Sukhdeo Gaur vs State
2017 Latest Caselaw 1477 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 44
 

 
Case :- JAIL APPEAL No. - 5481 of 2005
 

 
Appellant :- Sukhdeo Gaur
 
Respondent :- State
 
Counsel for Appellant :- A.G.A.,Amit Mishra,A.C.
 
Counsel for Respondent :- From Jail,A.G.A.
 

 
Hon'ble Bharat Bhushan,J.

Hon'ble Shailendra Kumar Agrawal,J.

(Delivered by Hon. Bharat Bhushan,J.)

1. Appellant Sukhdeo Gaud has filed this jail appeal against the judgement and order dated 26.2.2004 passed by the Additional Sessions Judge (FTC) Sonbhadra in Sessions Trial No.160 of 2002 (State Vs. Sukhdeo) arising out of Crime No.396 of 2002, Police Station (P.S.) Duddhi, District Sonbhadra whereby appellant was convicted under Section 304 Indian Penal Code (I.P.C.) and sentenced to life imprisonment and a fine of Rs.1000/- with default stipulation.

2. Prosecution story in brief is that on 07.10.2002 appellant Sukhdeo arrived at his residence in drunken state and questioned his 10 years old son Vinod (informant/P.W.1) about the whereabouts of his mother deceased Udasia. The informant Vinod (P.W. 1) informed the appellant that his mother had gone to sell wooden logs. As soon as deceased Udasia arrived at the residence around 8:30-9:00 pm, appellant Sukhdeo shouted at her and also started beating her with lathi (wooden stick). Udasia sustained several injuries on her person. Two other persons, namely, 10 years old Vinod (P.W.1) and his younger sister Maiya (P.W.2) were present. They raised alarm but nobody came to rescue her mother. Appellant Sukhdeo ran away from the house. Both children were frightened and did not venture out of the house in the night. On next day, some neighbours of the village approached them but by that time Udasia had died. A report was scribed by one Ram Sakal (not examined) on behalf of 10 years old Vinod (P.W.1). The report (Ext. Ka-1) was lodged at P.S. Duddhi on 8.10.2002 at 4 pm. A chik report (Ext. Ka-2) was carved out and relevant entries were made in General Diary (G.D.)extract of which is available on record as Ext. Ka-3.

3. P.W.4 Ajai Kumar Rai, Sub Inspector (S.I.) of P.S. Duddhi commenced the investigation. He got the inquest report (Ext. Ka-6) prepared by S.I.Om Prakash Singh (P.W.5). Site plan (Ext. Ka-4) was prepared by Investigating Officer (I.O.). The statements of witnesses were recorded. The corpse of deceased was sent for postmortem.

4. The blood stained lathi (wooden stick) was recovered in presence of Ranglal Gaud and Navratna from the residence of appellant (Fard Ext. Ka-11). Blood stained earth and simple earth were also lifted by I.O. (Fard Ext. Ka-12). P.W. 6 Dr. U.P. Pandey conducted autopsy on 9.10.2002 on the cadaver of deceased and following injuries were found as per postmortem report (Ext. Ka-13):-

"1. Lacerated wound 3cmx 0.8cmx0.6cm over tempora occipital region head 8cm above right ear.

2. Lacerated wound right arm 1cmx1 cmx 5 cm above elbow lateral aspect.

3. Lacerated wound left elbow 4cmx2cmx1cm lower and humerus fractured.

4. Lacerated wound over leg anterior 2cmx3cmx15cm below knee joint right.

5. Lacerated wound 2.5cmx3cmx14cm below knee joint right blooded feet.

6. Contusion swelling back of chest right 8cmx2cm just below lower angle of scapula.

7. Contusion swelling 10cmx2cm on back of chest right 6cm below lower angle of scapula."

5. On 16.10.2002 appellant Sukhdeo was arrested and a charge sheet (Ext. Ka-5) under Section 304 IPC was submitted against the appellant. The then Sessions Judge, Sonbhadra framed charge against the appellant under Section 304 IPC on 21.12.2002. Appellant denied charge and claimed to be tried.

