj[kiqj vki buk;rqYykg mQZ Hkksuw dks fuEu vkjksi ls vkjksfir djrk gwW%& izFke %& ;g fd fnukad [email protected]@11 dks le; djhc 8&30 cts lqcg] cgn LFkku& dkSfM+gok] Fkkuk&xksj[kiqj] ftyk& xksj[kiqj esa vki us oknh eqdnek jathr ds firk yky th fu"kkn dh pkdw ls ekj dj gR;k dj fn;sA bl izdkj vkius ekuo c/k dk vijk/k fd;k tks Hkk0 na0 la0 dh /kkjk&302 ds rgr n.Muh; vijk/k fd;k] tks bl U;k;ky; ds izlaKku esa gSA ,rn~okjk eSa vki dks funsZf'kr djrk gwW fd vki dk mijksDr vkjksi ds vUrxZr ijh{k.k bl U;k;ky; n~okjk fd;k tk;A"
"I, Amar Nath Singh, Additional Sessions Judge, Court No. 03, Gorakhpur charge you Inayatullah @ Bhonu as under:-
Firstly - That on 30.10.2011 at about 08:30 A.M. at Kaurihava, Police Station Gorakhnath, District Gorakhpur you committed murder of Lal Ji Nishad father of informant Ranjeet by stabbing knife. Thus you have committed offence of homicide, punishable under Section 302 IPC and within the cognizance of this Court.
13. PW-1 is son of deceased and an eye witness. PW-2 Chhote Lal is younger brother of deceased Lal Ji Nishad and Uncle of PW-1 Informant. He had reached the place of occurrence getting on information from his nephew PW-1 Informant. Formal witnesses PW-3 Constable Pramod Kumar had registered FIR and prepared Chick report Ex.Ka-3. He has also prepared copy of GD entry dated 03.10.2011, copy of which is Ex.Ka-4. PW-4 is first IO who has appeared to prove site plan Ex.Ka-5; recovery memo Ex.Ka-6 in respect of sample of blood stained and plain earth; recovery memo Ex.Ka-7 regarding knife; inquest Ex.Ka-13 and documents Ex.Ka-8 to 12 with respect to sending the dead body of deceased Lal Ji Nishad to District Hospital for post-mortem, i.e., letter to RI, document in form 33, Photo Nash, and Chalan Nash. He has also sent recovered items in the docket to Forensic Science Laboratory for chemical examination. PW-5 Dr. A.N. Trigun had conducted autopsy on the dead body of Lal Ji Nishad and proved post-mortem report Ex.Ka-14. PW-6 Constable Rajinder Singh has verified signature of SI Amar Singh, the then SO of Police Station Gorakhnath, who has submitted Charge-sheet Ex.Ka-16.
14. After closure of prosecution evidence, accused-appellant was examined under Section 313 Cr.P.C. on 25.11.2014. He has stated prosecution story to be false and concocted and that witnesses were deposing falsely and proceedings taken by police is ex-parte and bears no truth. He has stated to be implicated falsely on account of enmity.
15. On appreciation of evidence available on record and after hearing both the parties, learned Additional Sessions Judge recorded the verdict of conviction and sentence against the accused-appellant as stated above.
16. Feeling aggrieved, accused-appellant has approached this Court through Senior Superintendent of Jail, Gorakhpur assailing the impugned judgement.
17. We have heard Ms. Abida Syed, learned Amicus Curiae for appellant and Sri Ratan Singh, learned AGA for State at length and have gone through the record carefully with the valuable assistance of learned Counsel for parties.
18. Learned Amicus Curiae appearing for appellant, refuting the impugned judgment of conviction, advanced his argument in the following manner :-
i. There is no strong motive to accused-appellant to commit murder of Informant's father.
ii. There is no public witness of incident. PW-1 is real son of the deceased.
iii. No independent witness came forward to support prosecution case.
iv. Medical evidence does not go with ocular evidence.
v. There are major contradictions in the evidence of prosecution, which may render the prosecution case doubtful.
vi. Prosecution has miserably failed to prove its case beyond all shadow of reasonable doubt and Trial Court was wrong in convicting accused-appellant by its judgment, therefore, accused-appellant is liable to be acquitted getting benefit of doubt.
