JUDGMENT Ram Krishna Gautam, J. Criminal Jail Appeal No. 55 of 2001; Shyam Yadav Vs. State of U.P., under Section 374(2) of Code of Criminal Procedure 1973 (hereinafter referred to as 'Cr.P.C.), has been presented by accused-appellant Shyam Yadav, through Superintendent of Jail, Mathura, under Section 383 Cr.P.C., against judgment of conviction and sentence made by Court of 2nd Additional Sessions Judge, Mathura on 19.03.1999 in Sessions Trial No. 462 of 1996, arising out of Case Crime No. 129 of 1996, under Section 302 I.P.C., Police Station Chhata, District Mathura, whereby he has been sentenced with life imprisonment and a fine of Rs. 1,000/- and in default one year further rigorous imprisonment. Criminal Appeal No. 128 of 2004; Smt. Mishri Vs. State of U.P., was filed by accused-appellant Smt. Mishri against the same judgment of conviction and sentence made as above for her also. Subsequently, Jail Appeal No. 6998 of 2007; Smt. Mishri Vs. State of U.P., has again been filed by accused-appellant Smt. Mishri through Superintendent of Jail, Lucknow under Section 383 Cr.P.C. against the same judgment of conviction and sentence for which Criminal Appeal No. 128 of 2004 was filed. Hence all these three appeals have been heard jointly and are being decided with this common judgment. 2. From perusal of impugned judgment and record of trial court, it is apparent that Case Crime No. 129 of 1996 was got registered at Police Station Chhata on 28.07.1996 at 20.30 P.M. upon an information submitted by Yaad Ram under the scribe of Jal Singh, S/o Duli Chand, R/o Chhata, Mathura and singed by informant Yaad Ram against Shyam Yadav, S/o Ramrati Yadav and Smt. Mishri, W/o Giriraj, with this contention that Shyam Yadav, S/o Ramrati Yadav, R/o Adarsh Nagar, P.S. Laar, District Deoria, presently an employee of S.V.C. Factory, Chhata, was residing as a tenant in the house of informant's cousin, namely, Giriraj, S/o Gyasa, who was resident of Town Chhata at Barsana Road, since last one year @ Rs. 200/- per month. He developed illicit relations with wife of Giriraj, namely, Smt. Mishri, which was persistently being opposed by Giriraj, resulting frequent quarrel and scolding amongst them. On 28.07.1996 (Sunday) Giriraj was at his field for having green fodder at about 6 P.M., when his wife Smt. Mishri and tenant Shyam Yadav strangulated him by wrapping Tehmad (Lungi) over his neck. He developed illicit relations with wife of Giriraj, namely, Smt. Mishri, which was persistently being opposed by Giriraj, resulting frequent quarrel and scolding amongst them. On 28.07.1996 (Sunday) Giriraj was at his field for having green fodder at about 6 P.M., when his wife Smt. Mishri and tenant Shyam Yadav strangulated him by wrapping Tehmad (Lungi) over his neck. This was witnessed by persons working at their filed situated nearby, namely, Lal Chand, S/o Jeevan, Rajendra, S/o Kunwar Lal, Veer Singh, S/o Fateli, Vijan, S/o Lakhi and Kamal, S/o Bhajan Lal. Shyam Yadav and Smt. Mishri were apprehended on spot by use of force by those witnesses; dead body was kept at home of deceased and this report was submitted at Police Station concerned for legal recourse. Chick FIR (Ext. Ka-15) and G.D. entry of registration of this case crime number (Ext. Ka-16) was prepared by Head Constable present on duty at above Police Station. Inquest proceeding, after visit of spot and preparation of Site Map (Ext. Ka-17), was got conducted in the morning of 29.07.1996. Death owing to strangulation was suspected, but requisite papers for autopsy examination of dead body were got prepared at the time of inquest proceeding by Investigating Office i.e. Sub Inspector S.S. Raghav (PW-7). Thereafter, sealed intact dead body, along with those papers, were sent through police personnel and got examined under autopsy examination by Dr. Vinod Chandra (PW-4) which established death owing to ante mortem strangulation and asphyxia caused by ante mortem injuries i.e. (i) abraded contusion 20cms. x 2cms. on all around neck at the level of thyroid cartilage direction almost horizontal underlying tracheal rings are fractured, underlying tissues are lacerated; (ii) abrasion 4cms. x 2cms. on the left scrotum is present. Autopsy Examination Report (Ext. Ka-3) was prepared under handwriting and signature of Dr. Vinod Chandra (PW-4), which substantiated death as murder. 