Bankey Lal vs State Of U.P.
2012 Latest Caselaw 6097 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 

 
		        Criminal Appeal  No.1368 of 2006
 
Bankey Lal, S/O Mithai Lal, 
 
R/O Village-Pandari, P.S.-Bilsanda, 
 
District-Pilibhit			 				    .........Appellant.
 
					Vs. 
 
State of U.P. 							   .....Respondent.
 

 
Hon'ble Rakesh Tiwari, J.

Hon'ble Anil Kumar Sharma, J.

(Delivered by Justice Rakesh Tiwari)

Heard Sri I.M. Khan, Raziullah Khan, appearing for the appellant, learned A.G.A. for the State, and perused the record.

This criminal appeal challenges the judgment and order dated 28.2.2006 passed by the Additional Sessions Judge/Fast Track Court No. 1, Pilibhit convicting the appellant under section 302/315/504 IPC and under section 25, 4/25 of Arms Act, sentencing him to undergo rigorous imprisonment for life and fine of Rs.10,000/- under section 302 IPC, rigorous imprisonment for a period of 07 years and fine of Rs.2000/- under section 315 IPC, rigorous imprisonment for a period of 6 months, and fine of Rs.500/- under section 504 IPC, rigorous imprisonment for a period of 02 to pay a fine of Rs.2000/- under section 25 Arms Act and rigorous imprisonment for a period of one year with a fine of Rs.500/- under section 4/25 of Arms Act in S.T. No. 621, 622 and 623 of 2003: State Vs. Bankey Lal.

Counsel for the appellant has assailed the impugned judgment on the ground that it is against law as well as facts on record; that the findings recorded by the trial court are against the weight of evidence on record; that the sentence awarded to the appellant is too severe and harsh.

The matrix of the prosecution in brief is that a written report was submitted by Smt. Shakuntala Devi wife of accused-Bankey Lal, R/O Village-Padri, P.S.-Bilsanda, District-Pilibhit who was her husband in which she averred that she was going from her maika (mother's house), in Village-Rasula Chaudhari, P.S. Fatehganj (West), District-Bareilly with her husband on his motorcycle to his house. When they reached near sugar cane field of Mool Chand son of Lekhraj at about 8.30 P.M., her husband-Bankey Lal stopped the motor cycle and said to her that she is of immoral or of licentious character and that the child in her womb is not his. Saying this, her husband fired two shots at her with country made pistol in order to kill her, but the shots did not hit her and she was able to run into sugar cane crops standing in the field. Thereafter, her husband-Bankey Lal followed her and after throwing her on the ground started piercing her body with knife. Thereafter thinking her to be dead, he ran away. On hearing the retort of firearm, and noise made by her her shrieks some person of the village arrived there and brought her to the police station where she submitted her written report of the incident praying legal action may be taken against her husband on her written report.

Head constable-11-C.P. Jagatpal Singh certified the original written report on the basis of which chick report was transcribed word to word. The FIR was lodged by the first informant/complainant-Smt. Shakuntala Devi in the police station-Bilsanda, District-Pilibhit on 18.6.2003 at about 23.10 hours which was registered at G.D. entry no. 133 of 2003 as Case Crime No. 447 of 2003 under section 307/504 IPC. The place of occurrence in the FIR is shown as 18 km. away from the place of incident. The investigation was taken up by S.I.- N.D. Shukla. Injured-Shakuntala Devi wife of Bankey Lal aged about 20 years was sent to the hospital by the police where she was medically examined and admitted.

The Investigating Officer took statement of the injured Shakuntala Devi on 19.6.2003 at about 4.45 P.M. Her dying declaration was scribed by Naib Tehsildar, Jagir Singh in presence of Medical Officer who certified that deceased is fully conscious and fit for statement as D/D which is quoted below for appreciation of the Court:

