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Allahabad High Court · body

2002 DIGILAW 1542 (ALL)

Ram Prakash Alias Sabun Master v. State Of U. P.

2002-10-24

M.C.JAIN

body2002
JUDGMENT : - M.C.Jain 1. THE accused-appellant has been convicted under Section 304, I.P.C. Part I and sentenced to undergo rigorous imprisonment of seven years by judgment and order dated 20.12.1980 passed by Sri J. C. Gupta, the then VII Additional Sessions Judge, Kanpur. At the hearing of the appeal, none appeared from the side of the appellant though he is represented on record by Sri K. K. Bajpai, advocate. Consequent upon the filing of the appeal, the appellant was ordered to be released on bail under order dated 17.9.1981. 2. I have heard learned A.G.A. on behalf of the respondent-State and have examined the record with his assistance. The appeal is being decided on merits. The broad essentials of the case may be taken note of. The incident took place on 31.3.1980 at about 8.30 p.m. at the house of the appellant in village Sarai Maswanpur, P. S. Kalyanpur, Metropolitan Area, Kanpur, where he used to live with his wife Nitu with whom he had married about 5 or 6 months earlier in the incident. He allegedly murdered her by inflicting knife blows on her. The eye-witnesses are Chhotey Lal P.W. 2, Ram Swaroop P.W. 3 and Sukhdeo Prasad P.W. 4 who, with others, witnessed the incident. It was Chhotey Lal P.W. 2 who lodged the report of the incident the same night at 9.30 p.m. The distance of the police station from the place of occurrence was 3 kilometres. 3. THE appellant had performed court marriage with the deceased 5-6 months before the incident and had brought her from Delhi to live with him. They were living as husband and wife under a common roof of the outer room of their house. THE deceased was educated to some extent and was working as teacher in village school. THE appellant, however, suspected the character and fidelity of his wife and there used to be frequent quarrels between the two on this account. In the fateful night, the witnesses named above were sitting in front of their houses situated in front of the house of the appellant across the lane. An electric tube was glowing at the pole near the chabutara of the house of Chhotey Lal P.W. 2 and it was also illuminating the inside of the room of the appellant, as the window was open. An electric tube was glowing at the pole near the chabutara of the house of Chhotey Lal P.W. 2 and it was also illuminating the inside of the room of the appellant, as the window was open. THE witnesses heard the shrieks of Nitu that she be saved and she was being killed by her husband (appellant). They instantaneously rushed to the door of the room of the appellant and saw that he had caught hold of the right hand of his wife. In their presence, he inflicted one blow of knife at her neck. He had already inflicted one blow of knife on her. On receiving knife blow on her neck, the victim came out of the room and fell down on the chabutara in front of the door. These witnesses tried to apprehend the appellant, but he flaunted the knife and succeeded to make his escape good. THE witnesses chased him with shouts. S.I. D. R. Pal P.W. 8 was coming from the other direction and on hearing the shouts of the witnesses, he could catch hold of the appellant who was holding the bloods-tained knife in his hand. His clothes were also blood-stained. THE knife was taken in possession by the said Sub-Inspector. THE blood-stained clothes of the appellant were also got changed by him and he took into possession the blood-stained clothes. THE knife as well as clothes were sealed separately. On reaching the victim, she was found dead with two wounds on her body. In the meantime, Chhotey Lal P.W. 2 wrote down the report and along with Sub-Inspector named above as well as the appellant (who had been apprehended by the said S.I.) went to the police station. THE report was lodged there. THE investigation followed which was conducted by S.I. D. R. Pal P.W. 8 who was incharge of Police Outpost of Police Station, Kalyanpur. After necessary formalities and preparation of panchayatnama, etc., the dead body of the deceased was sent for post-mortem. Dr. Gulab Chand P.W. 1 had conducted the autopsy on her dead body on 1.4.1980 at 1.30 p.m. THE deceased was aged about 20 years. THE following ante-mortem injuries were found on her person : (1) Incised wound 3 cm. 1 cm. mouth deep tailing towards mouth 1-1/2 cm. below the left ear. (2) Incised wound 2 cm. 1 cm. on left side of neck 2 cm. below the ear. THE following ante-mortem injuries were found on her person : (1) Incised wound 3 cm. 1 cm. mouth deep tailing towards mouth 1-1/2 cm. below the left ear. (2) Incised wound 2 cm. 1 cm. on left side of neck 2 cm. below the ear. Wound was muscle deep and was tailing obliquely downwards. 