3. Investigation resulted filing of Charge Sheet before Court of Chief Judicial Magistrate, Mathura, who took cognizance for offence of murder punishable under Section 302 I.P.C. As offence of murder was exclusively triable by court of Sessions, hence file was committed to court of Sessions on 14.10.1996 by court of IVth Additional Chief Judicial Magistrate, Mathura. 4. 3. Investigation resulted filing of Charge Sheet before Court of Chief Judicial Magistrate, Mathura, who took cognizance for offence of murder punishable under Section 302 I.P.C. As offence of murder was exclusively triable by court of Sessions, hence file was committed to court of Sessions on 14.10.1996 by court of IVth Additional Chief Judicial Magistrate, Mathura. 4. Ivth Additional District and Sessions Judge, Mathura, after hearing learned Government counsel and learned counsel for defence, framed charge on 04.03.1997 against Shyam Yadav and Smt. Mishri as follows:- vkjksi ^^eSa] ,p0,u0 feJk] prqFkZ vij l= U;k;k/kh'k] eFkqjk vki ';ke ;kno o Jherh feJh dks fuEu vkjksi ls vkjksfir djrk gWw%& ;g fd fnukad 28-7-96 dks le; djhc 18-00 cts dLck o Fkkuk Nkrk ds taxy esa vkius ,d jk; gksdj oknh ;knjke ds ppsjs HkkbZ fxjkZt iq= X;klk dh mlds xys esa rgen ls Qank yxkdj mldh gR;k dj nhA bl izdkj vkius Hkk0na0la0 dh /kkjk 302 ds varxZr n.Muh; vijk/k fd;k tks fd bl U;k;ky; ds izlaKku esa gSA vr% vknsf'kr fd;k tkrk gS fd vkidks mijksDr vkjksi esa bl U;k;ky; }kjk ijhf{kr fd;k tk;A^^ “That on 28.07.1996 at about 18 O' Clock at Village and Town Chhata within the area of Police Station Chhata you under joint mens rea committed murder of informant's cousin Giriraj, S/o Gyasa by tying his neck with Tehmad, hence committed offence punishable under Section 302 I.P.C., which is within cognizance of above Court.” (Translated by the Court itself) 5. Charge was read over to both convict-appellants, who pleaded not guilty and claimed for trial. 6. Prosecution examined PW-1 Informant Yaad Ram, PW-2 Kamal Singh, PW-3 Vijan, PW-4 Dr. Vinod Chandra, PW-5 Lallan Rai, PW-6 Constable Ghanshyam Singh, PW-7 S.I. S.S. Raghav, PW-8 Constable Chandra Pal Singh and PW-9 S.I. Sushil Kumar Dixit. 7. With a view to have explanation if any and version of accused persons over incriminating material presented and evidence given by prosecution, statements of accused persons were recorded under Section 313 Cr.P.C.. Accused Shyam Yadav admitted that he was resident of Village Adarsh Nagar, Police Station Laar, District Deoria; he was employee of S.V.C. Factory, Chhata and was residing as tenant @ Rs. 200/- per month in house of deceased Giriraj, situated at Barsana Road, Town Chhata, but has denied about alleged illicit relation with Smt. Mishri. Accused Shyam Yadav admitted that he was resident of Village Adarsh Nagar, Police Station Laar, District Deoria; he was employee of S.V.C. Factory, Chhata and was residing as tenant @ Rs. 200/- per month in house of deceased Giriraj, situated at Barsana Road, Town Chhata, but has denied about alleged illicit relation with Smt. Mishri. The testimony of witnesses were said to be wrong, but this was admitted that he was apprehended by use of force by prosecution at 6 P.M. on 28.07.1996 and was got lodged at Police Station concerned. However, in his statement recorded under Section 313 Cr.P.C. he had shown his unawareness regarding lodging of First Information Report (Ext. Ka-1); testimony of Constable Ghanshyam Singh (PW-6) as well as Chick FIR (Ext. Ka-15), G.D. Entry (Ext. Ka-16); testimony of Sub Inspector S.S. Raghav (PW-7), in which he has proved inquest proceeding of deceased Giriraj with preparation of report