Vinod Kumar Balmiki vs State of U.P.

R.C. Deepak, J.—The present criminal appeal has been filed by Vinod Kumar Balmiki against, the judgment and order dated 5.5.2003 passed by Sri Jai Mangal Sharma, learned Addl. District & Sessions Judge, Fast Track CourtIII, Lucknow in Sessions Trial No. 477 of 2003 whereby he convicted the accusedappellant under section 302 IPC and sentenced him to life imprisonment with a fine of Rs. 10,000/ and in default of payment of fine 1 year rigorous imprisonment.

The peculiar facts, in brief, of this case, as disclosed in the first information report, are that the accusedappellant Vinod Kumar Balmiki was living with his wife Meera and minor son Vishal, in a rented house of one Ajgar Yadav in village Gwahi Gaon within the limit of police station Gomti Nagar, Lucknow. Vinod Kumar Balmiki had suspicion that his wife Meera had developed illicit relationship with one Prem employed as Driver in the Central Labour Court, Lucknow, wherein his wife was also working as IVth class employee, as he had seen her in an objectionable position with Prem. Not only this, he had also observed that both of them used to accompany in the yehicle. The first information report further discloses that Vinod Kumar Balmiki persuaded his wife at his level best to depart from him (Prem) but she paid no heed, that both the husband and wife lived in a room but she did not like to have sexual relationship with her husband. She always used to quarrel with him as a consequence he remained puzzled. It is alleged that in the night of 6.11.2001 after taking dinner, the husband expressed his desire to have sexual entertainment with her, but she objected, even then he (Vinod Kumar Balmiki) enjoyed sexual entertainment with her against her wishes, upon which she became angry and began to quarrel with him but avoiding her quarrel he went on sleep and she his wife too, that at about 11.00 in the night he woke up and saw that his wife was sleeping, that his devil spirit also woke up to take revenge from his wife as she is alleged to have stabbed his belief/betrayed him, that he repeatedly caused injuries upon her head with gas cylinder and also strangulated her with her Dupatta, that apprehending his arrest by the police, that leaving the dead body of Meera and his son Vishal sleeping besides her in the room, he contacted his landlord Ajgar Yadav and disclosed him the entire episode and both of them went to the police station Gomti Nagar where he (Vinod Kumar Balmiki) dictated the entire incident to the Head Moharrir Uma Shankar (P.W.6) who reduced his dictation into writing, that he put his thumb impression on it. Ajgar Yadav also signed it. This document is the first information report Ex. Ka3.

The investigation into the case was taken up by Siyaram Tiwari, S.I. He immediately effected the arrest of the accused Vinod Kumar Balmiki, that he also recovered two pieces of long hairs from the shirt of his right hand and one from the button of the chest. The recovery memo is (Ex. Ka3). He also visited the place of occurrence, took the dead body into his possession, prepared the inquest (Ex. Ka5), sent the dead body in a sealed cover, sketched the site plan (Ex.Ka13), that he recovered Gas Cylinder and Dupatta, blood stained soil, hairs from the Gas Cylinder and Dupatta, prepared the recovery memos (Ex.Ka6, Ex. Ka7, Ex.Ka8 and Ex.Ka9) respectively.

Dr. S.M. Kalra (P.W. 4) conducted the autopsy on the body of the deceased and he noted the following injuries on her person as disclosed in Annexure Ka4, postmortem examination report:

L.W. 2.5 cm. x 0.50 cm. 1 on Lt. mid line face 4.0 cm. lateral to Lt. ear and bone deep.

L.W. 1.0 cm. x 0.5 cm. on Lt. side of face just below Lt. eye as deep.

L.W. 3.5 cm. x 0.5 cm. on Lt. fore head side near mid line and bone deep.

Contusion 1.5 cm. x 1.0 cm. on Rt. Upper eys lid.

Contusion 1.0 cm. x 0.50 cm. on Lt. eye upper lid.

