# Gajendra v. State of U.P

- **Citation:** (2019) 3 ILRA 578
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-24
- **Case number:** Jail Appeal No. 3345 of 2012
- **Bench:** Sudhir Agarwal, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gajendra-v-state-of-u-p-44851
- **Pages:** 9

## Headnote

Evidence
Law-Indian
Evidence
Act,1872 - Section 118; Indian Penal
Code, 1860 - Sections 376 and 506
I.P.C. - victim PW-2 is real daughter of
the accused-appellant & PW-1 is the
wife of accused. No occasion for PW-1
and
PW-2
to
falsely
implicate
the
accused.
No
requirement
that
the
evidence of the rape victim cannot be
accepted unless it is corroborated in
material
particulars.
Victim
is

a
competent witness under Section 118 of
Evidence Act, 1872 - her evidence must
receive the same weight as is attached
to an injured in cases of physical
violence - where direct evidence is trust
worthy, it can be believed. Motive does
not carry much weight - merely because
that there was no strong motive proved
to
commit
the
present
offence,
prosecution case cannot be disbelieved -
accused-appellant committed rape upon
her daughter PW-2 and an offence
punishable under Section 376 I.P.C., -
Trial Court rightly analyzed evidence led
by prosecution and found the accused
guilty and convicted him for having
committed rape, an offence punishable
under Sections 376 and 506 IPC - The
measure
of
punishment
should
be
proportionate to gravity of offence -
Conviction and sentence awarded by Trial
Court is liable to be maintained and
confirmed.(Para 5,10,21,24,27, 29, 30,31,32 )

Jail appeal dismissed. (E-7)

List of cases cited:-

## Text

578 INDIAN LAW REPORTS ALLAHABAD SERIES
administration of justice in criminal cases
is that if two views are possible on the
evidence adduced in the case one pointing
to the guilt of the accused and the other to
his
innocence,
the
view
which
is
favourable to the accused should be
adopted. This principle has a special
relevance in cases where in the guilt of
the accused is sought to be established by
circumstantial evidence."
(Emphasis added)

39. We have deeply considered
entire evidence available on record to
connect accused-appellant with present
crime but find no iota of evidence to hold
accused-appellant guilty.

40. We are surprised as to how
without any incriminating circumstances
and cogent evidence, Trial Court has
convicted
and
sentenced
accusedappellant in a serious offence on the basis
of statement of victim under Section 161
Cr.P.C assuming it 'dying declaration'
without any corroboration. Sentencing of
accused-appellant in this manner erodes
public faith on judicial system.

41. Considering the entire facts and
circumstances and evidence led by the
prosecution, in entirety, we do not find
any cogent and convincing evidence
against accused-appellant to connect him
with present crime and, in our considered
opinion, accused-appellant is entitled to
benefit of doubt and deserves acquittal.

42. Appeal is, accordingly, allowed.
Impugned judgment and order dated
09.04.2015 passed, in Sessions Trial No.
Sessions Trial No. 762 of 2012 (State v.
Arvind Bajpai, Crime No. 464 of 2012),
by Additional District and Sessions
Judge, Court No.6, Kanpur Nagar, is
hereby set aside. Appellant is acquitted of
charges levelled against him. He is in jail
and shall be released forthwith, if not
wanted in any other case.

43. Keeping in view provisions of
Section 437-A Cr.P.C., appellant is
directed to furnish a personal bond and
two sureties before Trial Court to its
satisfaction, which shall be effective for a
period of six months, along with an
undertaking that in event of filing of
Special Leave Petition against instant
judgment or for grant of leave, appellant
on receipt of notice thereof shall appear
before Hon'ble Supreme Court.

44. Lower Court record along with a
copy of this judgment be sent back
immediately to District Court concerned
for compliance and further necessary
action.

