Allahabad High Court
Smt. Sangeeta Jain vs State Of U.P. on 20 August, 2019
Equivalent citations: AIRONLINE 2019 ALL 1312, (2020) 1 ALLCRIR 92
Author: Ram Krishna Gautam
Bench: Ram Krishna Gautam
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment reserved on 24.07.2019 Judgment delivered on 20.08.2019 Court No. - 79 Case :- CRIMINAL APPEAL No. - 3184 of 2018 Appellant :- Smt. Sangeeta Jain Respondent :- State Of U.P. Counsel for Appellant :- Mohammad Akram Counsel for Respondent :- G.A.,Gaurav Kakkar,Saroj Kumar Dubey,Vineet Kumar Yadav Hon'ble Ram Krishna Gautam,J.
1. This appeal u/s 374(2) of Code of Criminal Procedure (hereinafter referred to be Cr.P.C.) has been filed by Smt. Sangeeta Jain, against State of U.P., against judgment of conviction and sentence therein, passed in S.T. No. 382 of 2016, State of U.P. Vs. Sangeeta Jain, arising out of Case Crime No. 5 of 2016, u/s 307, 504 I.P.C., P.S. Nehtore, District Bijnor, by Court no. 2 of Additional Sessions Judge, Bijnor, whereby sentence of seven years' R.I. and fine of Rs. 5000/- and in default one month's additional imprisonment for offence punishable u/s 307 I.P.C. with one year's R.I. and fine of Rs. 1000/- and in default additional imprisonment of one week, for offence punishable u/s 504 I.P.C., was awarded against convict-appellant Sangeeta Jain, with a direction for concurrent running of sentences and adjustment of previous sentence, if any, on the ground that the impugned judgment of conviction and sentence was against facts and evidence placed on record. Convict-appellant was innocent and there was no evidence on record against her. But the impugned judgment of conviction and sentence, as above, was awarded. Convict-appellant was an issueless lady. She could not conceive, resulting her expulsion from the house of her husband and in-laws. This report was got lodged after a delay of 5-6 days and this delay was never explained, even then the impugned judgment of conviction was passed and sentence, as above, was awarded. Hence this appeal with prayer for setting aside impugned judgment of conviction and sentence made therein, with a further prayer of acquittal of charges.
2. From the very perusal of record of trial court, it is apparent that case crime No. 5 of 2016 u/s 307, 504 I.P.C. was got lodged at 21.30 hours of 11.1.2016 at P.S. Nehtore, upon written report of informant-complainant Sandeep Kumar Jain, against his wife Sangeeta Jain with this contention that Sangeeta Jain, with intention to kill her mother-in-law Smt. Rajrani Jain, on 5.1.2016 attempted to commit her murder by strangulating and assault by penetration of some pointed substance over her head and waist. Attempt was made for electrocuting and burning her by hot water. She was often assaulting with abuse to informant and his mother. An attempt to kill informant was previously made. Hence this report (Ext. Ka1), under scribe and signature of informant Sandeep Kumar Jain, was submitted. Chick F.I.R. (Ext. Ka5) was lodged. Investigating Officer, PW7 Nandan Singh Bisht, visited spot on 12.1.2016, took in possession electric immersion rod with wire and stone grinder (Sil ka batta) and blood stained clothes, lying on the spot, by preparation of recovery memo (Ext. Ka4). CCTV footage was taken in custody, spot map of place of occurrence (Ext. Ka9) was prepared and after investigation Charge sheet (Ext. Ka10) was filed against Smt. Sangeeta Jain.
