Soni Lal @ Soney Lal vs State
2022 Latest Caselaw 12702 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Court No. - 43
 

 
Case :- JAIL APPEAL No. - 838 of 2008
 

 
Appellant :- Soni Lal @ Soney Lal
 
Respondent :- State
 
Counsel for Appellant :- From Jail,Amit Tripathi
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Shiv Shanker Prasad,J.

1. Heard Sri Sudhanshu Kumar, learned Amicus Curiae for the appellant and Sri Arunendra Singh, learned AGA for the State.

2. This jail appeal is directed against judgment and order dated 21.08.2006, passed by the Additional Sessions Judge, Court No.5, Kanpur Nagar in Sessions Trial No. 780 of 2003, State vs. Soni Lal alias Soney Lal; whereby the appellant has been convicted under section 302 IPC in Crime No.364/03, Police Station Chakeri, District Kanpur Nagar and consequently sentenced to life imprisonment with fine of Rs. 10,000/- and in default of payment of fine to undergo simple imprisonment for six months.

3. Prosecution case in brief is that a written report was made by the first informant Kusum Devi (PW-1) that her husband has died about two years back and the accused appellant used to visit her during the last about a year. On 19.6.2003, at about 3.00 in the afternoon, the accused appellant came to her hut and stayed in the night and on account of a dispute he has strangulated the deceased on account of which her three year old daughter has died. Based upon such report a first information report in Case Crime No. 364 of 2003, under Section 302 IPC, Police Station Chakeri, District Kanpur Nagar was registered on 19/20.6.2003.

4. On receiving information the police party reached the spot and conducted panchayatnama at 11.30 am in which the inquest witnesses were of the opinion that on account of mutual dispute the deceased has been strangulated and for knowing the exact reason of cause of death postmortem be conducted. The postmortem was conducted on the same day at 3.35 pm in which the cause of death has been found to be asphyxia as a result of throttling.

5. Investigation proceeded in the matter and statements were recorded of PW-1 and certain other persons including one Shanker Lal Mistri, who has died. Statement was also recorded of the two elder daughters of the first informant namely Seeta and Geeta who have not been produced in evidence. Investigation was concluded and a charge sheet was submitted against the accused appellant by the police.

6. Cognizance in the matter was thereafter taken by the concerned Magistrate, who committed the matter to the court of Sessions, by which the offence was triable. Sessions Trial No. 780 of 2003 came to be registered and the following charge against the accused appellant has been made:-

"that on 19/20.6.2003 during night hours on account of unknown reasons the accused appellant strangulated the deceased Komal, the daughter of first informant Kusum Devi, for which he is liable to be punished under Section 302 IPC."

7. In order to bring home the charge framed against the appellant the prosecution adduced oral testimony of first informant Kusum Devi (PW-1), who is mother of the deceased and is an eye-witness to the incident. PW-1 in her statement has stated that after the death of her husband the accused appellant was introduced to her by one Ramesh who suggested that the first informant needed assistance of a man to enable her to rear her five children namely Seeta and Geeta, who were twins, aged 10 years; Rahul aged 7 years; Sonal aged 5 years and Komal, the deceased, aged 3 years. It is on such persuasion of Ramesh that the accused appellant met the first informant and that with mutual agreement started living as husband and wife. The first informant put a condition that the accused appellant would help her in raising her children. It is also stated in examination-in-chief that the accused appellant used to assist the first informant by bringing vegetable etc. for the benefit of family.

8. It is deposed by the first informant that on the night in question the accused appellant had brought fish which was cooked by the first informant and everyone in the family ate it. The children were made to sleep outside the hut while accused appellant alongwith the first informant slept inside the hut. As per PW-1 the deceased aged 3 years wanted to sleep with her which was not liked by the accused appellant since he was getting disturbed and was not able to have intercourse with the first informant. The deceased came couple of time; whereafter the accused appellant took her out on the pretext that he would make her sleep and instead of doing so he throttled the deceased on account of which she died. The reason for committing the offence has been clearly spelt out by the first informant as obstruction in having intercourse by the accused appellant with the first informant.

9. In the examination-in-chief the first informant has stated that for the last 2-3 months accused appellant was coming to her and on the relevant date she had cooked food at 9-10 pm and after having their food the children were made to sleep outside the hut at about 10-11 pm. PW-1 has stated that she had gone to sleep and when she woke up at about 4.00 am, she found that the accused appellant was assaulting the deceased and when she objected to it the accused appellant throttled her. The exact time of incident was not known as the first informant claimed to be an illiterate lady.