19. Learned AGA opposed submissions made on behalf of accused-appellant and submitted that it is a day-light murder; accused- appellant is named in FIR, which has been promptly lodged in the Police Station concerned; PW-1 was with his father (deceased) at the time of incident, therefore, he is a natural witness; non-examination of independent witness does not help accused-appellant because in the heinous offence, like murder, nobody comes forward to support the prosecution case due to fear of evil; prosecution is not obliged to produce all witnesses in evidence and prosecution has proved its case beyond reasonable doubt against accused. Lastly, he prayed that appeal must be dismissed confirming the impugned judgment.
20. We have travelled the entire evidence available on file with the valuable assistance of the learned counsel for the parties.
21. Although time, date and place of occurrence and nature of injury found on the person of deceased have not be disputed from the side of the appellant but according to advocate, accused-appellant is not responsible for murder of Informant's father and he has been falsely implicated in the present case. Even otherwise from the evidence of PWs-2, 4 and 5, it is established that at the relevant time, date and place, Informant's father Lalji Nishad was assassinated and his body was found lying on the place, as stated by the prosecution.
22. Only question remains for consideration is "whether accused-appellant caused murder of Informant's father Lalji Nishad by inflicting knife blow on him and he is only responsible for committing murder of Informant's father (Lalji Nishad) or not and Trial Court has rightly convicted accused-appellant for offence of murder punishable under Section 302 IPC or not?"
23. Here it would be appropriate for us to briefly consider the evidence of prosecution.
24. PW-1, happens to be eye witness, has deposed that his father had a fruit shop near fertilizer gate, Jhuggia and adjacent to him, there was a fruit shop of accused-appellant; sale in the shop of his father was much more than that of accused-appellant due to which, accused-appellant bore jealously with his father; on 03.10.2012, at about 8:30 AM, he along with his father was going to fruit market, Gorakhpur by Tempo; when they reached Kaudiyahwa Jamalpur by Temp at about 8:30 AM, accused-appellant-Inayatullah, stopping Tempo, called upon his father for conversation; during the course of conversation accused-appellant started stabbing in the stomach of his father, due to which, he fell down on the earth; while yelling he rushed to his father, accused-appellant ran away towards Bargadwa weaving his knife; he saw that his father got seriously injured by that time; with the help of Police personnel who arrived on spot, he took his father to Sadar Hospital, Gorakhpur by Tempo, where he was declared dead by the doctor; he got scribed a Written Tehrir, Ex.Ka-1, by one Ajay Kumar and put his signature on it and presented it to Police Station concerned; and on the basis of Written Tehrir, case came to be registered. He further deposed that some days prior to incident, during conversation accused-appellant threatened Informant's father to take his life.
25. PW-1 is the only witness of the fact, who has been produced by prosecution in support of its case. He withstood a lengthy cross examination but no adverse material could be brought so as to disbelieve his statement. Certainly some minor contradictions occurred in the statement but they are not of such nature, which might be sufficient to go the root of the case.
26. According to Advocate of accused-appellant, PW-1 is not an eye witness and his statement inspires no confidence. According to him PW-1 in his cross examination at page no.20 of paper book admitted that he reached on spot, when accused-appellant ran away towards Bargadwa, in this way witness has not seen the incident. We are not impressed with the argument advanced by learned Counsel for accused-appellant and reject the same for the reasons that PW-1 categorically stated in his cross examination at page no.20 of paper book that he had seen the accused-appellant stabbing knife to his father. Accused-appellant stabbed 4 to 5 times in the stomach, when he (accused-appellant) started stabbing knife, he (witness) alighted from Tempo and rushed to spot. Reading of statement will be all together and not in pieces.
27. PW-4, SI Anand Kumar Sahi, the then Station House Officer, Police Station Gorakhnath deposed that he took investigation of Crime No. 475 of 2011, under Section 302 IPC, proceeded to spot, recorded statement of Informant, visited spot at the pointing of Informant, prepared site plan, collected blood stained and simple earth from the spot, arrested accused-appellant near Bargadwa Chauraha and took him into custody, recorded his disclosure statement and on his pointing out recovered a knife with blood allegedly used in the incident, before public witness Ajay Kumar and Chhote Lal (not examined), prepared recovery memo Ex.Ka-7.
28. PW-5 deposed that he was posted as Medical Officer in Paniram, Chargawan Block, District Gorakhpur. On 03.10.2011, he conducted autopsy over the dead body of Lalji Nishad and found five incised wound in his person. He opined that death was possible due to coma and hemorrhage on account of ante-mortem injuries at about 8:30 AM on 03.10.2011 and injuries found on the person of deceased might have been caused by knife. In this way, medical evidence is compatible with the ocular evidence.
