Sanjay Kumar Alias Sanju vs State of Himachal Pradesh

Surinder Singh, J.—The appellant, in this appeal challenged his conviction and sentence for the offences punishable u/s 302 of the Indian Penal Code for the alleged murder of his wife Sita Devi, passed by the learned Additional Sessions Judge (Fast Track Court) in Sessions Trial No. 13 of 2007, decided on 20th/27th August, 2007, whereby he was sentenced to undergo life imprisonment and to pay a fine of Rs. . 20,000/-, in default of payment of fine, to further undergo imprisonment for one year. Further, the period either in police or judicial custody was set off, giving benefit of Section 428 of the Code of Criminal Procedure. Shorn off unnecessary details, relevant facts for deciding the present appeal are that in the year 1991, deceased was married to the appellant, hereafter referred to as "the accused". From this marriage, she gave birth to two daughters and a son. The accused was a liquor addict, sitting idle, doing nothing. The entire burden was on the deceased to look after and rear up the family. At times, the accused is stated to have given beatings to the deceased. Earlier she had made complaint to her parents on her visit, but ultimately the accused effected compromise, even a criminal case was registered u/s 325 of the Indian Penal Code, which was also compromised.

(ii) The tragedy is that on 10th June, 2006, the deceased was observing fast on account of ''Karva Chauth'' to pray the longevity of life of her appellant-husband. Around 8.30 p.m. when the moon appeared in the sky, while going up-stairs to offer water (Arg), to the Moon, on the way she came across the accused-husband, who was under the influence of liquor and started giving her kick and fist blows mercilessly and dragged her down and pushed her inside the room on the first floor of the house and again gave beatings with a ''Danda'' Ext. P1, which was lying there. Her children raised alarm. The co-villagers reached the spot. The wife of the accused was lying on the bed. Fresh blood was oozing out from her head injury. They provided milk to her and left the place. Perhaps this was a usual scene for them.

(iii) As per the case of the prosecution, next morning around 5 a.m., the deceased shouted for her son twice or thrice, but he did not get up. Though the accused was inside the house, but he also did not respond rather left the house. When the daughters of the accused found that their mother was not getting up, they informed villagers, who found that she was dead, accordingly, Pradhan of the Gram Panchayat was informed, thereafter the FIR Ext. PW11/A was got registered.

(iv) Police visited the spot. There was no life in the body. Sita Devi was dead lying on the bed. The accused was not there. He was in the house of his sister in village Kachyari. Police apprehended him and was brought to the place of incident. Photographs of the dead-body were taken. Inquest papers Ext. PW3/A were prepared and dead-body was sent for autopsy.

(v) The postmortem of the dead-body was conducted on 11.10.2006 by PW3 Dr. Jagdish Rana. He noticed the following injuries on her person:-

Bruise 3''x3'' cm blushed coloured was present on right eye.

Bruises 4x4 cm bluish coloured on the left eye and left temporal region and 4x4 cm on left T.M. joint.

Bruise 3x1 cm bluish coloured on left bicep region.

Bruise 3x2 cm on left Asis.

Multiple bruises measuring 1x4 cm on left infra clavicular region.

Multiple bruises measuring 1x4 cm on left lower limb.

Bruise on right forearm on the dorsal aspect.

On dissection of skull skin (scalp). Subcutaneous haemotoma was present on B/L frontal region. Subcutaneous haemotoma was also noted on left temporal region. On dissection of skull. Haemotoma with lacerated was found on B/L fronto parietal region of brain. On further dissection of haemotoma clotted blood was found bilaterally on the fronto tempro parietal region. Dissection of chest showed in the infra clavicular region on left side haemotoma 6x6 cm present in the subcutaneous region. On its further dissection ribs and lungs were found pale and normal."

(vi) In the opinion of the doctor, the death was due to multiple injuries sustained in the brain. He issued the postmortem report Ext. PW3/C. He opined that the anti-mortem injuries could be caused with ''Danda'' Ext. P1. The probable time between death and postmortem was 6 to 24 hours.