C.O, (Ext. Ka-4), Inquest Report (Ext. Ka-5), Copy Chick F.I.R. (Ext. Ka-7), Copy G.D. (Ext. Ka-8), photo dead body (Ext. Ka-9) report of C.M.O. (Ext. Ka-10), specimen seal (Ext. Ka-11), report of R.I. (Ext. Ka-12) Challan dead body (Ext. Ka-13) as well as delivery of dead body to Constable Chandra Pal Singh and Constable Nihal Singh for its autopsy examination. He was not aware about the testimony of Dr. Vinod Chandra (PW-4), who had proved autopsy examination of dead body of deceased Giriraj conducted on 29.07.1996 as well as autopsy examination report (Ext. Ka-3), prepared under the handwriting and signature of this witness at the time of autopsy examination. The testimony regarding preparation of Site Map (Ext. Ka-17) was also said to be not under his knowledge. The testimony of PW-9 Sushil Kumar Dixit and PW-5 Lallan Rai was also not under his knowledge. PW-1 Yaad Ram, PW-2 Kamal Singh and PW-3 Vijan are of one and common family and they have falsely implicated accused persons, thereby their testimony are wrong. This implication was false owing to enmity amongst Yaad Ram and Smt. Mishri. Smt. Mishri too replied in the same way as was replied by Shyam Yadav written as above. Learned Sessions Judge heard learned Government Counsel as well as counsel of defence and passed impugned judgment of conviction for offence of murder punishable under Section 302 I.P.C. and sentence awarded as above. Against this judgment, these appeals under Section 374(2) Cr.P.C. have been filed. 8. Learned Sessions Judge heard learned Government Counsel as well as counsel of defence and passed impugned judgment of conviction for offence of murder punishable under Section 302 I.P.C. and sentence awarded as above. Against this judgment, these appeals under Section 374(2) Cr.P.C. have been filed. 8. Heard Sri P.K. Singh, Advocate, appearing for convict-appellant Smt. Mishri in Criminal Appeal No. 128 of 2004 and connected Jail Appeal No. 6998 of 2007, Sri Devendra Kumar, Advocate, for convict-appellant Shyam Yadav in Jail Appeal No. 55 of 2001 and Sri Ratan Singh, learned A.G.A. for the State. 9. The main assail against the judgment is that:- (i) Conviction and sentence against the appellants was against the weight of evidence on record. (ii) Conviction and sentence against the appellants was bad in eyes of law. (iii) Conviction and sentence of appellants was too severe. (iv) Fine imposed was too excessive and without any basis. (v) There was inconsistencies in the testimony of PW-1 to PW-3 and they are family members of deceased Giriraj and informant Yaad Ram. (vi) Investigation was erroneous with concoction. 10. PW-1 Informant Yaad Ram, in his statement on oath in examination-in-chief, has said that he was at his field on 28th July, 1996; he heard hue and cry at 6 P.M. and rushed towards the field of his cousin Giriraj; Kamal and Vijan have also just reached there and saw that accused Shyam Yadav and Smt. Mishri, present in the docket of the Court, have murdered Giriraj by strangulation by wrapping Tehmad (Lungi) over his neck. Accused Shyam Yadav was tenant in the house of deceased Giriraj and Smt. Mishri was wife of deceased Giriraj. This occurrence was witnessed by this witness as well as by Lal Chand, Rajendra, Veer Singh, Vijan and Kamal. Both the above accused attempted to run from spot but were apprehended by use of force. Dead body of Giriraj was taken to home and after keeping it there under the supervision of other members of family and persons of locality, these witnesses along with those apprehended persons came at police station, where this report (Ext. Ka-1), scribed by Jal Singh, under dictation of this witness having his signature over it, was presented. Upon it, report was got lodged. This registration of case crime number of above date, time and place upon presenting Ext. Ka-1), scribed by Jal Singh, under dictation of this witness having his signature over it, was presented. Upon it, report was got lodged. This registration of case crime number of