3. Injured Rajrani (PW2) was taken at Primary Health Centre, Nehtore, Bijnor, where Dr. Gulshan Babu Katariya (PW5) Medical Officer incharge, P.H.C., Nehtore, examined the injured Rajrani, aged about 62 years, w/o Shreyansh Jain, R/o Mohalla Sabzi Mandi, P.S. Nehtore, Bijnor, wherein she was found to be with following injuries:-
1. Contusion 10 x 2 cm on left side of waist, 1 cm below from inferior angle of scapula.
2. Contusion 7 x 2 cm on right side back of waist, 2 cm below inferior angle of right scapula.
3. Contusion 8 x 2 cm on lower part of L1 vertibra.
4. Lacerated wound 2 x 1 cm x bone deep on right side of parietal region. Kept under observation.
5. Complaint of pain over chest.
6. Contusion 5 x 2 cm on left lower rib. Kept under observation.
In his opinion all injuries were simple except injury nos. 4, 5 and 6. They all were of hard blunt object and were of one day old i.e. of about 1.30 P.M. of 5.1.2016 likely to be caused by stone grinder (sil ka batta). Patient was referred for x-ray examination for injuries 4, 5 and 6. Injury no. 4 was over skull and bone deep, which may be dangerous to life. Medico legal report was prepared under his handwriting and signature at the time of her examination. The same is on record, proved and exhibited as Exhibit Ka7. In cross examination this was said to be injuries of simple in nature, but could not be easily self inflicted. No supplementary report was got prepared by this witness and on the basis of that medical report, no injury can be said to be fatal. X-ray report and x-ray plate nos. 295, 296 and 297 reveals no bony fracture. But all injuries, x-rayed, were simple with no likelihood of any fatality. Injury nos. 3 and 4 were said to be dangerous to life because of its circumstances and seat of injuries. Injured was brought for medical examination by her husband Shreyansh Jain. There was no letter of police for medical examination. This was a private medical examination. A suggestive question was put that Rajrani was with no injury and this report was manipulated. This has been answered in negative.
4. PW6-Dr. Pratap Singh Tomar, consultant radiologist, in his testimony has said that he is Proprietor of Dr. Braj Diagnosis Centre Pvt. Ltd., Begum Bridge Road, near Ganga Plaza, Meerut. He had examined under CT Scan of skull of Smt. Rajrani, aged about 70 years, on 18.1.2016 and on the basis of CT Scan there was fracture of occipital bone. This report, in original, is on record as paper no. 25 Kha. It is under handwriting and signature of this witness and is the same report, which was prepared at the time of examination, made by him. This has been exhibited as Exhibit Ka8 and CT Scan has been proved as material exhibit 5. In cross examination this witness has said that this witness is not aware that whether Rajrani was conscious or unconscious, at the time of examination. She had not brought any previous documentation or medical report with her, nor there was any reference of any medical centre. He runs a private CT Scan Centre and any one can come and get his CT Scan done.
5. Investigating Officer-PW7, Nandan Singh Bisht, proved his investigation with this contention that while being posted at P.S. Nehtore, Binjor, on 11.1.2016, he was deputed investigation of Case Crime No. 5 of 2016, Vs. Sangeeta Jain, in which he entered chick FIR and contents of FIR with copy of GD entry of registration of case crime number, in case diary. Statements of Head Constable Lal Bahadur and Akshay Kumar were taken in case diary. Recovery memo, after taking in possession, electric immersion rod with its wire, stone grinder (Sil ka batta) and a cloth of pink colour, having blood stained over it, lying on the spot, were kept under seal with preparation of specimen seal and this recovery memo, prepared on the spot, was proved as Exhibit Ka4 and same, being under his handwriting and signature on record. Sangeeta Jain was arrested at 7.00 A.M. of 12.1.2016. CD prepared by Sandeep Jain, from CCTV camera, of date 5.1.2016, was taken in possession on 17.1.2016. Statement of injured Rajrani was recorded u/s 161 Cr.P.C. Medico legal report was taken in possession and same were entered in case diary. Spot map (Ext. Ka9) was prepared on the spot. Statements of Rina and Rashmi Jain were recorded in case diary. Statement of Shreyansh Jain was recorded. On the basis of these evidences, Charge sheet No. 27 of 2016, was submitted, under his handwriting and signature. This was proved and exhibited as Exhibit Ka10. Cognizance, over it, was taken by Magistrate, concerned.