4. ON internal examination, four month's male foetus was found in the uterus of the deceased. As per the opinion of doctor, the death had occurred due to shock and haemorrhage as a result of ante-mortem injuries. The knife and blood-stained clothes of the appellant were also subjected to scientific examination. The knife, tahmad and baniyan of the appellant were found to be blood-stained. 5. THE defence was of denial, though the appellant admitted that the deceased was his wife. He had married her in Court. It was also his admission that he was living in the outer room of the baithak of his house. He further admitted that eye-witnesses lived in front of his house. However, he denied that he had any differences with his wife or that he suspected her character. According to him, he was not present at the time of murder and when he came back to his house, he found her lying dead. He went to police station to report the matter, but he was arrested and shut inside the lock-up. It was also said by him in the statement under Section 313, Cr. P.C. that Chhotey Lal P.W. 2 had abducted his sister, when he had gone away to Delhi. On his coming back from there, his sister told him that Chhotey Lal P.W. 2 had forced her to marry with his brother-in-law and he had also raped her. When he questioned Chhotey Lal P.W. 2, the latter threatened him that in case he reported the matter to the police, he would not allow him to stay in the village. He often used to tease him and his wife. Chhotey Lal P.W. 2 also used to say to his wife that she was carrying liaison with her fellow male teachers and it was a matter of disgrace to whole of the village and he would get both husband and wife expelled from the village. Chhotey Lal P.W. 2 got his wife murdered and fabricated this false case. He also wanted to grab his land. Chhotey Lal P.W. 2 got his wife murdered and fabricated this false case. He also wanted to grab his land. He produced his sister, Smt. Sushila D.W. 1 to support his such defence theory. 6. AT the trial, in all eight witnesses were examined out of whom eye-witnesses were Chhotey Lal P.W. 2, Ram Swaroop P.W. 3 and Sukhdeo Prasad P.W. 4. The trial court found the appellant to be guilty, but concluded that the case was covered under Exception 1 of Section 300, I.P.C., meaning thereby that at the time of commission of this crime, he was deprived of the power of self-control on grave and sudden provocation. Accordingly, the appellant has been convicted under Section 304, I.P.C. Part I (instead of Section 302, I.P.C.) and has been sentenced to seven years' R.I. While concentrating on important aspects which would weigh in the decision of this appeal, it needs to be stated that the factum of death of the victim is admitted. It is very clear from the post-mortem report and the statement of the Dr. Gulab Chand P.W. 1 that she was the victim of violence, two incised wounds having been inflicted on her body. The incised wound on her neck was sufficient to cause death in ordinary course of nature. The time and place of incident also cannot be disputed. The dead body was found in front of the room of the accused. It has come in the testimony of the eye-witnesses that when they had rushed up on hearing the shrieks of the victim, the appellant had inflicted a knife blow on her neck in their presence and earlier thereto, one knife blow had already been inflicted on her. She had staggered out of the room and fallen down on the chabutara. It was at that place where the Investigating Officer had found her dead body. She had staggered out of the room and fallen down on the chabutara. It was at that place where the Investigating Officer had found her dead body. The approximate time of incident has been spoken of by the eye-witnesses as 8.30 p.m. The report itself had been lodged the same night at 9.30 p.m. As per the opinion of the doctor conducting the post-mortem over the dead body of the deceased, she could have died on 31.3.1980 at 8.30 p.m. Moreover, it is also the case of spot arrest when the appellant had been apprehended by S.I. D. R. Pal P.W. 8 with blood-stained knife at about 8.30 p.m. at a little distance from the place of occurrence. At that time, the appellant was being chased by the witnesses and S.I. D. R. Pal himself was on patrol duty with constable Ram Nath Mishra, having started from the police outpost at 7.30 p.m. The knife and the clothes of the appellant were found to be blood-stained as stated a little earlier. It cannot be doubted that light of electric tube on the pole in the lane would have been available inside the room where the witnesses had reached. 