above date, time and place upon presenting Ext. Ka-1 has been formally proved by PW-6 Ghanshyam Singh by giving evidence that while being posted as Head Constable Clerk at Police Station Chhata on 28.07.1996 he had registered Case Crime No. 129 of 1996 at Chick No. 104 under Section 302 I.P.C. under his handwriting and signature on the basis of report presented by informant Yaad Ram Singh, S/o Khhachera. This registration of case crime number was entered in G.D. Entry at report No. 31 at 20.30 P.M. on 28.07.1996 which is on record as carbon copy of original one hence Chick FIR (Ext. Ka-15) and G.D. Entry (Ext. Ka-16) has been formally proved for which there is no contradiction and exaggeration in examination in cross and when put to accused persons under Section 313 Cr.P.C., not disputed except unawareness of same. Whereas apprehending accused persons and lodging at police station on above date is admitted fact by accused Shyam in his statement under Section 313 Cr.P.C.. Hence this report was instantly got lodged against accused persons just after murdering deceased Giriraj by strangulation under close proximity of time when they attempted to run from spot. 11. PW-7 Sub Inspector S.S. Raghav, in his testimony has proved spot visit just after registration of case crime number and investigation of this case crime number by him, thereby making inquest proceeding in the morning of 29.07.1996 where dead body was lying and preparation of inquest report (Ext. Ka-5) under his handwriting and signature. The relevant papers Ext. Ka-7, Ext. Ka-8, Ext. Ka-9, Ext. Ka-10, Ext. Ka-11, Ext. Ka-12 and Ext. Ka-13 were prepared by him under his handwriting and signature. Recovery memo of Tehmad Ext. Ka-2 and Site Map Ext. Ka-17 were also prepared by him. Dead body was send in sealed intact position along with those papers for autopsy examination through Police Constables. There is no contradiction or exaggeration or any embellishment in his testimony nor the same has been disputed by accused under statement under Section 313 Cr.P.C. except of unawareness. Under inquest proceeding this was held to be a murder by strangulation, which was further corroborated by PW-4 Dr. Vinod Chandra by his testimony and medical autopsy report (Ext. There is no contradiction or exaggeration or any embellishment in his testimony nor the same has been disputed by accused under statement under Section 313 Cr.P.C. except of unawareness. Under inquest proceeding this was held to be a murder by strangulation, which was further corroborated by PW-4 Dr. Vinod Chandra by his testimony and medical autopsy report (Ext. Ka-3) that this was a death owing to ante mortem strangulation by wrapping Tehmad all around neck at the level of thyroid cartilage fracturing tracheal rings and lacerating tissues and muscles beneath it. In internal examination there was congestion of vital organs. Hence this was not a natural death or accidental death rather it was a culpable homicide amounting to murder. 12. PW-8 Chandra Pal Singh is a formal witness who had taken dead body under sealed intact position for getting it examined under autopsy examination, after inquest proceeding of same, for which there is no contradiction. 13. Now culpable homicide amounting to murder by ante mortem strangulation on 28.07.1996 at about 6 P.M. had been fully proved by prosecution. Now oral and documentary testimony that this murder was committed by convict-appellants or there remained suspicion or bona fide doubt? is to be appreciated on the basis of analysis of oral testimony of PW-1 to PW-3 coupled with testimony of Investigating Officer. 