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2019 DIGILAW 361 (ALL)

LALJI GUPTA v. STATE OF U. P.

2019-02-12

RAM KRISHNA GAUTAM, SUDHIR AGARWAL

body2019
JUDGMENT Ram Krishna Gautam, J. This appeal under section 383 of Cr.P.C. has been filed by convict appellant Lalji Gupta through Senior Superintendent, Central Jail, Varanasi, against judgment and order of conviction and sentence dated 30.11.2006 passed by the Additional Sessions Judge, Court No. 3, Basti, in S.T. No. 15 of 2005, State Vs. Lalji Gupta, arising out of Case Crime No. 468 of 2004, under section 302 I.P.C., P.S. Rudhauli, District Basti, whereby appellant Lalji Gupta has been convicted and sentenced with life imprisonment with a fine of Rs. 2000/- for offence of murder punishable under section 302 I.P.C. and in default in making payment of fine further R.I. of one month was awarded. 2. The very perusal of the impugned judgment and Trial Court's record reveals that first information report (exhibit Ka2) was lodged by Rajesh son of Ram Shanker, resident of Raja Bazar, P.S. Purani Basti, District Basti, at Police Station Rudhauli, District Basti, on 5.7.2004 at 22.50 hours against Lalji Gupta, son of Late Ram Shanker, resident of Mudiyar Chauraha, P.S. Rudhauli, District Basti, for offence punishable under section 306 I.P.C. with allegation that informant's sister Poonam was married, three years back, with Lalji Gupta. She was blessed with a girl aged about one year. Her husband was liquor addict and owing to it he started selling all his properties including house. This was protested by her. He was intending to sell his residential house for which, an advance was taken by him. Poonam was pressurised for it. On 5.7.2004 at 12.00 P.M. elder brother of Lalji namely Triveni alias Kichchi informed him that Poonam has consumed some medicine at 7.00 A.M. and owing to this she was vomiting. She was taken to P.H.C. Rudhauli and was under treatment. Informant along with his mother rushed at P.H.C. Rudhauli and found Poonam to have been taken to District Hospital, Basti, and when he was on the way to District Hospital, Basti, family members of Lalji met him near Malviya Tiraha and apprised him that Poonam succumbed before reaching Hospital. Her dead body was taken back to 'Mudiyar Chauraha' and this information was lodged at police station for taking legal recourse. Investigation proceeded by way of inquest proceeding and autopsy examination of dead body. It was found to be death owing to presence of Oregano Chloral Insecticide poison in viscera in Forensic Science Laboratory report (Ext. Ka-7). Her dead body was taken back to 'Mudiyar Chauraha' and this information was lodged at police station for taking legal recourse. Investigation proceeded by way of inquest proceeding and autopsy examination of dead body. It was found to be death owing to presence of Oregano Chloral Insecticide poison in viscera in Forensic Science Laboratory report (Ext. Ka-7). Investigation resulted in filing of charge-sheet, over which the Magistrate took cognizance for offence punishable u/s 306 I.P.C. 3. As the offence was exclusively triable by the Court of Sessions, hence the file was committed to the Court of Sessions where the Presiding Officer of Court of Additional District & Sessions Judge, Court No. 3, Basti, vide order dated 27.4.2005 leveled charge against Lalji Gupta for offence punishable u/s 306 I.P.C., which was read over and explained to accused, who pleaded not guilty and claimed for trial. Subsequently the Presiding Officer of Court of Additional Sessions Judge, Court No. 3, Basti, vide order dated 2.8.2006 amended the charge and framed the charge as follows: ^^eSa vfuy dqekj] vij l= U;k;k/kh'k] dksVZ ua0 3] cLrh] vki vfHk;qDr ykyth xqIrk ij fuEufyf[kr vkjksi yxkrk gwWA ;g fd fnukad 5-7-04 dks le; 7-00 cts lqcg LFkku eqfM;kj frjkgk] Fkkuk :/kkSyh] tuin cLrh esa vki }kjk ?kj esa j[kh iwue dh nok ftls og MkDVj }kjk fn;s x;s nok ds :i esa jkst ihrh Fkh] vkius e`rdk dks tku ls ekjus dh uh;r ls lk vk'k; mlds nok esa tgjhyk inkFkZ feykdj fn;k tks e`rdk }kjk nok le>dj ih;k x;k vkSj mldh e`R;q gks x;hA bl izdkj vkids }kjk e`rdk ds nok esa tgjhyk inkFkZ feykdj mldh gR;k dj fn;kA bl izdkj vkius ,slk dk;Z fd;k tks /kkjk 302 Hkk0 n0 fo0 ds vUrZxr n.Muh; vijk/k gS tks bl U;k;ky; ds izlaKku esa gSA ,rn }kjk eSa funsZf'kr djrk gqW fd mijksDr vkjksi esa vki dk ijh{k.k bl U;k;y; }kjk fd;k tk;A^^ “I, Anil Kumar, Additional Sessions Judge, Court No. 3, Basti, frame following charge against you accused Lalji Gupta. That on 5.7.2004 at 7.00 A.M. at Mudiyar Tiraha, Police Station Rudhauli, District Basti, you with intention to kill the deceased had mixed some poisonous substance in the medicine of Poonam prescribed by the doctor kept in the house, which she was taking daily, and the deceased took it as medicine. Thus, you have murdered the deceased by mixing poisonous substance in her medicine. Thus, you have murdered the deceased by mixing poisonous substance in her medicine. Your this act is punishable under section 302 I.P.C., which is within the cognizance of the Court. I hereby direct that you will be prosecuted by this Court for above charge.”(English translation by Court) 4. Charge was read over to accused Lalji Gupta, who pleaded not guilty and claimed trial. 