6. As offence punishable u/s 307 I.P.C. was exclusively triable by Court of Sessions, hence file was committed to Court of District & Sessions Judge, Bijnor. After the file was committed to the Court of District & Sessions Judge, Bijnor, this case file was received on 10.6.2016. Then after this file was transferred to the Additional District & Sessions Judge, Court No. 2, Bijnor, vide order dated 27.10.2016, passed by the District & Sessions Judge, Bijnor.
7. After hearing, learned Public Prosecutor and counsel for accused, charges for offences punishable u/s 307, 504 I.P.C. were levelled by the learned Trial Judge on 8.11.2016. Charges were read over and explained to the accused, who pleaded not guilty and claimed for trial.
8. Prosecution examined PW1- informant Sandeep Kumar Jain, PW2- Injured Smt. Rajrani Jain, PW3- Shriyansh Kumar Jain, PW4- H.C.P. Lal Bahadur, PW5- Dr. Gulshan Babu Katariya, Medical Officer, PW6- Dr. Pratap Singh Tomar, Consultant and Radiologist, and PW7- Investigating Officer Nandan Singh Bisht.
9. For having explanation, if any, of accused Sangeeta Jain, over incriminating evidence given by prosecution, her statement, u/s 313 Cr.P.C., was got recorded, wherein testimonies of prosecution witnesses were said to be false. Marriage with PW1- Sandeep Kumar Jain in the year 2009 was admitted. But any previous assault or cruelty with husband or in-laws was denied. The alleged assault was denied. Regarding registration of case crime number and testimony of PW4- HCP Lal Bahadur, ignorance was answered i.e. this was not disputed. Regarding testimony of PW5- Dr. Gulshan Babu Katariya, it was said that she is not aware as to whether medical examination of injured was true or false. Regarding testimony of PW6- Dr. Pratap Singh Tomar, it was said to be false. Regarding investigation done by PW7- I.O. Nandan Singh Bisht, the investigation was said to be false. The accusation was said to be for getting rid of, from the marriage, by decree of divorce because of her being issueless. She has said " th gka esjs cPps ugha gSaA eq>s esjs ifr NksMuk pkgrs gSaA eSa NksMuk ugh pkgrh gwWA eq> ij rkykd dk eqdnek dj j[kk gSA rkykd ds eqdnesa esa dzwjrk lkfcr djus ds fy;s ;g >aqBk eqdnek cuok;k gSA" [I could not conceive, that is why, my husband intended to leave me. But I never intended. A case for divorce is pending. With a view to prove cruelty, in above divorce case, this false case has been lodged. (Translated by Court itself).]
10. No evidence in defence was led by accused.
11. After hearing learned Public Prosecutor and learned counsel for defence, the impugned judgment of conviction with sentence, as above, was awarded. Against which this appeal with above prayer.
12. Learned counsel for the appellant argued that except three witness of fact PW1- Sandeep Kumar Jain (husband of convict appellant), PW2- Rajrani Jain (mother-in-law of convict appellant) and PW3- Shriyansh Kumar Jain (father-in-law of convict appellant), no independent witness has been examined. Whereas there was a case pending for decree of divorce in between and a ground of cruelty for getting the decree of divorce was intended to be manufactured for which this false case was lodged. Hence, trial court failed to appreciate the evidence of those interested witnesses, having sufficient motive for getting conviction of convict appellant. Medical testimony of PW5 was not in corroboration of PW2. This medico legal examination was conducted as private medico legal case on 6.1.2016. Whereas this case crime number was got registered on 11.1.2016 i.e. delayed by five days. That too without any cogent reason. Injuries, written and proved by PW5, were of simple in nature, with no likelihood of fatality. Hence offence punishable u/s 307 I.P.C., was not made out at all. But the trial court failed to appreciate it. PW6 Dr. Pratap Singh Tomar is a private medical practitioner, with no previous reference for doing CT Scan of alleged injury of injured Rajrani Jain, that too on 18.1.2016 i.e. after about 12 days of first medico legal examination, in which there was no fracture seen in the x-ray plate, as was proved by PW5. The opinion of PW6 was not supported with clinical situation. But the trial court failed to appreciate it. Investigation, proved by PW7, was not fair and it was tainted one. But the trial Judge passed the impugned judgment of conviction, with sentence of seven years rigorous imprisonment, which was highly excessive and not commensurate to offence, proved, if any.
