Hon'ble Ram Krishna Gautam,J.
(Delivered by Hon'ble Ram Krishna Gautam, J.)
1. This Jail Appeal under Section 410 read with Section 374 (2) of Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.) has been filed by accused-appellant Satendra @ Bantu thorugh Jail Superintendent Firozabad against the judgment and order dated 23.05.2015 passed by Sri. R.P. Singh, Additional Sessions Judge (Court No. 5), Firozabad. By the impugned judgment, the accused-appellant Satendra @ Bantu has been convicted and sentenced under Section 302 of Indian Penal Code (hereinafter referred to as 'I.P.C.') to rigorous imprisonment for life with a fine of Rs. 10,000/-. In case of default in payment of fine, the accused-appellant has to undergo six months additional imprisonment. He has further been convicted under Section 25 Arms Act, 1959 and sentenced to one year rigorous imprisonment and a fine of Rs. 1,000/-. In the event of default, he has to further undergo one month additional imprisonment. Both the sentences were directed to run concurrently.
2. Prosecution case as emerging from First Information Report (hereinafter referred to as 'F.I.R.) and the evidence available on record is that on information given by one Thakuri of Eka town to the effect that an incident of firing took place at contracted countrymade liquor shop to S.I. Netrapal Singh (PW-1) who was present at P.S. Baldev, District Firozabad, he along with Constables Akhlaq Ahmad and Rajveer Gautam proceeded towards the place of occurrence at about 8:00 a.m. from Police Station Eka, after making relevant entry in G.D. When he reached at country made liquor shop, he found a man lying injured. Below his neck towards left side on the chin there was a mark of gunshot injury with blood stains. PW-1 then arranged for Government vehicle on telephone and got the injured person identified by people of the town but he could not be identified. Notes of Rs. 18,500/- were scattered at the place of occurrence and soaked in the blood of injured. The injured person was sent to District Hospital for treatment along with the aforesaid Constables Akhlaq Ahmad and Ramveer Gautam. Salesman was not found on liquor shop which was open. Injured was lying in wounded condition in courtyard of the shop premises. Thereafter, Akhlaq Ahmad telephonically informed PW-1, informant that injured has breathed his last on the way to hospital. On coming back to police station, he got a case registered at Case Crime No. 5 of 2008 under Section 302 I.P.C. at 10:00 a.m. at G.D. No. 18. The same day, investigation was undertaken by Station Officer, PW-11, Arun Kumar Singh who visited the spot, investigated it and prepared site plan. He collected sample of blood stained and simple soil from the spot and sealed it in separate packs later on exhibited as Ex. Ka-15. He also took in possession notes of Rs. 18,000/- and prepared a recovery memo Ex. Ka-13. At the same time, he received an information that accused appellant Satendra @ Bantu was present at another countrymade liquor shop at Eta crossing. On this information, PW-11 rushed to Eta crossing and found accused-appellant Satendra @ Bantu standing there. On inquiry, he disclosed his name as Satendra @ Bantu son of Ganga Singh, resident of village Sujawalpur Police Station Nazirpur, District Firozabad. On search from beneath right side of his pant one countrymade pistol of .315 bore was recovered from his possession measuring 6 inch in length alongwith two live cartridges of .315 bore recovered from right side pocket of his pant. The accused could not produce licence of the aforesaid firearm. Therefore, he was arrested for the crime under Section 302 I.P.C. and Section 25 Arms Act, 1959, at about 2:30 P.M. on the same date. Thereafter, he continued investigation. On 08.04.2008, investigation was undertaken by PW-12 Ummed Ali, Station Officer, who recorded statements of witnesses and articles recovered from the person of deceased alongwith packets of sample of blood stained soil, simple soil and notes, which were sent to Forensic Laboratory Agra for chemical examination. On completion of investigation, he submitted Charge-sheet Ex.-Ka 20 against accused in Court. Cognizance of offence for the first time was taken by Chief Judicial Magistrate, Firozabad on 10.03.2008 and thereafter a supplementary Charge-sheet Ex.-Ka 18 was also filed, Cognizance of offence was taken by Chief Judicial Magistrate, Firozabad on 21.04.2008.