 
	"eSa 'kdqUryk nsoh iRuh ckads yky mez 20 o"kZ fuoklh iM+jh Fkkuk foylUMk ft0 ihyhHkhr c;ku nsrh gWw fd esjs ifr ckads yky us dgk fd cgu ds ?kj pyuk gS bl cgkus eq>s eksVj lkbfdy ls eq>s ysdj vk;sA jkLrs esa ,d [ksr bZ[k dk FkkA eq>s cgkus ls ys x;kA vkSj igys pknj fcNkbZ vkSj fQj pknj mBk yh rFkk pkdqvksa ls okj fd;k esjs gkFk isV rFkk lhus xnZu ij okj fd;sA fnijkfu;ka dqfV;k ls og lkFk esa reUPkk ysdj vk;s FksA ;g eq>s irk ugh pykA tc esjs mij pkdqvks ls izgkj fd;k fQj reUps ls Qk;j fd;sA rc eSus gkFk ls jksd fy;s esjs nksuksa gkFk lhuk] isV ij xEHkhj t[e gks x;s gSA fQj og Fkkus esa x;s vkSj >wBk Fkkus esa crk;k fd ywV fy;kA fQj njksxk ekSds ij vk;s rFkk njksxk th us gh eq>s mBok fy;k vkSj ifV~V;ka ca/kokbZA mUgksus Fkkus esa gh esjs ifr ckadsyky dks can dj fn;k gSA esjs isV esa cPpk Hkh gS rFkk isV ij Hkh ckads yky }kjk ykr ?kwlk ekjsA rFkk pkdw ls Hkh ?kk;y fd;kA eSa tSls rSls cp xbZ gWwA esjs ,d yM+dk 8 o"kZ dk Hkh gS mls Hkh og 'kjkc ihdj ekjrs gSA rFkk lHkh esjs ifjokj okyks dks Hkh 'kjkc ihdj xkafy;ka nsrs gSa eSa ek;ds esa gh jgrh gWwA /kks[ks ls esjs    lkFk ?kVuk dh xbZA  
 
fu0va0&'kdqUryk nsoh					g0 viBuh;
 
								19-6-03
 
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The accused is said to have been apprehended at 5.30 A.M. on 20.6.2003, on the basis of an information received by the Investigating Officer from village Bhagwatpur where he was staying in the house of his relative. From motor cycle Here Splender No. U.P.-25E-8188, on search of his person, a country made 'Tamancha' 315 bore loaded with live cartridges and a blood stained knife was recovered from the Diggi of the aforesaid motor cycle. The accused -Bankey Lal could not show licence for possessing these weapons.

On the basis of FIR, case crime no. 48 of 2003 under section 25-A of Arms Act: State Vs. Bankey Lal, and case crime no. 449 of 2003 under section 4/25 Arms Act were registered against the accused-Bankey Lal.

The Investigating Officer prepared recovery memo of blood stained and plain earth on 19.6.2003, recovery memo of sleeper and empty cartridge on 19. 6.2003. Recovery memo of blood stained cloth was also made on 20.6.2003 on the spot. The Superintendent of Police, Pilibhit vide his letter dated 6.7.2003 sent the relevant material for investigation to the State Forensic Laboratory. Thereafter, the post mortem was conducted by Dr. C.B. Chaurasia on 15.4.2005.

After the death of Smt. Shakuntala-deceased, post mortem was conducted on her cadaver by Dr. C.B. Chaurasia. The post mortem report submitted by the Medical Officer on the body of the deceased on 23.6.2003 at about 4.55 P.M. shows that deceased was aged about 25 years.

Regarding external examination of the corpse the doctor reported that she was average built with muscularity, rigour- mortis was absent in upper limbs, stoutness was present in lower limbs. No sign of decomposition, lower part of abdomen distended. Dressing was present on lower part of chest & upper abdomen. Her lungs were found congested. Right side of heart was full with blood and left side was empty. Peritoneum was found perforated underlying the injury no. 10. Cavity was found full of fluid mixed with blood. Upper part of the stomach was found punctured 2 cm x 1.5 cm with about 200 ml. greenish fluid present with small and big intestine was filled with fluid & gases.

After removing dressings, following ante mortem injuries were found:

1.Stitched wound 2 cm with 2 stitches present over left upper part of neck.

2.Stitched wound 2 cm with 2 stitches surrounded with blackening & tattooing in an area of 7 cm x 7 cm at the left Mid supra clavicle region.

3.Multiple small stitched wound present on lower part of chest 8-9 cm apart from each other in horizontal line.

4.Stabbed wound 3 cm x 1 cm on right lateral & down part of chest 17 cm. below right Nipple horizontally placed not stitched. Packing present in the wound cavity deep.

5.Multiple small stitched wounds present over left forearm front and back part.

6.Incised wound 3 cm x 1.5 cm over upper and left part of right thigh muscular deep.

7.Stitched wound 2 cm with 2 stitches over left lateral side of chest 17 cm. from left nipple vertically placed.