7. THE trial Judge rightly disbelieved the testimony of Smt. Sushila D.W. 1-the sister of the accused-appellant. THE learned trial Judge has given cogent reasons for disbelieving her that had there been any such incident of her abduction or rape, the matter would have been reported to the police, particularly when even the male members of the family including the appellant had known it on being disclosed by her. Her statement was also to the effect that after the incident of abduction or rape, a panchayat was called against Chhotey Lal P.W. 2. However, none of the so-called panches was produced in defence. THE appellant tried in vain to impeach the testimony of Chhotey Lal P.W. 2 by raising cock and bull story in his defence. Though Ram Swaroop P.W. 3 stated that in the days of incident, he used to live in another house after the intervention of 20 or 25 houses, but he was categorical that his father and brothers were living in the house in front of the house of the appellant. He was sitting there at the time of incident. Though Ram Swaroop P.W. 3 stated that in the days of incident, he used to live in another house after the intervention of 20 or 25 houses, but he was categorical that his father and brothers were living in the house in front of the house of the appellant. He was sitting there at the time of incident. He explained the purpose for which he had come to that house at that time that he was to meet his bahnoi who had come to his father's house. I find the testimony of eye-witnesses to be perfectly believable. Their testimonial assertions are in conformity with medical evidence with additional factor that the appellant was arrested by S.I. D. R. Pal, P.W. 8 almost immediately after the incident with blood-stained knife and the blood was here on his clothes also. 8. ON over all consideration, I am in agreement with the judgment of the trial Judge that the appellant cut short the life of his wife at the given date, time and place and in the manner alleged by the prosecution. Coming to the question of offence committed by him within the ambit of law, I note that the trial Judge has himself taken a lenient view and afforded him the maximum benefit that could be possible under the law of the land. He found the case covered by Exception 1 of Section 300, I.P.C. that while doing his wife to death, he (appellant) was deprived of power of self-control by grave and sudden provocation. Though there was no direct evidence in this behalf, the learned trial Judge proceeded on the premise that the prosecution was silent as to how the incident started. It was observed that there was no evidence as to what excited or prompted the appellant to cut short the life of his wife whom he had married only 5-6 months back and who was carrying pregnancy of about four months. He pointed out that as per the prosecution story, there used to be quarrels between husband and wife as he used to suspect her fidelity. Chhotey Lal P.W. 2 also stated that the appellant did not like his wife to serve as a teacher. He pointed out that as per the prosecution story, there used to be quarrels between husband and wife as he used to suspect her fidelity. Chhotey Lal P.W. 2 also stated that the appellant did not like his wife to serve as a teacher. Ram Swaroop P.W. 3 further admitted that when the appellant was arrested by S.I. D. R. Pal, he had told the witnesses that his wife was of bad character and she continued to go to school despite his protest and people were defaming him and her. The learned trial Judge concluded that circumstances indicated that it was not a pre-calculated murder and incident had taken place all of a sudden. The weapon of the offence (knife) was of domestic type. The incident could be the result of exchange of hot words between the husband and wife or the husband (appellant) having been provoked by his wife. Losing self-control, he picked up the domestic knife and inflicted two knife blows on her. Thus, the maximum benefit has already been afforded by the learned trial Judge by finding the appellant guilty under Section 304, I.P.C. Part I. I do not see that any interference is called on the aspect of punishment as well. 9. RESULTANTLY, the appeal is dismissed. Appellant Ram Prakash alias Sabun Master is on bail. The C.M.M., Kanpur Nagar, shall cause him to be arrested and lodged in jail to serve out the sentence of seven years' R.I. awarded to him under Section 304, I.P.C. Part I. 10. LET a copy of this judgment along with record of the case be immediately sent to the court below for needful compliance under intimation to this Court within one month from the date of receipt.