5. Prosecution examined PW1-Harishchandra, PW2- Rajesh Sahu, PW3- Km. Dolly Gupta, PW4- Guru Prasad Gupta, PW5- Constable Shiv Ji Singh, PW6- S.I. Rama Shanker Singh Raj, PW7- Parmeshwar Gupta, PW8- Dr. Arun Prakash and PW9- Constable Ashok Kumar Singh. 6. With a view to have an explanation of the accused, if any, he was examined under section 313 Cr.P.C. in which he admitted the fact that he was married with Poonam three years back and at the time of occurrence he was at his home but his brother Harishchandra was having illicit relation with his wife and her previous husband also used to visit her at his residence and when accused-appellant pressurised her to go with him, she committed suicide. In subsequent statement he has denied the testimonies of other prosecution witnesses with the contention of his unawareness about autopsy examination and testimony of Dr. Arun Prakash in which postmortem report (Ext. Ka-3) was proved. The testimonies of witnesses, who have proved inquest proceeding and the documents prepared there under coupled with the chick first information report, G.D. Entry and registration of case crime number have been answered to be not in the knowledge of the accused-appellant. As against previous statement, in answer to question no. 2 put to this witness, he stated that he was not present at the time of incident rather he was at Lucknow and came to his residence on 6th of the month. 7. Learned Trial Judge heard the arguments of learned D.G.C. (Criminal) and learned counsel for the defence and passed the impugned judgment of conviction and sentence therein. 8. Heard Ms. Alpana Dwivedi, learned Amicus Curiae for the appellant and Sri Saiyad Ali Murtaza, learned AGA for the State. 9. Learned Amicus Curiae for the appellant argued that convict appellant is innocent and has been falsely implicated in this very case crime number. Trial Court failed to appreciate the facts and law placed before it. Prosecution has failed to prove the charge beyond reasonable doubt. 9. Learned Amicus Curiae for the appellant argued that convict appellant is innocent and has been falsely implicated in this very case crime number. Trial Court failed to appreciate the facts and law placed before it. Prosecution has failed to prove the charge beyond reasonable doubt. The initial charge levelled against the appellant was for offence of abatement to commit suicide punishable under section 306 I.P.C. But subsequently this charge was amended for the offence of 'murder' punishable under section 302 I.P.C. on 2.8.2016 and the evidence led by prosecution and relied upon by the Trial Court for making the basis of judgment of conviction and sentence therein was of PW3 Km. Dolly Gupta, who was a child witness and was under influence of informant. Her testimony was full of contradictions, but the Trial Court failed to appreciate it. 10. Chick FIR (Ext. Ka4) reveals the occurrence to be of 5.7.2004 at 7.00 A.M. and Case Crime No. 468 of 2004 u/s 306 I.P.C. was got registered at 22.50 hours on 5.7.2004 at P.S. Rudhauli, District Basti, by Rajesh Sahu against Lalji Gupta on the basis of report (Ext. Ka2) scribed by Shiv Shanker under signature of Rajesh Sahu with contention that Lalji Gupta was torturing informant's sister Poonam regarding sale of his property, which was being protested by the deceased. It was Triveni alias Kichchi, who gave information to informant Rajesh Sahu, about ingestion of some medicine in the morning at 7.00 A.M. resulting vomiting by the deceased, who was taken to P.H.C., Rudhauli, from there to District Hospital, Basti, but she succumbed owing to above ailment. This was perceived by informant when he reached at Malviya Tiraha. He came with dead body of his sister to Mudiyar Chauraha and then after he lodged the first information report. This statement of Exhibit Ka2 has been proved by PW2-Rajesh Sahu in his examination in chief with averment that Poonam, sister of this witness, was married with Lalji Gupta three years back of the occurrence. She was blessed with a daughter of one year age, named Jhunjhun alias Sangita. Lalji Gupta was addict of liquor, for which he was alienating his own properties including his agricultural land, which was being protested by Poonam and owing to it, Poonam was being tortured by him. She was blessed with a daughter of one year age, named Jhunjhun alias Sangita. Lalji Gupta was addict of liquor, for which he was alienating his own properties including his agricultural land, which was being protested by Poonam and owing to it, Poonam was being tortured by him. Triveni @ Kichchi, brother of Laji, informed him about the occurrence that Poonam had taken some medicine kept at the house, which was adulterated by Lalji resulting in her ailment and she was taken to hospital. This witness rushed to P.H.C. Rudhauli, then to District Hospital, Basti, but in between the family members of Lalji met him in the way and apprised about death of Poonam. The dead body was left at Mudiyar Chauraha and report of the incident was got lodged under suspicion that Lalji had given poison under medicine to deceased. This report was got scribed by his uncle, which was read over to him and he put his signature over it and