Vishambar vs State of Uttarakhand

Prafulla C. Pant, J.—This appeal, preferred u/s 374 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 06.04.1995, passed by learned First Additional Sessions Judge, Dehradun, in Sessions Trial No. 58 of 1993, whereby accused / appellant Vishambar has been convicted u/s 302 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.), and sentenced to imprisonment for life and also directed to pay fine of Rs. 500/-. In default of payment of which, the convict was directed to undergo further rigorous imprisonment for a period of six months.

Heard Sri Gopal K. Verma, learned Amicus Curiae for the appellant and Sri H.C. Pujari, learned Additional Government Advocate for the State, and perused the Lower Court Record.

Prosecution story in brief is that accused / appellant Vishambar got married to Smt. Bati Devi (deceased) some 12-13 years before the day of incident. The accused / appellant used to beat his wife after drinking liquor, regarding which the deceased complained several times to her brothers, but they consoled, advised and sent her back to her husband''s house. About two days before the incident, P.W.2-Mam Chand, brother- in-law of the complainant, went to husband''s house of Bati Devi (deceased) in Village Tiparpur to know about her welfare. He observed mark of injury on the person of the Bati Devi (deceased) on which he enquired about it from her. Bati Devi (deceased) did not disclose to him the real fact and only told that the mark is due to insect bite. Thereafter, on 02.04.1993, P.W.1-Rajendra Kumar (brother of the deceased) along with P.W.2-Mam Chand (brother-in-law of the complainant) and P.W.3-Prem Singh (cousin of the deceased) went to Village Tiparpur to know about welfare of Bati Devi (deceased). In their presence, at about 2.00 P.M., accused / appellant Vishambar quarreled and assaulted his wife (deceased) with a SARIA (iron rod) and murdered her. P.W.1-Rajendra Kumar, brother of the deceased, got scribed First Information Report (Ext.A-1) through one Jay Prakash (D.W.1) and gave it at Police Station Sahaspur, where on its basis P.W.6-Head Constable Suresh Chand, registered Crime No. 66 of 1993 at 4.00 P.M. on very day (02.04.1993) against accused / appellant Vishambar, relating to offences punishable under Sections 498-A and 302 I.P.C.. The investigation was taken up by Sub Inspector Hajari Prasad Kaptiyal and completed by Sub Inspector Kishan Singh Kala (P.W.4). On 02.04.1993 at about 6.00 P.M., dead body of the deceased was taken into possession by the Police and inquest report (Ext.A-2) was prepared. Documents- sketch of the dead body (Ext.A-11), sample of seal (Ext.A-12), police form No. 13 (Ext.A-13), and police form No. 33 i.e. letter to Chief Medical Officer (Ext.A-14), requesting him for postmortem examination of the dead body, were also prepared by the Police. On the next day i.e. 03.04.1993, at about 2.30 P.M., Dr. B.K. Oli (P.W.5) conducted postmortem examination on the dead body of Bati Devi and recorded as many as 13 ante mortem injuries. He found that the deceased had died due to coma as a result of multiple ante mortem injuries. The Medical Officer prepared autopsy report (Ext.A-5). After interrogating the witnesses, on completion of investigation, the Investigating Officer submitted charge sheet (Ext.A-3) for trial of accused / appellant Vishambar in respect of offence punishable u/s 304 I.P.C..

The Magistrate, on receipt of the charge sheet, after giving necessary copies, as required u/s 207 Cr.P.C., appears to have committed the case to the court of sessions for trial. On 30.06.1993, after hearing the parties, First Additional Sessions Judge, Dehradun, to whom the case was transferred, framed charge of offence punishable u/s 302 I.P.C., against accused / appellant Vishambar, who pleaded not guilty and claimed to be tried. On this prosecution got examined P.W.1-Rajendra Kumar, complainant and brother of the deceased; P.W.2-Mam Chand, brother-in-law of the complainant; P.W.3-Prem Singh, cousin of the deceased; P.W.4-Kishan Singh Kala, who completed the investigation; P.W.5-Dr. B.K. Oli, who conducted postmortem examination on the dead body of Smt. Bati Devi; and P.W.6-Suresh Chand, Head Constable, who prepared check report of the First Information Report. The oral and documentary evidence was put to the accused u/s 313 Cr.P.C., in reply to which he alleged the same was false. The accused / appellant Vishambar came up with a story that his wife fell down from the cot and received injuries. He further told that he had gone to call the doctor but by the time he came back the Police had already reached in his village and he ran away due to fear. In defence statement of D.W.1-Jay Prakash, scribe of the First Information Report lodged by complainant (Rajendra Kumar) was got recorded, who has stated that he did scribe the report but after the inquest report was prepared on 02.04.1993. After hearing the parties, the trial court found accused / appellant Vishambar, guilty of charge of offence punishable u/s 302 I.P.C.. After hearing the parties on sentence, convict Vishambar was sentenced to undergo imprisonment for life and also directed to pay fine of Rs. 500/. In default of payment of fine, the convict was ordered to undergo further six months rigorous imprisonment. Aggrieved by said judgment and order dated 06.04.1995, passed by the trial court (First Additional Sessions Judge, Dehradun), in Sessions Trial No. 58 of 1993, this appeal was filed on behalf of convict, before Allahabad High Court on 25.04.1995. The appeal was admitted by said court (Allahabad High Court) on 26.04.1995. The appeal is received by this Court u/s 35 of U.P. Reorganization Act, 2000 (Central Act 29 of 2000), for its disposal. After receipt of the record, notices were issued to appellant, who has sufficiently been served, but no one turned up on behalf of appellant, therefore, Sri Gopal K. Verma was appointed Amicus Curiae on 12.05.2009 (to assist the Court on behalf of appellant).

