Dhan Singh vs State of U.P.

Poonam Srivastav, J.—The instant appeal is on behalf of single accused Dhan Singh son of Ninuwa challenging the judgment and order dated 14.5.1982 in S.T. No. 13 of 1982 convicting the Appellant u/s 304(1), I.P.C. and sentencing him to undergo 10 years R.I.

The accused-Appellant was charge-sheeted and charged for an offence u/s 302, I.P.C. for committing murder of his wife Smt. Shyamo. The occurrence is alleged to have taken place on 2.6.1981 at 4.00 p.m. in mohalla Amarpura, Police Station Shahganj, Agra. The F.I.R. was lodged on the same day, i.e., 2.6.1981 at 18.25 hours at Police Station Shahganj, Agra by Guljari P.W. 1, S/o Jhunni Lal, R/o Amarpura, Police Station is said to be situated at a distance of four kilometres. Smt. Shyamo belonged to village Lakhanpur in Rajasthan and married in village Russa, Police Station Kiraoli. She left her first husband and married the accused-Appellant. P.W. 1 Guljari Lal and P.W. 4 Bedariya are real brothers. P.W. 2 Smt. Shakuntala is wife of P.W. 1. They reside in the near vicinity of the place of occurrence in mohalla Amarpura, Police Station Shahganj. Sister of Guljari Lal and Bedariya is married in village Baurwar to one Sukhram. According to prosecution though there is no direct relationship between P.W. 1 Guljari Lal and accused-Appellant but on account of being resident of same village, Guljari Lal treated the accused as Bhanja''s son. Prior to the occurrence, the Appellant and the deceased Smt. Shyamo had come to Agra and stayed with Guljari Lal and Badariya for about a month and thereafter they went back to their village. A day prior to the occurrence Smt. Shyamo came again to the house of Guljari Lal in Mohalla Amarpura. While on the day of occurrence P.W. 1 Guljari Lal his wife P.W. 2 Smt. Shakuntala, P.W. 3 Hotilal and one Shri Chand were sitting outside the door of the house, the children of Guljari Lal were playing in the garden. Smt. Shyamo was alone in the house. All the eye-witnesses rushed inside the house on hearing the shrieks of Smt. Shyamo. When they reached inside the house, they saw the Appellant Dhan Singh assaulting his wife by hansia which is Ex. 1. These witnesses caught told the accused and saved Smt. Shyamo from further assault. She had already received a number of injuries and was bleeding profousely. Badariya took Smt. Shyamo to S.N. Hospital and got her admitted there in the emergency. P.W. 1 Guljari Lal got written report Ex. Ka-1 from scribe Lekhraj. He took the accused along with Hotilal at the police station Shahganj and handed over to the constable Laxmi Prasad and constable Udaibir. The F.I.R. was lodged at 6.25 p.m. Hansia which was weapon of assault, was also handed over to the police which is Ex. 1. Ex. Ka-5 is the copy of formal chik report and Ex. Ka-6 is the copy of G.D. entry. On the same day at 6.35 p.m. Dr. A.B. Mowar, Casualty Medical Officer, S.N. Hospital, Agra examined the injuries of Smt. Shyamo and found 17 incised wounds. She was in a semi-conscious state and at that time she was not in a position to record her dying declaration. Injury report was prepared by doctor. Investigation was entrusted to P.W. 11 S.I. R.K. Gautam. The statement of Guljari was recorded and local inspection report and site plan was prepared. The Investigating Officer took the blood stained and ordinary earth, thereafter recorded statement of P.W. 2. Dying declaration of Smt. Shyamo was recorded in the hospital on 3.6.1981 by Sri Raj Kumar Singh, Executive Magistrate Ist Class, Agra. Bhanu Pratap Singh, Medical Officer, S. N. Hospital, Agra certified the condition of Smt. Shyamo regarding her mental state. He was examined as P.W. 13. Statement of Smt. Shyamo u/s 161, Code of Criminal Procedure was recorded by the Investigating Officer on 5.6.1981. Badariya P.W. 4 was examined by the Investigating Officer and finally on 18.6.1981 Smt. Shyamo succumbed to her injuries at 8.40 p.m. Ex. Ka-11 is bed head ticket duly proved by P.W. 9 Dr. R.K. Tandon. Intimation about death was sent at Police Station Kotwali and received on the same night at 11 p.m. Inquest was prepared in between 1 p.m. to 2 p.m. Dr. M. K. Rawat, Medical Officer, District Hospital, Agra conducted post-mortem on the body of Smt. Shyamo on 20.6.1981. On external examination following injuries were found on the body of the deceased:

On external examination the doctor found the deceased of average built. Rigor mortis were not present and had disappeared from the whole body. Decomposition had started. Skin peeled off at places. Eyes were closed.