13. Learned AGA as well as learned private counsel for informant have vehemently argued that it was a case of assault by daughter-in-law to her mother-in-law, who was old aged lady, aged about 70 years, inside house with intention to kill her, wherein recovery of electric immersion rod with wire as well as stone grinder (Sil ka batta) and blood stained cloth were there. Hence no independent public witness may be available to witness the occurrence, which occurred inside a house. Motive for assault was there, which was admitted to be a strained relation, in between, resulting litigation for divorce amongst them. Legal mandate is not for getting F.I.R. lodged first. Rather the primary obligation is to provide medical help. The report was got lodged, only after providing medical treatment and getting situation strain-less and this report may not be said to be anti-timed or delayed. Learned trial Judge has rightly appreciated the facts and law placed before it and has passed the impugned judgment of conviction with adequate award of sentence.
14. Apex Court in Anil Rishi Vs. Gurbaksh Singh, AIR 2006 SC 1971, while interpreting section 102 of Evidence Act, has observed that onus to prove a fact is on the person, who asserts it, u/s 102 of the Evidence Act. Initial onus is always on plaintiff to prove his case and if he discharges, onus shifts to defendant.
15. In Addagada Raghavamma and another vs Addagada Chenchamma and another, AIR1964 SC 136, Apex Court propounded that burden of proof and onus to prove are two different things. Burden of proof lies upon a person, who has to prove the fact and it never shifts. Onus to prove shifts. Such a shifting of onus is a continuous process, in the evaluation of evidence.
16. In State of Haryana Vs. Bhajan Lal, AIR 1975 SC 258, the Apex Court propounded, suspicion howsoever be strong, cannot take place of proof.
17. In Kali Ram vs . State Of U. P., AIR 1973 SC 2773, the Apex Court propounded that in criminal trial, onus is upon prosecution to prove the different ingredients of offence and unless it discharges that onus, it cannot succeed.
18. In Shankarlal Gyarasilal Dixit vs State Of Maharashtra, AIR 1981 SC 765, Apex Court propounded that falsity of defence, may not establish prosecution case. Prosecution is to establish its case beyond reasonable doubt.
19. In Partap vs the State Of U.P., AIR 1976 SC 966, Apex Court propounded that prosecution is to prove its case beyond all reasonable doubt, whereas the accused is to prove his defence only till establishing preponderance of probabilities i.e. the strict liability of prosecution is to prove its case beyond reasonable doubt, because unless proved, the accused is innocent. It is general presumption that prosecution is to prove its case beyond all reasonable doubt. Whereas by establishing of preponderance of probabilities, defence may raise a reasonable doubt in prosecution case.
20. Apex Court in Narvada Prasad Vs. Chhagan Lal, AIR 1969 SC 393, has propounded that in appeal, the burden is on the appellant to prove, how the judgment in appeal is wrong? He must show, where the assessment has gone wrong?
21. In the present case the accusation was for offence of attempt to commit murder, punishable u/s 307 I.P.C. with a criminal intimidation. Insult and annoyance is punishable u/s 504 I.P.C. For both of charges conviction is there. Sentence has been awarded for both of them.
22. Section 504 I.P.C. provides, whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term, which may extend to two years, or with fine, or with both.
The essential ingredients for offence punishable u/s 504 I.P.C. are
(i) intentionally insulting a person' and 'thereafter giving provocation to him;
(ii) the person insulting must intend or know it to be likely that such provocation will cause him to break the public peace or to commit any other offence.
