Punjab-Haryana High Court
Ami Chand Son Of Hari Singh vs State Of Haryana on 20 February, 2013
Author: S.S.Saron
Bench: S.S.Saron
CRA No. D-187th-DB OF 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA No. D-187-DB OF 2008
Decided on 20.02.2013
Ami Chand son of Hari Singh,
r/o village Fateh Pur, P.S Pundri,
District, Kaithal.
...........Appellant
Versus
State of Haryana ............Respondent
CORAM HON'BLE MR. JUSTICE S.S.SARON
HON'BLE MR. JUSTICE S.P.BANGARH
Present Ms.Deipa Singh, Advocate,
for the appellant.
Mr. H.S.Sran, Additional Advocate General, Haryana for respondent.
S.P.BANGARH,J Case of the prosecution is that Sarna Devi deceased was married with Ami Chand (appellant herein) about 25 years ago. Out of this wedlock, seven children were born. Appellant was addicted to liquor. He used to beat the deceased under the influence of liquor. He was harassing and beating the deceased for the last many days. Fed up with this, she came from village Fateh Pur, District Kaithal to her brothers Jagira and Daulat, who had been living in huts in Radaur Road Camp, Yamuna Nagar. They used to deal in the sale of hand thrashers (chhaj in local parlance). Deceased came to her brothers on 30.01.2007. Appellant also came there after searching her for 2/3 days. After coming to this place, appellant again started taking liquor. On 04.02.2007, in the evening, appellant came in an inebriated condition to the CRA No. D-187th-DB OF 2008 2 hut of brothers of the deceased. After taking meal he went to sleep.
Sarna Devi deceased due to fear of the appellant went to sleep in the hut of Guddi, Member Panchayat of village Jhanjaria (PW8). On 05.02.2007, at about 04:00 a.m, appellant came to the hut of Guddi and enquired about the deceased. Guddi replied that deceased was not there. After some time, deceased got up and appellant, who was armed with a 'Chhura' (knife) caused injuries to her at two places in the abdomen, right arm and neck. She was rescued by Guddi (PW8) and Daulat Ram (PW9). Thereafter, the appellant fled away from the spot.
Deceased was taken to Civil Hospital, Yamuna Nagar by her brother Daulat Ram, where, she was got admitted. Her elder brother Jagira had gone out of the station for selling the clothes. On his return and after consultation of the matter with him, deceased reported the matter to the police vide her statement Ex.P3, which was recorded by Balwinder Singh, HC (PW10) on 08.02.2007 at 10:30 a.m, when the police party was present in connection with patrolling and crime checking at Vishavkarma Chowk, Yamuna Nagar. Balwinder Singh, HC made his endorsement Ex.P3/A on the statement Ex.P3 and sent the same to police station Fateh Pur, where, formal FIR Ex.P4 was registered for commission of offence punishable under Section 324 IPC against the appellant. Thereafter, Balwinder Singh, HC inspected the spot, prepared site plan of place of occurrence Ex.P12 with correct marginal notes. He also recorded statements of Daulat Ram, Jagira and Guddi under Section 161 Cr.P.C. Appellant was arrested on 21.02.2007, when he was present at ITI Chownk, Yamuna Nagar.
On 23.02.2007, a telephonic message was received from Tagore Hospital, Karnal in the police post that condition of Sarna Devi deceased was serious. Thereupon, Balwinder Singh HC (PW10) alongwith Mohan Lal, Constable went to Tagore Hospital, Karnal, where doctor was not available. CRA No. D-187th-DB OF 2008 3 Another telephonic information was received on 23.02.2007 itself at about 09:15 p.m about the death of Sarna Devi deceased. Further investigation was taken up by Rajeev Kumar, SI, the then SHO of Police Station Farak Pur who added offence under Section 302 IPC and sent the special report in this regard to Illaqa Magistrate and other senior officers. He also recorded daily diary report regarding addition of offence punishable under Section 302 IPC Ex.P18. The daily diary report regarding information of death of Sarna Devi Ex.P19 was also recorded.