45. Before parting, we provide that
Sri Lal Chandra Mishra, Amicus Curiae
for appellant in present Jail Appeal, shall
be paid counsel's fee as Rs. 11,500/-.
State Government is directed to ensure
payment
of
aforesaid
fee
through
Additional Legal Remembrancer, posted
in the office of Advocate General at
Allahabad, without any delay and, in any
case, within one month from the date of
receipt of copy of this judgment.
----------
(2019)11ILR A578

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.10.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Jail Appeal No. 3345 of 2012
3 All. Gajendra Vs. State of U.P.
579
Gajendra ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Prateek Samadhiya (A.C.),
Sri Shams Uz Zaman, Sri Sunil Kumar

Counsel for the Opposite Party:
Sri Mahesh Chandra Joshi (A.G.A.)

A.
Evidence
Law-Indian
Evidence
Act,1872 - Section 118; Indian Penal
Code, 1860 - Sections 376 and 506
I.P.C. - victim PW-2 is real daughter of
the accused-appellant & PW-1 is the
wife of accused. No occasion for PW-1
and
PW-2
to
falsely
implicate
the
accused.
No
requirement
that
the
evidence of the rape victim cannot be
accepted unless it is corroborated in
material
particulars.
Victim
is

a
competent witness under Section 118 of
Evidence Act, 1872 - her evidence must
receive the same weight as is attached
to an injured in cases of physical
violence - where direct evidence is trust
worthy, it can be believed. Motive does
not carry much weight - merely because
that there was no strong motive proved
to
commit
the
present
offence,
prosecution case cannot be disbelieved -
accused-appellant committed rape upon
her daughter PW-2 and an offence
punishable under Section 376 I.P.C., -
Trial Court rightly analyzed evidence led
by prosecution and found the accused
guilty and convicted him for having
committed rape, an offence punishable
under Sections 376 and 506 IPC - The
measure
of
punishment
should
be
proportionate to gravity of offence -
Conviction and sentence awarded by Trial
Court is liable to be maintained and
confirmed.(Para 5,10,21,24,27, 29, 30,31,32 )

Jail appeal dismissed. (E-7)

List of cases cited:-

1. St. of Pun. Vs Gurmeet Singh & ors. (1996)
2 SCC 384
2. St. of Mah. Vs Chandra Prakash Kewalchand
Jain AIR (1990) SC 658

3. St. of Pun. Vs Gurmit Singh & ors. AIR
(1996) SC 1383

4. St. of H.P. Vs Raghubir Singh (1993) 2 SCC
622

5. Lokesh Shivakumar Vs St. of Kar. (2012) 3
SCC 196

6. Sumer Singh Vs Surajbhan Singh & ors.
(2014) 7 SCC 323,

7. Sham Sunder Vs Puran, (1990) 4 SCC 731,

8. M.P. Vs Saleem, (2005) 5 SCC 554,

9. Ravji Vs St. of Raj. (1996) 2 SCC 175

(Delivered by Hon'ble Rajendra KumarIV, J.)

1. Present jail appeal has been
directed by accused-appellant Gajendra
against the judgement and order dated
08.08.2012 passed by Govind Ballabh
Sharma, Additional Sessions Judge, Court
No.3, Ghaziabad in Session Trial No.1281
of 2011 (State Vs. Gajendra Singh) under
Section 376 and 506 IPC, P.S. Loni, District
Ghaziabad. By the impugned judgement
and order dated 08.08.2012, accusedappellant Gajendra has been convicted
under Section 376 I.P.C. and sentenced to
imprisonment for life with a fine of
Rs.1,00,000/- and in default of payment of
fine, he shall undergo one year additional
rigorous imprisonment; and further he has
been convicted under Section 506 I.P.C.
and sentenced to rigorous imprisonment for
seven years with a fine of Rs. 5,000/- and in
default of payment of fine, two years
additional rigorous imprisonment.