3. The case being exclusively triable by Court of Sessions. Chief Judicial Magistrate, Firozabad committed the same to the Court of Sessions on 17.05.2008. Thereafter, the case was registered as Sessions Trial No. 359 of 2008 under Section 302 I.P.C. The aforesaid Sessions Trial was transferred to the Court of Additional Sessions Judge (Court No. 5) Firozabad, who framed charges against accused-appellant under Section 302 I.P.C. as also a separate charge under Section 25 Arms Act, 1959. Both the charges read as under:
;g fd fnukad 13-01-2008 dks le; djhc 2-30 ih-,e- LFkku Bsdk ns'kh 'kjkc ,Vk jksM dLok o Fkkuk&,dk] ftyk&fQjkstkckn esa vkidks iqfyl }kjk fxjQ~rkj fd;k x;k rks vkids dCts ls vijk/k la0& [email protected] esa iz;qDr ,d reapk ns'kh 315 oksj o nks vnn dkjrwl 315 oksj ftUnk o ,d [kks[kk dkjrwl 315 oksj cjken gq, ftUgs j[kus dk vkids ikl dksbZ ykblsal ugh FkkA bl izdkj vkius /kkjk & [email protected] vk;q/k vf/kfu;e ds vUrxZr n.Muh; vijk/k fd;k tks bl U;k;ky; ds izlaKku esa gSA ,rn~ }kjk vkidks funsZ'k fn;k tkrk gS fd mijksDr vkjksi ds fy, vkidk fopkj.k bl U;k;ky; }kjk fd;k tkosxk "
"I, Riyasat Hussain, Additional Sessions Judge, (Court Room No. 5), Firozabad do hereby charge you Satendra @ Bantu S/o Ganga Singh R/o Sujawalpur, PS Nasirpur, District Firozabad, with the following offence:
That on 13.01.2008 (time unknown), at a country made liquor shop falling within Town and PS Eka, District Firozabad, you by opening a firearm shot at Karamvir S/o Indrapal Singh murdered him intending and knowing such an act to cause his death. In this way, you have committed an offence punishable u/s 302 of IPC, which is within the cognizance of this court.
You are hereby directed to be tried by this court for the aforesaid offence."
"I, Mohd. Mateen Khan, Additional Sessions Judge (Court Room No. 5), Firozabad, do hereby charge you Satendra @ Bantu S/o Ganga Singh R/o Sujawalpur, PS Nasirpur, District Firozabad, with the following offence:
That on 13.01.2008 at around 2:30 pm, at a country made liquor shop situated at Etah Road, Town and PS Eka, District Firozabad, when you were arrested by the police then a country made pistol of 315 bore with two live cartridges of 315 bore and an empty cartridge of the same bore were recovered from you which were used in case crime no. 05/2008 and you had no licence to posses the same. In this way, you have committed an offence punishable u/s 25/27 of the Arms Act which is within the cognizance of this court.
You are hereby directed to be tried by this court for the aforesaid offence."
...( English Translation by this Court)