Before further discussions, we think it just and proper to mention the ante mortem injuries recorded by P.W.5-Dr. B.K. Oli, who prepared autopsy report (Ext.A-5). The ante mortem injuries mentioned in the autopsy report are reproduced as under:

(i) Lacerated wound 2cm x 1.5cm on right side of forehead 3cm above right eyebrow.

(ii) Lacerated wound 1cm x 1cm on right side of forehead, 2.5cm above right eyebrow, 3cm outside injury No. (i).

(iii) Contusion 5cm x 2cm on right side of face just below right eye.

(iv) Lacerated wound 2.5cm x 1cm on left side of scalp, 10cm above left ear.

(v) Lacerated wound 1cm x 1cm on left side of forehead, 2cm above left eyebrow.

(vi) Abraded contusion 4cm x 3cm on the back of upper part of right forearm, 3cm below elbow joint.

(vii) Traumatic swelling around right wrist joint in 6cm circumference.

(viii) Abraded contusion 4cm x 2cm on the back of upper part left forearm, 3cm below left elbow joint.

(ix) Traumatic swelling around left elbow joint in 10cm circumference.

(x) Traumatic swelling around left wrist joint in 6cm circumference.

(xi) Abrasion 1cm x 1cm on right side of leg on front 2cm below knee joint.

(xii) Lacerated wound 3cm x 1cm on front of middle of right leg.

(xiii) Abrasion 2cm x 2cm on left side of hip joint on left buttock. The Medical Officer at the end of the autopsy report recorded his opinion as to the cause of death. In his opinion, deceased had died due to coma on account of multiple injuries, noted above.

From the statement of P.W.5-Dr. B.K. Oli, read with autopsy report (Ext.A-5), mentioned above, it is established on the record that deceased Bati Devi has died a homicidal death. Now this Court has to see whether accused / appellant Vishambar committed murder of his wife Bati Devi or not.

P.W.1-Rajendra Kumar, complainant and brother of the deceased, who is also an eyewitness has stated that some 13-14 years before Smt. Bati Devi got married to accused / appellant Vishambar. He has further stated that accused / appellant Vishambar was a habitual drunkard, who used to beat his wife Bati Devi. He has further stated that his sister used to complain him about the conduct of her husband. P.W.1-Rajendra Kumar has further stated that about 2-3 days before the day of incident his brother-in-law Mam Chand (P.W.2) and Prem Singh (P.W.3) were asked by him to go to the husband''s house of Bati Devi to know her welfare. They reported that Bati Devi is being beaten by her husband. On this, on 02.04.1993, P.W.1-Rajendra Kumar along with his brother-in- law Mam Chand and Prem Singh (P.W.3) went to the house of husband of Bati Devi. They reached there at about 2.00 P.M.. The witness has further stated that in their presence accused / appellant Vishambar gave beating to his wife (Bati Devi), and when they attempted to get catch hold of him he ran away. P.W.1-Rajendra Kumar has further stated that his sister Bati Devi succumbed to injuries in his presence on the spot. The witness has further stated that he disclosed about the incident to Village Pradhan and thereafter got scribed the First Information Report through Jay Prakash (D.W.1), and lodged the same with Police.

