Ram Mani vs State of U.P.

D.K. Trivedi, J.—The present Criminal Appeal has been filed by Ram Mani Appellant against the judgment and order dated 8.4.1983 passed by the Sessions Judge, Gonda, convicting the Appellant u/s 302, I.P.C. and sentencing him to imprisonment for life.

Appellant Ram Mani was prosecuted in connection with the incident alleged to have taken place on 18.6.1982 at about 9.00 a.m. in village Malhipur, district Gonda. It is said that the Appellant committed the murder of his wife Smt. Dhokhapa U.P According to the prosecution case, Smt. Dukhna is the mother-in-law of the accused-Appellant and lived in the house of the Appellant along with the encased Smt. Dhokhapati. It is said that on 18.6.1982 at about 9.00 a.m. accused came to his house after ploughing his field and saw that Smt. Dukhna, mother-in-law of the accused, was cooking food while his wife Smt. Dhokhapati deceased was leisurely lying on the cot. It is said that seeing the Appellant Smt. Dhokhapati deceased got up and washed her face but the accused reprimanded Smt. Dhokhapati for lying on the cot. The accused did not relish the attitude of his wife that his mother-in-law, being an old lady, was cooking food while she was lying on the cot. It is said that Smt. Dhokhapati also retorted back and on this some altercation took place between the husband and the wife and upon this, the accused picked up a spade and assaulted Smt. Dhokhapati with the said spade. It is said that on receiving spade injury, Smt. Dhokhapati fell down in the courtyard. It is said that Smt. Dhokhapau raised alarm and hearing the alarm, several persons reached there and they caught hold of the accused and tied him with a rope. P.W. 5 Siya Ram nephew of the accused called P.W. 1 Bhagwati Chaukidar and then Bhagwati Chaukidar lodged a report at 11.30 p.m. on the same day at Police Station, Gaura Chauraha, District Gonda. It is said that after registration of the case, the police party came to the village and sent Smt. Dhokhapati for medical examination. She was medically examined by Dr. Arun Kumar Gupta P.W. 5, Medical Officer Memorial Hospital Balrampur District Gonda, on the same day at 8.30 p.m. Smt. Dhokhapati died on 19.6.1982 at about 6.40 a.m. at Balrampur Hospital District Gonda.

The investigation of the case was conducted by S.O. Vindhyachal Singh, P.W. 10. He recorded the statement of P.W.1 Bhagwati Chaukidar at the Police Station itself and then reached the place of the incident at about 1.30 p.m. on the same day. He sent Smt. Dhokhapati to Nandnagar Dispensary and from Nandnagar Dispensary to Balrampur Hospital, Gonda. The Investigating Officer also took custody of the accused and recorded his statement. It is said that at the pointing of the accused, the Investigating Officer also recovered the spade from the northern Narha of the accused. On chemical examination, human blood was found on this spade. He also prepared site plan Ext. Ka. 10 and recorded the statement of the other witnesses. After completing the investigation the Investigating Officer submitted charge-sheet against the accused.

In the meantime, the statement of the accused was also recorded u/s 164, code of Criminal Procedure before the Magistrate in which the accused admitted the guilt and stated that he scolded his wife because her mother was cooking food and she was lying on the cot. It is said that there was an altercation between husband and wife and then he gave a slap to her but the deceased also grappled with him and in the said scuffle, he lost his mental control and he picked up a Kudal and struck her with the said Kudal. He clearly stated that he wanted not to kill his wife but in the fit of rage, he assaulted the deceased with the Kudal which hit on her head. He further stated that he wanted not to give spade blow on the head of the deceased but it appears that per chance the Kudal landed on the head of the deceased. He also stated that his wife also assaulted him and he received head injury. In the last, he clearly stated that he had no intention to cause that much of injuries to her but this incident took place due to rage.

The autopsy on the dead body of the deceased was conducted by P.W. 2. Dr. R.S. Pandey on 20.6.1982 at 4.00 p.m. He found the following injuries on the dead body of the deceased:

(1)Stitched (2) wound-incised wound with tailing 4.5 cm. x 1 cm. x muscle deep on top of left shoulder.