4. Charges were read over and explained to the accused-appellant who pleaded not guilty and claimed to be tried.
5. In support of its case, prosecution examined, in all, 14 witnesses. PW-1, Jagdish Prashad Palawat, who on the date of incident was posted as Sub Inspector at Police Station Eka, District Firozabad. On receiving information about injured lying at the countrymade liquor shop, he rushed to the place of occurrence along with two Constables and prepared site plan Ex. Ka-16. PW-2 Indrapal Singh, father of deceased Karamveer Singh, who had lodged F.I.R. (Ex. Ka-1), proved the same. PW-3, S.I. Netrapal Singh was the first Investigating Officer who had visited the spot and prepared inquest and had taken in possession Rs. 9,135/-, diary and visiting card etc. from the pocket of shirt of the deceased, and sent the dead body to mortuary for post mortem. PW-4, Constable Uday Rai had entered the case in G.D. at Report No. 131 of 2008 at 9:00 A.M. and has proved copy of G.D. Entry (Ex. Ka-6). He had also deposited countrymade pistol and live cartridges recovered from the person of accused-appellant and also proved the entry thereof in the G.D. at Report No. 24 which was exhibited as Ex. Ka-11. PW-5, Babu Ram Gupta has his shop of Slippers and Shoes in front of liquor shop of the deceased. He had deposed that deceased Karamveer Singh had gone to his shop at about 8:00 a.m. on the date of incident and purchased a slipper after making payment. PW-6, Ramu has also his betel shop at Eka crossing near Police Station and he had heard at about 8:30 a.m. on 13.01.2008, that someone had shot someone at the countrymade liquor shop. He had gone to the spot and signed as witness on recovery memo prepared in respect of currency. PW-7 is Dr. R.K. Sharma who had conducted autopsy on the dead body of the deceased on 14.01.2018 at about 1:40 A.M. On internal examination, he found the deceased of an average body built, rigor mortis had passed from neck and present in upper and lower extremities. No symbol of decomposition was seen, both the eyes and mouth were half open and about one day had passed since the death of deceased. He found following ante mortem injuries:
1. A lacerated wound 3 cm X 4 cm into skin deep, irregular margins present on the right side of chin. 2. A gunshot wound of entry 2 cm X 1 cm X cavity deep in the middle neck placed obliquely, margins inverted, central tissues lost, direction downwards. Blackening and tattooing was found present.
6. On internal membranes of lungs were punctured; deep clotted blood was found; Trachea was punctured; left lung torn; both the chambers of heart were empty; neck vessels were lacerated; stomach was empty; small intestine contained digested food and gas; large intestine contained faecal matters and gas and urinary bladder contained urine. On the basis of post mortem examination, the doctor opined that death was caused due to shock and hemorrhage on account of ante mortem injuries. One shirt, pant, belt, vest, underwear and sweater recovered from the possession of deceased, were handed over to Constables. A metal pellet which was recovered from left lung of the deceased was also handed over to the Constables after sealing it. The doctor, PW-7, has proved the post mortem report as Ex. Ka-14. PW-8, Karu son of Naushe who has his tailoring shop near the place of occurrence. However, he has been declared hostile. PW-9, Thakuri @ Thakur Das son of Sri Jwala Prashad had a shop between police station Eka and the countrymade liquor shop. He had deposed that on hearing sound of gunshot he reached the place of occurrence, where he saw a young boy lying on the ground gasping after sustaining gunshot injury. PW-10, Ram Sevak son of Pyare Lal is the witness of recovery memo meant for sending dead body to mortuary, District Hospital, Firozabad for post mortem and has proved his signature. PW-11, Sri Arun Kumar Singh is the first Investigating Officer who had conducted the investigation and has proved various documents, recovery memos and material exhibits. He was transferred on 23.01.2008. PW-12 Ummed Ali is the second Investigating Officer who undertook investigation on 8.4.2008 and submitted charge-sheet Ex. Ka-18 and has proved the same. PW-13, Maneshan Babu is the Investigating Officer who conducted investigation with regard to offence under Section 25 Arms Act, 1959. He has proved the charge-sheet submitted by him being charge-sheet No. 19 of 2008 under Section 25 Arms Act, 1959 which was marked as Ex. Ka-20. He had also obtained sanction from District Magistrate for prosecution of appellant. The sanction is Ex. Ka-21 which has been proved by this witness. PW-14 is the constable Charan Singh who was the witness of recovering of firearm and live cartridges from possession of accused. He also proved Ex. Ka-17, recovery memo prepared in respect of recovered firearm and cartridges by S.I. Arun Kumar Singh.
7. Thereafter accused-appellant was examined under Section 313 Cr.P.C. He has denied prosecution story and claimed that documents prepared are concocted and manufactured and he has been implicated falsely and witnesses are deposing falsely. He deposed that police is saving the real culprit and has falsely implicated the accused-appellant who is handicapped, helpless and poor man.
