Smt. Seema Verma vs State Of U.P.
2019 Latest Caselaw 4052 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on: 14.3.2019
 
Delivered on: 03.5.2019
 
Case :- CRIMINAL APPEAL No. - 6960 of 2018
 
Appellant :- Smt. Seema Verma
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- P.K. Singh
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Ram Krishna Gautam,J.

1. This criminal appeal under Section 374 of Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.') has been filed by convict appellant Smt. Seema Verma against the judgment of conviction and sentence made therein, by Court of XI, Additional Sessions Judge, Kanpur Nagar, Session Trial No. 434 of 2016, arising out of Case Crime No. 311 of 2016, under Sections 304, 323 Indian Penal Code (hereinafter referred to as 'I.P.C.'), Police Station Kalyanpur, District Kanpur Nagar, whereby convict appellant has been convicted for offence of culpable homicide not amounting murder, punishable under Section 304 read with Section 323 I.P.C. and has been sentenced with imprisonment of ten years rigorous imprisonment and fine of Rs. 10,000/-, and in default of making payment of fine, simple imprisonment of one year under Section 304 I.P.C. and rigorous imprisonment of one year with fine of Rs. 1,000/-, and in default of making payment of fine, three months additional simple imprisonment, under Section 323 I.P.C., with a direction for concurrent running of sentences and adjustment of previous incarceration, if any, in this case crime number, with this contention that the trial Court failed to appreciate facts and evidence, placed on record. Appellant was innocent and prosecution failed to bring on record any injury report of alleged eye-witness Suryansh Verma. Prosecution failed to produce medical report of any kind with regard to mental faculty of appellant, showing her ailment whereas injury found over person of appellant, could not be explained by prosecution. Though, the injury was proved by defence witness Dr. Anurag Rajauriya posted at L.L.R. Hospital, Kanpur Nagar. Convict appellant was convicted for offence punishable under Section 304 (Part-II) I.P.C. whereas she was sentenced with excessive punishment i.e. maximum punishment provided under Section 304 (Part-II) I.P.C. ten years whereas no minimum sentence was provided under above Section, but she was sentenced with rigorous imprisonment of ten years with fine. She, being a lady, has been convicted and sentenced resulting ruin of her family. The case, placed by prosecution, was highly improbable, which cannot be digested by a prudent man. Hence, this appeal.

2. Prosecution case, emerged from surface on record, was that "F.I.R. (Ex.Ka-1) written by Ritesh Verma, son of Prem Narayan Verma, resident of EWS-738, Awas Vikas No. 3, Kalyanpur, Kanpur Nagar, dated 26.3.2016, was presented at Police Station Kalyanpur, by Ritesh Verma by appearing at above police station, at 18:30 hours of 26.3.2016, with this contention that on 26.3.2016, at about 3:30 P.M., when informant Ritesh Verma was inside his room, at House No. EWS-738 Awas Vikas No. 3, Kalyanpur, he heard some noise at third floor, he came out and saw that his sister-in-law (bhabhi) Smt. Seema Verma, (present convict appellant) wife of Sri Neeraj Verma, was throwing her sons Suryansh and Ansh, who were nephews of this informant, from roof. He attempted to forbid but both nephews were thrown. He made alarm call and took both of them under unconscious situation, straight away at B.M.C. Hospital, Panki, where they were got admitted. But younger one Ansh was serious. Seema Verma was under mental ailment. This occurrence was reported at above police station for taking legal recourse. This report was lodged as Case Crime No. 311 of 2016, under Section 308 I.P.C. at chik F.I.R. (Ex. Ka-4), by way of entering this registration of case crime number at Report No. 49 of P.S. Kalyanpur at 18:30 hours and this G.D. entry was Ex.Ka-3. Ritesh Verma submitted report (Ex.Ka-10) at Police Station Kalyanpur, that an occurrence of throwing Suryansh and Ansh Verma by their mother Smt. Seema Verma on 26.3.2016 and injury to both of them and their admission at B.M.C. Hospital at Panki was reported at police station in the evening of 26.3.2016 at 6:30 P.M. Ansh Verma, being serious, was referred at Hallet Hospital, Kanpur Nagar, where he died during the course of treatment. Upon this information, inquest proceeding was got conducted, over dead body of Ansh Verma, by inspector in-charge police station Kalyanpur, in between 27.3.2016, 10:30 A.M. to 12:00 P.M. at mortuary of L.L.R Hospital, Kanpur Nagar, in which opinion of witnesses Neeraj Verma, Ashish Verma, Manish Shukla, Vaibhav Gupta, Ranveer Singh was of death owing to above antemortem injuries, caused by throwing from roof, during the course of treatment at Hallet Hospital and this Inquest Report (Ex.Ka-5) was prepared by Investigating Officer with a need for getting autopsy examination conducted, for which requisite papers, letter to Chief Medical Officer, Kanpur Nagar (Ex.Ka-6), specimen seal put over dead body, kept under intact and sealed position (Ex.Ka-7), photo dead body (Ex. Ka-8), Challan dead body (Ex. Ka-9), were got prepared by Investigating Officer.

