Smt. Rekha vs State Of U.P.
2017 Latest Caselaw 1659 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										A.F.R.
 
Court no. 40
 

 
Case :- CRIMINAL APPEAL No. - 4284 of 2008
 

 
Appellant :- Smt. Rekha
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- S.M. Pandey,Anil Srivastava,Bhaskar
 
Bhadra,G.R.S. Pal,P P Singh Rathore,R.P.S.Chauhan,R.S. Tripathi
 
Counsel for Respondent :- Govt. Advocate,Chandrajeet Singh
 

 
Hon. B.K. Narayana, J.

Heard Miss Shweta Pandey, Amicus Curiae for the appellant and Sri Sagir Ahmad, learned A.G.A. for the State.

This criminal appeal has been filed by the appellant Smt. Rekha against the judgment and order dated 9.7.2008 passed by the Additional Sessions Judge/F.T.C. Court no. 3, Budaun in S.T. No. 767 of 2006 (State vs. Smt. Rekha), arising out of Case Crime no. 133 of 2006, under Section 304 I.P.C., P.S. Jarif Nagar, district-Budaun, by which the appellant has been convicted and sentenced to 10 years R.I. and a fine of Rs. 10,000/- and in default of payment of fine 2 years additional imprisonment.

According to the prosecution story as spelt out in the written report of the occurrence (Ext.Ka-1) lodged by PW1 informant Brahm Singh at police station-Jarif Nagar, district-Budaun on 23.3.2006 at about 11:10 A.M. and later testified by the prosecution witnesses of fact examined during the trial is that the informant Brahm Singh was resident of village-Madarpur, police station-Jafar Nagar. His elder son Shivraj aged about 20 years was living with his wife Rekha and his one year old child in his old house. On 23.3.2006 at about 4 A.M. he heard shrieks of his son and daughter-in-law quarreling with each other loudly over some issue. On hearing the noise his younger brothers Bhallu and Bhoore also reached near the room of the informant's son and found that its door was bolted from inside. It appeared that they were quarreling with each other over the issue of bringing medicines for their ailing child. While arguing with each other both started scuffling and the accused Rekha lifted the spade which was lying inside their bedroom and in a heat of passion dealt repeated spade blows to his son Shivraj on his face and neck causing injuries to him on account of which he fell on the ground. The informant took his injured son for treatment to Budaun. However, before reaching Budaun his son Shivraj succumbed to injuries at about 9 A.M. After the death of his son the informant brought his dead body back to his village and after leaving it there he went to police station to lodge the F.I.R. of the incident.

On the basis of the written report of the occurrence (Ext.Ka-1) lodged by PW1 informant Brahm Singh, Case Crime no. 53 of 2006 was registered at police station-Jarif Nagar, district-Budaun under Section 304 I.P.C. against the appellant. Chek F.I.R. (Ex.Ka-3) and the relevant G.D. entry vide Rapat no. 21, time 11:10 A.M., dated 23.3.2006 (Ext.Ka-4) were prepared. The investigation of the case was entrusted to PW6 S.I. Putan Singh who visited the place of occurrence and after conducting the inquest of the dead body of the deceased Shirvaj, prepared the inquest report Ex.Ka-5 and other documents, photolash. Ex. Ka-6, impression of specimen seal Ext.Ka-7, challanlash Ext.Ka-8, letters addressed to RI and CMO Ex. Ka-9 and Ex.Ka-10. Thereafter he collected plain and blood stained earth and pieces of blood stained mattress from the place of incident and prepared recovery memo of the aforesaid articles. After completing the inquest he got the dead body of the deceased sealed and dispatched to the district hospital for conducting the post mortem. The post mortem of the cadaver of the deceased was conducted by PW4 Dr. A.K. Verma on 23.3.2006 at about 5:30 PM who also prepared the post mortem report (Ex. Ka-2) of the deceased.