The doctor found the following ante-mortem injuries:

Septic wound 1" x 3/10" x muscle deep in between web space and left little and ring finger upper part back of hand.

Stitched wound 1"/2" length left forearm outer part upper third.

Septic wound 1" x 1/2" x muscle deep left upper arm outer part upper third.

Septic wound 1" x 1/2" x skin deep on top of left shoulder.

Septic wound 1/2" x 2/10" x skin deep 2" below injury No. 4.

Septic wound 2" x 1/2" bone deep left side of back of head in occipital region.

Septic wound 3/4" x 1/2" x chest cavity deep right mid-axillary line, 3-1/2" below the base of the axilla.

Septic wound 1" x 3/4" chest cavity deep left mid axillary line, 3" below the base of the axilla.

On internal examination the pleura was found cut. There was greenish watery fluid in the stomach. Digested food material was present in the small intestines. The large intestines were empty. In right lung there was a wound with pus in the middle lobe under injury No. 7. There was also a septic wound in the middle lobe under injury No. 8 in the left lung. The bladder was empty.

In the opinion of the doctor death was caused due to shock and septicaemia due to the injuries.

On 21st June, 1981, a case was registered u/s 302, I.P.C. vide copy of G.D. entry Ex. Ka-7.

Subsequently Inspector R. C. Sharma P.W. 12 took over investigation of the case after transfer of S.I. R.K. Gautam.

Prosecution examined three witnesses of fact namely P.W. 1 Guljari Lal, P.W. 2 Smt. Shakuntala and P.W. 3 Hotilal, P.W. 4 Badariya stayed with Smt. Shyamo at the hospital. P.W. 6 A.B. Mowar examined the injuries of Smt. Shyamo on 2.6.1981 at 6.35 a.m. at S.N. Hospital, Agra and proved the injury report Ex. Ka-3 and sent memo Ex. Ka-4 to the police for recording her dying declaration. P.W. 5 Sri Raj Kumar Singh, Executive Magistrate proved the dying declaration Ex. Ka-2 recorded on 3.6.1981 at 9.30 a.m. P.W. 13 Dr. Bhanu Pratap Singh gave a certificate regarding Smt. Shyamo being in a fit mental condition. P.W. 9 Dr. R.K. Tandon supervised the treatment of Smt. Shyamo in S.N. Hospital between 2.6.1981 to 18.6.1981 when she died at 8.40 p.m. and proved the bed head ticket Ex. Ka-11. P.W. 10 constable Jagdish Prasad proved the inquest papers. P.W. 8 Dr. M.K. Rawat proved the post mortem report Ex. Ka-10. P.W. 7 H.C. Yatindra Kumar is a formal witness of P.S. Shahganj. P.W. 11 S.I. R.K. Gautam and P.W. 12 Inspector R.C. Sharma are the two Investigating Officer. The prosecution tendered in evidence Ex. Ka-23 the report of the Chemical Examiner and Serologist.

The accused-Appellant denied the prosecution version and in his statement u/s 313, Code of Criminal Procedure stated that Badariya had developed an illicit connection with the deceased and took her home without informing him. When he returned to the house, he found his wife almost without clothes and making love to each other. Badariya and Smt. Shyamo started assaulting him and he struck back in self defence. He had also gone to the police station to lodge the report but the police took him into custody and did not register the case. This fact of illicit relation has been supported by father of the Appellant Ninua Ram D.W. 1. Learned Session Judge after analysing the evidence recorded his finding while examining the dying declaration of Smt. Shyamo that the deceased has not justified her living in the house of Badariya and Guljari but she had tried to explain in her dying declaration that she was living as a tenant. The probability that Smt. Shyamo was living with Badariya for the reason suggested by the Appellant was not completely ruled out by the learned Session Judge. Learned Session Judge has also noticed the discrepancies in the dying declaration and statement recorded by the Investigating Officer as well as the fact that she was married for the second time with the Appellant. However, the factum of causing injuries by hansia was accepted by the learned Session Judge. It was concluded that deceased was killed on account of sudden provocation and, therefore, convicted the Appellant for an offence of culpable homicide u/s 304, Part I, I.P.C.