P.W.2-Mam Chand, has corroborated the prosecution story narrated by P.W.1-Rajendra Kumar that accused / appellant Vishambar used to beat his wife Bati Devi, after getting married with her. He has further corroborated the fact that two days before the incident, he had gone to see the deceased. The witness has further corroborated that when on 02.04.1993 he along with P.W.1-Rajendra Kumar and P.W.3-Prem Singh went to see the deceased she was beaten by her husband, who ran away after killing her. P.W.3-Prem Singh, cousin of the deceased, also corroborated the prosecution story in the manner narrated above. As such, there are three eyewitnesses who have corroborated that accused / appellant Vishambar has beaten his wife with SARIA (iron rod) and caused injuries due to which she succumbed to the same and died.

Learned Amicus Curiae appearing on behalf of appellant pointed out that all the three eyewitnesses P.W.1-Rajendra Kumar, P.W.2- Mam Chand and P.W.3-Prem Singh are resident of Village Ummedpur and their presence in Village Tiparpur, where the incident has occurred, is doubtful. On the face, the point raised does create some doubt as to the presence of three witnesses in Village Tiparpur and they can be said to be chance witnesses but on close scrutiny of the evidence on record, we find that their presence at the spot cannot be doubted and the testimony given by them is trustworthy. The reason for reaching to that conclusion is that soon after the incident at about 4.00 P.M. on 02.04.1993, the First Information Report (Ext.A- 1) has been lodged at Police Station Sahaspur, which is at a distance of 5 kms from Village Tiparpur, by P.W.1-Rajendra Kumar. Not only this, the inquest report (Ext.A-2) has also been prepared on the day of incident i.e. 02.04.1993, at about 6.00 P.M.. The husband (accused / appellant) has not lodged any report relating to death of his wife. However, accused / appellant Vishambar (husband of the deceased) has come up with a defence that his wife had fallen from the cot. The defence story appears to be false for the reason that there are as many as 13 ante mortem injuries on the dead body of deceased, recorded by P.W.5-Dr.B.K. Oli and there are injuries on the front side of face and forehead. There are injuries on back of forearm and there are injuries on the legs and buttocks. Such injuries (all sides) cannot be received by deceased by mere fall from a cot on the floor.

On behalf of appellant it is further argued that First Information Report is ante timed and D.W.1-Jay Prakash has stated that report was scribed by P.W.1-Rajendra Kumar after inquest report was prepared. We have gone through the statement of the defence witness and found that he does corroborate the fact that Rajendra Kumar (P.W.1) lodged the First Information Report and he scribed the report (Ext.A-1) on dictation of Rajendra Kumar. He did not protest if there was anything wrong in the report. The difference of time between inquest report and that of First Information Report is not big one which creates any reasonable doubt as to the truthfulness of the prosecution story, narrated by eyewitnesses, namely, P.W.1-Rajendra Kumar, P.W.2-Mam Chand, and P.W.3-Prem Singh. We do not find sufficient reason to hold that the First Information Report was ante timed. P.W.6-Head Constable Suresh Chand has stated that he prepared check report (Ext.A-6) on the basis of First Information Report (Ext.A-1), and made necessary entry in the general diary at 4.00 P.M..

Lastly, it is pointed out that P.W.3-Prem Singh has not witnessed accused assaulting the deceased. On careful examination of the statement of P.W.3-Prem Singh, we find that he has stated that at the time when he reached at the spot he saw accused / appellant Vishambar holding iron rod in his hand and Bati Devi (deceased) was lying in an injured condition. The witness has further corroborated that accused / appellant ran away from the scene of occurrence. As such, his testimony does corroborate the statements given by P.W.1-Rajendra Kumar and P.W.2-Mam Chand. It is not necessary for each and every witness to give word-to-word same story like a parrot.

For the reasons as discussed above, we concur with the findings recorded by the trial court that charge of offence punishable u/s 302 I.P.C. is proved against the accused / appellant Vishambar, beyond reasonable doubt. Learned Amicus Curiae, appearing on behalf of appellant, submitted that even if the prosecution story is accepted the accused / appellant should have been convicted u/s 304 I.P.C. and not u/s 302 I.P.C. Considering the number of injuries found on the person of the deceased, we are of the firm view that it is not a case of culpable homicide not amounting to murder (punishable u/s 304 I.P.C.) and the injuries on the person of the deceased read with oral testimony of the witnesses makes out it a clear case of murder (punishable u/s 302 I.P.C.). Accordingly, the appeal is dismissed. The judgment and order dated 06.04.1995, passed by learned First Additional Sessions Judge, Dehradun, in Sessions Trial No. 58 of 1993, recording conviction and sentence against accused / appellant Vishambar is affirmed. The accused / appellant Vishambar is on bail. His bail is cancelled. Lower Court Record be sent back so that the accused / appellant is made to serve out the sentence awarded to him by the trial court.