Contusion swelling 5.0 cm. x 4.5 cm. on Rt. Side of head at temporal area. Clotted blood cut at best nostril neon and Lt. ear. On. opening (sic) under neon above mentioned injury of Lt. (sic) Lit. provbal and Rt. Temporal bone, middle (sic) fossa under neon brain meneges lacerated, subdure, Mainatoma cut all over the brain.

The doctor determined the cause of her death coma as a result of anti mortem head injury. The Investigating Officer after completing the investigation into the case he submitted the chargesheet (Ex.Ka14).

The charge under section 302 IPC was framed against the accused who pleaded not guilty and claimed to be tried.

To prove its case, the prosecution examined as many as six witnesses wherein Asharfi Lal (PW1), Vishal (PW 2) and Ajgar Yadav (P.W. 3) are the witnesses of fact and the remaining are formal ones.

Heard Sri Nadeem Murtaza, learned Amicus Curiae for the accused appellant, Mrs. Zeba Islam Siddiqui, learned AGA for the State and perused the record.

Learned Counsel for the accused appellant has vehemently argued that the accusedappellant did not commit the murder of his wife nor he dictated any first information report to the Head Moharrir (P.W. 6). He concluded expressing that in case the Hon''ble Court pleases to reach a conclusion that the accusedappellant has eliminated his wife the offence would not fall under section 302 IPC but section 304 IPC as it is a case of sudden provocation and not of murder.

On the other hand learned A.G.A. has forcefully controverted the arguments of learned Counsel for the accusedappellant by submitting that it is a case of preplanned murder and not a case of sudden provocation.

Going through the evidence on record and the prevailing circumstances we find that this is a clear case of dictating of the first information report of his own and then putting his thumb impression and the1 first information report also bears the signature of his landlord who accompanied him to the police station. During the trial the accused has resiled from the fact of the dictation of the first information report, however, the facts have firmly been corroborated by the statement of Uma Shanker, Head Moharrir (P.W. 6) who had taken down his dictation. In this circumstance the denial by the accused can not be accepted. It seems to have come after due legal consultation. The evidence of his son and eyewitness of the occurrence finds full corroboration to the factum disclosed in the first information report by the accusedappellant himself as his mother was done to death in his presence. The child mind is a sanctuary in prints drawn on the mind of a young boy whose mother lost her life in the violence practised by his father is indeligible. There is no possibility of making any false statement against his own, father, if the incident would have not occurred in the manner described by him. It apparently is a pictorial description which can not be disbelieved on any Court.

'' It was truth which impelled, propelled and compelled the accused who himself is the informant to write what had actually and trulyhappened at the time of the writing the first information report itself. Had he not disclosed the facts as mentioned in the first information report at his own initiative at the earliest the case would have some what supported the contention of the learned Counsel for the accusedappellant that it is a case of sudden provocation but as the fact mentioned in the first information report makes his contention absolutely wrong and incorrect. This is so because if he had not enjoyed sexual entertainment with her and she had not slept after the said entertainment moreover he had not good feelings towards her because of her illicit connection with a driver according to his own version.

In view of all these what has been mentioned in the first information report which is the foundation on which the entire structure of each and every criminal case depends, if the foundation is weak the entire structure falls down. The statement of the minor son Vishal (P.W. 2) who is none else but the son of accusedappellant himself fully supports the version of the first information report wholly falsifies the contention of learned Counsel for the accusedappellant to the effect that instant not a murder case but a case of sudden provocation. The first information report and the statement of the son of the accusedappellant establish beyond doubt that the instant is a case actually a case of murder and not of sudden provocation. The contention of learned Counsel for the accusedappellant against this is not acceptable to us.

In view of above discussion we do not find any merit in the appeal. The appeal deserves to be dismissed.

Consequently, the appeal is dismissed.

The accusedappellant is in jail in connection with this offence/case. He shall remain therein to serve out the sentence.

Sri Nadeem Murtaza, learned Amicus Curiae shall be paid Rs. 3,500/ as fee.