10. PW-2 is the Head Constable, who has recorded the contents of written tehrir in the General Diary and verified the chik FIR. PW-3 is the doctor, who conducted the postmortem on the deceased. He has clearly stated that hyoid bone of the deceased was fractured and the cause of death was asphyxia as a result of throttling. He has denied the suggestion that the deceased died having fallen from the Cot. PW-4 is the Investigating Officer, who also has supported the prosecution story.

11. The accused appellant was confronted with the incriminating material collected against him during the course of trial and he denied any relationship with the first informant or that he helped her in rearing her children. He has also denied the prosecution story of sleeping in the hut or lying with the first informant for having sexual intercourse. He has also flatly denied having throttled the 3 year old deceased. In reply to Question No. 12 he has stated that he has not committed any crime and that he has been falsely implicated by the police who took him from his house at 8.00 pm.

12. On the basis of above evidence adduced by prosecution, during the course of trial, the Court of Sessions came to the conclusion that the accused appellant had throttled the minor deceased aged 3 years and that charge under Section 302 IPC has been established by the prosecution on the basis of evidence so adduced beyond reasonable doubt and sentenced him to life imprisonment. Thus aggrieved, the accused appellant has preferred the present Jail Appeal.

13. Before we proceed to notice the submissions advanced on behalf of the appellant, we may record that when the matter was placed before the Court on 5.8.2022 a report of the Jail Authorities was placed according to which the accused appellant has already been let off after remission was granted to him by the State on 15th December, 2021. This government order records that having served sentence of 20 year 7 month 21 days with remission the accused appellant is liable to be released as his conduct has otherwise been satisfactory in the Jail. However, as the appeal on merits had remained pending, we sent notices to the accused appellant and on his failure to cooperate in the hearing of the appeal we have appointed Sri Sudhanshu Kumar, Amicus Curiae, who has argued the present appeal on behalf of the accused appellant.

14. Learned amicus curiae on behalf of accused appellant submits that the prosecution has falsely implicated the accused appellant and that the charge under Section 302 IPC has not been established against the accused appellant. With reference to charge framed by the Court against the accused appellant, it is argued that the place of occurrence is the hut (Jhopadi); whereas the prosecution witness in her statement claims that the accused appellant took the deceased out of hut and strangulated her. It is, therefore, urged that place of occurrence has been altered. He further submits that the statement of PW-1 is not credible since at one stage she has stated that the accused appellant was living with her for a year while during the course of examination she says that they were living together for the last 2-3 months.

15. Learned amicus curiae further submits that the plea of obstruction in having intercourse with the first informant has not been supported in the cross-examination where it is alleged that both PW-1 and the accused appellant had already slept and only in the morning at about 4.00 am she noticed that the accused appellant was assaulting the deceased and on objecting to it he strangulated her. Submission is that this amounts to a serious contradiction in the statement of PW-1. Learned counsel further argues that there are no independent witnesses to the alleged occurrence of crime and even the prosecution witnesses mentioned in the chargesheet have not been produced during the course of trial. With reference to statement of accused appellant under Section 313 Cr.P.C., it is urged that the accused appellant has been falsely implicated for an offence done by somebody else.

16. Learned AGA, Sri Arunendra Singh on the other hand submits that the ocular testimony of mother is clearly supported by the medical evidence on record, inasmuch as, the cause of death has been found to be asphyxia as a result of throttling. He further submits that the statement of PW-1 is absolutely credible and any minor inconsistency or variation in her statement would not render her an unreliable witness, inasmuch as, on all material particulars her statement is consistent and wholly reliable.

17. It is in the above context that we have examined the arguments advanced by learned counsel for parties with reference to the evidence placed on record before us.

18. So far as the prosecution case is concerned, we have already noticed that the first informant, who happens to be the mother of the deceased, has given a written report in the police station clearly implicating the accused appellant of having visited her and staying at her place in night and on a dispute amongst them the accused appellant throttled the deceased due to which she died. The Panchayatnama is on record in which the inquest witnesses have also come to the conclusion that the deceased died on account of strangulation and that a postmortem be got conducted.

19. The postmortem report is on record in which the cause of death has been found to be asphyxia as a result of throttling due to following ante-mortem injuries:-

"Multiple abraded contusions(5) in an area of 06 cm x 06 cm front of neck and lateral side of the face just above the right angle of mandible just below the chin. Largest injury 01 cm x ½ cm and smallest ½ cm x ¼ cm."