this was submitted at police station, which was numbered as paper no. 3 Ka/3, proved and exhibited as Exhibit Ka2. The police along with Tehsildar visited the spot, did inquest, the dead body was kept under seal before this witness over which this witness put his signature. His statement was recorded by Investigating Officer, thereafter the dead body was sent for autopsy examination. In cross-examination there is no material contradiction in the testimony of this witness. Rather this has been further reiterated that after 2-4 months after marriage Lalji started alienating his properties and this was protested by the deceased. This witness has not perceived the occurrence by his own senses nor Lalji had beaten his sister in his presence. Whatever was told by Harishchandra and Triveni @ Kichchi to this witness is in the knowledge of this witness. Meaning thereby this witness was not under knowledge of the occurrence that happened, except that he received the information of ailment of his sister Poonam owing to ingestion of some adulterated medicine and he rushed to P.H.C. Rudhauli and thereafter to District Hospital, Basti but the family member of Poonam met him near Malviya Tiraha, apprised him about death of Poonam, dead body was taken to Mudiyar Chauraha and this report was got lodged. Inquest proceeding and autopsy was got conducted in investigation. 11. Inquest proceeding and autopsy was got conducted in investigation. 11. The Court has cross-examined PW2 in which this witness has answered that Poonam was married to Lalji two years back to this occurrence and this witness has not seen Lalji while making adulteration in the medicine rather this was told to this witness by his niece Km. Dolly. Hence, this witness has proved Exhibit Ka2 and put his signature on the same. 12. This fact has been proved by PW1 Harishchandra in his testimony that Poonam was his sister-in-law and was married with Lalji Gupta. This was second marriage of Lalji. Poonam too was previously married with someone else and she along with her daughter Dolly was residing with Lalji Gupta. This witness is not aware that his brother was liquor or drug addict or of bad habits but he had sold whole jewellery of his wife Poonam and was intending to sell his entire land for which Poonam had filed a civil suit for issuing injunction restraining Lalji from selling his land and an injunction order was passed by Civil Court. Owing to that, Lalji used to beat and torture Poonam. He was pressurising her to get civil case taken back otherwise she would face dire consequences. Poonam was under treatment of Dr. Renu Rai. She used to take medicine in the morning and evening in the form of syrup. On the day of occurrence at about 6.00 A.M. Poonam took syrup and then started saying that there was some adulteration in the syrup made by her husband, which was creating hindrance and uneasiness in her throat and stomach. She was feeling trouble in her chest also. She was instantly taken to P.H.C. Rudhauli, from where, she was referred to District Hospital, Basti, but she succumbed in the way. Triveni @ Kichchi gave information to the members of parental family of Poonam, dead body of Poonam was taken back to home where Rajesh Sahu, his brother Gopal and his mother had rushed. They went to police station Rudhauli from where police came and took the dead body for autopsy examination then after dead body was given to the family members and it came to notice that it was a case of poisoning. One day before the occurrence Lalji had beaten his wife Poonam in the evening. This was with hands and slipper. They went to police station Rudhauli from where police came and took the dead body for autopsy examination then after dead body was given to the family members and it came to notice that it was a case of poisoning. One day before the occurrence Lalji had beaten his wife Poonam in the evening. This was with hands and slipper. In the morning Poonam took syrup and made complaint of uneasiness then Lalji took the syrup and threw it and thereafter washed the bottle under a tap of water and threw the bottle in the trench. ^^?kVuk ds ,d fnu igys 'kke dks ykyth us viuh iRuh iwue dks ekjk ihVk FkkA mUgksaus iwue dks gkFk ls ,o pIiy ls ekjk ihVk FkkA ?kVuk ds lqcg tc iwue us lhji ih fy;k ,oa xyk tyus ,oa QVus dh f'kdk;r dh rc gkftj vnkyr vfHk;qDr ykyth us 'kh'kh ds lhji dks uy ij ys tkdj fxjk fn;k ,oa 'kh'kh dks uy ij /kksdj 'kh'kh xMgh esa Qsd fn;kA^^ “One day earlier to the incident Lalji had beaten his wife Poonam in evening. He had beaten Poonam by hands and slipper. In the morning of the incident when Poonam consumed syrup and she complaint of throat burning and bursting then the accused Lalji present in the court took the bottle of syrup and poured down syrup near water tap and after cleaning bottle thrown it in pond.” (English translation by Court). 