Kisan alias Tarri vs State of U.P.

Vishnu Sahai, J.—Kisan Kumar alias Tarri was charged by the Additional Sessions Judge (Court No. 12), Kanpur Nagar, in Sessions Trial No. 789 of 2001, for the offence punishable u/s 302, I.P.C. The learned Judge, vide judgment and order dated 20.2.2003 convicted and sentenced him to death thereunder.

Criminal Appeal No. 149 of 2003 has been preferred by Kisan Kumar alias Tarri against his aforesaid conviction and sentence. Capital Sentence Reference No. 6 of 2003 arises from the reference made by the learned Judge, to this Court, u/s 366(1), Cr. P.C. for confirmation of death sentence of Kisan Kumar alias Tarri.

Since Criminal Appeal No. 149 of 2003 and Capital Sentence Reference No. 6 of 2003 arise out of a common factual matrix and impugned judgment we are disposing them of by one judgment.

Shortly stated, the prosecution case runs as under:

The informant Ram Kali P.W. 1, is the mother of the deceased Indira. At the time of the incident, the informant and the deceased were staying together in 16/11, Bhagwat Das Ghat, within the limits of Police Station Pheel Khana in district Kanpur Nagar.

Indira was married about 9 to 10 years before the incident to one Ashok, who committed suicide. Thereafter, she came in contact with Appellant Kisan alias Tarri and at the time of the incident, both of them were living as husband and wife. Sometimes the Appellant used to stay with Indira at the informant''s house and sometimes at his own house. The Appellant was a drunkard and used to ill-treat Indira.

On the night of 4/5.9.2001, the Appellant came in a severely intoxicated state at the informant''s house. An altercation took place between him and Indira. The informant and some others pacified the situation. Thereafter, the Appellant and Indira slept inside the informant''s room and she slept at a distance about twenty paces therefrom. In the morning, when she woke up and went inside the room, she found water resembling blood therein ; Indira dead ; blood oozing out from her vagina ; and the Appellant Kisan Kumar alias Tarri not there. She was convinced that the Appellant Kisan Kumar alias Tarri had murdered Indira and thereafter, had ran away. She, thereafter, got the F.I.R. scribed by Gopal Gupta P.W. 3, who after scribing it read it over to her. She then went to police station Pheel Khana (district Kanpur Nagar) and lodged it.

The evidence of Head Moharrir Rajvir Singh P.W. 5, shows that on 5.9.2001, at about 9.05 a.m., Ram Kali P.W. 1 came at police station Pheel Khana and lodged the F.I.R., on the basis of which he registered a case in the General Diary and prepared the chik-F.I.R. A perusal of the chik F.I.R. shows that on basis of the F.I.R. a case u/s 302, I.P.C. was registered against the Appellant.

The evidence of S.H.O. Tejpal Singh P.W. 6, in short, shows:

On 5.9.2001, the F.I.R. was lodged in his presence. He, thereafter, commenced the investigation. He recorded the statement of Head Moharrir Rajvir Singh and the informant Ram Kali and left for the place of incident. S.I. Jai Karan Singh also reached there. On his directions, S.I. Jai Karan Singh performed the inquest on the corpse of the deceased and prepared the photo-lash and challan-lash, etc. He, thereafter, sent her corpse for autopsy. From the place of the incident, he seized plain and blood stained earth in separate containers under a recovery memo. He searched the Appellant and at about 3.00 p.m. arrested him at Moolganj crossing. He recorded the statement of the Appellant. He was putting on a baniyan containing blood stains which according to him (the Appellant) had been washed. In the presence of the public witness Surya Narain Sharma P.W. 4, he seized the baniyan under a recovery memo (Ext. Ka-3). Thereafter the Appellant admitted that he could have the weapon of assault namely danda, which he had inserted inside the vagina of the deceased, recovered. Thereafter, he along with Appellant, Surya Narain Sharma P.W. 4 and police personnel proceeded to a Bargad tree, situated in front of the place of incident and on the pointing out of the Appellant a blood stained danda, which he had been concealed in the branches of the tree was recovered, under a recovery memo (Ext. Ka-4). He sent the baniyan and danda to the Scientific Laboratory. On 22.9.2001, after completing the investigation, he submitted the charge-sheet against the Appellant.