On 24.02.2007, Rajeev Kumar, SI alongwith other police officials reached Tagore Hospital, Karnal, where, he recorded the statements of Jagira and Daulat Ram under Section 161 Cr.P.C. He also prepared inquest report Ex.P20 on the corpse of Sarna Devi deceased, as also, collected her x-ray report from the doctors of Tagore Hospital, Karnal and sent the corpse of the deceased to the mortuary of Civil Hospital, Karnal for autopsy. After autopsy, he collected autopsy report and handed over the corpse of Sarna Devi to her relatives. On 27.02.2007, Rajeev Kumar, SI obtained the production warrant of appellant and joined him in investigation. During investigation, appellant suffered disclosure statement Ex.P13 dated 01.03.2007 and pursuant, thereto, he got recovered chhura(knife) Ex.P10, whose rough sketch Ex.P14 was prepared and parcel, thereof, was also made, that was sealed with the seal bearing impression 'TS' and that parcel was seized vide recovery memo Ex.P15. Rough site plan of the place of recovery of knife Ex.P21 was also prepared by Rajeev Kumar, SI, who also recorded the statements of witnesses, that were associated during recovery proceedings of the knife.
On 26.03.2007, Rajeev Kumar, SI got prepared site plan of place of occurrence Ex.P6. On 30.03.2007, he obtained the knife (chhura) Ex.P10 from MHC of police station and showed it to the doctor and the latter vide CRA No. D-187th-DB OF 2008 4 application Ex.P8 gave his opinion Ex.P9 in this regard. Later, chhura was sent to Forensic Science Laboratory, Madhuban for examination and the latter vide report Ex.P11 declared that the blood was detected on Ex.1 (Chhura).
After completion of investigation, Station House Officer of Police Station Farak Pur, instituted police report under Section 173 of the Code of Criminal Procedure ('Cr.P.C' for short) before the learned Illaqa Magistrate to the effect that it appeared that the appellant has committed offence punishable under Section 302 IPC.
On presentation of police report, copies of documents, as required under Section 207 Cr.P.C were furnished to the appellant and the case was committed to the Court of Session, that was entrusted to the learned trial Court, who framed charge under Section 302 IPC against the appellant, whereto, the latter pleaded not guilty and claimed trial. Consequently, prosecution evidence was summoned.
At the trial, prosecution examined Amarjit Singh, HC as PW1, Ramesh Kumar, Constable as PW2, Gurdial Singh, ASI as PW3, Ram Kumar, Draftsman as PW4, Navtej Singh, Constable as PW5, Satpal, SI as PW6, Dr.V.K.Jain as PW7, Guddi as PW8, Daulat Ram as PW9, Balwinder Singh, HC as PW10, Dr.Sanjeev Grover as PW11, Rajeev Kumar, SI as PW12 and Dr.Naresh Kaushal as PW13 and closed the evidence later.
After closure of the prosecution evidence, appellant was examined under Section 313 Cr.P.C, wherein, he denied the allegations of prosecution, pleaded innocence and false implication in this case. He gave his own version that he never caused any injury to his wife and that he has been implicated falsely in this case by his brothers-in-laws, as there remained a dispute between him and his wife. She used to reside with her brothers and he had not visited the house of the brothers of his wife on the CRA No. D-187th-DB OF 2008 5 day of occurrence. She was living with her brothers at Yamuna Nagar and he was residing at Alwar in Rajasthan alongwith his children. He has nothing to do with the alleged incident.
Appellant was called upon to enter in defence, but he closed the same without examining any witness in defence.
After hearing both the sides, learned trial Court vide impugned judgment of conviction dated 03.01.2008 convicted the appellant for commission of offence punishable under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of `5,000/- and in default, thereof, to further undergo rigorous imprisonment for three months, vide impugned order of sentence dated 04.01.2008. Aggrieved, thereagainst, the appellant, who was accused before the learned trial Court, has asaailed the impugned judgment of conviction and order of sentence through the instant appeal and sought his acquittal of the charge framed against him by the learned trial Court.
Learned counsel for the appellant and learned Additional Advocate General for the respondent have been heard and record of the learned trial Court perused with their assistance.
PW1 Amarjit Singh, Head Constable and PW2 Ramesh Kumar, Constable tendered in evidence their affidavits Ex.P1 and Ex.P2 respectively.
PW3 Gurdial Singh, ASI deposed that on 08.02.2007, on the basis of ruqqa Ex.P3, he recorded formal FIR Ex.P4, as also, he made endorsement Ex.P5 on the ruqqa Ex.P3.
PW4 Ram Kumar, Draftsman deposed that on 26.03.2007, he visited the place of occurrence and prepared scaled site plan Ex.P6 with correct marginal notes, as per pointing out of Rajeev Kumar, ASI.