23. To bring home an offence u/s 504 I.P.C. the prosecution must prove
(a) that the accused insulted the victim;
(b) that the accused did so, intentionally;
(c) that the accused, by the insult, hurled to provoke him;
(d) that the accused intended or knew it to be likely that the resulting provocation would lead the victim to break public peace or to commit any other offence.
24. Section 307 I.P.C. provides, "whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is herein before mentioned".
When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.
25. In order to amount to an attempt to murder, the act attempted must be such that if not prevented or intercepted, it would be sufficient to cause death of the victim. To constitute the offence no injury need be caused to the victim. If in the course of the attempt bodily injury is caused the accused would be liable to enhanced punishment. To sustain conviction under section 307 the intention to kill should be clearly proved by circumstances like persistence of attack on vital parts of the body or the assailant lying in wait armed with dangerous weapons or declarations made by him that the victim would be killed. The intention is not gatherable merely from the seriousness of resultant injury.
26. In order that a person may be guilty of attempt to murder, the following two ingredients of the offence must be present: (a) an intention or knowledge of committing murder; (b) the doing of an act towards it.
27. Apex Court in Madan Lal Vs. State of Himachal Pradesh, 1990 Cr.L.J. 310 (314) (HP) has propounded that an offence under section 307 of the Indian Penal Code is a very serious offence and it requires the same very factors to be proved as are needed to prove an offence under section 302 of the Penal Code, except that in this case the act falls short of the death of the deceased, which is necessary under section 302 of the Penal Code. Sometimes, it becomes very difficult to differentiate between an offence under section 307 of the Penal Code and others like under sections 324, 325, 326 etc. In both the cases, injuries may be there. There may be existence of motive or intention or knowledge on the part of the wrong doer. Care has, therefore, to be taken that, in such cases there may not be wrong application of the evidence, looking to the serious consequences following from such an error; as the penalty prescribed under them vary to a great extent.
28. Under above perspective of law, the evidence of present case, is to be appreciated.
29. PW1-informant Sandeep Kumar Jain, husband of convict appellant, in his statement in chief, has said that a case for divorce was previously instituted by him against convict appellant and the same was pending before the Court, but Sangeeta Jain used to visit him and resided in his house. She very often becomes very hyper. She is his second wife, married nine years before, but with no progeny. His previous wife was divorced after four years of marriage. She too was with no progeny. On 4.1.2016 i.e. one day before present occurrence, there was a complaint by Sangeeta Jain against this witness at police station concerned, in which this witness was challaned u/s 107/116 Cr.P.C., for keeping good conduct. He was released on 5.1.2016 i.e. the date of alleged occurrence and that too after this occurrence, in which Sangeeta Jain assaulted her mother-in-law (victim). But this witness is not an eyewitness account of above occurrence; because he was at police station in above case u/s 107/116 Cr.P.C. and he, after being released on bond, rushed at hospital on 5.1.2016, where his mother met him, but owing to absence of doctor, no medical help could be given. This witness got this report lodged after 4-5 days of above occurrence and that is Exhibit Ka1 on the record, under handwriting and signature of this witness. He had gone through CCTV footage and came to know about the occurrence. He got CD prepared and this was the CD presented in the Court during trial, which has been exhibited as Exhibit Ka2. (Though it is wrong, CD may be material exhibit and its contents may be Exhibit Ka2.)
30. In cross-examination this witness has admitted that "?kVuk fnukad 5-1-2016 dh gSA eSa ?kVuk okys fnu ?kj ij ugha FkkA eq>s ugVkSj Fkkus ls pkyku djds /kkeiqj ,l-Mh-,e- U;k;ky; esa is'k fd;k x;k FkkA eSa 'kke dks djhc 5 cts ,l-Mh-,e- U;k;ky; ls NwV x;k FkkA eSa djhc vk/ks /kaVs ckn ?kj igqWp x;k FkkA ml le; ?kj ij dksbZ ugha FkkA esjh ekWa firkth ds lkFk vLirky mipkj ds fy;s x;s gq;s FksA [Occurrence is of 5.1.2016. I was not at my house on above date of occurrence. I was challaned by police station Nehtore and was produced in the Court of S.D.M. Dhampur. I was set at free from S.D.M. Court Dhampur at about 5.00 P.M. and within half an hour I came to my house, but none was there. My mother and father had been at hospital for her treatment. (English translation by Court).]"