(2)Stitched (4) wound-incised wound 6 cm. x 2 cm. x bone on left shoulder 1 cm. above Injury No. 1 underneath cut acromial and of left scapula bone.

(3)Incised linear wound 2.5 cm. long on left side of neck 1.5 cm. below left ear.

(4)Incised wound 2 cm. x 0.5 cm. x muscle deep on left side of neck, 0.5 cm. below injury No. 3, wound stitched.

(5)In line to injury No. 4 and out to it, incised wound 2.5 cm. x 0.5 cm. x muscle deep on left side neck, 0.5 cm. out to injury No. 4, wound stitched.

(6)Incised wound-stitched wound (5) on left side back of the head 6.5 cm. x 0.5 cm. x bone deep 3.5 cm. from left ear, underneath cut left occipital bone, bone is not cut to its whole depth.

(7)Incised wound 3.5 cm. x 1 cm. x muscle deep on upper part of the neck back near the base of the head 5 cm. below right ear.

(8)Traumatic swelling of whole of the right side of head practically with no visible external injury, on internal examination haemorrhage over right parietal and right frontal region. Meanings congested, bone normal.

On internal examination the Doctor found that the membranes, brain, larynx, trachea and both lungs were congested; there was hemorrhage at surface of right parietal lobe; stomach was empty, small and large intestines contained faucal matter; urinary bladder was found empty. In the opinion of the Doctor, death was caused due to hemorrhage and shock as a result of the aforesaid injuries.

The prosecution, in support of its case, examined ten witnesses. P.W. 1 Bhagwati is the Chaukldar and he lodged the report on the basis of the information received from the nephew of the accused. P.W. 2 Dr. R.S. Pandey conducted autopsy on the dead body of the deceased and proved the post-mortem report Ext. Ka. 1.P.W. 3 Dr. A.K. Gupta, Medical Officer Balrampur Hospital, Gonda examined the injuries of the deceased when she was alive and proved the injury report. P.W. 4 Gorakh Nath Tewari Constable proved the inquest report prepared by the Investigating Officer. P.W. 5 Siya Ram is the nephew of the accused. He stated that when he reached the house of his uncle hearing the cries he found that his Chachi was lying in an injured condition. He did not support the prosecution case and, therefore, he was declared hostile. P.W. 6 Ram Asrey also did not support the prosecution case and was declared hostile by the prosecution. P.W. 7 Smt. Dukhna is the mother-in-law of the accused -and she also did not support the prosecution case and, therefore, she was also declared hostile. P.W. 8 Ashok Srivastava was the Munsif Magistrate, Gonda, and he proved the statement of the accused Ext. Ka. 10. P.W. 9 Head Moharrir Murli Dhar Dubey proved the lodging of the F.I.R. and other entries in the General Diary. P.W. 10 S.O. Vindhyachal Singh of Police Station Gaura Chauraha, conducted the investigation in the case and submitted charge-sheet.

The learned Sessions Judge, after considering the evidence on record, specially the confessional statement of the Appellant, held that the prosecution has successfully proved the guilt of the Appellant beyond reasonable doubt and, therefore, he convicted and sentenced the Appellant as mentioned above.

The Appellant, aggrieved by the said judgment and order, filed the present appeal from jail. During pendency of the appeal Shri G.K. Mahrotra, Advocate of this Court filed his power on behalf of the Appellant.

We have heard the learned Counsel for the Appellant as well as the Government Advocate at length and gone through the evidence on record.