2. Brief facts of the case emerging
in First Information Report (hereinafter
580 INDIAN LAW REPORTS ALLAHABAD SERIES
referred to as "FIR") is that PW-1
Madhubala wife of Gajendra submitted a
written report, Ex.Ka-1, in Police Station
Loni, District Ghaziabad, stating that on
09.06.2011 at about 3:00 PM, she had
gone to market to purchase vegetables.
Her
husband
i.e.
accused-appellant
Gajendra and her minor daughter aged
about 14 years (victim's name is withheld
by us) were present in the house. When
she returned after taking vegetables, she
saw that genitals of her daughter was
bleeding and she was weeping. On being
asked, she told that accused-appellant
(father of victim) committed rape with her
and put wooden cylinder (Lakadi ka
Belan) in her genitals. When she asked
her husband, why he has done so, he
threatened her to kill, due to which she
was afraid and remained silent. She went
to her parental house with victim daughter
and narrated entire story to her family
members. Thereafter, she got victim
medically examined in a private hospital,
later due to not getting any relief, she
took her in G.T.B. Hospital, Sahadara,
Delhi.

3. On the basis of written report
Ex.Ka-1, Constable Rahul Kumar (not
examined),
registered
Chick
F.I.R.
Ex.Ka-5 as Case Crime No. 708 of 2011,
under Section 376 and 506 I.P.C. against
accused-appellant. Entry of case was
made by him in General Diary, copy
whereof is Ex.Ka-6.

4. PW-5 lady Doctor Nitasha Gupta,
medically examined victim and prepared
her medical report Ex.Ka-4. She found
G.C. conscious oriented; pulse fair, BP110/70 mm/hg; pubic hair present, not
matted; external genitalia (N); hymen
torned; posterial wall-tear present 7 cm,
clots present; faecal seen through tear;
abdomen tenderness present, rigidity
present, guarding present.

5.

PW-4
S.I.
Rajpal
Singh,
undertook
investigation
of
case,
commenced
investigation,
recorded
statement of constable registering F.I.R.,
Informant
PW-1
Madhubala,
PW-2
victim and other witnesses; visited spot;
prepared
site
plan
Ex.Ka-3.
On
15.06.2011, accused-appellant Gajendra
was arrested by Investigating Officer. He
got recorded statement of victim under
Section 164 Cr.P.C. before Magistrate
concerned and after completing entire
formalities of investigation submitted
charge sheet Ex.Ka-4 against accused in
the Court of C.J.M. concerned.

6. Case, being exclusively triable by
Court of Sessions, was committed by
C.J.M. to Sessions Court, Ghaziabad
where-from
it
was
transferred
to
Additional Sessions Judge, Court No. 1,
Ghaziabad for disposal according to law.

7. Trial Court framed charges
accused-appellant
Gajendra
on
07.02.2011 under Sections 302 and 506
IPC which read as under :-

आरोप

मैं ग र्वन्द बिभ िमाि अपर सत्र
न्यायाधीि क िि संख्या 3, गार्जयाबाि आप
गजेन्द्र र्संह क र्नम्नर्लप्तखत आर प से
आर र्पत करता हाँ-

1. यह र्क र्िनांक 9.6.2011 क
समय करीब 3:00 बजे र्िन स्थान अपने घर
प्तस्थत मौहिा अमर र्वहार ल नी थाना- ल नी
र्ज० गार्जयाबाि में अपनी पुत्री कु० सुरेखा
अवयस्क उम्र 14 वषि के साथ जबरन अयुक्त
बलात्संग र्कया। इस प्रकार आपने ऐसा
3 All. Gajendra Vs. State of U.P.
581
अपराध र्कया ज भारतीय िंि संर्हता की
धारा 376 के अन्तगित िंिनीय है और मेरे
प्रसंज्ान में है।

2. यह र्क उपर क्त र्िनांक समय व
स्थान पर जब आपकी पत्नी ने आपसे पुत्री कु०
सुरेखा उम्र 14 वषि के साथ बलात्कार करने के
बारे में पूछा त आपने उसे जान से मारने की
धमकी िी। इस प्रकार आपने ऐसा अपराध
र्कया ज भारतीय िंि संर्हता की धारा 506 के
अन्तगित िंिनीय है और मेरे प्रसंज्ान में है।

अतएव एतद्दवारा आपक र्निेर्ित
र्कया जाता है र्क आपके र्वरूद् उक्त आर प
का र्वचारण इस न्यायालय द्वारा र्कया जाये।

Charge

I, Govind Ballabh Sharma, Addl
Session Judge, Court No 3, Ghaziabad
charge you, Gajendra Singh, as under:

1 . That on 9.6.2011 at around 3
pm in your house situated at Mohalla
Amar Vihar Loni, P.S. Loni, Distt
Ghaziabad, you forcibly committed rape
on your daughter Km Surekha, minor,
aged 14 years, thereby committing an
offence punishable u/s 376 IPC which is
in my cognizance.