13. Pw1 further stated that Dolly, aged about 7-8 years, was residing with Poonam and a girl child of 7-8 months was of Poonam. Dolly was telling that Lalji had mixed something in the syrup and the syrup was taken by Poonam. In cross-examination this witness has stated that previously a complaint was made at police station by this witness regarding torture and cruelty by Lalji towards his wife Poonam. This report was made by this witness as well as his elder brother Triveni in which the police had intervened. In cross-examination there is no contradiction regarding the ailment of Poonam after taking syrup on above date of occurrence at about 6.00 A.M., taking of her to P.H.C. Rudhauli and then to District Hospital, Basti, with complaint of giving some spurious medicine in syrup by her husband and her death was owing to this ingestion of syrup. Report was lodged by PW-2. Inquest and autopsy were conducted in this case. Report was lodged by PW-2. Inquest and autopsy were conducted in this case. He also stated about previous conduct of Lalji including cruelty and torture to his wife- deceased Poonam to whom he intended to kill. 14. Pw4- Guru Prasad is the witness of inquest proceeding, who has categorically stated about his ignorance as to how and under what circumstances Poonam died except the knowledge given by Triveni @ Kichchi that Poonam had died and he along with other family members had rushed on spot where inquest was got conducted in which he had put his signature, which is on record as Exhibit Ka3. In cross-examination there is no contradiction regarding this fact. Rather in a suggestive leading question this witness has answered about correctness of inquest proceeding. 15. Pw5- Shivji Singh is the witness, who had registered Case Crime number on 5.7.2004 upon report Exhibit Ka2 submitted by informant Rajesh Sahu as Case Crime No. 468/2004 u/s 306 I.P.C. against Lalji Gupta at Chick No. 43/2004 under his signature and handwriting being paper no. 3 Ka/2 (Exhibit Ka-4). This registration of case was entered in the General Diary entry at No. 45 at 22.50 hours of which original G.D. was brought at the time of examination on oath and carbon copy of the same, prepared under one and common process, is on record and proved as Exhibit Ka5. There is no material contradiction in his cross-examination nor the accused had objected in the answer to question put u/s 313 Cr.P.C. 16. Pw8 is the Medical Officer Dr. Arun Prakash, who had conducted autopsy examination on the dead body of the deceased, which was sent for autopsy examination by Naib Tehsildar. This dead body of Poonam was under seal, wrapped in cloth, fully intact, brought by CP 357 Virendra Singh and CP 504 Umeshwar Nath Mishra of P.S. Rudhauli. It was accompanied with 11 annexures. On external examination the age of Poonam was of about 25 years and death was of one day old. She was of average body built. Rigor mortis had passed from upper limbs but was present in lower limbs. Eyes and mouth were closed and bleeding from left ear was there. Froth was coming from nose. There was no antemortem external injury. Upon internal examination brain, both of lungs, stomach, spleen, liver and both kidneys were congested. Uterus gravid, was with two months fetus. Rigor mortis had passed from upper limbs but was present in lower limbs. Eyes and mouth were closed and bleeding from left ear was there. Froth was coming from nose. There was no antemortem external injury. Upon internal examination brain, both of lungs, stomach, spleen, liver and both kidneys were congested. Uterus gravid, was with two months fetus. The cause of death could not be ascertained, hence, viscera was preserved. Froth from nose and bleeding from ear coupled with congestion of above vital organs were symptom of poisoning and this might be the reason of death. The autopsy examination report was prepared under his handwriting and signature. This was on record as paper no. 3 Ka/22, which was proved and exhibited as Exhibit Ka-9. In cross-examination this witness has stated that there was no antemortem injury apparent on the external examination. Stomach was empty. This report of viscera examination, tendered by the prosecution and exhibited Exhibit Ka-7 is with the finding of presence of Oregano Chloral Insecticide poison in vital organ parts. Meaning thereby that death was caused owing to ingestion of above poison in the syrup. 17. Pw9- Ashok Kumar Singh is the formal witness, who has proved the testimony of S.I. Mehendra Ram Premi, with whom he had worked and that is why he was aware of handwriting and signature of S.I. Mahendra Ram Premi, who had died, hence could not be examined in the Court. The inquest report paper no. 3Ka/10 of deceased Smt. Poonam dated 6.7.2004 is in the handwriting and signature of deceased S.I. Mahendra Ram Premi and the same has been proved by this witness and exhibited as Exhibit Ka-3. Police form 33, photo of dead body, Form no. 13, specimen seal, letter to C.M.O., letter to R.I. are under handwriting and signature of S.I. Mahendra Ram Premi and the same have been formally proved by this witness and exhibited as exhibit Ka-10 to exhibit Ka-15, respectively. The spot map (paper no. 3Ka/40) prepared in the handwriting and signature of deceased S.I. Mahendra Ram Premi is on record. This has been proved and exhibited as Exhibit Ka-16. In cross-examination this witness has stated that the above proceeding by S.I. Mahendra Ram Premi was not made in his presence rather the same is in his handwriting and signature. This proceeding and proceeding of inquest along with preparation of these documents in question no. This has been proved and exhibited as Exhibit Ka-16. In cross-examination this witness has stated that the above proceeding by S.I. Mahendra Ram Premi was not made in his presence rather the same is in his handwriting and signature. This proceeding and proceeding of inquest along with preparation of these documents in question no. 7 was put u/s 313 Cr.P.C. to the accused Lalji, who had replied to be not in his knowledge, meaning thereby the same has not been rebutted by him and had been formally approved by this witness and this has been corroborated by the testimony of PW8 Dr. Arun Prakash. 