PW4 Dr. A.K. Verma had noted following antemortem injuries on the dead body of the deceased :-

"01& dVk gqvk ?kko ftldk vkdkj 6 lseh- X 0-5 lseh- X gM~Mh rd xgjk] tks fd ck;ha rjQ flj esa o HkkSag ds vanj dh rjQ] yxHkx HkkSag ds Åij FkkA foPNsnu djus ij ik;k fd ekWl isf'k;kW jDr okfgfu;kW o uCt raf=dk,W dVh gqbZ FkhA uhps dh gM~Mh ¼flj dh½ VwVh gqbZ Fkh rFkk fnekWx dh f>Yyh rFkk fnekWx dk fV'kw QVk gqvk Fkk rFkk tek gqvk [kwu ekStwn FkkA

02& dVk gqvk ?kko 7 lseh- X 0-5 lseh- gM~Mh rd xgjk] tks ck;h rjQ ekFks ij Fkk o 2 lseh- uhps pksV la0 1 ls FkkA foPNsnu djus ij ik;k fd jDr ofgfu;kW uls rFkk ekWl isf'k;kW QVh gqbZ Fkh rFkk gM~Mh fV'kw QVk gqvk Fkk vkSj tek gqvk [kwu ekStwn FkkA

03& dVk gqvk ?kko 5 lseh- X 0-5 lseh- tks ukfldk ¼ukd½ ds e/; nkfguh rjQ FkhA tek gqvk [kwu ekStwn FkkA

04& dVk gqvk ?kko 2 lseh- X 1 lseh- X ekWl isf'k;ksa rd xgjk vkjikj dVk gqvk ukd ds vxys fgLls ls Åij okys gksB ls Åij dh rjQ Fkk] vkSj Åij dk tcM+k VwVk gqvk FkkA

05& cgqr ls dVs gq, ?kko 13 lseh- X 10 lseh- psgjs ds ck;h rjQ Fks] tks fd dku] Åij ds tcM+s rFkk uhps ds tcM+s ij FksA budk vkdkj 2 lseh- X 0-5 lseh- X gM~Mh rd xgjs FksA budk foPNsnu djus ij ik;k fd ekWl isf'k;kW] jDr okfgfu;kW rFkk raf=dk,W dVh gqbZ Fkh vkSj Åij ds tcM+s dh gM~Mh rFkk uhps ds tcM+s dh gM~Mh VwVh gqbZ Fkh vkSj tek gqvk [kwu ekStwn FkkA

06& dVk gqvk ?kko 12 lseh- X 6 lseh- ck;sa da/ks ds Åij rFkk ckgj dh rjQ ck;h Hkqtk ij Fkk] ftudk vkdkj 3 lseh- X 0-5 lseh- X ekWl isf'k;ksa rd xgjk rFkk 2 lseh- X 0-5 lseh- X ekWl rd xgjk Fkk rFkk tek gqvk [kwu ekStwn FkkA "

After completing the investigation the Investigating Officer submitted charge sheet Ext.Ka-16 against the accused-appellant Smt. Rekha under Section 304 I.P.C. before the Chief Judicial Magistrate, Budaun.

Since the offence mentioned in the charge sheet (Ext.Ka-16) submitted against the accused was triable exclusively by the court of sessions, the Chief Judicial Magistrate committed the case for trial of the accused to the court of Sessions Judge, Budaun where the same was registered as S.T. No. 767 of 2006 (State vs. Smt. Rekha) and made over for trial to the court of Addl. Sessions Judge/F.T.C. Court no. 3, Budaun who on the basis of the material collected during investigation and after hearing the prosecution and the accused on the point of charge, framed charge under Section 304 I.P.C. against the accused Smt. Rekha.

Accused pleaded not guilty and claimed trial.

Prosecution in order to prove its case against the appellant examined PW1 informant Brahm Singh, PW2 Bhallu, PW3 Bhurey, PW4 Dr. A.K. Verma, PW5 Shyam Pal Singh and PW6 Putan Singh as witnesses of fact.

The accused in her statement recorded under Section 313 Cr.P.C. denied the prosecution case and alleged false implication in the present case.

The accused did not examine any witness in defense.

The learned Sessions Judge/F.T.C. Court no. 3, Budaun after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the evidence on record, convicted the appellant under Sections 304 I.P.C. and awarded the aforesaid sentence to her.

Hence this appeal.

Miss Shweta Pandey, Amicus Curiae appearing for the appellant confined her submission only on one ground. She expressly gave up her challenge to the finding of the trial court, so far as the conviction of the appellant under section 304 I.P.C. is concerned.