20. The first informant is the mother of the deceased and has clearly stated that the accused appellant was known to her and was staying with him as husband and wife. Mere fact that at one stage she has stated such duration of living together as one year while at another place she has stated that they were living together for the last 2-3 months does not make any difference, inasmuch as, such trivial inconsistency would not be material. The statement of PW-1 is specific that her five children born out of the wedlock with her deceased husband were sleeping outside the hut and the youngest daughter was insisting for sleeping with her in the hut. This appears to be quite natural as a young girl of 3 years can be expected to insist to sleep with her mother. Further statement made by the first informant that this was objected to by the accused appellant who wanted to satisfy his lust and got enraged on account of obstruction in fulfillment of his desire by the minor victim also appears credible. PW-1 has stated that after repeated attempts by the deceased the accused appellant took the deceased out of hut on the pretext of making her sleep also sounds logical and convincing in view of the evidence adduced. Whether this incident happened in the dead of night or it was around 4.00 am in the morning is not material. The statement that both the accused appellant and the first informant had gone to sleep and when PW-1 woke up in the morning she noticed the fact that the accused appellant was assaulting the deceased and later strangulated the deceased are consistent version on part of the first informant and for any minor discrepancy, which may have surfaced in explaining the manner in which the offence itself came to be conducted would not belie the credibility of the first informant who has lost her daughter.

21. The submission that no independent witness was produced or that the elder daughters who were made witnesses in the charge sheet have not been produced is also not appealing. In the Indian Society, it is otherwise common for the minor girls aged about 10 years not to be produced in courts and is not unusual when the single parent has lost her youngest daughter. Non-production of her two elder daughters, therefore, would not be fatal to the prosecution case. It otherwise appears that the first informant came from a poor family background and she used to work hard by serving other households by cleaning their utensils, etc. to arrange for the livelihood of their minor children. It is not expected that many neighbours would like to come to the aid of such helpless lady so as to depose before a court of law. We are of the view that the statement of PW-1, who herself is a victim and has lost her youngest daughter to the lust and desire of the accused appellant will have to be given due importance. We are persuaded to take such a view as the statement of PW-1 on material aspects is otherwise supported by the medical evidence. It is also not in dispute that the death of deceased was homicidal and the presence of her mother at the time of occurrence otherwise cannot be doubted. Counsel for the appellant's suggestion given during the course of argument that it was Ramesh who may have committed the offence and the appellant is being made an scapegoat appears to be far fetched theory which lacks credibility.

22. The last argument of learned amicus curiae that the incident occurred at the spur of moment in a sudden provocation and therefore this would amount to culpable homicide not amounting to murder and that the accused appellant is entitled to the benefit of Exception 4 to Section 300 IPC is noticed only to be rejected. Law is settled that the Exception 4 to Section 300 IPC would be attracted if the act of homicide is without premeditation in a sudden fight in the heat of passion, upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. All the ingredients spelt out in Exception 4 will have to exist before the benefit of Exception 4 can be extended in a case. In the present case, we find that the offender has taken undue advantage and has acted in a cruel and unusual manner when he throttled three year old minor deceased only for satisfying his lust as the deceased was repeatedly coming to her mother to sleep with her which was obstructing the accused appellant from having intercourse with the first informant. We are, therefore, of the view that Exception 4 to Section 300 IPC would clearly not be attracted in the facts of the present case and the argument in that regard must be rejected.

23. In light of our discussions made above, we have absolutely no doubt that the prosecution has succeeded in establishing the guilt of accused appellant in throttling the deceased on 19/20.6.2003, as a result of which, she died and consequently the accused appellant is held guilty of committing offence under Section 302 IPC. We are in absolute agreement with the reasoning adopted by the court below for arriving at a conclusion with regard to guilt of the accused appellant. Consequently, this appeal fails and is dismissed.

24. The conviction of the accused appellant vide order dated 21.08.2006, passed by the Additional Sessions Judge, Court No.5, Kanpur Nagar in Sessions Trial No. 780 of 2003, State vs. Soni Lal alias Soney Lal, under section 302 IPC in Crime No.364/03, Police Station Chakeri, District Kanpur Nagar and consequently sentenced to life imprisonment with fine of Rs. 10,000/- and in default of payment of fine to undergo simple imprisonment for six months is sustained.

25. Sri Sudhanshu Kumar has assisted the Court as Amicus Curiae and has ably argued the matter for which he would be entitled to payment of his fee from the High Court Legal Services Authority which we determine at Rs.15,000/-.

 
Order Date:- 13.9.2022
 
Ranjeet Sahu
 

 

 
(Shiv Shanker Prasad, J.)         (Ashwani Kumar Mishra, J.)