18. Pw7 Parmesh Gupta is the other witness of inquest, who has stated on oath that he was present at Mudiyar Chauraha, P.S. Rudhauli on the date while inquest proceedings were being conducted and he had put his signature on inquest report, paper no. 3Ka/40, which has been proved by this witness. Recovery memo prepared on the spot in respect of taking of plain soil and soil having vomiting bears the signatures of this witness and the same has been proved and exhibited as Exhibit Ka-7. The clothes of the deceased having vomiting and recovery memo of the same as Exhibit Ka-8 has been proved by this witness. There is no material contradiction regarding these proceedings. Moreso, the presence of above poison in the vomiting and viscera has been proved as exhibit Ka-17. 19. Pw3 Km. Dolly Gupta is the crucial witness, who being the daughter of the deceased and of 8-9 years age, was examined by the Trial Judge as to whether she was competent to give the testimony or not, and a certificate has been appended by the Presiding Judge that she was capable to understand the question and give a reasonable answer to the same thereafter her statement was got recorded in which she has categorically stated that ^^esjs firk dk uke ykyth xqIrk gSA esjs firk vktdy tsy esa gSA esjs firk ykyth xqIrk us iwue dh gR;k dj fn;k gSA c;kudrhZ ls ;g iwNs tkus ij fd D;k rqEgkjs firk us rqEgkjh eEeh dh gR;k dj fn;k gS rks mlus crk;k fd eSaus vius firk ykyth dks viuh ekrk dh gR;k djrs ns[kkA^^ “My father's name is Laji Gupta. He is in jail. My father has murdered Poonam. He is in jail. My father has murdered Poonam. Upon being asked as to whether her father had murdered her mother, she told that she had seen her father Lalji while killing her mother.” (English translation by Court) 20. She has stated that while she was in search of her bag in the morning of the day of occurrence, she saw that her father Lalji Gupta was doing something in the bottle of syrup consumed by her mother when her mother was busy in talk with her Bua. Her mother used to take syrup in the morning and she had usually taken the syrup and then she started vomiting and got the treatment. Her father got the bottle washed at the tap water. ^^esjh eka jkstkuk Vkfud fi;k djrh FkhA vr% mUgksaus ml Vkfud dks ih fy;k ,oa mYVh nLr djus yxhA rc esjs ikik us Vkfud okyh 'kh'kh ckgj uy ij ys tkdj mMsy fn;kA^^ “My mother was taking tonic daily. Hence she took the tonoic and started vomiting. Thereafter my father took the bottle containing tonic and threw the tonic at the tap of water.” (English translation by Court) 21. She was taken to hospital by her uncle Kichchi, another uncle and father Lalji but she succumbed in the way. Her statement was taken by the police in which she narrated the occurrence. In cross-examination she has stated that whatever has been perceived by her, has been narrated by her and it was not tutored. A leading and suggestive question was put to this witness that her statement was under influence of the complainant and this was answered in negative. She has corroborated the testimony of PW1 that in the previous night Poonam was scolded by her husband Lalji. ^^?kVuk ds iwoZ jkr esa esjs ikik ykyth xqIrk us esjh ekrk iwue dks gkFk ls ekjk FkkA blds igys esjs ikik us ?kj esa vkx Hkh yxk fn;k FkkA ftlls dFkjh] jtkbZ vkfn ty x;h FkhA ;g tykus dh dk;Zokgh bl ?kVuk ds ,d ekg igys esjs ikik us fd;k FkkA^^ “My father Lalji Gupta had beaten my mother Poonam by hand in the previous night of the day of occurrence. Prior to it he had also put fire in the house in which bed, quilt etc. were burnt. This occurrence of putting fire by my father was done about a month ago.” (English translation by Court) 22. Prior to it he had also put fire in the house in which bed, quilt etc. were burnt. This occurrence of putting fire by my father was done about a month ago.” (English translation by Court) 22. Though, this previous fire mischief was not in the statement u/s 161 Cr.P.C. and was an embellishment but the incident of scolding in the previous night of the occurrence was in her statement. No material embellishment or exaggeration is there in the testimony of this witness. Whereas she has stated in the cross-examination as under: ^^eSa Ldwy tkus okyk cSx [kkst jgh FkhA esjs ikik ykyth Vkfud dh 'kh'kh esa dqN feyk dj >d>ksj jgs Fks <Ddu cUn FkkA <Ddu 'kh'kh ds esjs lkeus ugha [kksyk FkkA esjh eEeh us nok ih fy;k Fkk mls mYVh nLr gks jgh Fkh blfy, eSa Ldwy ugha x;h FkhA esjs ikik us nok tks 'kh'kh esa Fkh mls Qsad fn;k ,oa 'kh'kh /kqydj xM<s esa Qsd fn;kA^^ “I was searching my school bag. My father Lalji after mixing something in the bottle of tonic was shaking. The cap of the bottle was closed. The cap was not opened before me. My mother had taken the medicine. As my mother was vomiting, I had not gone to School. My father after washing the bottle of medicine thrown it in trench.” (English translation by Court) 23. This witness has been further cross-examined but there is no contradiction in her testimony. 