Smt. Madhu Goswami And Another vs State Of U.P.
2021 Latest Caselaw 4945 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 

 
Reserved on: 22.3.2021
 
  Delivered on: 13.4.2021
 

 
Court No. - 21 
 

 
Case :- CRIMINAL APPEAL No. 4795  of 2012 
 

 
Appellant :- Smt. Madhu Goshwami and another
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Piyush Kumar Shukla
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J. 

Hon'ble Gautam Chowdhary,J.

1. Heard Shri Piyush Kumar Shukla, learned counsel for the appellants and learned AGA for the State. The judgment was ordered to be pronounced on 9.4.2021 but as Courts were closed, we direted matter to be listed on 16.4.2021, but the surge of Covid cases may force Courts to be closed on 16.4.2021, hence, we pronounce judgment today, i.e., 13.4.2021.

2. This appeal has arisen from the judgement and order dated 2.11.2012 passed by learned Additional Sessions Judge, Jhanshi in Sessions Case No.72 of 2010 in State of U.P. v. Jai Prakash Goswami and another (Case Crime No.1498/09) under Section 302 and 504 I.P.C lodged in Police Station Sipri Bazar, District Jhansi. The learned Sessions Judge convicted both the accused for life imprisonment under Section 302 read with section 34 of Indian Penal Code with fine of Rs.5,000/- and in default for one year simple imprisonment.

3. The factual scenario as it unfurls from the record and the F.I.R are that the accused in unison caused death of the deceased on 2.9.2009 in the morning. The genesis of the offence as narrated in the first information report is that the deceased along with his wife and daughter was going to Temple, his wife Kastoori and sister of the complainant Radha Rai also were following him. It is mentioned in the first information that Radha Rai who was married with one Daya Chand Rai. Daya Chand Rai had deserted his sister and had performed another marriage for which maintenacne petition was also pending in the Court at Jhansi. Unfortunatley, Madhu Goshwami and her husband is known to Daya Chand and it was because that the parties are unable to amicably settle the dispute with Madhu Goswami and her husband Jai Prakash and his wife started abusing the deceased and during the ultercation Jai Prakash brought what can be said to be to iron rodes (known as ''Sabbal') and after further abusing both husband and wife started assaulting the father and when neighbours entering, both husband and wife ran towards Rasbahar Colony and when the complainant reached the place of the offence, his father was lying injured and he conveyed to the complainant that Madhu Goswami and her husband Jai Prakash Goshwami had beating with Sabbal. The Complainant tried to arrange for vehicle to take him to hospital, but he succumbed to the injures. The Complainant lodged the complaint with the Police Station Incharge. It is this F.I.R. which gave rise to the investigation being carried out against both the accused.

4. The prosecution started against both the accused who are husband and wife for commission of offence under Section 302 read with section 34 of Indian Penal Code and the charge sheet was laid against them for commission of offence under Section 302 read with section 34 of Indian Penal code. The accused were committed to the court of session as the case was triable exclusively by the court of sessions.

5. It is admitted position of fact that both the accused are in jail. The decision of the trial court was pronounced on 2.11.2012 since the said date they are in jail. The bail application came to be rejected on 8.1.2013. We are not aware as to whether during the trial the accused were enlarged on bail or not.

6. The prosecution examined several witnesses so as to bring home the charge framed against the accused as enumerated hereinbelow:

Deposition of Satya Prakash Rai

25/05/10, 16/06/10 and 30/07/10

PW1

Deposition of Radha Rai

04/09/10, 01/10/10 and 25/10/10

PW2

Deposition of Kasturi

04/12/10, 20/12/10 and 17/01/11

PW3

Deposition of Dr. Anil Kumar Saxena

09/03/11

PW4

Deposition of Sri Ram Patel

04/06/11

PW5

Deposition of Jai Narayan Verma

30/06/11

PW6

Deposition of Rajeev Pratap Singh

29/07/11

PW7

7. In support of ocular version following documents were filed:

First Information Report

02/09/09

Ex.Ka.4

Written Report

02/09/09

Ex.Ka.1

Recovery Memo of blood stained and plain earth

02/09/09

Ex. Ka.2

Recovery memo of Sabbal and arrest of accused

07/09/09

Ex. Ka.13

Postmortem Report

02/09/09

Ex.Ka.3

Report of Vidhi Vigyan Prayogshala

01/07/10

Ex. Ka.15

Site Plan with Index

02/09/09

Ex.Ka.12,16

8. Learned counsel for the appellant has contended that if this Court feels that the case is made out against the accused that they have caused the death and that the evidence led is such which proves there presence overt act and the instrument used and that they are not to be accorded benefit of doubt, he presses into service the provisions of Section 304 of the I.P.C as the incident occured on spare of the moment, there was no meeting of the minds to do away with the deceased there was no such great enmity that the accused had any intention to do away with the deceased. The evidence of so called eye witnesses also proves that it was not a pre-planned attempt to do away with the accused in early part of the morning. It is no bodies case that the accused were in waiting for the deceased to pass through their home. It is submitted that even on bare reading of the F.I.R. and the oral testimony as well as the enjuries sustained, the offence would be murdered. According to the learned Advocate, on the evidence of all witnesses has convicted the accused under Section 302 I.P.C., which could not have been done.

9. The following judgments of the Supreme Court are cited by the learned counsel so as to contend that offence under Section 302 is not made out and that the decisions would applying in the facts of this case:

(i) Stalin v. State represented by the Inspector of Police, Criminal Appeal No.577 of 2020 dated 9th September, 2020 (arising out of SLP (Crl.) No.3171 of 2019)

10. It is further submitted in his oral submission that PW-2 Satya Prakash is not an eye witness of the incident and there is material contradiction as regard place of occurrence of the incident It is submitted that the witnesses have in their ocular version stated that incident occurred in front of house of the accused namely Jai Prakash Goswami whereas the site plan shows that the incident is at an another place. As far as the testimony of PW-3, Radha Devi is concerned, her husband has already contracted second marriage and she has not stated as to which side of the sambal was used as an assaulting weapon and her Police statement is recording after seventeen days. It is submitted that accused no.2 did not use any weapon. It is submitted that the projected eye witnesses were in fact not eye witnesses. It is further submitted that in the alternative, if this Court does not accept that there are material contradictions and the offence is proved against the accused, it is submitted that there were no repeating of blows on any of the vital parts of the body, and, therefore appellants have no intention to commit murder. The prosecutions case even if relied cannot take it beyond punishment of part 2 of the IPC and it is fruther submitted that the decision of Stalin (Supra) will apply to the facts of this case.

11. Learned counsel for the State has taken us through the record and has contended that the vital part of the body was attacked by both the accused may be the deceased had no previous enmity, but they were having knowledge that inflection of Sambal would bring about death of the deceased and the intention was also there, otherwise they would not have inflicted blows on the vital parts of the body by the instruments used by them which were recovered during the investigation. It is further submitted that there was prior meeting of minds as sambal was given by Jai Prakash to his wife. It is further submitted that minor contradictions about stick and sambal cannot be the cause to throw out the case of the prosecution. There are very minor contradictions in the evidence led. It is further submitted that the injuries are found on the deceased on the frontal parietal region and it is submitted that both the accused in unison attacked with sabbal and the use of power also will not show that the case falls in section 304 of the I.P.C..

12. It would be necessary to discuss the evidence of complainant who is son of the deceaced and pw2 who is mother of complainant namely she was examined as PW-2 who was eye witness and PW-3 daughter of deceased who were accompany deceased when the incident occurred and also eye witness. We discuss the finding as far as injuries on the deceased as per post-mortem report as it is submitted that after making submissions, the learned counsel for the appellants has also made his submission that even if the evidence is sifted, it would prove that the accused had no intention of doing away with the deceased and, therefore, sympathy is invoked for a lesser sentence. The evidence of PWs-2 and 3, and proves the fact that incident occurred in the morning and the accused were not armed with Sabbal but brought from their home and assaulted the deceased with Sabbal. The deceased died on the spot and when corss examination is minutely read and sifted the submission of the counsel for the appellants can be tested on the basis of the evidence also. The evidence cannot be said to be any way concocted and is corroborated by the factual data. PW-2 and PW-3 were with the father (deceased) and their narration corroborates the complaint namely incident occurred near the house of the accused from where blood soil was collected during the investigation. The exact place where the accused fled and the direction given by both the eye witnesses was proved. The sambal (Sabbal) was found at the behest of the accused from a place which would be known only to them. The medical evidence shows that the narration which PW-2 and PW-3 was gave impetus to the investigation and no fault can be found with the investigation. The evidence of Doctor also goes to show that the post mortem report corroborated with the weapon used namely sabbal, the medical evidence corroborated the fact that injuries could be possible because of use of sabbal and the death was also possible because of thrashing/beating by the sabbal. In that view of the matter, this evidence is important. We find no reason to differ with the finding of facts by the court below and submissions made by learned counsel for the State that the accused were the persons who had caused the death.