(vii) During investigation, police prepared the site plan Ext. PW7/A, recorded the statements of the witnesses and took into possession Danda Ext. P1, a piece of Khind (mattress) Ext. P7, Shirt Ext. P8 containing blood stains vide memo Ext. PW6/A.

(viii) The viscera was preserved and sent for forensic examination. Though it did not contain any poison, but Danda as well as wearing apparels of the deceased contained the substance of human blood of Group ''O". The Forensic examination report is Ext. PA. Clothes of accused taken in possession vide memo Ext. PW6/B also contained blood stains of the same group as of the deceased.

After completing the investigation, the challan was presented in the Court for the trial of the accused. He was accordingly charge-sheeted for the offence of murder u/s 302 of the Indian Penal Code, to which he pleaded not guilty and claimed trial.

To prove its case, prosecution heavily relied upon the statement of PW1 Jyoti, minor daughter of the accused, who was an eye witness of the alleged occurrence, the statement of the doctor and other witnesses in support thereof besides the official witnesses.

The accused was also examined u/s 313 of the Code of Criminal Procedure. He admitted his presence in the house on the day of alleged occurrence and also that his deceased wife was on fast on account of ''Karva-Chauth''. According to him, around 8 p.m., she went up stairs to offer water to the Moon, while doing so, she fell down and sustained injuries and he did not give beatings to her. He further stated that Sumna and Tulsi reached the spot and provided milk to her and she refused to go to the doctor on the pretext that she would be alright, thereafter they went to sleep. He also stated that in the morning around 5.30 a.m., he woke-up on the call of his wife alongwith his son and daughters and noticed that she was dead. He denied that he had also earlier given beatings to her and a case u/s 325 of the Indian Penal Code was registered on 23.7.2000 against him which was later compromised. But he stated that it was the result of some misunderstanding. Further according to him, the deceased used to distil illicit liquor for which he objected to thus because of this reason, a case was planted against him.

When called upon to enter into his defence, he examined his another daughter Ms. Shilpa Devi (DW1) to support his version that while going upstairs, she fell down and sustained injuries. In cross-examination, she had stated that she had suffered only one injury. Importantly, she had deposed whatever was told by her grand-mother and uncle, accompanying her and that she did not know whether on the day of alleged incident Tulsi had visited their house during the night. She also stated that when her mother had died, the accused was not there and did not return thereafter, but was brought by the police on the same day.

The version as propounded by the defence that Smt. Sita Devi had died on account of fall was disbelieved by the learned trial Court, but however while believing the statement of PW1 Jyoti coupled with the statement of the doctor and other witnesses, convicted and sentenced the accused as aforesaid, hence the present appeal.

Shri Vinay Thakur, learned counsel for the accused vehemently argued that the defence as alleged by the accused stands probablised and accused deserves to be acquitted. In alternative, he argued that at the worst, it could be a case of "culpable homicide" not amounting to murder, punishable u/s 304 and not of "murder" punishable u/s 302 of the Indian Penal Code.

On the other hand, Shri D.C. Pathik, learned Additional Advocate General has supported the impugned judgment of conviction and sentence and further ventilated that the statement of DW-1 Shilpa is totally a tainted version given under the pressure of her uncle and grand-mother, whereas, PW1 Jyoti the only eye witness has categorically supported the case of the prosecution, which is duly supported by the medical evidence. It is also argued that even prior to the alleged incident, a case of torture, mal-treatment and causing fracture to the deceased was registered against the accused which was later on compromised by the accused. It is also argued that the accused wanted to get rid of his wife as she used to tell him not to sit idle and take liquor, but to do some work to support the family. The evidence in the instant case is enough and reliable to sustain the conviction and sentence of the accused for the offence of murder.

We have heard the learned counsel for the parties and have meticulously examined the evidence adduced by the prosecution as also the accused in the light of his explanation given u/s 313 of the Code of Criminal Procedure and the defence evidence.