24. Pw6- Rama Shanker Singh is the Investigating Officer, who in his testimony in examination in chief has said that while being posted as Sub Inspector at Police Station Rudhauli on 31.7.2004 he was entrusted the investigation of this case crime number, which was being investigated by erstwhile Investigating officer S.I. Mahendra Ram Premi, on 27.7.2004. He got the statements recorded of witnesses Triveni Prasad Gupta, Shaukat Ali, Rajesh Sahu alias Babloo, Guru Prasad, Harish Chandra, Km. Dolly and Rameshwar Gupta and on the basis of evidence collected during investigation, submitted charge sheet no. 47/2004 on 3.9.2004 for offence punishable u/s 306 I.P.C. against the husband- accused Lalji Gupta. Charge-sheet paper no. 3Ka/1 is on record and is in his handwriting and signature and was proved and exhibited as Exhibit Ka-6. Dolly and Rameshwar Gupta and on the basis of evidence collected during investigation, submitted charge sheet no. 47/2004 on 3.9.2004 for offence punishable u/s 306 I.P.C. against the husband- accused Lalji Gupta. Charge-sheet paper no. 3Ka/1 is on record and is in his handwriting and signature and was proved and exhibited as Exhibit Ka-6. In cross examination he has stated that autopsy examination report was perused by this witness in which viscera was preserved and there had been no external injury over person of the deceased and viscera report was not available till filing of the charge-sheet but statements of witnesses were taken in which Harish Chandra had said that Lalji had beaten with hand and slipper to his wife in the previous night. He is a formal witness of submission of charge-sheet (exhibit Ka-6) in which there is no contradiction in the examinations in chief and cross. 25. In the statement recorded u/s 313 Cr.P.C. the accused Lalji has said that on the date of occurrence he was present at his home and there was illicit relation between Harish Chandra and the deceased. Her previous husband also used to visit her. She was not permitting to be with the accused. When the accused pressurised her, she committed suicide. But as against this, in the next statement recorded by the Presiding Officer in the answer to question no. 7 this accused- Lalji said that he was not present on the date of occurrence at his home rather he was at Lucknow from where he came back in the morning of 6th. Meaning thereby he is not sure as to whether on the date of the occurrence he was present at his home and had taken his wife to hospital or his wife committed suicide under his pressure or he was present at Lucknow and came back on 6th of the month, whereas PW1, PW2 and PW3, witnesses of fact including the daughter of the accused-appellant, have categorically stated and proved with consistent and cogent testimonies that accused-Lalji was at his home and in the previous night, he had scolded his wife, beating with fists and slipper. In the morning medicine syrup was seen to be shaken by the accused-appellant Lalji and this was witnessed by PW3 Km. Dolly Gupta while she was in search of her school bag for going to school. In the morning medicine syrup was seen to be shaken by the accused-appellant Lalji and this was witnessed by PW3 Km. Dolly Gupta while she was in search of her school bag for going to school. Her mother took this medicine and soon after she started complaining about administration of some poisonous substance in the medicine by her husband Lalji in furtherance of threat previously extended and soon after this complaint of vomiting by deceased, accused-appellant Lalji took the bottle of medicine and got the same washed at the tap of water, then this empty bottle was thrown in the trench and subsequently the deceased was taken to P.H.C. Rudhauli from where she was referred to higher medical centre/District Hospital but she could not travel till hospital rather succumbed in between and in her autopsy examination, viscera was preserved and sent for forensic analysis. In forensic analysis, it was found to be with presence of Oregano Chloral Insecticide poison causing death of the deceased. 26. Under section 106 of the Evidence Act the husband is expected to explain the happening inside the room when any untoward occurs to his wife or any other family member residing in that room. In the present case, accused-appellant Lalji was inside home and he was seen while shaking the medicine of syrup just before ingestion of the same by the deceased but he had not given any explanation of this fact even confronted u/s 313 Cr.P.C. in which he had given a bald reply that each witness was telling a lie and he had been falsely implicated. His statement is contrary regarding his presence on the date of the occurrence, which shows his mental concealment and trick for making an evasive reply. 