13. The medical evidence, the complaint and the evidence of witnesses and medical evidence corroborates the injuries caused to the deceased and the other facts of the said incident is proved by the evidence led namely occular as well as documents produced and proved which we have gone through. The finding of facts are not be disturbed holding accused guilty.

14. The police authorities were examined. The police authrities in their ocular version has stated that the statement of the witnesses were recorded and site plan is prepared and recovery of blood and instrument is proved. The statements are also recorded under Section 313 of the Code of Criminal Procedure wherein nothing to prove their innocence is brought on record.

15. We are convinced that both oral testimony and documentary evidence on record of the trial court were sufficient so as to record conviction for the following reasons. One the F.I.R. was a prompt F.I.R. The presence of the accused is proved by the eye witnesses. Recovery memo of sabbal was from a place which could have been known only to the accused on which there were bloodstains present, the death occurred near the house of the accused. The medical evidence shows that the death occurred due to use of Sabbal which is proved by the evidence of Dr. Anil Kumar Saxena, PW-4. PW-2 and PW-3 have also identified both the accused. There is no reason to disbelieve the eye witness PW-2 and PW-3 as were following the deceased. Over and obove, there is an oral dying declaration to the son by his father namely deceased that he was beaten by both Madhu and her husband. Just because the statement of PW-2 was recorded on 28th September, it cannot cast doubt on her presence at the scene of offence. The decision of the Apex Court in Vijay Bhai Patel v. Navneet Bhai Nathu Bhai Patel, 2004 SCC (Crl) 2032, this judgment has been rightly not applied in favour of the accused as the statements have been proved by cogent evidence as there only minor contradictions. The officer has explained the delay during that period and, the learned Judge has given detail reason for accepting the ocular version of PW-2, Smt. Radha Rai, daughter of the deceased who has been rightly belived by the learned judge below and, therefore, the submission made by learned cousnel for the appellants that the appellants are innoncent and that they have been falsely implicated, cannot be accepted. We are also convinced that the F.I.R. cannot be said to be delayed the submission that it was given after due deliberation just because family members were consulted, cannot be accepte. It cannot be said that the F.I.R. was a forged F.I.R. The fact that PW-2 had narrated the incident to her brother namely the person who lodged the F.I.R. as he not an eye witness. The fact that the learned court below has accepted that in a case of eye witness motive pales into insignificance the learned judge has relied on several judgments which we have gone through, we do not wish to burdent the judgment. We are convinced that the accused and accept the submission of the learne AGA.

16. The accused are in jail since more than nine years. It is an admitted position of fact that from the evidence led PW-2 and PW-3 have opined that they used to go to the temple passsing the house of the accused since last about 3 to 4 years. They are regular ultercation it was on that date is turned viaolent the medical evidence as per the deposition of Dr. Anil Kumar Saxena goes to show that the injuries which were caused to the deceased were mainly as follows:

(i) One lacerated wound on left side of forehead 7 cm x 2 cm between left eye and left eyebrow bone deep on dissect-frontal bone, membrane ruptured and brain matter lacerated and about 100mm blood present in crawel.

(ii) One lacerated wound 5 cm x 2 cm between chin and mouth bone deep under neck maundable frachered situates 3 cm from left bone of chin.

(iii) One lacerated wound on right leg anterior side 7 cm x 1 cm subcutaneous deep situated 15 cm from left knee.

(iv) One lacerated wound on right leg midle side. Bone deep 16 cm from right knee on dissect both tibia and fibula.

(v) One lacerated wound on anterior side of left knee anterior side 3 cm x 2 cm muscle deep.

(vi) One lacerated wound on anterior side of left leg 3 cm x 2 cm muscle deep.

