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Thursday, April 6, 2017

whether the offence is “murder” or “culpable homicide not amounting to murder”, on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to “culpable homicide” as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of “murder” contained in Section 300. If the answer to this question is in the negative the offence would be “culpable homicide not amounting to murder”, punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be “culpable homicide not amounting to murder”, punishable under the first part of Section 304, of the Penal Code.”

                        IN THE SUPREME COURT OF INDIA


                       CRIMINAL APPELLATE JURISDITION


                       CRIMINAL APPEAL NO. 87 OF 2008


      Devendra Nath Srivastava                           … Appellant


            Versus


      State of U.P.                                      …Respondent


                                    WITH


                     CRIMINAL APPEAL NOS. 88-90 OF 2008


      Preeti Srivastava                                  … Appellant


                                   Versus


      Devendra Nath Srivastava and Anr.            …Respondents












                               J U D G M E N T




      Prafulla C. Pant, J.




   1.  These  appeals  are  directed  against  judgment  and   order   dated
      24.08.2007, passed by the  High  Court  of  Judicature  at  Allahabad,
      Lucknow Bench, in Criminal Appeal No. 201 of 2007 whereby  said  Court
      has disposed of Capital Reference No. 2 of 2007  along  with  criminal
      appeals filed by appellant Devendra Nath  Srivastava  arising  out  of
      judgment and order dated  18.01.2007  passed  by  Additional  Sessions
      Judge/Special Judge (E.C. Act) Gonda, relating to  conviction  of  the
      appellant under Section 302 of Indian Penal Code (for short “IPC”)  in
      Sessions Trial No. 258 of 2005.  By the impugned order passed  by  the
      High Court, conviction of the appellant under Section 302 IPC has been
      set aside, instead he is convicted under Section 304 Part I  IPC,  and
      sentenced to rigorous imprisonment for ten years and to  pay  fine  of
      ?10,000/-,  in  default  to  under   further   six   months   rigorous
      imprisonment


   2.  Prosecution  story,  in  brief,  is  that  appellant  Devendra   Nath
      Srivastava got married to Madhu Srivastava (deceased)  on  04.03.1994.
      The couple had four children.   On  12.05.2005  at  about  7.30  p.m.,
      complainant  Shailender  Kumar  Srivastava,  who  is  nephew  of   the
      appellant, heard cries of the appellant’s children and rushed  to  the
      house of his uncle (appellant), where he saw the appellant  assaulting
      his wife with brick.  On  seeing  PW-6  and  others  coming  from  the
      neighbourhood, the appellant ran away.  The  appellant’s  wife  (Madhu
      Srivastava) was taken by PW-6 Shailender Kumar Srivastava to  District
      Hospital after arranging an ambulance.  However, the doctors  declared
      her brought dead.


   3. A First Information Report (Ex. A-9) was got lodged by PW-6 at  Police
      Station Kotwali City Gonda on the  very  day  at  about  21.45  hours.
      Crime No. 169 of 2005 was registered based on  the  said  F.I.R.   The
      Investigating Officer, after interrogating the  complainant,  went  to
      the spot and got sealed the dead body of the deceased and prepared the
      inquest Report (Ex. A-1).  On 13.05.2005 PW-7 Dr.  Rajkumar  conducted
      autopsy, and opined that the deceased had died of asphyxia on  account
      of ante mortem injuries.  In  all,  nine  ante  mortem  injuries  were
      recorded in the post mortem examination report (Ex. A-10).  Meanwhile,
      the appellant was arrested, and on his pointing out  recovery  of  the
      brick used in the crime was made.  The blood-stained shirt  and  pants
      of the appellant were also taken into  possession  by  the  police  in
      respect of which memo (Ex. A-13) was prepared.   After  completion  of
      investigation, a charge sheet was submitted by  Investigating  Officer
      Rajender Prasad Singh (PW-8) against the appellant for his trial.