According to learned Amicus Curiae, having regard to all circumstances which resulted in appellant's conviction and however keeping in view the facts that the appellant had already undergone the original sentence of 10 years rigorous imprisonment and is presently in jail undergoing additional imprisonment of two years on account of her having failed to pay the fine of Rs. 10,000/- awarded by the trial court against the appellant, this Court should alter the award of additional sentence of two years imprisonment under the default clause to one year two months. Learned Amicus Curiae has further submitted that section 304 I.P.C. does not provide any fixed period of additional imprisonment on account of default in payment of fine and the ends of justice will meet, if this Court allows this appeal by modifying the impugned judgment in so far as the quantum of sentence is concerned by reducing the same from 10 year imprisonment and fine of Rs. 10,000/- and in default of payment of fine 2 years additional imprisonment to that of 10 years. R.I. and a fine of Rs. 10,000/- and in default of payment of fine additional imprisonment of one year two months.

Sri Sagir Ahmad, learned A.G.A. for the State while countering the submission made by learned Amicus Curiae, submitted that having regard to the totality of circumstances emerging from the evidence and the fact that accused-appellant has committed the murder of her own husband, the award of sentence of 10 years R.I. and fine of Rs. 10,000/- together with default clause is fully justified and hence, this Court should not interfere in quantum of sentence.

Having heard learned Amicus Curiae and learned A.G.A. appearing for the State and on perusal of entire record of the case, I am inclined to allow the appeal in part finding some force in the submission made by Miss Shweta Pandey, Amicus Curiae for the appellant.

Though the learned Amicus Curiae did not make any attempt to assail the finding of appellant's conviction on merits, yet with a view to satisfy myself as to whether the finding of the court below on conviction is legally sustainable of not, I perused the record and specially the evidence. Having so perused, I am satisfied that no case is made out to interfere in finding of the trial court on merit for the following reasons.

Firstly the incident had taken place in the bedroom of the deceased Shivraj on 23.3.2006 at about 4 A.M. and at the time of occurrence only the deceased, his wife (appellant) and his son were present inside the deceased's bedroom. The first information report of the incident was lodged promptly at 11:10 A.M., despite the distance between the place of occurrence and the police station being about 8 kms. and hence there was no opportunity to the informant to concoct or fabricate a prosecution story. Secondly; PW1 informant Brahm Singh in his statement recorded before the trial court fully supported the prosecution case as spelt out in the F.I.R. on all material points relating to time, place, manner of assault and the identity of the perpetrator of the crime and his evidence was fully corroborated by PW2 Bhallu and PW3 Bhurey. Thirdly; the medical evidence on record is throughout consistent with the ocular version.

In view of the above, I uphold the finding of conviction and hold that the trial court was fully justified in holding the appellant to be guilty of committing offence punishable under Section 304 I.P.C. which caused death of her husband Shivraj.

Now, the next question arises as to whether I should reduce the appellant's sentence and if so, to what extent, as urged by the learned Amicus Curiae appearing for the appellant.

The trial court while convicting the appellant under Section 304 I.P.C. had sentenced her to 10 years R.I. and fine of Rs. 10,000/- and in default of payment of fine 2 years additional imprisonment. It is admitted amongst the parties that the accused-appellant Smt. Rekha is in jail since the date of occurrence, i.e. 23.3.2006. She has served out the original sentence of 10 years imprisonment on 22.3.2016. She could not be released on 23.3.2016 as she had failed to deposit the fine of Rs. 10,000. Thus presently she is in jail undergoing additional imprisonment of two years under the default clause and out of the aforesaid period of two years additional imprisonment she has already undergone imprisonment of 1 year 2 months and 21 days.

Having regard to the totality of the facts and circumstances of this case, I am of the considered opinion that the ends of justice would meet, if I reduce the sentence of the appellant from 10 years R.I. and fine of Rs. 10,000/- and 2 years additional imprisonment in case of default of payment of fine to that of 10 years R.I. and a fine of Rs. 10,000/- and in default of payment of fine additional imprisonment of one year and two months.

In the light of the foregoing discussion, the appeal succeeds and is allowed in part. The conviction of the appellant Smt. Rekha under Section 304 I.P.C. is upheld. However, the sentence of imprisonment of 10 years and fine of Rs. 10,000/- and additional imprisonment of 2 years in default of payment of fine, 2 years additional imprisonment is altered and accordingly is reduced to 10 years R.I. and additional imprisonment of one year and two months under the default clause. To this extent, the impugned judgement and order stands modified. Accused-appellant Smt. Rekha is in jail. She shall be released forthwith from the jail if she is not wanted in any other case, subject to her complying with the provision of Section 437(A) of Criminal Procedure Code.

There shall be however no order as to costs.

dt. 12.6.2017

Faridul.