Going backwards, the autopsy on the corpse of the deceased Indira was conducted on 5.9.2001, at 2.20 p.m., by Dr. K. K. Jaiswal P.W. 7 who found on it a solitary injury which was a laceration of the dimensions of 3 cm. ? 5 cm. in vagina.

The cause of death spelt out in the post-mortem report was shock and haemorrhage on account of the ante-mortem injury.

In his statement in the trial court, Dr. Jaiswal reiterated the said cause of death and stated that the ante-mortem injury was possible by the insertion of a thick danda (stick) in the vagina and was sufficient in ordinary course of nature to cause death. Dr. Jaiswal also stated therein that the deceased could have died as a result thereof, sometimes on the night of 4/5.9.2001.

The case was committed in the Court of Sessions in the usual manner, where the Appellant was charged for the offence punishable u/s 302, I.P.C. He pleaded not guilty and claimed to be tried. His defence was of denial.

During trial, in all, the prosecution examined seven witnesses. We may straightway mention that there is no eye-witness of the incident and the prosecution adduced circumstantial evidence, the circumstances being:

(a) On the night of 4/5.9.2001, Ram Kali P.W. 1 saw the Appellant and her daughter Indira sleeping inside her room and on the morning of 5.9.2001, when she woke up, she found Indira dead ; blood oozing from her vagina ; water resembling blood inside the room ; and the Appellant not there ;

(b) Recovery of weapon of assault, namely, a blood stained danda on 5.9.2001, on the pointing out of the Appellant in the presence of public witness Surya Narain Sharma P.W. 4 and S.H.O. Tejpal Singh P.W. 6 ; and

(c) Recovery of blood stained baniyan from the person of appellant (who had it washed) in the presence of public witness Surya Narain Sharma P.W. 4 and S.H.O. Tejpal Singh P.W. 6 on 5.9.2001

In defence two witnesses, namely, Satish Kumar D.W. 1 and Santosh Kumar D.W. 2 were examined to prove that the Appellant on the night of the incident did not sleep at the house of informant but slept at his own house ; the relations between him and Indira were sour ; and he has been falsely implicated.

The learned trial Judge believed the evidence adduced by the prosecution and convicted and sentenced the Appellant in the manner stated in paragraph 1.

As mentioned earlier, aggrieved by his conviction and sentence, the Appellant Kisan alias Tarri has preferred Criminal Appeal No. 149 of 2003 in this Court and Capital Sentence Reference No. 6 of 2003 arises out of the reference made by the learned trial Judge, u/s 366(1), Cr. P.C., to this Court, for confirmation of death sentence of Kisan alias Tarri.

We have heard learned Counsel for the parties and perused: the depositions of the prosecution witnesses ; the material exhibits tendered and proved by the prosecution ; the statement of the Appellant recorded u/s 313, Cr. P.C. ; the evidence of defence witnesses and the impugned judgment. In our view, this appeal deserves to be partly allowed inasmuch as no offence u/s 302, I.P.C. is made out against the Appellant and only one u/s 304(2), I.P.C. is made out against him.

We also feel it pertinent to mention that Mr. Bijai Prakash Tiwari, learned Counsel for the Appellant has not assailed the conviction of the Appellant on merits and has restricted his challenge to question of offence.

We have gone through the evidence of record and have no reservations in observing that the involvement of the Appellant in the incident has been established to the hilt. In our judgment, even if circumstance (c), namely, Recovery of blood stained baniyan from the person of Appellant (who had it washed) in the presence of public witness Surya Narain Sharma P.W. 4 and S.H.O. Tejpal Singh P.W. 6, on 5.9.2001, is excluded from consideration because the report of the serologist only shows blood and not human blood, the other two circumstances namely (a) and (b) are sufficient to prove the involvement of the Appellant in the incident.

The said circumstances are:

(a) On the night of 4/5.9.2001, Ram Kali P.W. 1 saw the Appellant and her daughter Indira sleeping inside her room and on the morning of 5.9.2001, when she woke up, she found Indira dead ; blood oozing from her vagina ; water resembling blood inside the room ; and the Appellant not there ; and

(b) Recovery of weapon of assault, namely, a blood stained danda on 5.9.2001, on the pointing out of the Appellant in the presence of public witness Surya Narain Sharma P.W. 4 and S.H.O. Tejpal Singh P.W. 6.