   4. It appears that the case was committed to the court  of  Sessions  for
      trial.  On 10.08.2005 learned Sessions Judge, Gonda framed  charge  in
      respect of offence  punishable  under  Section  302  IPC  against  the
      appellant-accused  Devendra  Nath  Srivastava  to  which  the  accused
      pleaded not guilty and claimed to be tried.  On this, prosecution  got
      examined PW-1 Vijay Kumar Chaurasia, PW-2 Rampher Jaiswal, PW-3 Sadhna
      Srivastava,  PW-4  Virender  Singh,  PW-5  Preeti   Srivastava,   PW-6
      Shailender Kumar Srivastava (informant), PW-7 Dr.  Rajkumar  and  PW-8
      Incharge Inspector Rajender Prasad Singh (Investigating Officer).
   5. The prosecution evidence was put to the accused under Section  313  of
      Criminal Procedure Code (Cr.P.C.), in response  to  which  he  pleaded
      that at the time of incident he had gone to his native village to give
      medicines to his mother.  Thereafter, on behalf of  the  defence  DW-1
      Shyam Rang and DW-2 Chandermukhi were got examined.  The  trial  court
      in its wisdom got summoned court witness Adesh Kumar  Srivastava  (CW-
      1), the eldest son of the deceased who was minor.  His  statement  was
      recorded on 16.11.2006.  Thereafter, this additional evidence was also
      put to the accused under Section 313 Cr.P.C.


   6. After hearing the parties, the trial court found that  the  charge  in
      respect of offence punishable under Section 302 is proved against  the
      accused, and convicted him accordingly.  The parties were  heard  also
      on sentence and the trial court awarded death sentence to the convict,
      and submitted the record to the High Court  vide  judgment  and  order
      dated 18.01.2007, for affirmation of the sentence.
   7. Aggrieved by the judgment and order of the  trial  court  the  convict
      preferred appeal (Criminal Appeal No. 201 of 2007) to the High  Court.
      He further got submitted another appeal (Criminal Appeal  No.  237  of
      2007) from jail.  Both these appeals were clubbed  together  with  the
      Reference made by the Court of Sessions, and disposed of  together  by
      the High Court  vide  common  judgment  and  order  dated  24.08.2007,
      impugned before us.  The High Court held that the incident  had  taken
      place after altercations between the deceased and the accused, who was
      drunk, and the homicidal death is caused by the appellant, and the act
      is covered under Section 304 Part I IPC, and  not  under  Section  302
      IPC.  Accordingly,  the  High  Court  set  aside  the  conviction  and
      sentence under Section  302  IPC  recorded  by  the  trial  court  and
      convicted the appellant under Section 304 Part I IPC and sentenced him
      to undergo ten years rigorous imprisonment and to pay fine of ?10,000/-
      , in default to undergo further six months rigorous imprisonment.


   8. Convict Devendra Nath Srivastava and victim’s sister Preeti Srivastava
      moved this Court through separate Special Leave Petitions  challenging
      the order passed by the High Court.  Criminal Appeal No.  87  of  2008
      has arisen out of the Special Leave Petition filed by the convict, and
      Criminal Appeal Nos. 88-90 of 2008 have  arisen  out  of  the  Special
      Leave Petitions filed by Preeti Srivastava, sister of the deceased.


   9. We have heard learned counsel for the parties at  length  and  perused
      the record of the case.


  10. Before further discussion, we think it just and proper to mention  the
      ante mortem injuries recorded by PW-7  Dr.  Rajkumar  in  the  autopsy
      report (Ex. A-10).  The same are reproduced as under: -
           “(1)  Lacerated wound 5 cm x 4 cm x bone deep on  back  of  left
                 ear.  Clotted blood seen in the wound.


           (2)   Multiple red contusion in area of 10 cm x  8  cm  on  left
                 side of face.




           (3)   Lacerated wound 3 cm x 1 cm x bone  deep  just  below  the
                 left mandible and 2.5 cm on  left  to  the  chin.   Clotted
                 blood seen in the wound.




           (4)   Lacerated wound 1.5 cm x .5 cm x bone  deep  on  the  chin
                 surrounded by red contusion in the area of 4 cm x 3 cm.




           (5)   Lacerated wound 2 cm x 1 cm x muscle deep on right side of
                 forehead adjacent to the right eyebrow.  Blood  clots  seen
                 in the wound.




           (6)   Incised wound 6 cm x 1 cm x muscle deep on  left  side  of
                 neck 7 cm below the left ear.




           (7)   Red contusion 5 cm x 3 cm across the trachea on the  front
                 of neck.




           (8)   Red contusion with abrasion in the area of 13 cm  x  5  cm
                 along right collar bone.




           (9)   Red contusion with abrasion 3 cm x 2 cm  on  top  of  left
                 shoulder joint.”



            PW-7 Dr. Raj Kumar has stated that on internal examination  both
      upper and lower jaws’ bones found broken and some  portions  of  upper
      and lower teeth were also found broken.  He further found  hyoid  bone
      fractured and both lungs blocked.  These observations are also made in
      the autopsy report.  It has been opined by the  said  Medical  Officer
      that Madhu Srivastava (deceased) died of strangulation with the  above
      mentioned ante mortem injuries.