2 . That when your wife asked
you about having committed rape on
daughter Km Surekha, aged 14 years, on
the aforesaid date, time and place, you
held out life threat to her, which is
punishable u/s 506 IPC and is in my
cognizance.

It is hereby directed that the
aforesaid charges be tried against you by
this court.

8. Accused-appellant denied the
charges against him and claimed to be
tried.

9. In order to substantiate its case,
prosecution examined as many as five
witnesses out of whom PW-1 Madhubala,
PW-2 victim and PW-3 Santu are
witnesses of fact whereas PW-4 S.I.
Rajpal Singh and PW5 Dr. Nitasha Gupta
are formal witnesses.

Srl. No. Name
of
PW
Nature
of
witness
Paper proved
1.
Madhubala Fact
Ex.Ka-1
2.
Victim
Fact
Ex.Ka-2
3.
Santu
Fact
---
4.
Rajpal
Singh
Formal
Ex.Ka-3, 4, 5 and
6
5.
Dr. Nitasha
Gupta
Formal
Ex.Ka-4, M.L.C.

10. Subsequent to closure of
prosecution
evidence,
statement
of
accused-appellant under Section 313
Cr.P.C. was recorded by Trial Court
explaining entire evidence and other
incriminating
circumstances.
In
the
statement under Section 313 Cr.P.C.,
accused-appellant
denied
prosecution
story in toto. Entire prosecution story is
said to be wrong and concocted. In
response of question no. 13, he said that
Informant and victim implicated him
falsely. Victim was subjected to rape by
his maternal uncle but he was implicated.
Accused-appellant did not chose to lead
any evidence in defence.

11. Trial Court, after hearing
learned counsel for the parties and
appreciating entire evidence, oral and
documentary, found accused-appellant
guilty and convicted and sentenced him as
stated above.

12.

Feeling
aggrieved
and
dissatisfied with impugned judgement and
order of conviction, accused-appellant
preferred present appeal through Jail.
582 INDIAN LAW REPORTS ALLAHABAD SERIES

13. We have heard Sri Prateek
Samadhiya,
learned
Amicus
Curiae
appearing for appellant and Sri Mahesh
Chandra Joshi, learned A.G.A for Staterespondent at length and travelled through
the record with the valuable assistance of
learned counsel for the parties.

14. Learned Amicus Curiae for
appellant assailing verdict of conviction
of
accused-appellant,
advanced
his
submissions in following manners :-

(i)
Accused-appellant
has
falsely been implicated in the present
case.

(ii) There is no motive or
occasion for accused to commit the
present crime.

(iii) No body has seen accusedappellant to commit crime.

(iv) PW-1 and PW-3 are not eye
witnesses. Victim was subjected to rape
by her maternal uncle and accusedappellant has been implicated with the
collusion of PW-1 and PW-2.

(v) Medical evidence is not
compatible with oral version.

(vi) Victim PW-2 has given
evidence against the accused-appellant
under the pressure of her mother and
maternal uncle.

(vii)
Prosecution
failed
to
establish its case beyond reasonable
doubt; Trial Court did not appreciate
evidence
on
record
in
the
right
perspective and has committed error in
convicting accused. Therefore, accusedappellant is liable to be acquitted.

15. Learned AGA vehemently
opposed the submissions advanced by
learned
counsel
for
appellant
and
submitted that accused-appellant is named
in F.I.R.; he committed rape upon her
own minor daughter; he deserves no
sympathy; victim PW-2 and Madhubala
PW-1 (mother of victim) supported
prosecution story and gave evidence
against
accused-appellant;
medical
evidence is also compatible with oral
evidence. Trial Court right convicted the
accused-appellant and appeal is liable to
be dismissed.