11A. So far as the circumstance (a) is concerned, it has been proved by Ram Kali, the mother of deceased Indira. Since the Appellant and Indira were sleeping inside her room, she was a very natural witness in respect of it. In our judgment, she is a truthful witness and if she wanted to give false evidence against the Appellant, she could have very well said that she saw him inserting a danda in the vagina of deceased. It is significant to point out that although she was cross-examined but nothing could be extracted therefrom, which could discredit her presence on the place of the incident.

In our judgment, circumstance (b) is also proved. It is true that the public witness of recovery Surya Narain Sharma P.W. 4 has stated that recovery of danda did not take place in his presence and he only affixed signatures on the recovery memo, but we have a credible witness of recovery of danda is S.H.O. Rajvir Singh. It is significant to point out that S.H.O. Rajvir Singh bore no ill-will against the Appellant and in our view, in the absence of the same he would not have manufactured the said evidence. It is pertinent to mention that although he was cross-examined, but in respect of this circumstance only a solitary question was put to him whether Surya Narain Sharma P.W. 4, had told him that the danda was recovered in his presence, to which he replied in the affirmative. We wish to make it clear that there is no rule of thumb having universal application that unless in respect of a recovery u/s 27 of the Evidence Act, there is credible evidence of a public witness, the recovery cannot be relied upon.

It is pertinent to mention that on the danda the serologist found human blood. The Supreme Court, in paragraph 10, of the oft quoted case of Khujji alias Surendra Tiwari Vs. State of Madhya Pradesh, , has held that presence of human blood on a recovered article constitutes incriminating evidence.

In our judgment, this recovery incriminates the Appellant because the evidence of the autopsy surgeon shows that the ante-mortem laceration suffered by the deceased was attributable to it (danda) and the factum of the serologist finding human blood on it shows that it was inserted in the vagina of the deceased. In our view circumstances establish that it was with this danda that the Appellant belaboured the deceased.

In our judgment, circumstances (a) and (b) conclusively establish the involvement of the Appellant in the crime.

So far as the evidence of two defence witnesses, namely, Satish Kumar D.W. 1 and Santosh Kumar D.W. 2 is concerned, we find that the learned trial Judge has given very plausible reasons, in the impugned judgment, for rejecting it. We do not want to burden our judgment by reiterating them.

This leaves us with the question of offence. In our judgment, the learned trial Judge erred in convicting the Appellant for the offence punishable u/s 302, I.P.C. In our view, the act of Appellant would not fall within the mischief of any of the four clauses of Section 300, I.P.C., the breach of which is punishable u/s 302, I.P.C. It is true that the autopsy surgeon has stated that the injury suffered by the deceased was sufficient in the ordinary course of nature to cause death, but we are not prepared to accept his evidence because the post-mortem report does not show any internal damage beneath the ante-mortem injury suffered by the deceased. To us it appears that the deceased died of excessive bleeding. That excessive bleeding took place is probabilised by the evidence of the informant who found water resembling blood in side the room in which the Appellant and the deceased slept. In our view the act of the Appellant would fall within the mischief of clause thirdly of Section 299, I.P.C., the breach of which is punishable u/s 304(2), I.P.C. In our judgment, when the Appellant inserted a danda in the vagina of deceased Indira, he committed an act with the knowledge that her death could be caused.

This leaves us with only one question, namely, that of sentence. It is true that the deceased was the wife of the Appellant, but looking to the injury, which the Appellant caused to her and bearing in mind the fact that before the incident an altercation had taken place between the Appellant and the deceased, in our view, a sentence of seven years'' R.I. would meet the ends of justice.

In the result:

A. Criminal Appeal No. 149 of 2003:

This appeal is partly allowed. We acquit Appellant Kisan alias Tarri for the offence punishable u/s 302, I.P.C. and set aside the sentence of death awarded to him thereunder. We instead find him guilty for the offence punishable u/s 304(2), I.P.C. and sentence him to undergo seven years'' R.I. The Appellant is in jail and shall serve out the sentence.

B. Capital Sentence Reference No. 6 of 2003:

The reference is rejected.