  11. The medical evidence, discussed above, clearly establishes that  Madhu
      Srivastava (wife of the appellant Devendra Nath Srivastava)  has  died
      homicidal death.  Now, we have to examine whether  the  appellant  has
      caused the death of his wife, as suggested by the prosecution, or not.


  12. On perusal of the evidence on record, it  is  clear  that  PW-1  Vijay
      Kumar Chaurasia, PW-2 Rampher Jaiswal, PW-3  Sadhna  Srivastava,  PW-4
      Virender Singh  and  PW-6  Shailender  Kumar  Srivastava  have  turned
      hostile to prosecution, but on  careful  scrutiny  of  their  evidence
      there is no difficulty in finding the ring of truth in the prosecution
      story.  PW-1 Vijay Kumar Chaurasia though states in his examination-in-
      chief that before  the  incident  he  had  no  acquaintance  with  the
      appellant, but has proved the inquest report (Ex. A-1) in  the  cross-
      examination stating that he witnessed the inquest  proceedings.   PW-2
      Rampher Jaiswal in his examination-in-chief, denies  his  presence  at
      the time of the incident, but in cross-examination  this  witness  has
      proved that the brick, allegedly used in the crime, was  recovered  on
      pointing out of the accused Devendra Nath Srivastava.  He  proved  his
      signatures in the recovery memo.  PW-6 Shailender Kumar Srivastava has
      stated that he is the nephew of the deceased and the accused,  but  he
      does not know how his aunt (Madhu Srivastava) died.   He  has  further
      stated that the accused and the deceased had strained  relations.   In
      the cross-examination he admits that he gave written report  (Ext.  A-
      26) to the police, soon after the incident on 12.05.2005.  He  further
      stated that he took Madhu Srivastava (in  injured  condition)  to  the
      hospital at about 8.50 p.m. where she was declared brought dead.


  13. PW-5 Preeti Srivastava, sister of the deceased, has  stated  that  the
      deceased was married  to  appellant  Devendra  Nath  Srivastava.   She
      further stated that the  appellant  was  Field  Inspector  with  Khadi
      Gramodyog Board.  She further disclosed that she used  to  live  at  a
      distance of some 1-1.5 kilometers away from the house of the appellant
      and his family.  She further told that there were four  children  born
      out of the wedlock  between  the  deceased  and  the  appellant.   She
      further stated that the appellant used to torture the  deceased  after
      taking alcohol.  She has proved the letters Exs. A-2, A-3, A-4 and A-5
      written by the deceased to  her  father  complaining  about  the  ill-
      treatment meted out to her by the appellant.  In all these letters, it
      is specifically mentioned by the deceased that  the  appellant  was  a
      drunkard and used to  beat  her  after  getting  drunk.   PW-5  Preeti
      Srivastava has further stated that there had been  litigation  between
      the deceased and the appellant,  but  it  terminated  with  compromise
      entered between the parties in 2003 (Ex. A-8).


  14. PW-8 Inspector Rajendra Prasad Singh, the Investigating  Officer,  has
      stated that  during  interrogation  he  recovered  brick  (Ex.  I)  on
      pointing out of the accused.  He has further  stated  that  the  blood
      stained pantaloons and the  shirt  of  the  accused  were  taken  into
      possession, and memo (Ex. A-13) was prepared, and  sent  for  chemical
      analysis along with other blood stained articles including  the  blood
      stained piece of floor collected from the spot as also the clothes  of
      the deceased (Ex. 2, 3, and 4).  Forensic  Science  Laboratory  report
      dated 14.10.2005 (Ex. A-27) shows that in the blood stained clothes of
      the accused contained human blood.  It further  discloses  that  human
      blood was also found in the piece of cement floor and the  clothes  of
      the deceased.


  15. Statement of CW-1 Adesh Kumar Srivastava, eight years old  eldest  son
      of the appellant and the deceased, does not support prosecution but it
      can be easily gathered that after he lost his mother, he does not want
      to lose his father.  At one stage he says his mother fell on a  brick,
      and then discloses that she had fallen from  the  staircase.   At  the
      end, he states that at the time of the incident he was playing at  the
      boundary of the house.


  16. Though the defence witnesses DW-1 Shyam  Rang  and  DW-2  Chandermukhi
      have attempted to say that Devendra Nath  Srivastava  (appellant)  had
      gone to village on the day of the incident to give  medicines  to  his
      mother, but there is nothing to  corroborate  on  the  record  if  any
      medicine is purchased from any chemist by the appellant.  It  is  also
      not clear as to what was the ailment of his mother, and since when she
      was unwell.  In our opinion, the trial court and the High  Court  have
      rightly disbelieved these two witnesses.