6. Prosecution adduced evidence of P.W.1, a ten years old Vinod Kumar (informant/eye witness), P.W. 2, eight years old Maiya, (eye witness), P.W. 3 constable Ashok Kumar Rai (recorded FIR), P.W.4 I.O. Ajay Kumar Rai, P.W.5 Om Prakash Singh (conducted inquest proceedings) and P.W.6 Dr. U.P. Pandey (conducted autopsy). The statement of appellant was recorded under Section 313 Cr.P.C. wherein he denied all allegations and claimed false implications due to unknown reasons. The then Additional Sessions Judge (FTC) Sonbhadra was satisfied with the prosecution evidence, therefore, convicted the appellant under Section 304 IPC and sentenced him to life imprisonment and a fine of Rs.1000/- with default stipulation vide judgment and order dated 26.2.2004 which is under challenge before this Court.

7. Heard Sri Amit Mishra, learned Amicus Curiae and Sri Rajeev Sharma, learned A.G.A. on behalf of State.

8. Learned amicus curiae has argued that only two children have been produced by prosecution in support of their allegation. No other independent witness of vicinity has been produced. Submission is that these child witnesses have been tutored. Argument is that testimony of both witnesses suffers from significant discrepancies.

9. On the other hand, learned A.G.A. has submitted that the incident occurred inside the house. Only four persons were present. Appellant Sukhdeo killed his own wife in the night at about 8:30-9:00 pm. Therefore, the presence of both witnesses on the spot is natural and trustworthy. The minor discrepancies indicated by defence are on account of the tender age of witnesses.

10. We have carefully perused all material on record and we are convinced about the presence of both witnesses inside the house at the time of incident. Both P.W. 1 Vinod and P.W. 2 Maiya were naturally present inside the house with their parents. Their presence at the time of incident at about 9 pm cannot be doubted. It is pertinent to point out that appellant Sukhdeo is father of both witnesses. Therefore, it is virtually impossible for them to implicate their father falsely and spare the real culprits.

11. There is no dispute that deceased Udasia died inside the house after sustaining several lacerated wounds on her person. The medical report indicates that deceased sustained injuries on her hand, elbow, knee, leg, scapula and on the temporal region. P.W.6 Dr. U.P. Pandey has opined that these injuries were possibly caused by lathies (wooden stick) which is consistent with the ocular testimony of both witnesses.

12. The inquest report as well as evidence of P.W.6 Dr. U.P. Pandey have clearly established the homicidal death of deceased Udasia. The inquest proceedings were conducted on next day i.e. on 08.10.2002. The cadaver was found in the courtyard of their residential house.

13. It is pertinent to point out that blood stained lathi (Fard Ext. Ka-11) was also recovered from the place of occurrence. The fard indicates that the blood stained lathi was found near the cadaver of deceased. Similarly, the blood soaked earth and simple earth (Fard Ext. Ka-12) were also lifted from the place of occurrence which further reinforces the prosecution case that deceased was done to death inside the house. Site plan (Ext. Ka-4) also reinforces the prosecution allegation. It is therefore, apparent that deceased Udasia was done to death inside the house by use of blunt object which is consistent with the claim of eye witnesses that lathi (wooden stick) was used to beat the deceased which ultimately resulted in her death.

14. As for as core of incident is concerned, it has been proved by trustworthy evidence of Vinod (P.W.1) and Maiya (P.W.2). However, these child witnesses were first tested by the trial judge. The Trial Judge, thereafter concluded that both witnesses were competent to testify. Both these witnesses have testified that their mother deceased Udasia was brutally beaten by their father appellant in drunken state. No one tried to intervene despite their cries. The testimony of P.W. 1 Vinod is quite natural, trustworthy and consistent with the prosecution evidence. Despite intense and searching cross examination nothing adverse could be extracted.