PW5 Navtej Singh, Constable deposed that on 23.02.2007, MHC of Police Station handed over to him special reports of this case and he CRA No. D-187th-DB OF 2008 6 delivered copies, thereof, to the higher authorities without any delay on his part. He also deposed that first of all he handed over the special report to learned Illaqa Magistrate, then to the Superintendent of Police, Yamuna Nagar and then to Deputy Superintendent of Police, Yamuna Nagar.
PW6 Satpal, Law Instructor, HPA, Madhuban deposed that on 15.04.2007, when he was posted as SI/SHO of Police Station Farak Pur, he prepared police report of this case under Section 173 Cr.P.C.
PW7 Dr.V.K.Jain medicolegally examined Sarna Devi deceased and found the following injuries on her person:-
1. An incised wound 3 cm x 1 cm on right side of neck at medial end of clavicular bone:
2. An incised wound 3 cm x 1 cm on lateral aspect of right elbow:
3. An incised wound 2 cm x 1 cm on right fore arm, 3 cm below elbow and
4. An incised wound 3 cm x 1 cm on abdomen just below umbillicus.
PW7 further deposed that all the injuries were simple in nature and caused by sharp weapon, probable duration of injuries was within six hours. He proved the carbon copy of the MLR Ex.P7. He also deposed that on 30.03.2007, police moved an application Ex.P8, whereon, he gave his opinion Ex.P9. Parcel containing knife (chhura) Ex.P10 was opened during his deposition and he stated on seeing knife that it was the same that was produced before him by the Investigating Officer at the time of getting opinion on 30.03.2007.
PW8 Guddi deposed that she is member panchayat of village Jhanjhari and that they prepare and sell hand thrashers in the market. In the season, they came to camp Radaur road, Yamuna Nagar and started living in a hut. She also deposed that there were 10/20 huts in their vicinity. She further deposed that she knows Sarna Devi deceased, who was married with CRA No. D-187th-DB OF 2008 7 Ami Chand appellant present in the Court 25 years ago and that the latter was habitual of drinking and after taking liquor, he used to beat and harass Sarna Devi. She further deposed that due to this reason, Sarna Devi used to come to her brothers and lived with them in their locality and that on 30.01.2007, Sarna Devi had come to the hut of her brother Daulat Ram in her vicinity due to harassment by her husband (appellant herein). She further deposed that on 04.02.2007, Ami Chand appellant had come in their locality, but did not find Sarna Devi at the hut of Daulat. He was drunk and after taking meal, he went to sleep and due to fear, Sarna Devi came to her (PW8) hut and slept with her. She further deposed that on 05.07.2007 at about 04:00 a.m, Ami Chand appellant present in the Court came to her hut and asked about Sarna Devi and she said that she was not there. Appellant shoved her and entered in her hut and inflicted injuries to Sarna Devi in her stomach twice, on the right arm and neck with a knife (chhura) Ex.P10. She further deposed that she raised alarm, which attracted many people, as also, Daulat Ram, brother of Sarna Devi and on seeing the people, appellant fled away from the spot alongwith the weapon and later Sarna Devi was got admitted by Daulat Ram in Civil Hospital, Yamuna Nagar, PW9 Daulat Ram also deposed that they live in huts of Radaur road, Yamuna Nagar. He also deposed that they prepare and sell hand thrashers and deceased Sarna Devi was his sister, who was married with Ami Chand appellant 25 years ago; she had given birth to 7 children out of this wedlock. He also deposed that Ami Chand appellant was habitual drunkard and used to beat and harass his sister Sarna Devi from the very beginning of the marriage and due to maltreatment and harassment at the hands of Ami Chand appellant present in the Court, his sister used to come to his hut. She further said that on 30.01.2007 also, she had come to his hut due to maltreatment and beatings at the hands of the appellant and on CRA No. D-187th-DB OF 2008 8 04.02.2007, Ami Chand appellant came to his hut in an inebriated condition, hurled invectives upon them and after taking meal slept there. Due to fear of beatings of appellant, his sister Sarna Devi went to the hut of Guddi, member panchayat and slept there.