31. This witness has categorically said, at page 6 of his testimony, that he met his mother at Nehtore P.H.C. at 6.00 P.M. of 5.1.2016. His mother was under unconscious situation. While he was at court of S.D.M. Dhampur, he came to know about the assault made to his mother by his wife Sangeeta and when he rushed at hospital, his father narrated the occurrence to him and then after when his mother went to house, she narrated the occurrence, in the night to him. When asked by this witness, Sangeeta Jain replied that she had done nothing. This witness got F.I.R. lodged on the basis of CCTV footage i.e. this witness is not an eyewitness account of the occurrence. His testimony is output of hearsay evidence made to him by his parents and CCTV footage. As his parents have been examined in the court, his testimony goes away because of being hearsay.
32. PW2- Smt. Rajrani Jain is the injured. She, in her examination in chief, has categorically said that on 5.1.2016 at about 1-1.30 P.M., she was over folding cot in a room, adjacent to kitchen, when her daughter-in-law Sangeeta, came there with cloth in her hand and shouted abuse of mother and sister to her and this was followed by assault, with intention to kill her. But she caught the cloth, which was attempted to be put over her neck. Sangeeta Jain brought stone grinder (Sil ka batta) and she assaulted over her back and head by that stone. Then after she attempted to give her, electrocution by electric immersion rod, but wire was snatched. Hence she could not be successful. Then after she went inside kitchen for heating water for throwing it over her. But she ran down stairs. Her husband witnessed this occurrence. Her husband gave report in writing at P.S. Nehtore and this was the same, which was dictated by her and then after she had put her signature over it. Carbon copy of receipt with receipt of police station is paper no. 15/58 on record. This has been proved and exhibited as Exhibit Ka3. Then after she went at Government Hospital, but doctor was not available there at. On the next day she visited again and got herself medico legally examined. But as she was under ailment, hence, was under treatment at Meerut, where her CT scan was done in which fracture of skull bone was found, which occurred in above occurrence. The CD (Ext. Ka2) was run in the court and this was with above sequence of occurrence, narrated by this witness. Recovery memo (Ext. Ka4) has been proved by this witness.
33. In cross-examination, she has admitted that Sandeep Jain was married with Sangeeta Jain in 2009. Prior to it, he was married with some one else, who was with no progeny. Sangeeta too was with no progeny. At the time occurrence, she was all alone in the house with Sangeeta. Prior to this occurrence, her behaviour was cruel towards her. But she never assaulted her prior to 5.1.2016. She attempted to throttle her neck, electrocuting her with electric immersion rod, threw hot water over her for which she heated water in kitchen and she gave blow of stone grinder (Sil ka batta) over her back and head. No rescue call was made by her, nor any one was present. She went at police station, immediately after occurrence and gave report. But no case was registered. No medical treatment was given. Rather her medico legal examination was got conducted on 6.1.2016. Sangeeta remained in her house on the very next day and this fracture was detected in CT scan at Meerut. Whereas a suggestive question has been put to this witness that the lady, who is beating her in CCTV footage, is not Sangeeta Jain and this was answered in negative. But this has been admitted that it was not medico legal examination at the behest of police. Rather it was private medico legal examination. Material exhibits 1, 2, 3 and 4 have been proved by this witness. All these equipment i.e. electric immersion rod for heating water, in workable condition, stone grinder (sil ka batta) and clothes, always remain in any house. These were neither sharp edged weapons nor were with any effect about its injury either by electrocution or by throttling or by strangulation over neck of this witness. What injuries were found and written, as above, were held to be simple in nature and caused by hard blunt object, that too, towards back side i.e. none of them were fatal. In x-ray report as well as x-ray plates produced in the court and proved by Medical Officer Dr. Gulshan Babu Katariya were with finding of no fracture in any bone and this was in correspondence with reference made by Primary