3. Autopsy examination over dead body of deceased Ansh Verma, was got conducted in between 12:40 P.M. to 1:00 P.M. of 27.3.2016 by Dr. Anil Kumar and autopsy examination report (Ex.Ka-2) was got prepared under handwriting and signature of above witnesses, with mention of antemortem injury of contused swelling 30cm X 25cm over whole skull with underlying right frontal and left temporal, parietal and occipital bone fractured, resulting death of deceased. Investigation concluded with submission of charge-sheet (Ex.Ka-12), against Smt. Seema Verma for offence punishable under Sections 304 and 323 of I.P.C. Court of Chief Metropolitan Magistrate, Kanpur Nagar, took cognizance over it, vide order dated 6.4.2016.

4. Offence of culpable homicide was exclusively triable by Court of Session, hence, file was committed to Court of Session Judge, vide order dated 15.6.2017 of Chief Metropolitan Magistrate, Kanpur Nagar.

5. File was made over to Court of Additional District and Sessions Judge, Kanpur Nagar.

6. Learned Additional Session Judge after hearing public prosecutor as well as learned counsel for defence, leveled charge against Smt. Seema Verma as follows:

"मै, पुनीत कुमार गुप्ता, अपर सत्र न्यायाधीश, न्यायालय कक्ष सं०13, कानपुर नगर आप श्रीमती सीमा वर्मा को निम्न आरोपों से आरोपित करता हूँ-

प्रथम- यह कि दिनांक 26.03.2016 को समय लगभग 3.30 पी०एम० पर स्थान मकान नं० ई०डब्लू०एस० 738 आवास विकास नं०3 कल्यानपुर, कानपुर नगर में आपने अपने सामान्य आशय के अग्रशरण में अपने बेटे सूर्यांश व अंश को छत से नीचे फेक दिया, जिन्हे बेहोशी की हालत में अस्पताल ले जाया गया, किन्तु अंश की मृत्यु हो गयी। इस प्रकार आपने हत्या की कोटि में न आने वाला आपराधिक मानव वध किया। इस प्रकार आपने धारा 304 भा०दं०सं० के अन्तर्गत दण्डनीय अपराध कारित किया, जो इस न्यायालय के प्रसंज्ञान मे है।

द्वितीय- यह कि उपरोक्त दिनांक, समय व स्थान पर आपने अपने पुत्र सूर्यांश व अंश को छत से नीचे फेंक कर स्वेच्छ्या उपहति कारित किया। इस प्रकार आपने धारा 323 भा०दं०सं० के अन्तर्गत दण्डनीय अपराध कारित किया, जो इस न्यायालय के प्रसंज्ञान मे है।

एतद्द्वारा आपको निर्देशित किया जाता है कि आपका विचारण उक्त आरोप में इस न्यायालय द्वारा किया जाएगा।"

"I, Punit Kumar Gupta, Additional Session Judge, Court Room No.13, Kanpur Nagar, do hereby charge you Smt. Seema Verma, with the following charges:-

That on 26.3.2016 at about 3:30 P.M. at House No. EWS 738, Avas Vikash No. 3, Kalyanpur, Kanpur Nagar, you with furtherance of your intention had thrown your son Suryansh and Ansh from roof who were taken under unconscious state at hospital where Ansh died. Thereby, you committed offence of culpable homicide not amounting to murder punishable under Section 304 of I.P.C. within cognizance of above Court.

That you on above date time and place thrown your sons Suryansh and Ansh from roof, thereby, voluntarily caused hurt to them, punishable under Section 323 of I.P.C. within cognizance of above Court."

(English translation by this Court itself)

7. Charges were read over and explained to accused Smt. Seema Verma, who pleaded not guilty and claimed for trial.

8. Prosecution examined PW-1 Ritesh Verma, PW-2 Prem Narayan Verma, PW-3 Suryansh Verma, PW-4 Prathima Verma, PW-5 Ashish Kumar, PW-6 Dr. Anil Kumar, PW-7 Head Constable Gandharva Singh, PW-8 Investigating Officer Puspraj Singh, PW-9 Constable Ashish, PW-10 Dr. Rajiv Kanth, PW-11 Dr. Brij Mohan.