PW9 further deposed that on 05.02.2007, at 04:00 a.m, he heard the noise of Guddi, as also, of his sister and he went to the hut of Guddi and saw that appellant had given two knife blows in the stomach, one on right arm and another near the neck of his sister, and on seeing him, appellant fled away with knife and he chased him, but could not catch him. He further deposed that he took his sister to Civil Hospital, Yamuna Nagar and after treatment, he took his sister to his residence and since her condition was deteriorating, he took her to Tagore Hospital, Karnal and got her admitted, where she succumbed to her injuries on 23.02.2007. He further deposed that on 08.02.2007, he alongwith his brotherJagira was taking his sister Sarna Devi to police station, but the police met them at Vishavkarma Chowk, where, his sister got recorded her statement about the incident.
PW10 Balwinder Singh, HC deposed that on 08.02.2007, he was posted in Police Post Gandhi Nagar; on that day, he alongwioth HC Dial Singh was present at Vishavkarma Chowk in connection with patrolling and crime detection where, Sarna Devi alongwith her brothers Jagira and Daulat Ram met them and Sarna Devi got her statement recorded Ex.P3, which was recorded by him and was read over and explained to Sarna Devi, who thumb marked the same after admitting the same to be correct. PW10 further deposed that he made his endorsement Ex.P3/A on the statement Ex.P3 of Sarna Devi and sent the same to police station Farak Pur through Dal Singh, HC for registration of the case, where formal FIR Ex.P5 was registered by Gurdial Singh, ASI and, thereafter, he went to the spot and prepared rough site plan Ex.P10 of place of occurrence with correct marginal notes. CRA No. D-187th-DB OF 2008 9
PW10 further deposed that after inspection of the spot, he recorded the statements of Jagira and Guddi under Section 161 Cr.P.C and on 21.02.2007, he arrested Ami Chand appellant and produced him in the Court. He further deposed that on 23.02.2007, a telephone was received from Tagore Hospital, Karnal in police post that the condition of Sarna Devi is precarious and on receipt of this information, he along with Mohan Lal, Constable went to Tagore Hospital, Karnal, but the doctor was not available in the hospital and then he returned to Yamuna Nagar, where, another telephonic information was received on 23.08.2007 itself at about 09:15 p.m about the death of Sarna Devi and he narrated the facts to Station House Officer of Police Station Farak Pur, who took over the investigation. PW10 further deposed that on 01.03.2007, he was joined in the investigation of this case by Rajeev Kumar, the then SHO of Police Station Farak Pur and appellant was interrogated in his presence, who made disclosure statement Ex.P13 and pursuant, thereto, he got recovered chhura (knife) Ex.P10 from the place disclosed in the disclosure statement supra and sketch, thereof, Ex.P14 was prepared and later this knife was sealed into a parcel with the seal bearing impression 'DS' and that parcel was seized vide memo Ex.P15. He also deposed that the sketch of the knife Ex.P14 and recovery memo Ex.P15 bear his signature as also of Tarsem Singh, HC.
PW11 Dr.Sanjeev Grover deposed that on 24.02.2007, he was posted at Tagore Hospital, Karnal and on that day, on police request Ex.P16, he alongwith Dr.G.L.Dhall, conducted autopsy on the corpse of Sarna Devi and found following injuries thereon:-
1. Stitched partially healed infected wound on the front of left elbow 5 cm long;
2. 3 cm long stitched partially infected wound on the right clavicular region near medical end of clavicle;CRA No. D-187th-DB OF 2008 10
3. 2 cm long stitched partially healed and infected wound on the right clavicle region, 3 cm supero medial to injury no.2;
4. 3 cm x 1 cm partially healed and infected wound on the outer aspect of right elbow;
5. 3 cm x 2 cm partially healed and infected wound on the outer aspect of right fore-arm 3 cm below injury no.4;
6. 3 cm x 2 cm oval wound on right hypochondrum of abdomen. It was an infected wound with pus and feacal matter exuding;
7. 3 cm x 2 cm oval infected wound left Hypochondrum. Pus and feacal matter was exuding;
8. 4 cm x 2 cm oval infected partially healed wound on the front of abdomen in the middle 5 cm from midline on the right side;
9. 3 cm x 2 cm oval infected partially healed wound on the left side on the front of abdomen, 5 cm from the midline. Pus and feacal matter exuding;
10. 2 cm x 2 cm oval infected wound in the midline, 4 cm above the symphysis pubis, pus exuding from the wound; 11.15 cm long stitched wound on the front of abdomen in the midline vertically placed 6 cm above the symphysis pubis; On dissection of abdomen, it was found that the peritoneal cavity was full of pus and feacal matter. Loops of intestine and omentum were adherent to each other;
12.10 cm x 8 cm dark bluish red ecchymosis on the right side of abdome;
13.Excoriated skin on the front of abdomen above the inguinal ligament and pubis symphysis on both sides of midline;
14.Multiple dark bluish ecchymosis on the back outer aspect of left thigh all over;
15. Multiple ecchymosis of various sizes all over the lower limbs; CRA No. D-187th-DB OF 2008 11
16. 3 cm long stitched wound horizontally placed on the anterior medial aspect of right leg just above the ankle and
17. 3 cm long stitched wound on the antero medial aspect of left leg just above the ankle.