Health Centre, Nehtore, and x-ray on the next following day at the District Hospital, Bijnor. Subsequently a CT scan report, that too of a private medical practitioner, having no reference and context with present occurrence, has been proved by PW6 Dr. Pratap Singh Tomar, who in his cross-examination, has specifically said that he was with no previous medical paper of patient Smt. Rajrani Jain nor was there any reference letter nor he gave any treatment to her, except CT scan done at his clinic, was there. CT scan is done to any one, who comes at his clinic for it. He could not connect this injury of fracture, which was found in CT scan on 18.1.2016, of an occurrence of 5.1.2016 nor there was any abnormality or fracture in medico legal report followed by x-ray at District Hospital, Bijnor, on 6.1.2016 and 7.1.2016. Subsequently in between 7.1.2016 and 18.1.2016 this fracture, if any, found in CT scan was there and who treated this injury and who referred for CT scan or what was previous context, could not be answered by this witness. Hence, injury of fracture, on the basis of which, this offence punishable u/s 307 I.P.C. was concluded, could not be established beyond doubt. Regarding strangulation by cloth, as was seen in CCTV video footage, it will be discussed later on. But assault fulfilling ingredients of offence punishable u/s 307 I.P.C., written as above, could not be established till now.
34. PW3-Shriyansh Kumar Jain is the husband of victim. He, in his examination in chief, has said about previous litigation in between his son and daughter-in-law. He has narrated the occurrence and sequence of occurrence, as was told to him by his wife, because he ran down stairs after hearing loud roaring of his daughter-in-law and he went in that room when occurrence was put on. Because he, in his report, proved as Exhibit Ka3, as well as his recital made before Medical officer for getting his wife medico legally examined, has written that this injury occurred in a quarrel i.e. at both of above places, it was not said to be an assault with intention to kill or under; knowledge to give that much injury, which was probable to cause death or likely to cause death in all probabilities. Rather these injuries were result of some quarrel in between. Meaning thereby it was a case of quarrel. He did not give medical treatment to his wife. Rather went to P.H.C., Nehtore, on the date of occurrence, where no medical officer was available. He came back home, while his wife was unconscious. On the next day he went to P.H.C. Where he got his wife medico legally examined. But no treatment was given at P.H.C. nor at any other medical health centre. It itself shows the gravity of alleged injury.
35. The alleged CCTV footage encrypted in CD is the sole evidence, on the basis of which, Trial Judge concluded his finding. All these witnesses PW1, PW2 and PW3 have said about CCTV footage, which was recorded in CD and was played in the court. But this PW3, who was the first informant of the occurrence, had said nothing about CCTV footage at police station in his report nor PW1-informant handed over hard disc of CCTV camera to the Investigating Officer for getting software encrypted over magnetic CD and then after for getting the same examined under Forensic Science Laboratory for establishing and ruling out that there was no tampering or likelihood of any tampering in above recording. Rather, neither hard disc was handed over to the Investigating officer nor it was taken by the Investigating officer in possession. Rather, CD was handed over by informant-PW1 after 3-4 days to Investigating officer with above assertion that it was the recording of CCTV camera. But it was not certified as to who recovered above software data, that too from where and who encrypted it over above CD and who executed certificate of this intact encryption, as required under section 65B of the Indian Evidence Act.
65B-1-Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
2. The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:--
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
Sub-section 4 of section 65B of the Indian Evidence Act provides: In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,--
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
36. Meaning thereby this certificate by a person, who occupied a responsible official position in relation to the operation of the relevant device or the management of the relevant activities is necessary for ensuring no tampering or animation is there.