9. With a view to obtain explanation, if any, and version of accused person, her statement was got recorded under Section 313 Cr.P.C., in which Smt. Seema Verma replied that Ritesh Verma has given false evidence, she had never thrown her sons, she was implicated with a view to save his brother Neeraj. After injury to her son Ansh, she was separated from him and was locked in a room, hence, she is not aware of remaining facts. She was falsely implicated by PW-1 for having saved his brother Neeraj. She was taken by police from her home and this injury to Ansh was owing to Neeraj Verma. She was not aware of PW-11 Dr. Brij Mohan and this charge-sheet was filed under connivance of informant and his brother Neeraj i.e. husband of convict appellant. The testimony of PW-3 Surayansh was tutored one. Other witnesses were under connivance of her husband Neeraj and they have given a false statement. She has categorically said:-

"dfFkr ?kVuk dk frfFk dks eS va'k ¼cPpk½ fy, edku dh lhf<;ks ij tks thuk gS] pkSiMk ij Fkh esjs ifr us esjs lkFk lh wBh xokgh nh gSA"

"On the date of occurrence I along with my son Ansh was present at the stairs of house in question, this was without railing. My husband did assault at my neck and my son Ansh was left from my lap who fell down, suffered injuries. My elder son Suryansh was not there, he was playing out of the home and witnesses gave false statement with a view to save Neeraj Verma"

(English translation by this Court itself)

10. While asked for her version, she said:-

"esjs ifr eq>ls o esjs ek;ds okyks ls ukjkt jgrs Fks vk, fnu esjs lkFk ekjihV djrs FksA ?kVuk okys fnu esjs lkFk esjs ifr uhjt us esjs lkFk tc eSa NksVk csVk va'k xksn esa fy, Fkh] ifr uhjt us esjk xnZu ij okj dj fn;k cPpk gkFk ls NwV x;kA /kDds dh otg ls 5&6 lh s xyr Qalk;k iz'kkUr dqekj ,[email protected] bUnziky flag esjk iMkslh gS] esjs ifr ds lkFk esjs ?kj esa esjs dejs esa cSBdj vk, fnu 'kjkc ihrk FkkA esjs ifr dks 'kjkc fiyk fn;k FkkA bl dkj.k eSus dfFkr ?kVuk rkjh[k ls djhc Ms< ekg igys mls csbTtr djds vius dejs ls Hkxk;k FkkA bl dkj.k og eq>ls jaft'k ekurk gSA"

"My husband remained annoyed with me and my family members, very often used to assault me. On the date of occurrence I was with my younger son Ansh, in my lap, when my husband Neeraj gave a blow over my neck resulting Ansh fall from my la, and owing to it he fell down straight away 5 to 6 stairs down. She has not thrown her child. She was very loving to her both sons. Elder son Suryansh was playing outside and Neeraj for saving himself got her falsely implicated. Prashant Kumar son of Indrapal Singh, her next door neighbour, used to sit in her room very often and take liquor in the sharing of her husband. This was protested by her and one and half month back from the date of occurrence, he was badly expelled from the house after humiliation, which resulted this enmity and false implication as well as false testimony."

(English translation by this Court itself)

11. In defence, lady constable Mithlesh as DW-1, Dr. Anil Rajoria as DW-2 and Neeraj Verma (husband of convict appellant) as DW-3, were examined.

12. Learned Additional Session Judge, after hearing argument of learned public prosecutor and learned counsel for defence, passed impugned judgment of conviction and after hearing over quantum of punishment passed order of sentence as above, against which this appeal.

13. Culpable homicide has been defined under Section 299 I.P.C. as follows:

"299. Culpable homicide.--Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."

14. Offence punishable under Section 304 I.P.C.:-

"304. Punishment for culpable homicide not amounting to murder.--Whoever commits culpable homicide not amounting to murder shall be punished with 1[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."

15. Apex Court in Anil Rishi vs Gurbaksh Singh AIR (2006) SC 271, has held that "onus to prove a fact is on the person who asserts it. Under Section 102 of Evidence Act, initially onus is always on plaintiff to prove his case. If he discharge, onus shifts to defendant". Apex Court in Addagada Raghavamma And Anr vs Addagada Chenchamma And Anr AIR (1964) SC 136, has propounded "burden of proof and onus of proof, are two different things. Burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence". Apex Court in Kali Ram vs State Of Himachal Pradesh AIR 1973 SC 2733, has propounded that "in a criminal trial, the onus is upon the prosecution to prove the different ingredients of the offence and unless it discharges that onus, the prosecution cannot succeed. Prosecution is to prove its case beyond all reasonable doubts. Whereas accused is to prove only till establishing preponderance of probabilities. Apex Court in Shankarlal Gyarasilal Dixit vs State Of Maharashtra AIR 1981 SC 765, has held that falsity of defence does not establish prosecution case. In Narmada Prashad Vs. Shankar Lal AIR 1971 SC 393, Apex Court has held in an appeal the burden is on the appellant to prove how the judgment under appeal is wrong? He must show where assessment has gone wrong? But the Court is to consider that suspicion how so strong cannot take place of proof, as was held by Apex Court in State Of Punjab vs Bhajan Singh & Others AIR 1975 SC 258.

