Govind Kumar Kureel vs State Of U.P.
2021 Latest Caselaw 11044 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

            A.F.R.
 
Judgment  Reserved On: 13.08.2021
 
          					Judgment Delivered On: 02.09.2021
 
Court No. - 48
 

 
Case :- JAIL APPEAL No. - 507 of 2018
 

 
Appellant :- Govind Kumar Kureel
 
Respondent :- State of U.P.
 
Counsel for Appellant :- From Jail,Dheeraj Kumar Dwivedi,Swetashwa Agarwal
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Syed Aftab Husain Rizvi,J.

1. Heard Sri Swetashwa Agarwal, learned counsel appearing for the appellant as Amicus Curiae and learned A.G.A.

2. This jail appeal has been filed against the judgment and order dated 19.07.2018 passed by the Additional Sessions Judge, court no.17, Kanpur Nagar arising out of case crime no.97 of 2011 for offence under Sections 308, 323, 504, 506 IPC Police Station Bidhnu, District Kanpur Nagar convicting the appellant (accused) under Section 308 IPC and sentencing him to undergo rigorous imprisonment for four years and imposing a fine of Rs. 20,000/- and in default of payment of fine, three months simple imprisonment.

3. In brief the prosecution case is that an application written by Raj Karan under the thumb impression of victim/informant Sarita dated 05.03.2011 was given at Police Station- Bidhnu alleging therein that " applicant- Smt. Sarita is the wife of Govind Kureel resident of Pahadpur- Tulsinagar. In the night of 04.03.2011 in between 11:00 to 12:00 O'clock my husband suddenly attacked me while I was sleeping and assaulted me with lathi-danda, bricks and kick and punches, due to which I suffered grievous injuries and thereafter he went away threating me and locking my room from outside. On the aforesaid, application case crime no.97 of 2011 under Sections 323, 504, 506, 308 IPC was registered and the investigation commenced. The Investigating Officer, visited the place of occurrence from where he took one blood stained piece of brick and sealed it, he also collected blood stained and unstained soil from the place of occurrence and sealed it and prepared the memo and site plan, recorded the statements of scribe victim/ complainant and other witnesses and after completion of the investigation, submitted the charge-sheet under Section 308, 323, 504, 506 IPC.

4. The learned trial court framed the charges against the accused-appellant Govind Kureel under Sections 308, 323, 504 and 506 I.P.C. The accused denied the charges and claimed for trial, the prosecution lead its evidence and examined eight witnesses. Statement of accused recorded under Section 313 Cr.P.C. in which he denied all the allegations and stated that he has been falsely implicated. No evidence in defence has been produced. The learned trial court after hearing the arguments by the impugned judgment has held the accused-Govind Kureel guilty for charge under Sections 308 and 323 IPC but acquitted him from the charges under Sections 504 and 506 IPC. The learned trial court has imposed sentence of four years rigorous imprisonment with fine of Rs.20,000/- for offence under Section 308 IPC only.

5. The medical examination of complainant/ victim namely- Smt. Sarita was conducted on 05.03.2011 at about 11:05 a.m. by Dr. Y.K. Nigam in Hallett Hospital, Kanpur Nagar and according to medical report Ex. Ka-6, the condition of patient was kept under observation:

Pulse rate - 78 per minute

B.P. - 126/70 mmHg

Respiratory Rate - 18 per minute

Temperature - normal

Hydration - Indefinite

Chest - clear

Abdomen - Soft

Patient was conscious but drowsing

Pupils - normal

Injuries:

Lacerated wound on the face extending from forehead to right side nose to right side of upper lip measuring 22 cm X 10 cm X bonedeep. X-Ray Advised.

Dr. has opined that the injury is kept under observation, fresh, due to blunt and hard object, X-Ray advised, police informed, patient admitted under care of doctor Harendra Gautam vide BHT No.5035 of 2011 department of E.N.T. for expert treatment and management.

6. The Complainant Smt. Sarita P.W.-1 is the injured and main witness. In her examination in chief, she has said that the accused- Govind Kureel is her husband. The incident is of 04.03.2011 in between 11:00 to 12:00 p.m., she and her husband Govind Kureel were present in the house. She ought to prevent her husband from wrong doing and due to this her husband Govind Kureel attacked her with a brick and assaulted many times on her face and on her noise, Govind Kureel ran away locking the door from outside. In the morning, the uncle of her husband (Chachiya Sasur), came to know about her condition which was serious and he took her to the police station where he wrote an application on her dictation on which she put her thumb impression. Thereafter she was taken to the Hallett Hospital where she was medically examined and got treatment and admitted in the said hospital for 17 to 18 days. Her face and nose is permanently disfigured in this incident.

7. Razol Saini (P.W.-2) is the formal witness who has proved the memo of taking into possession of blood stained brick and blood stained and unstained soil from the place of occurrence by the Investigating Officer.

8. Chandra Pal (P.W.-3) is the father of the accused. From his testimony, it appears that he is not an eye-witness and at the time of incident he was at his native village while complainant and accused were at Pahadpur Tulsinagar and he has also stated that on information he reached Hallett Hospital where her daughter in law Sarita was admitted in injured condition but he does not know who has committed the alleged incident.