Admittedly, the accused was present on the day of alleged incident in his house. The prosecution story is that he was drunk and the deceased was on fast on that day. According to PW1 Ms. Jyoti, her accused father used to remain idle and to take liquor at home and kept sleeping, whereas, her mother had been telling him to earn something for them. She further stated that the deceased while going upstairs around 8.30 p.m. to worship the moon on the occasion of ''Karva Chauth'', the accused gave kick and fist blows to her on the first floor (Bohad), then dragged her downstairs to the bed-room where she was again given beatings with ''Danda'' and suffered injuries on whole of the body, head and face etc. She fell on the bed with the face downward, on this, she (PW1) cried loudly for help. Their neighbour Tulsi, Sumna, Suti and PW15 Ram Swarup reached the spot. She further stated that the deceased did not take anything but later Gudu and Sumna provided milk to her. Thereafter, she went to sleep and other villagers left the house. Next morning around 5.30 a.m., deceased called her brother twice or thrice thereafter fell unconscious. Her father was also there. Thereafter, she (PW1) went to provide fodder to animals. On her return, she found that the accused had left the house. In the meantime, PW6 Sushil Kumar, Pradhan had come there. By that time, her mother was dead. She identified the wooden piece Ext. P1 (Danda) by which the accused had given beatings to her mother.

In cross-examination, she denied that her grandmother and uncle were not permitted by the police to speak to her despite making 2-3 attempts, but however, she stated that she came to the Court for making her deposition, she remained with them and was sitting with her grandmother. She denied that Sumna had asked her mother to go to hospital for medical aid to which she refused. She also denied that her mother had a sudden fall from the stairs. She stated that her accused father did not cultivate the land and it was only her mother, who had been cultivating the land. She denied that the deceased used to distil illicit liquor. She further denied that she was a tutored witness.

PW6 Sushil Kumar, Pradhan stated that he was informed telephonically by Jai Singh in the morning of 11.10.2006 to visit the house of accused as the daughter of the deceased informed him that her mother was not getting up. He visited the house of the accused and informed police. The accused was not present in the house at that time. He went to trace him out and found him in the house of his sister at Kachyari. Police arrested him from that place. During investigation, a wooden piece Ext. P1 was recovered by the police from the spot containing blood stains alongwith other articles, to which he identified during the trial of the case. In cross-examination, he stated that he had reached the house of the accused around 6.30 a.m. He also stated having prepared the sketch map of Danda Ext. P1 by the police on the spot, which was sealed with seal impressions ''T'' and ''H''. The recovery memo was attested by him. However, he denied that the injuries were sustained by the deceased by a fall.

PW7 Kamla Devi is a witness of the inquest papers, whereas PW4 Bony Kumar is brother of the deceased and PW5 Raghu Devi was examined with respect to the earlier incident and compromise thereof. PW5 categorically denied that the deceased used to distil illicit liquor to which the accused had objected.

PW8 Joginder is a neighbour of the accused. He was declared hostile and stated that the deceased used to distil liquor, but stated that inter-se relationship between accused and the deceased were cordial. In cross-examination conducted by the learned Public Prosecutor, he admitted that whenever the accused had given beatings to the deceased, she used to go to her parents house. Once he also accompanied the accused to the house of his inlaws to bring his wife and compromise was also effected in writing. Therefore, by his statement we can make out that all was not going well inter se the accused and deceased.

PW9 Tulsi Ram corroborates the version of PW1 Jyoti. He specifically stated that on the day of alleged incident around 9 p.m., he was called her to intervene as her parents were quarreling with each other. He went there and saw that the deceased was lying down like a dead body with fresh blood on her nose. She was unable to speak. The accused was sitting besides her on the bed. On being asked, the accused had told him that he had dealt a ''Danda'' blow to her. Even prior to the said incident according to him, they had been quarreling with each other. In cross-examination, he was confronted with his statement Ext. DA recorded u/s 161 of the Code of Criminal Procedure wherein it was not mentioned that the daughter of the deceased named Jyoti had requested him to intervene and further that when he visited the house of the accused, he was found absent, are insignificant contradictions.

