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2017 DIGILAW 550 (UTT)

Deepak alias Devendra v. State of Uttarakhand

2017-10-13

SERVESH KUMAR GUPTA

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JUDGMENT : Servesh Kumar Gupta, J. This jail appeal has been preferred by the convict Deepak @ Devendra against the judgment and order dated 14.9.2015 rendered by the 4th Additional Sessions Judge, Dehradun finding the appellant guilty for the offence of Section 307 IPC and sentenced him to undergo 7 years’ rigorous imprisonment, in addition to fine of Rs. 20,000/-. In default of payment of fine, convict has been directed to undergo further one year’s simple imprisonment. 2. I have heard Mr. Siddhartha Jain, learned Amicus Curiae for the appellant and Mr. T.C. Agarwal, learned A.G.A. for the State. 3. The facts as emerging out from the whole prosecution story are that the victim Smt. Ganga Devi was married to the accused on 4.3.2005. Their matrimonial relations somehow could not remain harmonious and the differences aggravated to the extent of filing divorce petition by the wife against her husband. Two children born out of the wedlock and by the time the incident occurred, they had grown up to the age of adolescence. The accused was feeling aggrieved by the step taken by his wife to file the divorce petition, though she was constrained to live with her husband in the same house. The accused was a driver of a small commercial vehicle and on the date of incident on 20.7.2013, at around 1.00 PM, when he found an opportune moment that Smt. Ganga Devi was at the distance of 10-15 metres from the vehicle Chhota Hathi bearing no. UK07-CA-6148, he dashed his wife who was going ahead along with her two children. By this act of the accused, Smt. Ganga Devi became seriously injured inasmuch as she suffered fracture in her hip and right ankle. The two children were scattered in the sides by this sudden dashing. Only one son could sustain some injuries. 4. This incident was witnessed by PW3 Mewa Lal and PW4 Deveshwari Kandpal, who were residing in the vicinity of such place. The ambulance 108 was called by Smt. Deveshwari Kandpal and thus Smt. Ganga Devi could first be shifted to the Combined Hospital, Prem Nagar, Dehradun, where she could be medically examined. Only one son could sustain some injuries. 4. This incident was witnessed by PW3 Mewa Lal and PW4 Deveshwari Kandpal, who were residing in the vicinity of such place. The ambulance 108 was called by Smt. Deveshwari Kandpal and thus Smt. Ganga Devi could first be shifted to the Combined Hospital, Prem Nagar, Dehradun, where she could be medically examined. Since there was swelling in the right hip as well as the right ankle, besides the abrasion and contusion, so finding the situation somewhat serious, the victim was referred to higher centre at Government Doon Hospital, where she underwent x-rays and various other necessary treatments were provided to her. In all, she remained hospitalised for 11 days, as disclosed by her in her deposition before the Court. 5. Somehow, the information could reach to her sister PW2 Mamta Jayal, who rushed to the spot from Pilibhit, where she was pursuing her GNM course and could manage to lodge the FIR on 21.7.2013 at 9.20 AM. The matter was investigated and the chargesheet was submitted by the police on 28.11.2013, whereupon the cognizance for the offence of Section 307 was taken by the Magistrate on 7.12.2013. During the course of investigation, the police arrested the accused on 19.10.2013 and since then he is under caption. 6. After committal of the case to the Court of Sessions Judge, the charge was levelled on 14.3.2014. The trial proceeded and it culminated into the conviction and sentence of the appellant, as mentioned hereinbefore. 7. PW1 is the victim Smt. Ganga Devi, whose statement was recorded on 4.8.2014, but after recording of the chief examination, the case was got injured at the instance of the accused. So, she was cross-examined on 5.8.2014. She has proved all these facts as narrated by this Court earlier. Her credibility could not be shaken in the long cross-examination. 8. PW2 is Smt. Mamta Jayal, who has also proved the receiving of information, rushing from Pilibhit to Dehradun and filing of the FIR in the concerning police station after gathering all details of the incident from her sister. 9. PW3 Mewa Lal, who was examined on 30.9.2014, i.e. almost after more than 14 months of the incident, though has proved the incident in his chief examination, but he has deviated from the statement in the later part of the chief examination. 9. PW3 Mewa Lal, who was examined on 30.9.2014, i.e. almost after more than 14 months of the incident, though has proved the incident in his chief examination, but he has deviated from the statement in the later part of the chief examination. So far as the accident and the causing of the injury from Chhota Hathi vehicle is concerned, the same has been proved by him. He has accepted that the accused hails from the same village where he dwells and has also accepted that the husband of Smt. Ganga Devi, who is accused in the matter, is employed to drive Chhota Hathi truck. 10. It has been held in the several judgments of the Hon’ble Apex Court and, now, it is accepted position of the law that the chief examination or the cross-examination can be churned out to cull out the truth from the falsehood and such truthful statement which is being corroborated by other witnesses should be believed by the Court. So, I think only this part of his statement that PW2 Mewa Lal did not see the accused dashing Smt. Ganga Devi is not acceptable and this statement by him has been given under influence which was made on him by the accused or his other relatives during this long span of 14 months, and more so when this witness and the accused, both hail from the same village. 11. PW4 Smt. Deveshwari Kandpal is an eyewitness, who has corroborated the manner and sequence of the incident in the same way, as has been highlighted by this Court. So, there is no reason to disbelieve her statement. 12. PW5 is Dr. S.K. Jha, who is a doctor in Combined Hospital, Prem Nagar and he had initially examined Smt. Ganga Devi. PW6 is Dr. S.K. Gupta, who is an orthopaedic surgeon in Doon Hospital and he had treated the injured and saved her life after 11 days. 13. PW7 is S.I. Uttam Ramola, who has proved the collection of evidence in a systematic way. Nothing has come out to disbelieve the truthfulness regarding the submission of the chargesheet. 14. Learned Amicus Curiae has argued that Smt. Ganga Devi did not disclose the vehicle number to her sister. Then how such number could be written by her in the FIR. Nothing has come out to disbelieve the truthfulness regarding the submission of the chargesheet. 14. Learned Amicus Curiae has argued that Smt. Ganga Devi did not disclose the vehicle number to her sister. Then how such number could be written by her in the FIR. Such argument is wholly unsubstantial because there could be many other sources, besides going at the spot itself and finding out the vehicle number. Further, nothing has been asked from PW2 Mamta Jayal in this regard as to how she could manage to know the exact vehicle number, which was used by the accused to meet his nefarious intentions. 15. It has also been argued that no information has been submitted regarding the girl child. I think such contentions are totally baseless. Minor discrepancies, lapses or incongruities are bound to occur in the depositions of the truthful witnesses. 16. I think there is no force in this appeal. It is hereby dismissed. However, feeling the fact that the appellant is the husband of the victim and he is in jail since a long period, so, there may be chances of some reconciliation between the couple. So, I reduce the sentence from 7 years to 5 years, but fine is left intact as has been imposed by the learned Trial Court. However, in default of payment of fine, the convict shall undergo only six months’ imprisonment, instead of one year. Period spent by the accused convict during investigation, trial and pendency of this appeal shall be adjusted in the reduced sentence of five years. 17. Let a copy of this judgment and order, along with LCR, be sent to the trial court to ensure its compliance.