PW11 further deposed that in their opinion, cause of death was septicemia. He further deposed that injuries were ante mortem in nature and sufficient to cause death in the normal course of events. He also deposed that probable time elapsed between injuries and death was variable and between death and post mortem was 48 hours. PW11 further deposed that they had handed over to the police the well stitched dead body with its belongings after autopsy, copy of the autopsy report and papers numbering 14 duly signed by him. He also proved the carbon copy of autopsy report Ex.P17, which bears his signatures, as also, of Dr.G.L.Dhall, which he identified.
PW13 Dr.Naresh Kaushal also deposed that on 09.02.2007, at 11:00 a.m Sarna Devi patient was admitted in his hospital, who gave history of being stabbed with knife at four places. There was incised wound 3 cm x 1 cm on the right supra clavicular region on the medial side of clavicie, there was stab wound on the lateral side of the right elbow 3 cm x 1 cm, there was a stab wound 2 cm x 1 cm x 1 cm just below the umbillicus in front of the abdomen. General condition at the time of admission was poor with low blood pressure and tachycardia, blood urea was 138, creatinine was 5.0. Abdomen was markly distended and patient was toxic. Feacal discharge was pouring out from the umbillical wound. After correction of blood pressure, umbillical wound was cleaned and lavage was carried out. After correction of electrolytes and blood urea and creatinine, chest tube was placed in mid sub clavicle region and underwater seal was applied. Umbillical wound was explored under local anesthesia, hole in the omentum and intestine was closed and drains placed in all four quadrants. PW13 further deposed that CRA No. D-187th-DB OF 2008 12 despite all necessary measures and transfusion of 12 bottles of blood, patient did not improve and died on 23.02.2007 at 07:30 p.m. Case summary of patient Ex.P22 is in his hand and the same bears his signatures. He further deposed that curing treatement ultrasound was got done at Satyam ultrasound and X-ray Clinic, Karnal, which show perforation of intestine. PW13 further deposed that x-ray of chest and abdomen examination of the patient revealed air under both diaphram and pnemothorax right lung with collapsed lung on the right side. He proved the x-ray report Ex.P23 and report of ultrasound Ex.P24. He also deposed that on 23.02.2007, police moved application Ex.P27 before him, whereon, he gave his opinion Ex.P25/1 and he sent ruqqa Ex.P26 to the police regarding seriousness of Sarna Devi patient.
Learned counsel for the appellant contended that the latter has been implicated falsely in this case, as he had no intention to kill his wife and someone else than the appellant intruded into the hut of Guddi and caused injuries to Sarna Devi deceased. She also contended that according to the initial medicolegal report, there were only four simple injuries on the person of Sarna Devi deceased, but the autopsy report Ex.P17 revealed seventeen injuries and this contradiction is reconcilable and that must make the case of the prosecution doubtful and due to this contradiction, the appellant is entitled for benefit of doubt.
Learned counsel for the appellant also contended that if it would have been a case of murder, in that event, initially the police would have registered a case under Section 307 IPC, while, on the contrary, initially FIR was registered against the appellant only for commission of offence under section 324 IPC. She also contended that the injuries on the person of the deceased reveal that the appellant had no intention to kill his wife Sarna Devi deceased, even, if it is presumed for the sake of arguments that he is the CRA No. D-187th-DB OF 2008 13 person who caused injuries to his wife Sarna Devi. She also contended that the cause of death is not the injuries allegedly caused by the appellant upon deceased but, on the contrary, the cause of death is septicemia and the death of Sarna Devi occured after 18 days of the incident. So, she also contended that it is a case of medical negligence and at themost, the appellant can be held guilty of commission of offence punishable under Section 304-II IPC.