17. The submission of the learned cousnel for the appellants is that looking to post mortem cuppled with the evidence of the eye witnesses and medical evidence, the accused cannot to be said to have committed murder and, therefore, it is further submitted that in a case of Stalin (supra) and, benefit was accorded therefore, the accused should be dealt with a similar sentence. The place of incident is where the accused are staying and have their house and all of them were having a verbal sudden quarrel. The external injuries was by an instrument which cannot be said to be such which was used for commiting murder there was no pre-meditation of mind. It is further submitted that the alternative prayer requires to be considered.

18. This takes us to the issue of whether the offence would be punishable under Section 299 or Section 304 I.P.C.

19. Considering the evidence of the witnesses and also considering the medical evidence including post mortem report, there is no doubt left in our mind about the guilt of the present appellants. However, the question which falls for our consideration is whether, on reappraisal of the peculiar facts and circumstances of the case, the conviction of the appellant under Section 302 of I.P.C. of the Indian Penal Code should be upheld or the conviction deserves to be converted under Section 304 Part-I or Part-II of the Indian Penal Code. It would be relevant to refer Section 299 of the Indian Penal Code, which read as under:

"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."

20. The academic distinction between ''murder' and ''culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Section 299 and 300 of I.P.Code. The following comparative table will be helpful in appreciating the points of distinction between the two offences.

Section 299

Section 300

A person commits culpable homicide if the act by which the death is caused is done-

Subject to certain exceptions culpable homicide is murder is the act by which the death is caused is done.

INTENTION

(a) with the intention of causing death; or

(1) with the intention of causing death; or

(b) with the intention of causing such bodily injury as is likely to

cause death; or

(2) with the intention of causing such bodily injury as the offender knows to be likely to

cause the death of the person to whom the harm is caused;

KNOWLEDGE

KNOWLEDGE

(c) with the knowledge that the act is likely to cause death.

(4) with the knowledge that the act is so immediately dangerous

that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.

21. It is very clear from the F.I.R. lodged by the son of the deceased which has been proved by the prosecution and other witnesses of facts that there was a heated discussion and during the quarrel, both the accused had used what can be said to be Sabbal with which about six injuries were caused and one of them was on the frontal parietal reason which seems to have proved fatal to the deceased who was an aged person. The blows were not on other vital parts of the body. It was not any such instrument which can be said to be dangerous weapons. There was the evidence of PW-2 and PW-3 and when read as a complete testimony would show that there was no such enmity between the parties. The judgment of Stalin (supra) permit us to hold that the tests given in Pulicherla Nagaraju v State of A.P., (2006) 11 SCC 444 and as narrated above in our case, the accused was not carrying weapon rather they brought from the home the blow was in act of sudden quarrell there was no pre-meditation there was hit of passion in this view of the matter and the letest decision we are convinced that the case could fall within section 304 of the IPC.

22. We are even fortified in our view by the latest decision of the Apex Court in Khokan alias khokhan Vishwas v. State of Chhattishgarh, AIR 2021 SC 939 which shows that in similar facts the decision we are taking would be in consonance with the facts as proved hereinabove and the said decision and the findings would apply to the facts of our case also. In that view of the matter, we are inclined to substitute life imprisonment to ten years with all benefits of remission under sections 433 and 434 of the I.P.C. namely remissions and also the decision of the Apex Court in case titled as Mehir Gope v. Sate of Jharkhand, AIR 2021 SC 534 and, therefore, the case would fall within Section 304 of the IPC.

23. The accused are in jail for a period of more than 9 years. It is a matter of fact as it is transpires from the F.I.R. and as we have held that it is homicidal death but not murder. We hold the accused guilty for commission of offence under Section 304 of I.P.C. read with Section 34 but not with 302 read with Section 34 I.P.C. The punishment is reduced to ten years incarceration, the fine is maintained, if the fine is not paid, the sentence would be default sentence of three months simple imprisonment.

24. The concerned jailor shall immediately compute the period and if remissions are granted, if any, the accused have to be released. He shall do so immediately on completion of the sentence.

25. Record and proceedings be sent back to the trial court.

26. This court is thankful to Shri Piyush Kumar Shukla and learned AGA for ably assisting this Court in getting this old matter disposed off.

Order Date :- 13.4.2021

A.N. Mishra