27. In a trial based on direct eyewitness account motive plays no role. 28. But where the trial is based on circumstantial evidence motive plays a vital role and if it is proved it becomes a scanner for appreciating and analysing the remaining evidence. 29. In the present case right from the beginning the motive has been said and proved that accused-appellant Lalji was liquor addict. He was alienating his properties and intending to sell his house too. The deceased had filed a Civil Suit in which injunction order was passed by the Civil Court against accused-appellant Lalji Gupta and he could not be successful to execute sale of his entire property. He was alienating his properties and intending to sell his house too. The deceased had filed a Civil Suit in which injunction order was passed by the Civil Court against accused-appellant Lalji Gupta and he could not be successful to execute sale of his entire property. This created animosity for which he was torturing his deceased wife. This fact has been proved by PW1 as well as PW2 but no rebuttal of the same is there. Beating of the deceased by the accused-appellant Lalji in the previous night of the occurrence has been proved by the real brother of the accused-appellant as well as his daughter i.e. PW1 and PW3. This too is with no contradiction as well as explained in the explanation of accused-appellant under statement u/s 313 Cr.P.C. The alleged illicit relation in between deceased and Harish Chandra, as has been complained by the accused-appellant Lalji, was with no proof even to the degree of creating suspicion towards prosecution case. Rather it adds further to mental scrupulousness of the accused-appellant Lalji Gupta that his brothers Harish Chandra and Triveni alias Kichchi, who used to intervene and save the wife of Lalji from his cruelty because of being brothers of the accused Lalji Gupta, they were being made accused by Lalji Gupta of this perversity. The occurrence was of about 7.00 A.M. of 5.7.2004, the place of occurrence was about 1 Km. from police station and the deceased was first taken to P.H.C. Rudhauli by PW1 and other family members, she was referred to higher medical centre i.e. District Hospital, Basti, where she was taken, but she succumbed in the way and her dead body was taken back when informant and his family members rushed at above place from P.H.C. Rudhauli on receiving information from Triveni @ Kichchi, real brother of accused Lalji. Report at the police station was lodged at 10.50 P.M. on the same day i.e. 5.7.2004 against Lalji Gupta and this was owing to bad habits and torture by Lalji Gupta, meaning thereby the informant was not aware about the offence of murder. But he was sure that there was ingestion of some poisonous substance and death owing to it was of the deceased. This ingestion was owing to criminal act of the accused-appellant Lalji Gupta. But he was sure that there was ingestion of some poisonous substance and death owing to it was of the deceased. This ingestion was owing to criminal act of the accused-appellant Lalji Gupta. Initially a case of suicide was lodged against Lalji Gupta and he has pleaded so in his statement recorded u/s 313 Cr.P.C. But this suicide case was ruled out by the testimony of PW3 Km. Dolly Gupta and the testimony of PW1 that the deceased took the syrup as medicine as she had usually been taking for her treatment and soon after taking this medicine syrup she started complaining about some spurious adulteration in the medicine by her husband, who had extended threat for her death and had tortured her. Shaking of syrup by Lalji Gupta soon before its ingestion was witnesses and seen by PW3 Km. Dolly Gupta, daughter of the deceased as well accused, who was present in the room and was searching her school bag for going to school. Meaning thereby it was accused-appellant Lalji, who had in his hand the vial of syrup tonic soon before the occurrence and this tonic was taken by the deceased and soon thereafter she developed complications and complained about poison, she was taken to hospital but could not survive. This further aids the conspiracy and criminal activities of Lalji that he washed the vial of syrup immediately at the tap of water and threw the empty container in trench i.e. he hide/ disappeared the evidence with intention to evade the evidence of this offence of giving poison under adulteration of syrup consumed by the deceased. Hence, the motive followed by the occurrence and chain of occurrence has been fully proved by the prosecution. 30. The very argument of learned counsel for the appellant that the witnesses examined were interested witnesses and they have given statements in the same reiteration as a tutored one, has not been taken into account by the trial court. 31. In the case of Arvind Singh Vs. State of Bihar, (2001) SCC(Cri) 1148 the Supreme Court has propounded that the husband being the companion ought to have explained the circumstances but the initial burden is on the prosecution to prove his guilt beyond all reasonable doubts. This has been provided u/s 106 of the Evidence Act too. 31. In the case of Arvind Singh Vs. State of Bihar, (2001) SCC(Cri) 1148 the Supreme Court has propounded that the husband being the companion ought to have explained the circumstances but the initial burden is on the prosecution to prove his guilt beyond all reasonable doubts. This has been provided u/s 106 of the Evidence Act too. The husband being inside the room or house is under personal knowledge about the facts and circumstances inside the house and he is expected to explain and disclose about the circumstances as to how and under what circumstances this happened to his wife. But in the present case no explanation even in the single iota is there by the accused Lalji Gupta. 