15. Similarly P.W. 2 Maiya younger sister of P.W.1 Vinod also testified that her mother was brutally beaten by her father-appellant Sukhdeo and that; her mother sustained significant injuries on the person which ultimately resulted in her death. There are some contradictions in the statement of P.W. 2 Maiya but we believe that considering her age these discrepancies can be ignored. The Trial Judge has also discussed these discrepancies and concluded that these 7-8 years old child witness was little bit confused at the time of cross examination in the intimidating atmosphere of the courts but the Trial Judge also concluded that over all her testimony has established the guilt of appellant Sukhdeo. We have no reason to conclude otherwise.

16. We have carefully examined the testimony of these two witnesses and we believe that despite the presence of some minor discrepancies, their testimony can be accepted for establishing the guilt of appellant.

17. The argument was raised that FIR was ante-timed but there is nothing on record to support this claim. The incident occurred on 7.10.2002 at about 8:30-9:00 pm. The FIR was lodged on next day i.e. on 8.10.2002 at about 4 pm. The inquest report and the relevant documents prepared at the time of investigation all contain crime numbers. Fard Ext. Ka-11, Fard Ext. Ka-12 and inquest report (Ext. Ka-6) reflect the crime number and details of the crime. The extract of G.D. (Ext. Ka-3) also reflects the presence of P.W.1 Vinod and scribe Ram Sakal at the time of lodging the FIR. We are convinced that FIR was indeed lodged at the time shown in prosecution documents and there is no evidence to suggest that it was ante-timed. We are also satisfied with the eye witnesses account rendered by P.W.1 Vinod and P.W.2 Maiya. There is no evidence on record to suggest that some other persons were also present in the house at the time of incident. The evidence suggest that appellant Sukhdeo disappeared from the place of occurrence leaving his infant children at home. No explanation has been given for this disappearance by the appellant. This disappearance from the place of occurrence leaving the cadaver of his wife at the place of occurrence with two infant child is a relevant fact under Section 8 of Indian Evidence Act 1872. It was incumbent upon the accused to explain his disappearance from the place of occurrence but he has furnished no explanation.

18. We have carefully examined all material on record. We believe that prosecution has established the guilt of appellant Sukhdeo by trustworthy evidence.

19. As for as the punishment of appellant is concerned, it is apparent that admittedly he was in drunken state at the time of incident. The evidence also reveals that he was probably unemployed. The evidence further indicates that appellant belong to a very weak, economical and social segment of society. We also believe that deceased Udasia perhaps died on account of lack of medical treatment. She sustained injuries in the night of 7.10.2002 in P.S. Duddhi district Sonbhadra which is one of the most backward area of Uttar Pradesh. Medical facilities, even today are virtually non existent in that area. Two children could not arrange medical treatment to the mother. Unfortunately, neighbours did not render any help at the time of incident. Either the neighbours did not hear the cries of children or perhaps were not inclined to intercede in domestic affairs of appellant. Whatever may be the reason, the facts do indicate that appellant perhaps was not keen to murder his wife.

20. Section 304 IPC contemplates two punishments. A punishment for imprisonment for life or imprisonment for either description for a term which may extend to ten years. Appellant has already spent more than a decade in jail. His incarceration left his children without any parental care. Mother has already died. We believe that a sentence of 10 years will meet the ends of justice. The Trial Judge has also imposed fine of Rs.1000/-. The full Bench of this Court in Sukhdev Vs. State of U.P. reported in 2017 (4) ADJ 140 has held that imposition of fine is not necessary in such cases. We therefore, affirm the conviction of appellant in this case.

21. Accordingly, while upholding the judgment on conviction, the order of learned trial court is modified to the extent of reducing the sentence imposed upon the appellant from life imprisonment and fine to the imprisonment of 10 years only.

22. The appeal is thus partly allowed.

23. The appellant has reportedly spent more than 10 years in jail, therefore, he should be set at liberty forthwith, if not required in any other case.

24. Let a copy of this order be sent to concerned Court through Sessions Judge, Sonbhadra for compliance within ten days. The concerned court will report compliance to this Court within a month thereafter.

25. Sri Amit Mishra, learned Amicus Curiae has assisted us very diligently. Office is directed to pay honorarium to Sri Amit Mishra in accordance with rules of the Court.

Order Date :- 31.5.2017

Meenu