29. It has come in statement of PW-1 that accused ran away from the spot weaving his knife and as per statement of PW-4 accused-appellant was arrested and on his pointing out knife with blood, which was used in the commission of offence, was recovered by Investigating Officer before public witness. Accused was arrested by Investigating Officer on the same day, shortly after the incident, and there was a sufficient motive to accused to commit the crime on account of business rivalry. In statement under Section 313 Cr.P.C., accused-appellant stated that PW-1, Ranjeet, has given false evidence against him but he did not suggest anything as to why he was giveing false statement against him. He has not given any single explanation as to why, he has been falsely implicated in this case.
30. So far as argument made by learned Amicus Curiae regarding the motive is concerned, we do not impress with the submission advanced by learned Amicus Curiae for the appellant as it is well settled that where direct evidence is worthy, it can be believed, then motive does not carry much weight. It is also notable that mind set of accused persons differs from each other. Thus merely because that there was no strong motive to commit the present offence, prosecution case cannot be disbelieved.
31. In Lokesh Shivakumar v. State of Karnataka, (2012) 3 SCC 196, Court held as under :-
"As regards motive, it is well established that if the prosecution case is fully established by reliable ocular evidence coupled with medical evidence, the issue of motive looses practically all relevance. In this case, we find the ocular evidence led in support of the prosecution case wholly reliable and see no reason to discard it."
32. So far as the argument of relative witness and non examination of independent witness are concerned, it is now well settled law laid down in Dalip Singh v. State of Punjab, AIR,1953, SC 364, wherein Court has held as under :-
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause' for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
33. In Dharnidhar v. State of UP (2010) 7 SCC 759, Court has observed as follows :-
"There is no hard and fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case. In the case of Jayabalan v. U.T. of Pondicherry (2010) 1 SCC 199, this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim"
34. In Ganga Bhawani v. Rayapati Venkat Reddy and Others, 2013(15) SCC 298, Court has held as under :-
"11. It is a settled legal proposition that the evidence of closely related witnesses is required to be carefully 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.
(Vide: Bhagalool Lodh & Anr. v. State of UP, AIR 2011 SC 2292; and Dhari & Ors. v. State of U. P., AIR 2013 SC 308)."
35. It is settled that merely because witnesses are closed relatives of victim, 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.
36. Learned Counsel for accused-appellant urged that recovery of knife shown by police is not supported by any independent witness. PW-4 in his statement stated that recovery of knife was made in the presence of public witnesses, namely, Ajay Kumar and Chotey Lal but none of the public witness have been produced by prosecution, therefore, recovery shown by police inspires no confidence.
37. In our view, submission advanced by learned Counsel for accused-appellant is thoroughly misconceived, for the reasons that prosecution is not obliged to produce independent witness in support of recovery involving police. Presumption that every person acts honestly applies as much in favour of a Police Official as any other person. There is no rule of law which lays down that no conviction can be recorded on the testimony of Police Officials even if such evidence is otherwise reliable and trustworthy.
38. As a matter of rule, there can be no legal proposition that evidence of police officers, unless supported by independent witnesses, is unworthy of acceptance. Non-examination of independent witness or even presence of such witness during police raid would cast an added duty on the court to adopt greater care while scrutinising the evidence of the police officers. If the evidence of police officer is found acceptable, it would be an erroneous proposition that court must reject prosecution version solely on the ground that no independent witness was examined. In Pradeep Narayan Madqaonkar & others vs. State of Maharashtra 1995 (4) SCC 255, it was held:
"Indeed, the evidence of the official (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are, either interested in the investigation of the prosecuting agency but prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation, requires greater care to appreciate their testimony."
39. In Balbir Singh vs. State 1996 (11) SCC 139, Court has repelled a similar contention based on non-examination of independent witnesses. The same legal position has been reiterated time and again by Court vide Paras Ram vs. State of Haryana 1992 (4) SCC 662, Sama Alana Abdulla vs. State of Gujarat 1996 (1) SCC 427, Anil alias Andya Sadashiv Nandoskar vs. State of Maharashtra 1996 (2) SCC 589.
40. In State of U.P. v. Zakaullah 1998 Cri. L.J. 863 in para-10, it is said:
"The necessity for "independent witness" in cases involving police raid or police search is incorporated in the statute not for the purpose of helping the indicted person to bypass the evidence of those panch witnesses who have had some acquaintance with the police or officers conducting the search at some time or the other. Acquaintance with the police by itself would not destroy a man's independent outlook. In a society where police involvement is a regular phenomenon many people would get acquainted with the police. But as long as they are not dependent on the police for their living or liberty or for any other matter, it cannot be said that those are not independent persons. If the police in order to carry out official duties, have sought the help of any other person he would not forfeit his independent character by giving help to police action. The requirement to have independent witness to corroborate the evidence of the police is to be viewed from a realistic angle. Every citizen of India must be presumed to be an independent person until it is proved that he was a dependent of the police or other officials for any purpose whatsoever."