37. In the present case, the certificate by the person, who encrypted from CCTV camera over audio video CD produced in the Court, has not been there. The original hard disc from which this software was encrypted was not taken by the Investigating officer in its possession. The alleged CD was not sent to Forensic Science Laboratory for establishing the fact that it was with no tampering or animation; nor it was established by any evidence. Rather, there is variance regarding fixation of CCTV camera and even if it was installed, admittedly accused and victim were residents of the same premises and their presence and recording in that camera is but natural. But animation, mixing and remixing of photographs may not be ruled out. Hence, this piece of evidence, which was not produced, as per the provisions of section 65B of the Indian Evidence Act, was given great weight by the Trial Court, which was incorrect appreciation of law.
38. PW4 is Head Constable Lal Bahadur. He has formally proved chick FIR (Ext. Ka5), GD entry (Ext. Ka6). But he has denied about any previous submission of any application on 5.1.2016 at above police station.
39. PW7 is Investigating Officer. He, in his examination in chief, has said about investigation made by him. But in cross-examination, he has said that he had not seen the CD given by informant Sandeep Jain, by playing it upon CD Player. He is not aware about the fact as to whether the CD was played at any news channel or not. Whether it was original CD or copy of some previous CD, is not under is knowledge. He had not sent it to Forensic Science Laboratory for its examination. Meaning thereby he is not sure whether it is primary evidence or secondary evidence or from where it was encrypted and who has previously used it. Hence this evidence of CD is of no weight.
40. Regarding assault, victim has said that the convict appellant gave blow by stone grinder (sil ka batta) resulting injuries to her and these injuries were found on her person in medico legal examination conducted on 6.1.2016. Presence of convict appellant inside house on above date, time and place of occurrence has been said by this witness and regarding this giving of simple hurt, there is consistent statement in examination in chief as well as in cross of this injured PW2 for which there could be no reason of doubt or any preponderance of probabilities established by convict appellant. Hence, offence punishable under section 323 I.P.C. is proved beyond doubt.
41. Regarding insult neither any specific words, which were used, nor threat, which was extended, has been said by PW2 in her examination in chief nor it was proved. Hence, offence punishable u/s 504 I.P.C. is also not proved beyond doubt; for which benefit of doubt is in favour of the convict appellant.
42. Learned counsel for informant has filed law of Apex Court in Chhanga @ Manoj Vs. State of M.P., 2017 Lawsuit (SC) 170, State of M.P. Vs. Kanha alias Omprakash, 2019 Cri. L..J. 1416. But facts involved in both of above cases are entirely different from the present case.
43. Apex Court in Sayra Bano Vs. State of Maharashtra, 2007 Cri. L.J. 1457 (SC) has propounded that criminal cases are to be decided on facts and evidence laid in above case, other than on case laws as precedents. No two cases can be of one and common facts and each case is to be decided on the basis of evidence led and facts involved in above case. The principles of law in appreciation of evidence in administration of criminal justice is to be kept in mind. But the decision is not to be only on the ground of precedents. Rather upon appreciation of evidence regarding facts and separating grain from chaff is to be made by criminal court in administration of criminal justice, while making appreciation of evidence in criminal trial.
44. With above discussion, this court concludes that the impugned judgment of conviction for offences punishable u/s 307 and 504 I.P.C. and sentence made therein is with incorrect appreciation of facts and law placed before the Court. The sentence awarded against the convict appellant for both of offences is also not substantiated and is not in commensurate with proved offence, punishable u/s 323 I.P.C.
45. The appeal is partly allowed. The conviction and sentence awarded by the Trial Judge vide impugned judgment of conviction and sentence made therein dated 24.5.2018 is hereby set aside. The convict- appellant Smt. Sangeeta Jain is being convicted for offence punishable under section 323 I.P.C. for which she is being sentenced to six months simple imprisonment with fine of Rs. 500/- and in default fifteen days additional simple imprisonment, with a direction for adjustment of previous imprisonment, if any, in this case crime number.
46. The convict-appellant is on bail. She shall surrender before the Trial Judge within one month from today. The Trial Judge will amend the warrant of conviction and sentence accordingly. Follow up shall be taken by learned Trial Court Judge.
47. A certified copy of this judgment along with lower court's record be sent back to the Trial Court forthwith.
Order Date :-20.8.2019 Pcl