16. In present case, PW-1 informant Ritesh Verma, who is the real younger brother of husband of convict appellant, is resident of same house, which was place of occurrence i.e. EWS-738 Avas Vikash Sector-3, Panki Road, Kalyanpur, Kanpur Nagar and he has put criminal machinery in motion by lodging Ex.Ka-1, at police station for above occurrence. He, in his examination-in-chief, has said that on 26.3.2016 at 3:30 P.M., when he was inside his room he heard some noise at third floor, he came out of it and found his sister-in-law (bhabhi) Smt. Seema Verma, wife of Neeraj Verma, throwing her son Ansh and Suryansh from roof. He tried to intervene but till then both were thrown. He made a rescue call and took them under unconscious position to hospital at B.M.C. Hospital, Panki, where got them admitted and this occurred when his sister-in-law was of ill mental health. Meaning thereby, convict appellant was suffering with mental ailment and owing to it, she had thrown her both sons from roof to road and he, immediately, took them to hospital. But he has categorically said:-

"ml fnu eS vius edku dh rhljs eafty esa cus vius dejs esa cSBdj [kkuk [kk jgk Fkk blh nkSjku eq>s cPpks ds jksus o fpYykus dh vkokt lqukbZ nh rHkh eSus [kkuk NksM+dj vius dejs esa cus NTts ls ft/kj ls vkokt vk jgh Fkh] m/kj Åij dh vksj >kWd dj ns[kk fd esjh HkkHkh lhek oekZ vius cPps lw;kZa'k oekZ dks /kDdk nsus dh dksf'k'k dj jgh FkhA vkSj cPpk fpYyk jgk Fkk fd eSa uhps fxj tkÅaxk eEeh /kDdk u nhft, esjs fpYykus ij o jksdus ij tks ckr gks uhps crkvks vkdjA blh nkSjku mUgksus cM+s csVs lw;kZa'k dks /kDdk ns fn;k ftldh otg ls og fctyh ds rkjks esa fyiVrk gqvk uhps [kM+h eksVj lkbfdy dh lhV ij fxj x;kA blh nkSjku eSa cPps dks cpkus ds fy, uhps Hkkxk rFkk uhps vkdj ns[kk rks nwljk cPpk Hkh fxjk iM+k gqvk FkkA nwljk NksVk cPpk va'k oekZ tks uhps tehu ij fxjk iM+k Fkk vpsr voLFkk esa Fkk rFkk mldh gkyr xEHkhj FkhA"

"At about 3:30 P.M. of 26.3.2016 while I was present in my room situated at third floor and was to have meal, I heard weeping and noise of children, I left my meal, I peeped over portico of room from where noise was coming, I saw my brother Smt. Seema Verma was attempting to push her son Suryansh Verma and he was crying that he will fell down. Mother don't push me. I asked her to come down and tell the problem, in between, she pushed Suryansh Verma, who after falling over electric wire, fall down over a motorcycle seat. I came down for suffering him and found next son Ansh was lying thereat. He was unconscious and under serious condition".

(English translation by this Court itself)

17. Meaning thereby, this witness was the witness of attempt to push Suryansh from porch of room situated at third floor, which was being protested by Suryansh but he was pushed by Seema Verma, resulting his fall over the road and when he came the down side, he also found second son Ansh lying at road under serious condition and Suryansh was fallen over seat of a motorcycle. Both of them were taken to hospital where they were got admitted. But no medical treatment or any documentary evidence of any Medical officer regarding admission or injury of Suryansh is there, on record. Though, he was said to be admitted at the B.M.C. Hospital, but neither medical officer of B.M.C. Hospital admitted this fact nor any documentary evidence regarding it, was filed on record to show that Suryansh was having any injury, because of pushing down and falling on road. This witness has not seen throwing of Ansh by Seema Verma. Because as per his examination-in-chief, when he came down, he found that Ansh was lying on the road who caused to fell him, was not perceived by this witness because he in his cross-examination has specifically admitted that:-

"lhek oekZ tc lw;kZa'k dks uhps Qsad jgh Fkh rc eSus mUgs fpYykdj jksdk esjs jksdus ds ckotwn mUgksus lw;kZa'k dks /kDdk ns fn;k tc cPpk rkj ls my> dj uhps fxjk rks eSa 'kksj epkrk gqvk cPps dks cpkus uhps nkSM+k tc eSa uhps xsV ds ckgj igaqpk rks NksVk Hkrhtk va'k Hkh tehu ij fxjk iM+k FkkA "

"Seema Verma, while throwing Suryansh, was prohibited by me but in spite of participation, she pushed Suryansh and when he after falling over electric wire came down to the road side, I while making noise run down to save child, when I reached there outside the door of lower floor, found Ansh lying thereat. I, myself, have not witnessed throwing of younger nephew though both of them were taken by me and got admitted at hospital".