8. On conclusion of evidence, Trial Court after hearing counsel for the parties and pursuing material available before it has passed the impugned judgment and order dated 23.05.2018 convicting and sentencing the accused-appellant as above. Against this order, the instant jail appeal has been preferred by the accused-appellant through Jail Superintendent.
9. We have heard Sri Raj Kumar Sharma, Advocate assisted by Sri Neeraj Pandey, learned counsel for appellant and Sri Nikhil Chaturvedi, learned A.G.A. for State.
10. Assailing the impugned judgment and order, learned counsel appearing for appellant argued that prosecution was not able to prove its case beyond reasonable doubt; none of the witnesses is examined in the matter as eye witness account, who has seen the incident; motive assigned against the accused-appellant has also not been proved; date, time and place of occurrence have not been established; medical evidence does not support the prosecution evidence. Referring to site plan, it was further argued that nothing is shown in it to substantiate that accused was present on spot or someone had seen him while committing this offence or some witness has named him for commission of this offence. Referring to manner of occurrence, it has further been argued that the informant Thakuri had given the information of alleged firearm shot at countrymade liquor shop but this was not registered as case crime number rather the case crime number was registered upon the first F.I.R. Ex. Ka-1 filed by PW-2, who was not eye witness account of the occurrence. The entire chain by addition of each links was not complete which may prove the conclusive guilt against accused-appellant.
11. Per contra, learned A.G.A. has argued that motive taken by prosecution has been established from the witness from whom slipper was purchased just immediately before the occurrence by deceased. The money was with deceased and the instant conversation amongst person present on spot was that the salesman had given firearm shot over the deceased, the shop was open, the deceased was lying injured under the pool of blood, under firearm injury within the premises of courtyard very adjacent to countrymade liquor shop which was open but salesman accused-appellant was missing.
12. In bail application, this fact has been admitted by the accused himself that he was the salesman of above liquor shop. The instant rushing of police on the spot found deceased under injured position and he was managed to be sent for medical treatment but while taking to hospital he succumbed to above firearm injury. The information was instantly given by police constable to PW-1, who entered offence of murder. The inquest proceedings and autopsy has established the death owing to ante mortem firearm injury i.e. it was not a natural death or suicidal or accidental rather it was culpable homicide.
13. 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.
14. 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)
15. 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.
16. 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)
17. 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)
18. 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)
19. 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)
20. 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.
21. In Ganesh K. Gulve Etc vs State Of Maharashtra, AIR 2002 SC 3068 Court has propounded as under:
"In order to appreciate the evidence, the Court is required to bear in mind the set up and environment in which the crime is committed. The level of understanding of the witnesses. The over jealousness of some of near relations to ensure that everyone even remotely connected with the crime be also convicted. Everyone's different way of narration of same facts. These are only illustrative instances. Bearing in mind these broad principles, the evidence is required to be appreciated to find out what part out of the evidence represents the true and correct state of affairs. It is for the courts to separate the grain from the chaff."
22. PW-2, Indrapal Singh is the father of deceased. He is not an eye witness account of the occurrence. Rather he was present in his village on 13.01.2008 when he was waiting for his son Karamveer, who had been on his way to home from Delhi and was having Rs. 50,000/- with him. He got the information from his village that someone has been killed at the liquor shop in the town. He along with Nripati Singh and Rampal Singh went at Police Station Eka, where he identified the photo of his son Karamveer in the mobile phone of Station Officer. He was taken at mortuary of District Hospital, Firozabad, where he identified the dead body of his son who was murdered by Satendra @ Bantu in liquor shop for the motive of Rs. 50,000/-. He got the report scribed upon his dictation by his villageman Ram Singh and after hearing it he put his signature over it, which is paper No. 3 on record, exhibited as Ex. Ka-1. In cross examination he has admitted that he was not eyewitness account of the occurrence and has named [email protected] on the basis of telling by police personal and villagers.