The main contention of the Appellant''s counsel is that in the instant case, all the eye-witnesses examined by the prosecution did not support the prosecution case and, therefore, they have been declared hostile and him these circumstances, there is no evidence at all to prove the guilt of the Appellant u/s 302, I.P.C. and secondly even if the case is found to be proved, then the case does not fall under the category of Section 302, I.P.C, but falls u/s 304, I.P.C. We are unable to accept the first contention of the Appellant''s counsel. No doubt, the witnesses examined by the prosecution did not support the case of the prosecution and, therefore, they were declared hostile but there is confessional statement of the accused himself (Ext. Ka. 10) recorded by the Magistrate which shows that the accused admitted that he caused spade injuries to his wife on the said date, time and place. The confessional statement of the accused further finds corroboration from the fact that it is not disputed that she died due to injuries caused to her in her house on the said date, time and place. There is nothing on record to show that anybody else came there and caused injuries to the lady. It is also not disputed that the accused was arrested and found tied with rope by the Investigating Officer when he reached there after registration of the case. The recovery of spade from the spot and recovery of blood-stained earth on the spot also corroborated the fact that the injuries were caused by the spade. The blood found on the spade was human blood. Apart from this, the accused, in his statement u/s 313, Code of Criminal Procedure admitted that he gave the statement Ext. Ka. 10 to the Magistrate. The said statement Ext. Ka. 10 were read over to him and he admitted that he had given this statement to the Magistrate. No doubt, thereafter, he said that she fell down on the spade and received injuries but he admitted that he has given statement Ext. Ka. 10 to the Magistrate. He neither challenged the said statement nor stated that the said statement was got recorded under some duress or coercion. The fact that the confessional statement of the accused recorded by the Magistrate, Ext. Ka. 10, is corroborated by the circumstances of the case as well as the admission of the accused before the trial Judge that he had given the said statement before the Magistrate, in my opinion, clearly proved the guilt of the Appellant beyond reasonable doubt, specially when there is nothing on record to show that Smt. Dhokhapati was killed by someone else.

On the second question as to whether the case falls u/s 302. I.P.C. or 304, I.P.C. we find force in the contention of the Appellant''s counsel as pointed out above, the conviction is based on the confessional statement of the accused and, therefore, while considering the question of offence, it will be proper to read the whole confessional statement of the accused with the help of other circumstances which show that the accused had no intention to kill the deceased. It is not disputed that she is the wife of the accused. There is nothing on record to show that there was any enmity between the accused and the deceased or the accused had'' any motive to commit the murder of his wife. The incident took place just at the spur of the moment because the accused when returned back from the field, found his mother-in-law cooking food and the deceased was lying on the cot. The accused did not like this and lodged a protest and on this there was quarrel and grappling between the husband and wife and in the said scuffle, he lost his mental control and picked up a spade which was lying there and caused injuries to the deceased. He clearly stated in Ext. Ka. 10 as under:

Ham Dono Guttham Guttha Ho Gaye. Mujhey Bahut Gussa Aa Gaya Tha Aw Main Gussey Main Bhaley Burey Ka Khayal Bhool Gaya Tha.

This itself shows that the incident took place just at the spur of the moment and in the heat of passion when the accused lost his control and committed this crime.

Apart from this In his statement the accused further stated that he did not intend to cause any injury on the head of the deceased.According to him, due to accidental fall the spade landed on the head of the deceased and caused fatal injuries.

In the instant case, it is difficult to hold that the accused intended to cause the particular Injury which was sufficient in the ordinary course of nature to cause death, therefore, we are of the opinion that conviction and sentence of the Appellant u/s 302, I.P.C, is not sustainable. The facts mentioned above themselves show that it was a sudden quarrel without any premeditation. The accused lost his temper and in the heat of passion picked up a spade lying there and gave some blows to the deceased. This also proves that the accused did not intend to cause the murder of his wife nor did he intend to cause injuries on the head of the deceased. According to him due to accidental fall the spade landed on the head of the deceased and, therefore, under these circumstances, in our opinion, the case would fall Under the exception of Section 300, I.P.C, and is culpable homicide not amounting to murder. Looking into the injuries as well as the circumstances of the case, we are of the opinion that the case falls u/s 304, Part I of the Indian Penal Code and, therefore, the conviction and sentence of the Appellant u/s 302, I.P.C, is not sustainable.

The appeal is allowed to the extent that conviction of the Appellant u/s 302, I.P.C, is set aside and the same is altered u/s 304, Part I, I.P.C. and Appellant is sentenced to ten years'' R.I. We have been informed that the Appellant has already served out more than ten years'' sentence. Therefore, we direct that the Appellant be released immediately, if he served out ten years'' sentence and not wanted in any other case.

The Office is directed to send the operative portion of the judgment to the Chief Judicial Magistrate for compliance within three days. The Chief Judicial Magistrate concerned is directed to Comply with the order and send compliance report positively within two weeks.