(English translation by this Court itself)

18. When asked as to whether any documentary evidence of admission or treatment at hospital regarding Suryansh is there? This witness has categorically replied "मैंने पुलिस को सूर्यांश के भर्ती कराने का कोई कागज दाखिल नहीं किया" (I did not give any paper of admission of Suryansh to police or filed it on record). He has categorically answered in examination-in-cross that accused i.e. convict appellant was mentally ill. Though he was not aware as to what type of decease she was suffering. But his brother Neeraj Verma has narrated about mental ailment of convict appellant. Though she used to cook meal and look after her family prior to this occurrence. This was narrated by this witness to Investigating Officer that his bhabhi was suffering with mental ailment and was under treatment for it. This witness has categorically said that this house EWS-738 Avas Vikash, was an economically weaker section's house of about 36 to 40 square yard, over which first and second floor were built up, in which two brothers of father of this witness, were residing with their family members and father of this witness along with his three sons and their family members and wife including present convict appellant were residing at third floor, which was built up of tin shade, having no stairs for its roof, but wooden stair was temporarily used by this convict appellant, her husband and sons. Meaning thereby, the paucity of space for residence to convict appellant along with her family members, was there and this whole family of more than ten persons were residing in that economically weaker section's house. Both minor sons uses wooden ladder for coming to above tin shade roof, in which convict appellant along with other family members was residing. This has specifically been said by this witness that there occurred no quarrel, no assault prior to this occurrence or after this occurrence. But this witness could not reply about the injury, found on the person of convict appellant, which was medically examined upon the pretext of police and was found to be of corresponding time of occurrence. Though this was pleaded by her in statement recorded under Section 313 of Cr.P.C. as well as by way of leading questions to prosecution witnesses that her husband slapped her, as a result, her son fell from her lap. She has not thrown him and her husband used to physically torture her, very often. This witness was given substantive question that this occurrence was a result of family quarrel but the testimony of this witness regarding Ansh who died in this occurrence was not of this fact that he had personally seen throwing of same by convict appellant and he saw convict appellant while pushing her elder son Suryansh from roof and he fell down, sustained injuries, got admitted but no documentary evidence of any treatment or admission at any hospital regarding Suryansh have been filed on record.

19. PW-2 Prem Narayan Verma, is father of husband of convict appellant and he categorically has said that he was not present on spot rather he rushed at spot after having information of occurrence and this, too, has said that convict appellant was ailing with mental illness and was under treatment. Meaning thereby, this throwing was result of mental ailment. This witness, too, has said in cross-examination that no document regarding treatment of Suryansh at any hospital including his admission, was seen by this witness nor he can reply the bed number etc. where he was treated i.e. no document of treatment of Suryansh could be explained by this witness.

20. PW-3 is the crucial witness Suryansh who has categorically said in his examination-in-chief that on the date of occurrence, he along with his younger brother, was playing on road, when his mother summoned him for having meal on 26.3.2016. Both of them went inside the room where she took them over roof and she asked them to be in tin shade. They went over it and their mother was accompanying them. She has also thrown him then after his younger brother. He fell over motorcycle after hanging over electric wire from porch whereas his younger brother has fallen over the road, having injury over his person. He along with his younger brother was taken to hospital where they got treatment and younger brother Ansh died. In cross-examination this witness has admitted that there had been birthday party celebration of this witness on 25.3.2016 and it was participated by his family members. His mother was very caring for both of them. She never beaten them and she used to take care of them. She used to cook meal for them and was very affectionate to them. But on that day, she was bit angry and annoyed. But why she was annoyed and why she did so, was not under his knowledge. But there occurred no quarrel amongst his parents. He has been asked about assault made by his father to his mother, resulting injury over her neck, which has been denied by this witness. "It is wrong to say that his younger brother was left from lap and fell down to road because of assault made by his father to his mother over neck". This witness has categorically said:-

"esjh eEeh ?kj esa [kq'k jgrh Fkh mnkl ugh jgrh Fkh ?kj dk lkjk dke eeh djrh Fkh ge edku ds rhljh eafty ij jgrs Fks Åij Nr gS Nr ij Vhu vkxs okys dejs esa gS Vhu ij ge nhokj idM+ dj p<+ tkrs gS Vhu ij dksbZ lh<+h ugh iM+h gS Vhu vkxs okys dejs esa iM+hA"

"My mother remained very happy at home. She never remained under depression. She used to work household affairs. We were residing at third floor having roof of tin over front room, there is no stair for going over roof but we used to go through wall. There was no ladder over it."