9. Raj Karan (P.W.-4) is the scribe of the FIR. In his examination in chief he has said that Govind Kureel is his real nephew and he lives with his wife Smt. Sarita in his neighbourhood. In the morning when he came from his duty, he saw that his elder brother Chote Lal, wife Ram Wati were carrying Smt. Sarita in a tempo to hospital, he also accompanied them to the hospital, there were serious injuries on the face of Smt. Sarita and she was under treatment for several days in the Hallett Hospital. The witness further stated that Sub-Inspector got his signatures on a plain paper and he has not written anything on it. He has not written any application and also not written any report on behalf of Sarita. This witness is close relation of accused and it appears that due to this he has disowned his writing the application on which the FIR has been lodged. In his cross-examination he has admitted this fact that Ex.Ka-1 is in his hand writing and earlier he has giving false statement that the application is not in his hand writing. He has also admitted this fact that Smt. Sarita have a good character.

10. Learned counsel for the appellant further contended that the incident is of midnight and it was darkness. The witness herself has admitted that she has not seen who assaulted her, so there is no evidence against the accused and his identification is also doubtful. This argument has no substance. Although the incident occurred in the midnight and darkness and P.W.-1 Smt. Sarita in her cross-examination has admitted that at the time of occurrence, it was dark and she was sleeping, she has also said that she has not seen who assaulted her but she has further stated that when the accused pressed her neck then she recognized him from his voice. The victim is the wife of the accused and from the record it is also clear that only victim and the accused were present in the house at the time of occurrence and after assaulting the victim, the accused went away from the place of occurrence locking the door from outside. In these circumstances, there is no ground for making suspicion about the identity of the accused. The accused has also not put up any case in defence and there is no suggestion that any outsider has entered and committed the incident.

11. Learned counsel for the appellant further contended that the FIR has been lodged on the next day after 12 hrs of the incident and there is considerable delay in lodging the FIR, casting doubt on the prosecution story. The learned AGA submitted that the delay has been reasonably explained as the accused has locked the injured in the room and she was detected in the morning by the family members of her husband then she was taken to the police station and hospital. The incident occurred in the mid-night and the FIR has been lodged on the next day i.e. 05.03.2011 at about 12:45 p.m. The reasons for delay is fully explained, the victim was alone in her house and after committing the crime the accused locked her from outside and she was in badly injured condition and when the matter was detected by her Chachiya Sasur then the FIR was lodged.

12. The remaining witnesses S.I.- Mohan Lal Dixit (P.W.-5) and S.I.- Yadu Nath Singh (P.W.-6) and head constable Manoj Kumar (P.W.-8) are formal, the Investigating Officer and chick/ G.D. writer.

13. The only eye witness account is that of Smt. Sarita (P.W.-1) the injured. The incident has occurred inside the house of complainant/ injured and she has implicated her husband. The victim/ complainant Smt. Sarita has supported the prosecution case from her oral testimony. The medical evidence on record also corroborates the ocular version of the complainant/ victim P.W.-1. Dr. Y.K. Nigam (P.W.-7) in his examination in chief has said that the injury was fresh and was caused by hard and blunt object, so the medical evidence fully corroborates the ocular version and there is no contradiction between the two.

14. The statement of the victim- Smt. Sarita is reliable and trustworthy and there is no major discrepancy or contradiction in her statement, which makes it unreliable and there is no reason to disbelieve her testimony which is also corroborated by the medical evidence and there is no reason for false implication.

15. From the evidence on record, it is also established that injury has been caused on the face and due to which her face and nose were disfigured, injured was admitted to the hospital and she remained in hospital for 17-18 days. The discharge slip of Medical College, Kanpur Nagar is also on record, according to which injured Smt. Sarita was admitted in the hospital on 05.03.2011 and was discharged on 22.03.2011.The injury report also shows that injury was extended from forehead of right side of nose to right side of upper lip, her entire face was damaged.

16. The learned trial court has fully discussed the entire evidence and has properly appreciated it and has rightly held the accused guilty for offence under Section 308 IPC. There is no illegality or perversity in the findings recorded by the learned trial court and the finding of conviction is upheld.

17. The learned Amicus Curaie Mr. Shwetashwa Agarwal submitted that it is a matter of quarrel between husband and wife and the incident is 10 years old, appellant-accused is in jail since 19.07.2018 he also remained in jail at the time of his arrest for more than two months and has completed more than three years and three months imprisonment. Learned counsel prayed that the sentence of undergone may be imposed.

18. The learned trial court has sentenced the accused for four years rigorous imprisonment and a fine of Rs.20,000/- and in default of payment of fine three months simple imprisonment.

19. Considering the nature of the offence, nature of the injuries and all other attending facts and circumstances of the case, it appears to be just to sentence the accused with three years and six months rigorous imprisonment and a fine of Rs.10,000/- and in default of payment of fine three months simple imprisonment. If the fine is deposited the victim- Smt. Sarita will get half of the fine amount.

18. The appeal is partly allowed in the aforesaid terms.

19. Copy of this judgment along with lower court record be transmitted to the learned trial court immediately. The copy of the judgment be also served on accused through Superintendent of Jail, concerned so that he may be able to deposit the fine, if he so desires.

Order Date :- 2.9.2021

C. MANI