Sri S.P.S. Rathi advocate appearing on behalf of the Appellant has placed the evidence of witnesses of fact. P.W. 1 in his cross-examination has supported the prosecution story and suggestion of defence Counsel that the deceased was making love and was without any clothes has expressly been denied. While assailing the statement of P.W. 4 Badariya he has tried to substantiate that his wife had died almost 25 years before and at that time he was 40-45 years of age, his age as given out in the beginning of the statement as 65 years as well as from the cross-examination it is also established that he was quite old and suggestion of illicit relation does not stand to reason. Besides Badariya has also given in cross-examination that the Appellant and deceased Shyamo had come and live in his house on a previous occasion for almost 15-30 days and, therefore, the suggestion of defence is without any basis. The defence had also attempted to suggest that at the time when his statement was recorded in the Court, Badariya was having illicit relation with the wife of P.W. 1 on the face of it appears to be a far-fetched suggestion and is extraneous to the facts of the present case. Since it was the same year, i.e., 1982 their statement was recorded when the occurrence had taken place and, therefore this suggestion is also without any foundation and has rightly been disbelieved and discarded by the learned Session Judge.

I have gone through the judgment of the learned Session Judge as well as statements of the witnesses, dying declaration and other documents of the prosecution. I have also examined the defence evidence. I do not agree with the suggestion of the defence that assault was made by the Appellant in self defence. Not a single injury has been received by the accused-Appellant and, therefore, the right of private defence is a far-fetched imagination and, therefore, deserves to be discarded.

Learned A.G.A. has supported the judgment and also disputed each and every argument of the Counsel for the Appellant. However, after examining the entire evidence, the conviction of the Appellant u/s 304 appears to be justified but the question remains still to be decided whether the conviction should be recorded under Part I or Part II of Section 304, I.P.C.

After giving careful consideration, I am of the view that the Appellant committed the offence inside the house of the prosecution witnesses as well as in broad day light, therefore, the probability of committing culpable homicide with an intention to kill or causing such bodily injuries likely to cause death is to be examined. Where such intention is absent but there is knowledge that death is the likely result then it calls for a stringent view. It is true that the line of demarcation is very thin but as already stated above, the place, time and manner of occurrence appears to be that injuries were caused with the knowledge that death was very likely but not with an intention to kill. A bare perusal of the II Part of Section 304, I.P.C. it is evident that motive was only because the wife of the Appellant was staying in the house of Badariya which the accused-Appellant thought was her paramour.

In the case of Sivakumar Vs. The State, and also Mavila Thamban Nambiar Vs. State of Kerala, the accused had inflicted cut injuries to the deceased, a paramour of his mother, and evidence showed that the accused attacked the deceased and his guilt was proved beyond all reasonable doubt. The Apex Court was of the view that conviction of the accused u/s 304, I.P.C. was proper. In another case, the accused assaulted his wife and when son-in-law tried to intervene, he was killed. Conviction was again altered u/s 304, Part II, I.P.C.

Similarly in the instant case, the Appellant inflicted knife injuries on his wife either seeing her in a compromising position with Badariya and admittedly both were in the house of Badariya whom the Appellant suspected to be her paramour and got infuriated. The knife injuries were inflicted with a view to teach her a lesson.

In the circumstances, it is evident that the injuries were inflicted in a state of rage and with an intention to teach her a lesson. However, after assessment of overall circumstances, I am of the opinion that right of private defence cannot be available to the Appellant. No doubt, the injuries were caused in a heat of passion as a result of which the victim finally succumbed but on examination of ante-mortem injuries, it is evident that cause of death was ''septicaemia'' It was not an instant death, in the circumstances, I come to a conclusion that conviction u/s 304, Part II will meet the ends of justice. Period of almost 30 years have lapsed and I do not intend to send back the Appellant to jail. He must be very old today. He was in jail at the initial stage for almost seven months and thereafter he was also in jail for ten days after his conviction. Therefore, sentence is reduced to the period already undergone and also a fine of Rs. 10,000. In default of payment of fine, further imprisonment of six months. The appeal is partly allowed. The Appellant need not surrender.