(English translation by his Court itself)

21. This witness is a child witness and has proved the occurrence of the day and upon over all appreciation of his testimony, it is apparent that there had been a celebration of birthday on that very previous night, in which family members participated and this witness could not perceived the reason of annoyance. But her mother was annoyed and she, under above stress, did this act. But she was caring, doing her household affairs by her own. She had never beaten her sons and she was very affectionate. This witness has visited her in jail where she asked about his well being and his studies. Though he told a lie about his studies. This act was under anger, for which an offence of culpable homicide not amounting to murder was charge-sheeted.

22. PW-4 is Smt. Pratima Verma, one of the family member of husband of convict appellan. She in her statement has said that she was living in that house EWS-738, which was of three brothers and Prem Narayan Verma along with his three sons and their families was residing at third floor and on the date of occurrence i.e. 26.3.2016 at about 2:30 Seema Verma came to her and apprised that her sons are hungry and she took both Suryansh and Ansh right in her room for giving them meal and after thirty minutes, this was occurred. This witness was not present on spo. Rather she had heard noise of people that Seema Verma has thrown her both sons, one of the Ansh died in hospital and Suryansh too had suffered grievous harm. But no document of his treatment was there. She had not witnessed the occurrence by her own senses. The previous conduct of convict appellant was that she was a caring lady, doing all her household affairs and look after her family, residing separately in above paucity of residence, which was proved by this witness.

23. PW-5 Sushil Kumar, is the next door neighbour and he has said that Seema Verma had thrown her two sons from roof to road. Suryansh fell over motorcycle whereas Ansh fell on road but both of them were under treatment. In his cross-examination, he has said that he is not aware of the accommodation of house in question and portion of residence of convict appellant. He is not aware of convict appellant since one day before the occurrence. Rather he came to know her on the day of occurrence, and after the occurrence he saw Seema Verma for the first time. He said that:-

"lhek oekZ dk uke eSa igys ugh tkurk Fkk ?kVuk okys fnu uke irk pyk FkkA ?kVuk ds le; gh eSaus lhek oekZ dks ns[kk FkkA ckn esa ugh ns[kk FkkA "

"I was not aware about the name of Seema Verma prior to this occurrence. It was brought in the knowledge on the date of occurrence. I have seen Seema Verma at the time of occurrence and not after it."

(English translation by this Court itself)

24. Meaning thereby, this witness was not personally aware by Seema Verma. Though he has said that both of the sons of convict appellant were admitted in hospital when he reached at hospital. Whereas no documentary evidence of treatment or oral evidence by medical officer of any hospital was there regarding the treatment of Suryansh. Though his testimony is challenged on the ground of being a friend of husband of convict appellant, for which the leading question has been put in cross-examination, which has been answered in negative. This witness was not aware of Seema Verma prior to this occurrence. Rather he saw her on the day of occurrence. Hence, his testimony is not worth reliable.

25. PW-6 Dr. Anil Kumar is the medical Officer, who has proved autopsy examination of deceased Ansh Verma but in his testimony, he has said his age to be of 8 years whereas in F.I.R. as well as testimony of Medical Officer who treated Ansh, he was of 2 years.

26. PW-11 Dr. Brij Mohan, in his testimony, has said that Ansh was brought at 3:50 P.M. under serious condition at hospital with a complaint from falling of upper stair having injuries over his head and he was got admitted and after some treatment, he was discharged at 7:50 P.M. from hospital for specialized treatment. In between he was attended by child specialist Dr. J. S. Narang and Dr. Rajiv Kainth, neurosurgeon, then after he was referred to Hallet Hospital. He was having serious injuries over his person. Bed head ticket was brought by this witness, at the time of his examination, which was proved and exhibited as Ex.Ka-16 on record, in it, it was written that patient was brought with complaint from failing from high side. It was not complained that mother of Ansh Verma i.e. Seema Verma has thrown him. Neither it was told nor it was written. This testimony has further been corroborated by PW-10 Dr. Rajiv Kainth that on 26.3.2016 Ansh Verma was admitted at Brij Medical Centre. He was serious and got examined under C.T. Scan, some drugs were prescribed and owing to non-availability of I.C.U. At B.M.C., he was referred for treatment at Hallet Hospital. Prescription was written under his handwriting and signature, proved and exhibited as Ex.Ka-15. Ansh Verma was having injury over his head. But this cannot be told that who brought patient Ansh Verma. In Ex.Ka-15 no entry of injury was there. This Ex.Ka-15, reveals that it was not reported to be any criminal offence or act of throwing by convict appellant. Rather it was reported and written to be a case of falling from high side and injury occurred therein. It was not complained by informant that patient was thrown from up side to road resulting these injuries.