  17. On re-appreciation  of  entire  evidence  and  having  considered  the
      submissions of learned counsel for the parties, we agree with the view
      taken by the High Court  that  it  is  clearly  established  from  the
      evidence on record that the appellant caused homicidal  death  of  his
      wife, after quarrel between the two.  It is established on the  record
      that the appellant was a drunkard.  The First Information  Report  was
      lodged by none other than  the  appellant’s  own  nephew,  immediately
      after the incident.  There is no version put forward by the  appellant
      as to how his wife died homicidal death in his house.  Considering the
      facts and circumstances of the case, it  appears  that  the  appellant
      acted in a fit of anger.  It is nobody’s case that the  appellant  had
      any concubine.  Rather statement of PW-5 Preeti Srivastava shows  that
      suit for restitution of conjugal rights, filed by the  appellant,  was
      decided in terms of compromise, and they started living together  with
      their children.


  18. As to whether the act on the part of  the  appellant  constitutes  the
      offence punishable under Section 302 IPC or Section 304 Part I IPC, we
      are of the view that the incident has occurred after  quarrel  between
      the appellant and the deceased which is not a planned act.  It is also
      established that the appellant was a drunkard.  In our opinion, in the
      facts and circumstances of the case, the view taken by the High Court,
      that the appellant has committed offence punishable under Section  304
      Part I IPC, requires no interference.


  19. In State of Andhra Pradesh v. Rauavarapu Punnayya & another [(1977)  1
      Supreme Court Reports 601  at  606][1],  this  Court,  explaining  the
      scheme of Penal Code relating to culpable homicide, has laid down  the
      law as under:-
           “In the scheme of the Penal Code, “culpable homicide”  is  genus
           and “murder” its specie. Every “murder” is  “culpable  homicide”
           but not vice-versa. Speaking generally, “culpable homicide” sans
           “special characteristics of murder”, is “culpable  homicide  not
           amounting to murder”. For  the  purpose  of  fixing  punishment,
           proportionate to the gravity of this generic offence,  the  Code
           practically recognises three degrees of culpable  homicide.  The
           first is, what may be called, “culpable homicide  of  the  first
           degree”. This is the greatest form of culpable  homicide,  which
           is defined in Section 300 as “murder”. The second may be  termed
           as “culpable homicide of the second degree”. This is  punishable
           under the first part of Section 304. Then,  there  is  “culpable
           homicide of the third  degree”.  This  is  the  lowest  type  of
           culpable homicide and the punishment provided for it  is,  also,
           the lowest among the punishments provided for the three  grades.
           Culpable homicide of this degree is punishable under the  second
           part of Section 304.”


  20. In the same case, i.e. State of Andhra Pradesh v. Rauavarapu  Punnayya
      & another (supra), this Court has further  observed  at  page  608  as
      under: -

           “……….whenever a court is confronted with  the  question  whether
           the offence is “murder” or “culpable homicide not  amounting  to
           murder”, on the facts of a case, it will be convenient for it to
           approach the  problem  in  three  stages.  The  question  to  be
           considered at the first stage would be, whether the accused  has
           done an act by doing which he has caused the death  of  another.
           Proof of such causal connection between the act of  the  accused
           and the death, leads to the second stage for considering whether
           that act of  the  accused  amounts  to  “culpable  homicide”  as
           defined in Section 299. If the answer to this question is  prima
           facie found in the affirmative, the stage  for  considering  the
           operation of Section 300 of the Penal Code, is reached. This  is
           the stage at which the court should determine whether the  facts
           proved by the prosecution bring the case within the ambit of any
           of the four clauses of the definition of “murder”  contained  in
           Section 300. If the answer to this question is in  the  negative
           the  offence  would  be  “culpable  homicide  not  amounting  to
           murder”, punishable under  the  first  or  the  second  part  of
           Section 304, depending, respectively, on whether the  second  or
           the third clause of Section 299 is applicable. If this  question
           is found in the positive, but the case comes within any  of  the
           exceptions enumerated in Section 300, the offence would still be
           “culpable homicide not amounting to  murder”,  punishable  under
           the first part of Section 304, of the Penal Code.”
  21. In view of the above discussion of facts and law, we are in  agreement
      with the conviction and sentence recorded against the appellant by the
      High Court.  Therefore,  the appeals are dismissed.




                                             .........................J.
                                                               [N.V. Ramana]






                                          .........................J.
                                                          [Prafulla C. Pant]
      New Delhi;
      April 6, 2017.




      -----------------------
[1] (1976) 4 SCC 382



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