14. Though in a trial based on direct ocular testimony, motive plays no role, whereas in a trial based on circumstantial evidence motive is an important link. If the same is proved, it becomes a scanner for analyzing remaining evidence, as has been propounded by Hon'ble Apex Court in Santosh alias Santukrao vs. State of Maharashtra, (2007) 2 JIC 831(SC) and by Lucknow Bench of this Court in State of U.P. Vs. Akhlaq, (2010) 71 AllCriC 764 . In present case, ocular testimony of PW-1 Yaad Ram, PW-2 Kamal Singh and PW-3 Vijan is on record, who had instantly rushed on spot after hearing hue and cry and found instant death of deceased Giriraj by strangulation by Tehmad. The accused persons, who was his wife and her paramour, were present on spot. Akhlaq, (2010) 71 AllCriC 764 . In present case, ocular testimony of PW-1 Yaad Ram, PW-2 Kamal Singh and PW-3 Vijan is on record, who had instantly rushed on spot after hearing hue and cry and found instant death of deceased Giriraj by strangulation by Tehmad. The accused persons, who was his wife and her paramour, were present on spot. Even then motive has been said in Para 2 of the examination-in-chief of PW-1, which reads as under:- vfHk0 ';ke esjs HkkbZ ds edku esa fdjk;s ij jgrk Fkk rFkk Jherh feJh esjs blh HkkbZ dh iRuh gSA djhc ,d Ok"kZ ls vfHk;qDr ';ke esjs HkkbZ o esjh HkkHkh Jherh feJh ds edku esa nks lkS :i;k ekgokj fdjk;s ij jgrk FkkA blh nkSjku Jherh feJh ds voS/k laca/k vfHk;qDr ';ke ls gks x;sA ftlds fy;s esjs HkkbZ us ,srjkt fd;k Fkk rFkk dbZ ckj vfHk;qDr ';ke ls u fdlh ls dgus lquuk o ekjihV gqbZ FkhA [Accused Shyam was tenant in the house of brother of this witness and Smt. Mishri is his brother's wife. This tenancy was since last one year @ Rs. 200/- per month and accused Shyam, tenant developed illicit relations with Smt. Mishri which was protested by deceased for which there occurred quarrel and scolding many times. English translation by Court itself] Regarding this testimony, there is no contradiction in examination-in-chief rather that has been corroborated by PW-2 Kamal Singh and PW-3 Vijan and when put to question, recorded under Section 313 Cr.P.C., except denial of illicit relation no explanation is there, but tenancy and residence as tenant was admitted by convict-appellant. Hence, this motive was fully proved by prosecution. 15. In examination-in-chief of PW-1 Yaad Ram, in Paras 3 and 4 it has been categorically said that Giriraj was at his field for having fodder on 28.07.1996 when he was murdered by both the above accused. The occurrence was witnessed by this witness as well as by Lal Chand, Rajendra, Veer Singh, Vijan and Kamal and when accused-appellants attempted to run from spot, they were apprehended thereat, by use of force, by these witnesses and both of them were taken along with the dead body at the home, where it was kept and accused were brought at police station, where this report was got lodged. Regarding this testimony, there is no material contradiction except corroboration by PW-2 Kamal Singh and PW-3 Vijan and this was admitted by accused Shyam in his statement given in answer of question under Section 313 Cr.P.C. that accused persons were apprehended by use of force on that date, time and place. Hence, this occurrence of murder has been fully proved with no inconsistency, exaggeration or embellishment in testimony of this prosecution witness. Though cross-examination continued for more than 2-3 times and perusal of same shows natural variation which makes this witness to be more natural and trustworthy. 16. PW-2 Kamal Singh, a witness, named in the instantly lodged F.I.R. (Ext. Ka-1), has said on oath in his testimony that his field and field of deceased was adjacent to each other and he was present at his field at the time of occurrence, when he heard hue and cry and rushed on spot, Giriraj was dead and both the accused persons were present there, who attempted to run from spot, but were apprehended by witnesses present on spot. The death was owning to strangulation by use of Tehmad of Giriraj. Bringing of dead body along with apprehended accused persons and registration of case crime number at police station concerned by presenting accused persons has been proved by this witness. This has been said that there had been illicit relation between deceased and his tenant, which was being objected by deceased and thus wife of deceased along with her paramour tenant committed this offence of murder. In his cross-examination, he has further reiterated the statement made in examination-in-chief. There is no exaggeration, embellishment or contradiction rather minor contradiction argued vehemently were of this nature which may made it a very natural and wholly reliable witness. 