27. Inquest report was prepared by PW-8, S.S.I. Puspraj Singh, who has said on oath that while being posted at Police Station Kalyanpur on 26.3.2016, he was deputed for investigation of Case Crime No. 311 of 2016, under Section 308 I.P.C. and he got F.I.R., G.D. Entry, entered in case diary. Then after, constable Gandharv Singh was examined and his statement was recorded in case diary. Statement of Ritesh Verma was recorded at B.M.C. Hospital and then after it was found that injured Ansh Verma was referred to L.L.R. Hospital where he succumbed to injury, a report from informant was of this fact. Hence, inquest proceeding over dead body was got conducted by reaching at mortuary of L.L.R. Hospital along with constable Sanjeev Kumar Tripathi and Homegaurd-4765, Khushi Ram, witnesses from family members were taken and it was got conducted in between 10:30 A.M. to 12:00 P.M of 27.3.2016. Age of deceased was 8 years. Inquest report and related papers, letter to Chief Medical Officer, specimen seal, photo dead body, police form No. 33, were got prepared under handwriting and signature of this witness and dead body under sealed and intact position was delivered for getting it examined under autopsy examination. Case under Section 308 I.P.C. was converted under G.D. Entry at 12:30 P.M. of 27.3.2016, in case under Sections 323 and 304 I.P.C. and this was entered in case diary and then after Seema Verma was got arrested at 14:05 P.M. Her statement was recorded. Spot map was inspected and prepared under handwriting and signature of this witness. Other witnesses were examined and all these papers have been formally proved by this witness. This witness has categorically admitted that no documentary evidence of treatment of Suryansh at any hospital was either filed by informant or collected by this witness or any medical officer said about treatment of Suryansh. Accused applicant was examined at Jail regarding her mental ailment. But no report of same was either taken or made part of investigation. Though no other reason except her mental ailment was found to be cause of this throwing of deceased by his own mother from roof to road. "बच्चो को मुल्जिमा द्वारा छत से फेकने में उसकी मानसिक अस्वस्थता के अतिरिक्त अन्य कोई कारण दर्शित नहीं होता" "No other reason could be shown except mental ailment of accused because of which sons were thrown by their mother from roof to road". (English translation by this Court).

28. This Suryansh was crucial witness. But admittedly he was examined after 27 days of the occurrence and this witness has not mentioned reason for this delay in case diary. Though family members could not produce this witness before I.O., for getting his statement recorded in case diary and no documentary or medical evidence for his admission or his alleged injury or his alleged treatment at any hospital, was produced. This witness has corroborated testimony of Dr. Anil Kumar PW-6, in which death owing to antemortem injury, because of falling from high side to low road, was held to be the cause of death of Ansh Verma. Hence, the same being the cause of fracture of skull bone.

29. Hence, PW-1 informant, is not eye witness account of throwing of Ansh Verma by convict appellant. PW-2, is also not eye-witness account. PW-4 and 5 are also not eye-witness account of alleged crime. It was only PW-3 Suryansh Verma, who was eye-witness account and who, by his cogent evidence, has proved the occurrence, for which there is no material contradiction, variation or exaggeration including embellishment, except minute variation which makes this witness, as natural witness, as has been vehemently argued by learned counsel for the appellant. But Apex Court has repeatedly held that such variation makes witness natural and worth believable witness and conviction can be based on sole eye-witness account. This witness has proved charge leveled against convict appellant, beyond all reasonable doubt, for throwing Ansh Verma and death of Ansh Verma, owing to above throwing. Regarding injury and treatment to Suryansh Verma, no documentary medical evidence was there on record. Hence, appeal on the point of conviction fails.

30. Learned counsel for the applicant argued that quantum of punishment awarded for offence of culpable homicide not amounting to murder, punishable under Section 304 (Part II) I.P.C., was excessive i.e. highest of ten years with fine of Rs. 10,000/-, provided under Section 304(Part II) I.P.C. whereas no minimum punishment is provided by legislature and trial Court itself has held offence proved for punishment under Section 304 (Part II) of I.P.C. against which there is no appeal. Hence, on the point of sentence, the same is apparently in excess i.e. highest. Wheres appellant a poor lady, who, right from initiation of criminal machinery in motion, was said to be under mental ailment. Her own son was dead in the occurrence. She right from initiation pleaded that it was not case of throwing his own son from roof to road rather it was accidental fall from her lap that too, when her husband gave a blow over her neck, resulting injury to her and this injury was found in medical examination, got conducted upon sending by police itself. But trial Court has sentenced with maximum sentence provided by Legislature. She under above pitiable condition, deserves to be released on period already undergone. Whereas learned AGA argued that convict appellant has thrown her two sons from roof to down stairs, in which younger one sustained injuries, including fracture of his skull bone and he succumbed to above antemortem injuries. Hence, after considering aggravating and mitigating circumstances, trial Court has rightly passed sentence and there is no infirmity in it.