41. Referring to some earlier decisions, Court in Girja Prasad Vs. State of M.P. (2007) 7 SCC 625 held:
"It is well-settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a Court of Law may not base conviction solely on the evidence of Complainant or a Police Official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a Police Official as any other person. No infirmity attaches to the testimony of Police Officials merely because they belong to Police Force. There is no rule of law which lays down that no conviction can be recorded on the testimony of Police Officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the Court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence." (para 25)
42. 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 all the witnesses PWs 1, 2 and 3 support prosecution case. All the three witnesses withstood lengthy cross-examination but nothing adverse material could be brought on record so as to disbelieve their statements. There is nothing in cross-examination which may render their statements doubtful. Naturally some minor contradictions and discrepancies have occurred in their cross examination but they do not go to the root of case.
43. In Sampath Kumar v. Inspector of Police, Krishnagiri, (2012) 4 SCC 124, 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.
44. In Sachin Kumar Singhraha v. State of Madhya Pradesh in Criminal Appeal Nos. 473-474 of 2019 decided on 12.3.2019, Supreme Court has observed that Court will have to evaluate evidence before it keeping in mind the rustic nature of depositions of the villagers, who may not depose about exact geographical locations with mathematical precision. Discrepancies of this nature which do not go to the root of the matter do not obliterate otherwise acceptable evidence. It need not be stated that it is by now well settled that minor variations should not be taken into consideration while assessing the reliability of witness testimony and the consistency of the prosecution version as a whole.
45. 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 in Criminal Appeal No. 56 of 2018, Smt. Shamim v. State of (NCT of Delhi), decided on 19.09.2018.
46. When such incident takes place, one cannot expect a scripted version from witnesses to show as to what actually happened and in what manner it had happened. Such minor details normally are neither noticed nor remembered by people since they are in fury of incident and apprehensive of what may happen in future. A witness is not expected to recreate a scene as if it was shot after with a scripted version but what material thing has happened that is only noticed or remembered by people and that is stated in evidence. Court has to see whether in broad narration given by witnesses, if there is any material contradiction so as to render evidence so self contradictory as to make it untrustworthy is Minor variation or such omissions which do not otherwise affect trustworthiness of evidence, which is broadly consistent in statement of witnesses, is of no legal consequence and cannot defeat prosecution.
47. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observations, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. Court has to form its opinion about the credibility of witness and record a finding, whether his deposition inspires confidence. Exaggerations per se do not render the evidence brittle, but can be one of the factors to test credibility of the prosecution version, when entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statement of a witnesses cannot be dubbed as improvements as the same may be elaborations of the statements made by the witnesses earlier. Only such omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. [Vide: State Represented by Inspector of Police v. Saravanan & Anr., AIR 2009 SC 152; Arumugam v. State, AIR 2009 SC 331; Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334; and Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra, JT 2010 (12) SC 287].
48. In the entirety of the facts and circumstances and legal preposition discussed herein before, we are satisfied that prosecution has successfully proved its case beyond reasonable doubt against accused-appellants and has rightly convicted him for having committed an offence under Section 302 IPC.
49. 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.
50. 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].
51. Hence, applying the principles laid down in the aforesaid judgments and having regard to the totality of facts and circumstances of case, motive, nature of offence, weapon used in commission of murder and the manner in which it was executed or committed, we find that punishment imposed upon accused-appellants by Trial Court in impugned judgment and order is not excessive and it appears fit and proper and no ground appears to interfere in the matter on the point of punishment imposed upon him.
52. In view of above discussion, the appeal lacks merit and is dismissed. Impugned judgement and order dated 08.01.2015 passed by Additional Session Judge, Court No.3, Gorakhpur in Session Trial No. 178 of 2012 (State v. Inayatullah) under Sections 302 IPC, Police Station Gorakhnath, District Gorakhpur, is maintained and confirmed.
53. Lower Court record alongwith a copy of this judgment be sent back immediately to District Court concerned for compliance and further necessary action and to apprise the accused-appellant through Jail Authority.
54. Before parting we provide that Sri Abida Syed, 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.
Order Date :- 22.08.2019 I.A.Siddiqui