16. Now we may proceed to
consider rival submissions of learned
counsel for parties and evidence of
prosecution available on record.

17. PW-1 Madhubala deposed that
accused-appellant is her own husband. On
the fateful day at about 3:00 PM, she had
gone to market to purchase vegetables,
her husband (accused-appellant) and her
minor daughter (PW-2) aged about 14-15
years were present in the house. When
she returned to her house after some time
with vegetables, she saw that genitals of
victim was bleeding, she was weeping
and nervous. On being asked victim told
that her father committed rape with her
and put wooden cylinder (Lakadi ka
Belan) in her genitals. When she asked
her husband, why he did so, accused
threatened her to take away his life. She
was afraid and not allowed to go out of
house. She went to her parental house
with victim and there she narrated entire
story to her family members. Victim was
medically treated by private doctors but
later on she admitted in G.T.B. Hospital,
Sahadara, Delhi. She got report of
incident scribed by village Pradhan Sohan
Lal. She proved written report marked as
Ex.Ka-1. In cross examination, PW-1
stated that she was married to accusedappellant 17 years prior. She has five
issues with her valid wedlock. She
withstood a lengthy cross-examination
3 All. Gajendra Vs. State of U.P.
583
but nothing adverse material could be
extracted
so
as
to
disbelieve
her
statement. It is evident from her statement
that when she went to market, her
husband and victim were in house and
when she returned home she found both
of them there but victim was nervous and
her genitals was bleeding.

18. PW-2 victim deposed that accusedappellant Gajendra is her father. On the
fateful day, she was in the house and her
father was also there. When her mother went
to market for taking vegetables at about 3:00
PM, her father closed the door from inside
and committed rape upon her forcibly and
put wooden cylinder (Lakadi ka Belan) in
her genitals due to which it was bleeding.
When her mother returned to home, she
narrated entire incident to her. Her father
threatened her mother to kill her. Her mother
took her to the house of her maternal uncle
about two days after where she was
medically treated but due to not getting any
relief, she was taken to G.T.B. Hospital,
Sahadara, Delhi
where
she
remained
admitted for one month and she is not felling
well so far. In cross-examination, she stated
that after the incident, she left studies. She
remained in her maternal uncle's house from
her childhood and came to the house of her
father with her mother one month prior to
incident. When incident took place, her
brothers were not in the house. When her
father raped her, she raised alarm but nobody
came there. Witness withstood length crossexamination but nothing could be brought on
record so as to disbelieve her statement.
Certain minor variations occurred in her
statement but they are not of such nature
which may dent the root of case.

19. PW-3 Santu deposed that
Informant PW-1 Madhubala is his real
sister. His sister came to his house along
with her daughter victim and told him that
accused-appellant Gajendra committed
rape upon her daughter and her genitals
was bleeding much. She was admitted in
G.T.B. Hospital, Sahadara, Delhi for
treatment, where victim underwent three
operations but she was not still feeling
well. This witness is not eye witness,
therefore, his statement does not require
much scrutiny.

20. PW-5 Dr. Nitasha Gupta
deposed that on 15.6.2011, she was
posted in G.T.B. Hospital, Sahadara,
Delhi. On the same day, she examined
victim aged about 14 years, brought by
her mother and maternal uncle, and found
the victim unconscious, hymen torned,
vagina and anus were both united, fecal
mater was coming through genitals.

21. In the present case victim PW-2 is
real daughter of accused-appellant. PW-1 is
the wife of accused and closed to victim as
well as accused. There is no occasion for PW1 and PW-2 to implicate accused-appellant
falsely. Incident took place in the house of
accused. It has come in the statement of PW-2
that door was closed from inside and at the
time of incident, she cried but nobody came,
therefore, was no occasion for anyone to save
her. In the statement under Section 313
Cr.P.C., accused-appellant simply denied the
crime committed by him but he has not given
any plausible explanation why his real wife
and daughter were giving false evidence
against him.