17. PW-3 Vijan is also a witness, named in the instantly lodged report, who has fully corroborated the testimony of PW-1 and PW-2 with no embellishment, exaggeration or contradiction in his testimony. 18. PW-5 is Lallan Rai, who had submitted charge sheet (Ext. Ka-15) and before submitting this charge sheet, he had perused the statements recorded by erstwhile Investigating Officer Laalak Ram, Sushil Kumar Dixit and Sultan Singh Raghav. He has recorded the statement of Veer Singh, Vijan, Kamal, Ram Swaroop, Horam, Jal Singh, Jitendra Singh, Hari, Radhey, Gopi and Totaram. 18. PW-5 is Lallan Rai, who had submitted charge sheet (Ext. Ka-15) and before submitting this charge sheet, he had perused the statements recorded by erstwhile Investigating Officer Laalak Ram, Sushil Kumar Dixit and Sultan Singh Raghav. He has recorded the statement of Veer Singh, Vijan, Kamal, Ram Swaroop, Horam, Jal Singh, Jitendra Singh, Hari, Radhey, Gopi and Totaram. Then after charge sheet was submitted and in cross-examination he has said that Veer Singh, Vijan and Kamal were eye witness account of this occurrence of murder. This witness has formally proved the investigation made by him. 19. PW-7 S.S. Raghav has formally proved investigation made by him and there is no embellishment, exaggeration or contradiction in his testimony rather there is full corroboration with other witnesses. 20. PW-9 Sushil Kumar Dixit, intermediate Investigating Officer of this case, by his statement on oath has formally proved his investigation and there is no inconsistency in his testimony. 21. On an overall appraisal of the documentary and oral testimony, we find that learned Sessions Judge has correctly appreciated facts and law placed on record and passed impugned judgment with detailed and analytical reason. There remained no illegality or irregularity in appreciation of facts and law, hence prosecution was successful to prove charge of murder punishable under Section 302 I.P.C. against convict-appellants, beyond reasonable doubt. 22. Regarding quantum of punishment, Section 302 I.P.C. provides general principle of punishment with life imprisonment and fine with an exception of capital punishment in cases of rarest of rare circumstances. The State has filed no appeal against the quantum of sentence and there remains no option for punishing less than life imprisonment and fine as awarded by learned Sessions Judge. Aggravating and mitigating circumstances, involved in the present case, establishes a sentence of life imprisonment with fine appropriate and in accordance with law and societal cry, hence there is no illegality or irregularity in sentence. 23. In view of the above facts and circumstances, impugned judgment and order dated 19.03.1999 deserves to be affirmed and appeal is liable to be dismissed. 24. In the result, all these three Appeals are dismissed. Impugned judgment and order dated 19.03.1999 passed by IInd Additional Sessions Judge, Mathura, in S.T. No. 462 of 1996 (State Vs. Shyam Yadav and another), Police Station Chhata, District Mathura, is hereby confirmed/affirmed. 24. In the result, all these three Appeals are dismissed. Impugned judgment and order dated 19.03.1999 passed by IInd Additional Sessions Judge, Mathura, in S.T. No. 462 of 1996 (State Vs. Shyam Yadav and another), Police Station Chhata, District Mathura, is hereby confirmed/affirmed. The appellants, who are in jail, shall serve out the sentence awarded to him by the Trial Court. 25. Copy of this order along with lower Court record be sent to Court concerned forthwith. 26. A copy of this order be also sent to appellants through concerned Jail Superintendent.