23. PW-1 is the Sub Inspector Jagdish Prasad Palawat, who was posted as Sub Inspector at Police Station Eka on 13.01.2008. He too is not an eye witness account of giving of firearm shot, rather he has rushed on spot upon the information received from Thakuri that some firing had occurred at liquor shop and he along with his police team rushed to liquor shop and found one person lying injured under the pool of blood having firearm shot over his neck. He managed to sent him to hospital for treatment and recovered money amounting to Rs. 18,500/- lying scattered there and even under blood. The salesman of liquor shop was not there, though shop was open. This injured person was lying within the courtyard of liquor shop. Subsequently, information by constable Akhlaq Ahmad, about death while on the way, was given to this witness and he entered this in G.D. No. 18 at about 10:00 A.M. as Case Crime No. 5/2008. This link of chain has been proved by this witness that he received information from Thakuri about firing at liquor shop who was present at the liquor shop. He along with his team, rushed to the spot where he found injured person lying within the courtyard of the countrymade liquor shop, which was open but salesman was missing. He managed to sent injured for medical treatment, but he succumbed due to above injury while on the way then after he entered offence of murder in G.D. Entry. He again visited the spot along with I.O. Arun Kumar Singh. Site plan was prepared. Under his guiding, sample of plain and blood stained soil was taken. Recovery memo of the same was prepared. Money to the tune of Rs. 18,500/- was taken from the spot and recovery memo of the same was also prepared. The distance between Police Station and the place of occurrence was of only 15 minutes. Thakuri and many other person present on the spot informed that it was salesman Satendra @ Bantu who has given the firearm shot. This was narrated by Thakuri at the Police Station, at the very first instance, but name of the person who has claimed himself to be eye witness account was not said by this witness. The immediate spot scene and the murmur on spot named the accused who has shot firearm and there is neither any exaggeration nor any contradiction nor any embellishment in his testimony.
24. PW-3, Sub Inspector Netrapal Singh has formally proved the inquest proceedings and the papers made at the time of inquest proceedings for getting the dead body examined under autopsy examination which is exibited as Ex. Ka-14. There is no embellishment or exaggeration in his testimony .
25. PW-4, Constable Uday Rai has formally proved the registration of case and the Chick F.I.R. prepared on the basis of F.I.R. Registration of Case Crime No. 4/2008 under Section 25 of Arms Act on the same day on 13.01.2008, at the police station and the same being exhibited as Ex. Ka 10. G.D. Entry Ka-11 and 12 has been formally proved by this witness for which there is no exaggeration.
26. PW-5 is Babu Ram Gupta, who was the witness of a link of the chain has said that he was a shop keeper of shoe and slipper having his shop very adjacent to place of occurrence. The countrymade liquor shop is just in front of his shop and three years back at about 8:00 A.M. Karamveer came to his shop and had purchased a slipper by making payment for it. He did not know where he went after purchase. But instantly he heard a sound of firearm shot and he rushed in front of liquor shop. Employee of liquor shop committed the murder of Karamveer Singh was not under his knowledge. Though in cross-examination, he has accepted that it was Karamveer who came to his shop and had purchased a slipper for himself and he was the present victim of above firearm shot. This link of chain has been fully proved by this witness.
27. PW-6 is Ramu, next shop keeper having betel shop very adjacent to palace of occurrence and he has said that at about 8:30 to 8:45 A.M. he had heard that someone had given firearm shot over someone on above date and he had rushed on spot where Sub Inspector of Police was doing formalities and he had put his signature over paper No. 6/2008 which has been proved to be Ex. Ka-13. Though in cross-examination, he has said that he had put his signature at his shop.
28. PW-8, Karu, has been declared hostile. He is the witness of the occurrence but in cross-examination he has categorically said that his shop is situated nearby the place of occurrence and the liquor shop was of Bantu and Ex. Ka-13 is under his signature but he was not aware of the recital of the same.