22. In State of Punjab Vs.
Gurmeet Singh and others, 1996 (2)
SCC 384, Court has held that:

"A rapist not only violates the
victims privacy and personal integrity,
but
inevitably
causes
serious
584 INDIAN LAW REPORTS ALLAHABAD SERIES
psychological as well as physical harm in
the process. Rape is not merely a physical
assault, it is often destructive of the whole
personality of the victim. A murderer
destroys the physical body of the victim, a
rapist degrades the very soul of the helpless
female. The Courts, therefore, on its
shoulder has a great responsibility while
trying an accused on charges of rape. They
must deal with such cases with utmost
sensitivity. The Courts should examine the
broader probabilities of a case and not get
swayed
by
minor
contradictions
or
insignificant discrepancies in the statement
of the prosecutrix, which are not of a fatal
nature to throw out an otherwise reliable
prosecution case".

23. In State of Maharastra Vs.
Chandra Prakash Kewalchand Jain
AIR 1990 SC 658, Court has held that a
woman, who is the victim of sexual
assault, is not an accomplice to the crime
but is a victim of another person's lust
and, therefore, her evidence need not be
tested with the same amount of suspicion
as that of an accomplice.

24. A prosecutrix of a sex-offence
cannot be put on par with an accomplice.
She is in fact a victim of the crime. The
Evidence Act nowhere says that her
evidence cannot be accepted unless it is
corroborated in material particulars. She
is undoubtedly a competent witness under
Section 118 and her evidence must
receive the same weight as is attached to
an injured in cases of physical violence.

25. In State of Punjab Vs. Gurmit
Singh and others AIR, 1996 SC 1383,
Court held that:

"In
cases
involving
sexual
harassment, molestation etc. the court is
duty bound to deal with such cases with
utmost sensibility. Minor contradictions
or insignificant discrepancies in the
statement of prosecutrix should not be a
ground for throwing out an otherwise
reliable prosecution case. Evidence of the
victim of sexual assault is enough for
conviction and it does not require any
corroboration
unless
there
are
compelling
reasons
for
seeking
corroboration. The cause may look for
some assurance of her statement to satisfy
judicial conscience. The statement of the
prosecutrix is more reliable than that of
an injured witness as she is not an
accomplice".

26. In State of H.P. Vs. Raghubir
Singh (1993) 2 SCC 622, Court held that:

"There is no legal compulsion to look
for any other evidence to corroborate the
evidence of the prosecutrix before recording an
order of conviction. Conviction can be recorded
on the sole testimony of the prosecutrix, if her
evidence inspires confidence and there is
absence of circumstances which militate against
her veracity".

27. So far as motive is concerned, 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.

28. In Lokesh Shivakumar v. State
of Karnataka, (2012) 3 SCC 196, Court
has held as under :-

"As regards motive, it is well
established that if the prosecution case is
3 All. Gajendra Vs. State of U.P.
585
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."

29. Considering the entire facts and
circumstances of the case, evidence of
prosecution in entirety, we have no
hesitation to state that accused-appellant
Gajendra committed rape upon her
daughter PW-2 and put wooden cylinder
(Lakadi Ka Belan) in her genitals, an
offence punishable under Section 376
I.P.C., and threatened his wife when she
sought to enquire from him, why he
committed rape upon his own daughter.

30. In view of facts discussed
hereinabove, we find that Trial Court has
rightly
analyzed
evidence
led
by
prosecution and found accused guilty and
convicted him for having committed rape,
an offence punishable under Sections 376
and 506 IPC. Conviction and sentence
awarded by Trial Court is liable to be
maintained
and
confirmed.
No
interference is warranted by this Court.
Jail appeal lacks merit and liable to be
dismissed.

31. So far as sentencing of accusedappellant is concerned, it is always a
difficult task requiring balance of various
considerations. The question of awarding
sentence is a matter of discretion to be
exercised
on
consideration
of
circumstances aggravating and mitigating
in individual cases.