32. A Division Bench of Delhi High Court in Rajendra @ Lala and others Vs. State, (2010) CriLJ 15 has propounded as under: “It is general hardship attached to all eye witnesses if they fail to speak with precision their evidence is assailed as vague and evasive, on the contrary if they speak of all the events very well and correctly their evidence became vulnerable to be attached as tutored. Both the approaches are dogmatic and fraught with lack of pragmatism. The testimony of a witness should be viewed from broad angles. It should not be weighed in golden scale but with cogent standard. By and large a witness can not be expected to possess a photographic memory and to recll the details of an incident. It is not as if a videotape is replayed on the mental screen.” 33. In Baitullah Vs. State of U.P., (1997) CriLJ 4644 the Supreme Court while interpreting section 3 of Evidence Act and “interested witness” has propounded that testimony interested witness cannot be discarded merely on the ground that he is an interested witness. It is normally expected that witnesses could not leave out real culprit and rope in innocent person. 34. The Supreme Court in Gangadhar Behra Vs. State of Odisa, (2003) CriLJ 41 (SC) has propounded that ordinarily a close relative would be the last to save the real culprit and falsely implicate an innocent person. 35. In the present case the witnesses are real brothers and real daughter of the accused, whose testimonies are unimpeachable. 36. 34. The Supreme Court in Gangadhar Behra Vs. State of Odisa, (2003) CriLJ 41 (SC) has propounded that ordinarily a close relative would be the last to save the real culprit and falsely implicate an innocent person. 35. In the present case the witnesses are real brothers and real daughter of the accused, whose testimonies are unimpeachable. 36. Learned counsel for the appellant/Amicus Curiae argued that evidence regarding Forensic Science Laboratory report was not put to question to accused u/s 313 Cr.P.C. 37. The Supreme Court in State (Delhi Administration) vs Dharampal, (2002) 1 JIC 13 (SC) has propounded that where an omission, to bring the attention of the accused to an inculpatory material, has occurred that does not ipso facto vitiate the proceedings. The accused must show that failure of justice was occasioned by such omission. Further, in the event of an inculpatory material not having been put to the accused, the appellate court can always make good that lapse by calling upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against the accused but not put to him. 38. In the present case, the Trial Court has recorded statement of accused three times and incriminating material proved by the prosecution were put in question to accused but he has replied in evasive way even in contradiction to each other mentioned above. 39. In view of above discussion, we are clearly of the view that Court below has rightly found appellant guilty of offences with which the appellant was charged and prosecution has successfully proved its case beyond doubt against appellant, hence he has been rightly convicted and sentenced. 40. 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. 41. 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. 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 , State of M.P. Vs. Saleem, (2005) 5 SCC 554 , Ravji Vs. State of Rajasthan, (1996) 2 SCC 175 ]. 42. 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 matter on the point of punishment imposed upon them. 43. In view of the above facts and circumstances, impugned judgment and order dated 30.11.2006 deserves to be affirmed and appeal is liable to be dismissed. 44. In the result, the Criminal Appeal is dismissed. Impugned judgment and order dated 30.11.2006 is hereby confirmed/affirmed. The appellant, who is in jail, shall serve out the sentence awarded to him by the Trial Court. 45. Copy of this order along with lower Court record be sent to Court concerned forthwith. 46. A copy of this order be also sent to Appellant through concerned Jail Superintendent. 47. Impugned judgment and order dated 30.11.2006 is hereby confirmed/affirmed. The appellant, who is in jail, shall serve out the sentence awarded to him by the Trial Court. 45. Copy of this order along with lower Court record be sent to Court concerned forthwith. 46. A copy of this order be also sent to Appellant through concerned Jail Superintendent. 47. Before parting, we find it appropriate to place on record our commendation to learned counsel, who has argued this appeal as Amicus Curiae with ability and actually assisted the Court effectively. We provide that she 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 Ms. Alpana Dwivedi, Amicus Curiae, without any delay and, in any case, within 15 days from the date of receipt of copy of this judgment.