31. Apex Court in Gopal Singh vs State Of Uttarakhand (2013) 3 SCC (Cri) 608 has propounded:-

"Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect - propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, etc. etc."

32. In the present case PW-3, Suryansh, was only eye-witness account worth reliable and he in his all through statement has said that his mother present convict appellant, was very caring for her both sons and her husband. She used to cook meals for family and was doing household affairs. There occurred no dispute in family. Just before occurrence, she called her both of sons, including deceased, for taking meal, from road side where they were playing. They were taken in the room for taking meal. In preceding night, there occurred a celebration of birthday of this witness Suryansh, in which family members participated. Meaning thereby, everything was usual and cordial. But convict appellant was under anger and this was not known to this witness or any other family members as to why she was under anger? But owing to it, she pushed Suryansh and other one from roof to down side. Suryansh suffered injury, but no medical evidence of his injury or his treatment is there on record, nor prosecution could proved it. Whereas, Ansh was said to be thrown subsequent to Suryansh. Meaning thereby, Suryansh was not in a position to perceive as to how Ansh was fallen from roof to roadside. As there was none else, hence, it was held as proved that convict appellant pushed her younger son too, resulting antemortem injury, subsequently death during treatment. But this all was said by each of prosecution witnesses including Investigating Officer in their testimony that convict appellant was ailing mentally and under above ailment, she did this act. No other cause was there. Whereas she had pleaded, since the beginning, that deceased had fallen from her lap, owing to sudden assault by her husband, over her neck, while she was on roof, having no ladder. There had been paucity of living space in above house. Even this Suryansh and her father, real brother of informant, went in jail to meet this convict appellant and she asked about well-being of her son Suryansh Verma and about his studies. Meaning thereby, she proved to be caring even being in jail. No assault or other antemortem injury was present over the person of either Surayansh or Ansh. Nor there was any case of such assault by convict appellant over any of her family members. Rather she was residing with such a big family, under paucity of space. No other aggravating circumstances is there. Hence, under all above facts and circumstances, the excessive punishment, which was highest of 10 years rigorous imprisonment with fine of Rs. 10,000/-, awarded by trial Court, was certainly inappropriate with regard to principle of proportionality. Punishment provided under Section 304(Part II) of I.P.C. is imprisonment of either description for a term which may extend to ten years or with fine or with both. If the act is done with knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as it likely to cause death. Apex Court in State Vs. Sanjiv Nanda AIR (2012) SC 3104, has propounded that to make out an offence punishable under Section 304 (Part II) of I.P.C., the prosecution has to prove the death of the person in question and such death was caused by the act of accused and that he knew that such act of his, is likely to cause death. The accusation in present case was mere of punishing her two sons from the roof to road and this resulted antemortem injury to Ansh, who succumbed to above injury and it, in all probability, will be resulting death or bodily injury likely to cause death, in case of throwing from roof to road, of a child. But upon proportionating, aggravating and mitigating circumstances mentioned as above, it is to be found just and appropriate to award sentence of four years rigorous imprisonment, with fine of Rs. 10,000/-, and in default of payment of fine, six months additional imprisonment under Section 304 (Part II) of I.P.C. and one year rigorous imprisonment with fine of Rs. 1,000/-, and in default of payment of fine three months additional imprisonment, under Section 323 of I.P.C., with a direction for concurrent running of sentence and adjustment of previous incarceration, if any, in this very case crime number. Hence, this appeal is being dismissed regarding assail over conviction. But is being partially allowed over quantum of sentence and sentence provided by trial Court, is being amended as follows:-

(I)Convict appellant Smt. Seema Verma is being sentenced with rigorous imprisonment of four years with fine of Rs. 10,000/-, and in default of payment of fine, six months simple imprisonment under Section 304 (Part II) of I.P.C.

(II) Convict appellant Smt. Seema Verma is also being sentenced with rigorous imprisonment of one year with fine of Rs. 1,000/-, and in default of payment of fine, three months simple imprisonment under Section 323 of I.P.C., with a direction for concurrent running of sentences and adjustment of previous incarceration, if any, in this very case crime number.

33. Let a copy of this judgment along with lower court's record be sent back to the court concerned for immediate compliance and necessary action.

Order Date :- 03.5.2019

Kamarjahan