8.Stitched wound 2 cm x 2 stitches on left side of lower part of abdomen 21 cm lateral to the umbilicus obliquely placed.

9.Multiple abrasions present in both hands.

10. Stitches wound 2 cm with 2 stitches horizontally placed.

In the opinion of the doctor cause of death was shock due to peritonitis due to ante mortem injuries.

On submission of the charge sheet by the Investigating Officer, charge was framed by the Additional Sessions Judge/Fast Track Court No. 1, Pilibhit against the accused under section 302/315/504 IPC, who pleaded not guilty and claimed to be tried.

The prosecution produced 19 witnesses in support of its case namely Ram Krishna-P.W.1, Shanker Saran-P.W.2, Raghuveer-P.W. 3, Dr. C.B. Chaurasia-P.W.4, Dr. K.K. Sharma-P.W.5, Rajendra-P.W.6, Ram Chandra-P.W.7, Dr. Devi Lal-P.W.8, Rajveer Singh-P.W. 9, Sonpal-P.W.10, Parvej Ahmad-P.W.11, Lakhan-P.W.12, Jagat Pal-P.W.13, Dr. Bhagwan Das-P.W.14, Munesh Kumar-P.W.15, Suraj Pal-P.W.16, Parmanand Kaler-P.W.17, N.D. Shukla-P.W.18 and Ghanshyam Pal-P.W.19, whereas, the accused was examined under section 313 Cr.P.C. on 6.6.2006 wherein he denied the facts & circumstance appearing against him stating that he has been falsely implicated in the case and the proceedings by the Investigating Officer therein.

It may be stated here that the accused had also been married earlier and Smt. Shakuntala Devi was second wife.

The contention of learned counsel for the appellant is that the informant-deceased did not belong to the village-Padari Bharori, hence she could not have known that the sugar cane field in which she had been assaulted by her husband belonged to Mool Chand son of Lekh Raj; and that it is not a case which would fall under section 302 IPC, rather would fall under section 304 IPC. He submits that there was strained relation between the couple as his wife had already married before marriaging him and that he suspected that 7-8 months of foetus in her womb was not his and therefore he attacked his wife in sudden provocation who later on succumbed to the injuries, therefore, his case may be considered under section 304 IPC.

No other point has been argued.

We find from the FIR lodged by the complainant-Smt. Shakuntala Devi (since deceased) that she had given details about the manner of assault on her by her husband, accused-Bankey Lal with intention to kill saying that she is of licentious character; and that the child in her womb is not his. The deceased, before her death had also given statement/dying declaration to the Investigating Officer in presence of doctor which was scribed by the Naib Tehsildar. We have already reproduced this dying declaration in the judgment which shows that it totally matches with the version of the deceased in the written report and there is no material difference between the two.

Admittedly, the child in her womb was about 7-8 months, hence it can be safely deduced from the circumstances that Bankey Lal was aware of her pregnancy for some time and attack by him on his wife Smt. Shakuntala Devi (since deceased) with weapons carried by her husband for doing away with her was pre-planned. It was not a case of any sudden provocation as argued by the counsel for the appellant. Regard may also be had to the circumstance that due to strained relations of his in-laws with his daughter father of the deceased was not ready to send her to his in-laws' house, but the accused pressurised his father-in-law to send her with him. The offence was committed at about 8.30 P.M. in the month of June when visibility of sunlight remains till about 7.30 P.M., therefore, the offence committed by the accused after sunset in a planned manner and was not due to sudden provocation as claimed also for the reason that the accused on reaching a place of his choice near his village fired upon his wife to do away with her saying that child in her womb is not his. His case, therefore, would not fall under section 304 IPC. Moreover, the weapons used in the crime were recovered from his person. His clothes have been found stained with blood of his deceased wife. We may also note that he had gone to the police station to mislead the investigation saying that he and his wife have been victims of dacoity whom he had left in the field thinking her to be dead, but the firm version of his wife in written report brought out the truth and her dying declaration put the final nail to his coffin.

For the reasons stated above and in view of the facts and circumstances of the case, we affirm the view taken by the court below in the impugned judgment and order. Accordingly, the conviction and sentence by the court below is upheld. In result, the appeal stands dismissed.

Let a copy of this order be certified to the concerned Chief Judicial Magistrate for immediate compliance.

Dated: 18.12.2012.

RCT/

...................... Rakesh Tiwari J.

....................... Anil Kumar Sharma,J.