29. PW-9, Thakuri @ Thakur Das, has said in the cross-examination:
"ftl le; deZohj dh gR;k gqbZ Fkh ml le; nqdku Fkkuk ,dk o 'kjkc ds Bsds ds chp fLFkr Fkh] 7 & 8 cts eSus viuh nqdku [kksy nh FkhA eSus Bsds dh rjQ ls xksyh pyus dh vkokt lquh Fkh vkokt lqu dj ekSds ij eS igqpk rFkk vkSj Hkh cgqr ls yksx igqap x;s FksA ekSds ij eSus ,d ubZ mez dk yMdk xksyh yxus ds dkj.k tehu ij iMk gqvk rMirk gqvk ns[kk Fkk ogka ij yksx dg jgs Fks fd bl yMds dks lsYl eSu cUVw us xksyh ekjh gSA eS rqjUr Fkkus x;k rFkk ?kVuk dh lwpuk Fkkus ij nh Fkh Fkkus ls ekSds ij iqfyl igqaph Fkh vkSj ?kk;y dks iqfyl okys xkMh es ysdj bykt ds fy, vLirky ys x;s FksA"
30. In the cross-examination, again he reiterated that the occurrence had happened at about 7:00 A.M. to 8:00 A.M., when he reached there the person standing there were saying that it was the salesman who had given firearm shot though name of salesman to be Bantu was not proved by him and whatever was instantly perceived by this witness was immediately conveyed to police station. Though this witness has categorically said that:
"xksyh ekjrs gq, eSus fdlh O;fDr dks ugh ns[kk Fkk] vkSj ugh crkus okys yksxks esa ls fdlh us eq>s ;g crk;k fd eSus lsYl eSu dks Bsds ij xksyh pykrs ns[kk gSA"
31. This witness was present at his shop and had rushed at the place of occurrence after listening the sound of firearm shot and he immediately conveyed this to police station. For this testimony, there is no exaggeration, contradiction or embellishment.
32. PW-10, Ram Sevak has formally proved the inquest proceedings and inquest report as Ex. Ka -14.
33. PW-11 Arun Kumar Singh is the Investigating Officer, who has formally proved his investigation, preparation of site map, recovery memo, Ex. Ka-13, Ex. Ka-15 and Ex. Ka-16 and recovery of .315 bore countrymade pistol in working condition having empty cartridge in it with two live cartridges has been made from the possession of Satendra @ Bantu. But the licence of the same could not be shown by him. Ex. Ka-17 has been formally proved by this witness. There is no embellishment, contradiction regarding his testimony. Though no witness was available who had said to be eye witness of this firearm shot but the instant conversation and the instant lodging of F.I.R., instant arrest and instant recovery of arms have been formally proved by this witness.
34. PW-12, Ummed Ali has formally proved charge-sheet Ka-18. PW-13, Maneshn Babu is the Investigating Officer of the offence of Arms Act and he has formally proved the formal investigation made by him and the charge-sheet Ex. Ka-20 submitted by him though in cross-examination, this witness has said that the bullet recovery from the pant of the deceased and the countrymade Tamancha along with empty cartridge recovered from the possession of accused, were not got examined. No forensic examination was got made by this witness. Though it would have been a better investigation for establishing the case.
35. PW-14 is the witness of recovery of above Tamancha and the cartridges from the possession of accused. These testimony were to be explained by accused under Section 313 Cr.P.C. in which he has denied and said that the testimony of prosecution witnesses 2, 4, 5, 6, 8 and 9 are false. In testimony of PW-1, it has been said to be not under his knowledge. The investigation and preparation of exhibits has been said to be fabricated. He was present on the spot and heard the sound of firearm shot but who made this firearm shot was said to be not under his knowledge. The real culprit of the offence has been saved by police and he has been falsely implicated. But no reason as to why he was falsely implicated or why culprit is saved or what was enmity with him, has not been said by accused. No cogent reason has been adduced and no evidence in defence has been given by accused-appellant whereas prosecution has proved all these necessary links.