32. It is settled legal position that
appropriate sentence should be awarded
after giving due consideration to the facts
and circumstances of each case, nature of
offence and the manner in which it was
executed or committed. It is obligation
upon court to constantly remind itself that
right of victim, and be it said, on certain
occasions or person aggrieved as well as
society at large can be victims, never be
marginalised. The measure of punishment
should be proportionate to gravity of
offence. Object of sentencing should be to
protect society and to deter the criminal in
achieving avowed object of law. Further,
it is expected that courts would operate
the sentencing system so as to impose
such sentence which reflects conscience
of society and sentencing process has to
be stern where it should be. The Court
will be failing in its duty if appropriate
punishment is not awarded for a crime
which has been committed not only
against individual victim but also against
society to which criminal and victim
belong. Punishment to be awarded for a
crime must not be irrelevant but it should
conform to and be consistent with the
atrocity and brutality which the crime has
been perpetrated, enormity of crime
warranting public abhorrence and it
should 'respond to the society's cry for
justice against the criminal'. [Vide:
Sumer Singh vs. Surajbhan Singh and
others, (2014) 7 SCC 323, Sham Sunder
vs. Puran, (1990) 4 SCC 731, M.P. v.
Saleem, (2005) 5 SCC 554, Ravji v.
State of Rajasthan, (1996) 2 SCC 175].

33. 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
awarded to accused-appellant by Trial
Court in impugned judgment and order is
not excessive and it appears fit and proper
586 INDIAN LAW REPORTS ALLAHABAD SERIES
and no question arises to interfere in the
matter on the point of punishment
imposed upon him.

34. In view of above discussion, the
appeal lacks merit and is accordingly,
dismissed. Impugned judgement and
order dated 08.08.2012, is maintained and
confirmed.

35. Lower Court record along with a
copy of this judgment be sent back
immediately to District Court and Jail
concerned for compliance and apprising
the accused-appellant.

36. Before parting, we provide that
Sri Prateek Samadhiya, Advocate, who
assisted as Amicus Curiae, appearing for
appellant in present Jail Appeal, shall be
paid counsel's fee as Rs. 11,500/- for his
valuable assistance. State Government is
directed to ensure payment of aforesaid
fee
through
Additional
Legal
Remembrancer, posted in the office of
Advocate General at Allahabad, without
any delay and, in any case, within one
month from the date of receipt of copy of
this judgment.
----------

(2019)11ILR A586

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.09.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Jail Appeal No. 4163 of 2015

Pappu @ Nandu Pandey ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Prem Shanker Tiwari (A.C.)

Counsel for the Opposite Party:
Sri Nikhil Chaturvedi (A.G.A.)

A.
Evidence
Law-Indian
Evidence
Act,1872 - Circumstantial evidence - no
eye witness of occurrence - chain of
circumstantial evidence leading guilt of
accused-appellant is not complete - the
circumstances from which the conclusion
of guilt is to be drawn must or "should
be" and not merely "may be" fully
established - The facts so established
should be consistent only with the guilt of
the accused, that is to say, they should
not be explicable through any other
hypothesis except that the accused was
guilty. The circumstances should be
conclusive in nature - There must be a
chain of evidence so complete so as to
not leave any reasonable ground for a
conclusion consistent with the innocence
of the accused, and must show that in all
human
probability, the
offence was
committed by the accused. Where on the
evidence, two possibilities are available
or open which goes in favour of the
prosecution and other which benefits an
accused, the accused is undoubtedly
entitled to benefit of doubt - Trial Court
has not marshalled entire evidence on
record with care and caution - not correct
in convicting accused-appellant, solely
relying on the statement of PW-1, that
too not supported by any other witnesses
and
overlooking
other
major
contradictions in their evidence and
missing chain of circumstantial evidence -
accused-appellant is entitled to benefit of
doubt - prosecution failed proving guilt
of accused-appellant beyond reasonable
doubt. (Para 35, 37, 45, 49,50)

Jail appeal allowed (E-7)

List of cases cited:-

1. Hanumant Govind Nargundkar & anr. Vs
St. of M.P., AIR (1952 )SC 343