PW15 Ram Swarup had also visited the house of the accused when the deceased was lying on the bed. Fresh blood was oozing out of her nose. According to him, PW1 Jyoti had provided milk to her to which she took. He was declared hostile, he stated that the deceased told them that she was alright. But however, in cross-examination conducted by the learned Public Prosecutor admitted that Jyoti had cried for help when the accused was beating to her mother. On this, Suti and Tulsi Ram reached the spot. He denied in cross-examination that the deceased suffered injuries by fall from the stairs.

PW16 is Jai Singh. Though he was declared hostile, but stated that on earlier occasion, accused had broken a teeth of the deceased. PW17 is SI Duni Chand, who has investigated the case.

The scrutiny of statements of hostile witnesses also do support the prosecution case in material particulars.

Further, on the critical examination of the aforesaid evidence, we find the defence raised quite unbelievable which otherwise also could not be probablised. The statement of PW1 Jyoti is confidence inspiring and stands fully corroborated in its material particulars by other evidence on record. There is consistency in her evidence and can safely be relied upon. Since it was a regular phenomenon in the family of accused, therefore the cop-villages did not take it seriously. The accused at that time of alleged incident was drunk, when the deceased was in the process of offering water to the Moon and going upstairs, she was confronted by him and gave kick and fist blows as stated by PW1 Jyoti and dragged her to the bed-room where she was given a Danda blow. The danda Ext. P1 was recovered from the spot, which was blood stained and sealed in the presence of the witnesses aforesaid and sent for analysis. It contained the same blood group as that of the deceased, which means that it was used by the accused to commit the offence.

The Doctor opined that the injuries in question could be caused by the Danda aforesaid. He categorically ruled out the possibility of sustaining the injuries by a fall from the stairs, because most of the injuries were on the left side of the body, but admitted that had the deceased been given an expertise medical treatment between 8.30 p.m. On 10.10.2006 to 11.10.2006 her life could have been saved. According to PW9 Tulsi Ram, who was called by PW1 Jyoti, immediately after the incident and the accused admitted having given a Danda blow to her. Therefore, in these circumstances, it cannot be said that the accused has committed no offence. He is proved to have given Danda blow on the head of the deceased and the doctor opined that she died because of the injuries on the brain. Out of the injuries noticed by the doctor during her postmortem, there was only one injury on the left temporal region which caused subcutaneous haemotoma with lacerated tissue, whereas other injuries were on other parts of the body were simple in nature.

This brings us to the crucial question as to which the appropriate penal provision could be applied in this case. "Culpable homicide" is the genus and "murder", its specie. All murder is culpable homicide, but not vice versa. Speaking generally, "culpable homicide" sans special characteristics of "murder" is culpable homicide not amounting to murder. For the purpose of fixing punishments, proportionate to the gravity of the generic offence, Indian Penal Code practically recognizes three degrees of culpable homicide. The first may be called, "culpable homicide" of the first degree. This is the gravest form of "culpable homicide", which is defined in Section 300 as murder. The second may be termed as "culpable homicide" of the second degree. This is punishable under the first part of Section 304. Then, there is "culpable homicide" of the third degree. This is the lowest type of "culpable homicide" and the punishment provided for it is also the lowest among the punishments provided for the three grades. "Culpable homicide" of this degree is punishable under the second part of Section 304.

Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It is sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons being caused from him imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid. Broadly these are the guidelines which facilitates our task.

In view of taking, the totality of the evidence discussed above, into consideration and the special features noticed, in our considered opinion, the accused has committed the offence of "culpable homicide not amounting to murder" for the offence punishable u/s 304 Part-I and not the murder punishable u/s 302 of the Indian Penal Code, because the accused had caused such bodily injuries on her head which was likely to cause her death, as such, we convert the conviction of the accused from Section 302 to 304 Part-I of the Indian Penal Code having found him guilty for the said offence. As such, without disturbing the fine and default clause, he is sentenced to undergo rigorous imprisonment for a period of ten years. The period either in police or judicial custody shall be set off against the sentence awarded to the accused as per the provisions of Section 428 of the Code of Criminal Procedure. Since the accused is in jail, serving out the sentence, the learned trial Court shall accordingly send an amended jail warrant to the Superintendent of the concerned jail in conformity with the judgment of this Court. The matter stands disposed of.