36. As propounded by Supreme Court in Santosh @ Santukrao Vs. State of Maharashtra, 2007 (2) JIC 831 (SC) and a Division Bench of this Court in State of U.P. Vs. Akhlaq and another, 2010 (71) ACC 764 ALLAHABAD HIGH COURT- LUCKNOW BENCH, in a case based on direct evidence, motive is of no avail, but in a case based on circumstantial evidence, motive plays a role of scanner. If it has been established, rest evidence is to be scanned under this scanner. The motive, since the beginning, in the present case, has been proved to be a money of Rs. 50,000/- which was with deceased at the time of this occurrence and Rs. 18,500/- was recovered from the spot, soaked with blood, whereas Rs. 9,135/- was recovered from the pocket of the cloth at the time of autopsy examination in the mortuary. Hence, lying of waving of above denomination on the spot, reveals the attempt to rob the same and protest for it resulting in this occurrence.
37. In Pravin Kumar Vs. State of Karnataka 2004 JIC 142 SC, Court, while interpreting Section 27 of Indian Evidence Act, on the point of recovery, on the basis of disclosure statement of accused, made in presence of police, has propounded that Section 27 of Indian Evidence Act does not require disclosure to be corroborated by any independent witness "Section 27 of Indian Evidence Act does not lay down that the statement made to police officer should always be in the presence of independent witness. Normally, in cases where the evidence laid by the prosecution as to a fact depends solely on the police witnesses, the Court seek corroboration as a matter of caution and not as a matter of rule. Thus, it is only rule of prudence which makes the Court to seek corroboration from independent sources, in such cases, while assessing the evidence of police. But in cases where the Court is satisfied that the evidence of police can be independently relied upon then, in such case, there is no prohibition in law that the same can not be accepted without independent corroboration."
38. In the present case, disclosure made by appellant, the recovery of countrymade Tamancha of .315 bore in it, two live cartridges of same bore and recovery of bullet of same bore from the dead body of deceased has been established. This recovery is in furtherance of investigation on the basis of disclosure made by appellant. Hence, this additional link was proved. Appellant failed to explain against those proved links. The material Ex. -1 Tamancha, 2 and 3 live cartridges and the Recovery Memo of this recovery has been formally proved as above. Though, this ought to be examined by Forensic Science Laboratory for making comparison between the bullet recovered from the dead body of deceased and Tamancha recovered from appellant, but it was not done by Investigating Officer. This was an irregularity on the part of Investigating Officer.
39. However, in State of Rajasthan Vs. Kisor AIR 996 SC 3035, Court has contended the issue regarding irregularity or illegality committed by investigation under Section 156, 157 and 159 of Cr. P.C. and effect thereof and has held that this irregularity or illegality does not constitute a ground to reject a prosecution case.
40. Hence, on the over all appreciation of evidence adduced by prosecution; coupled with the disclosure made by accused-appellant; followed by the recovery of weapon of offence, along with empty cartridge in its barrel and two live cartridges of same bore .315, the each and necessary links of the chain of offence charged against appellant was fully proved by prosecution and the Sessions Judge has rightly and appropriately passed the impugned judgment with all details and reasons.
41. 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.
42. 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].
43. 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.
44. In view of the above facts and circumstances, impugned judgment and order dated 23.05.2015 deserves to be affirmed and appeal is liable to be dismissed.
45. In the result, the Criminal Appeal is dismissed. Impugned judgment and order dated 23.05.2015 passed by Additional Sessions Judge, Court No. 5, Firozabad, in S.T. No. 359 of 2008 (State Vs. Satendra @ Bantu), Police Station Eka, the then District Firozabad, is hereby confirmed/affirmed. The appellant, who is in jail, shall serve out the sentence awarded to him by the Trial Court.
46. Copy of this order along with lower Court record be sent to Court concerned forthwith.
47. A copy of this order be also sent to Appellant through concerned Jail Superintendent.
48. Sri Raj Kumar Sharma, learned Amicus Curiae has assisted the Court very diligently. We provide that he shall be paid counsel's fee as Rs. 11,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad, to Sri Raj Kumar Sharma, Amicus Curiae, without any delay and, in any case, within 15 days from the date of receipt of copy of this judgment.
Order Date: 24.01.2019 Kamarjahan