On the other hand, learned Additional Advocate General, Haryana for the respondent contended that the appellant has murdered his own wife by causing injuries to her, while he was in an inebriated condition and therefore, he was rightly convicted and sentenced for commission of offence punishable under Section 302 IPC by learned trial Court vide impugned judgment of conviction and order of sentence that may be upheld and affirmed, as these do not suffer from any illegality or infirmity.
We have already reproduced the testimony of PW8 Guddi, who in her testimony categoricallydeposed that on 04.02.2007, Ami Chand appellant had come in their vicinity to know about Sarna Devi deceased at the hut of Daulat Ram, brother of the deceased (Sarna Devi) and at that time, he was drunk and after taking meal, he sent to sleep. She further deposed that due to fear, Sarna Devi came to her hut and slept with her. On 05.02.2007, at 04:00 p.m, Ami Chand appellant came to her hut and asked about Sarna Devi and when she said, Sarna Devi was not there, appellant shoved her and entered her hut and inflicted two injuries in the stomach, one on the right arm and one on the neck of Sarna Devi with a knife and alarm raised by her attracted many people around including Daulat Ram, brother of Sarna Devi.
PW9 also came at the spot and he saw the occurrence, and he also corroborated testimony of PW8. His testimony has been reproduced in CRA No. D-187th-DB OF 2008 14 the earlier parts of this judgment. Both these witnesses were subjected to searching cross examination by the learned counsel for theappellant before the learned trial Court, but the long cross examination failed to elicit anything worth the name which could possibly cause any dent in their testimony. No motive can be ascribed to them to depose falsely in this case. Statement Ex.P3 was made by Sarna Devi deceased before the police which is now in the nature of dying declaration admissible under Section 32 of the Indian Evidence Act, wherein, she candidly deposed that four injuries were caused to her by her husband and after the occurrence, she was taken to General Hospital, Yamuna Nagar by her brother Daulat Ram.
Medical evidence of PW7 Dr.V.K.Jain has been perused. According to him, there were four injuries on the person of Sarna Devi, which were simple in nature. He also proved the carbon copy Ex.P7 of the medicolegal report of Sarna Devi. His testimony also, during cross examination, could not be shattered. He also deposed that knife (chhura) Ex.P10 that was shown to him during his deposition, was also produced before him by the Investigating Officer at the time of seeking opinion on 30.03.2007.
The injuries on the person of Sarna Devi, which have been stated by PW7 in his medicolegal report, copy Ex.P7, as also, in his deposition tally with the injuries described by PW8, as also, by PW9 in their depositions. These injuries also find mention in the statement of Sarna Devi deceased (which is in the shape of dying declaration Ex.P3). There is no contradiction or variation between the medical evidence of PW7 and the ocular evidence of PW8 and PW9.
When ocular evidence and medical evidence corroborate each other, that must be believed and it must follow, therefrom, that it was the appellant who caused four injuries to the appellant with a knife (chhura) CRA No. D-187th-DB OF 2008 15 Ex.P10, that was sent to the Forensic Science Laboratory, Madhuban, who vide report Ex.P11 found the same to be stained with blood. Knife (chhura) Ex.P10, which was stained with blood remained in the custody of PW1, PW2 and PW12 during investigation, whose testimony during cross examination could not be shattered. There is nothing in their evidence that any of them tampered with the parcel containing blood stained knife recovered from the appellant. So, if follows that during investigation till its deposition in the Forensic Science Laboratory, Madhuban, no one tampered with the parcel containing blood stained knife recovered from the appellant.
Even from the testimony of PW10 and PW12, the recovery of blood stained knife (chhura) stands proved. No motive can be ascribed to them to depose falsely in this case. Their testimony cannot be discarded simply on the ground that they are police officials. When they are not alleged to have any animus or hostility against the appellant prior to the recovery. Their evidence must be relied upon and it must follow that the knife (chhura) Ex.P10, which was used by the appellant for causing injuries to his wife Sarna Devi on the day of incident was recovered by PW10 and PW12 from him. Its parcel was prepared that was sent to Forensic Science Laboratory, Madhuban, who vide report Ex.P11 declared the same to be stained with blood.
So, in this view of the matter, we find it arduous to concur with the contention of the learned counsel for the appellant that someone else than the latter intruded into the hut of Guddi (PW8) and caused injuries to Sarna Devi. The contention of the learned counsel for the appellant thus, being devoid of merit is, hereby, repelled.
Confronted with this situation, learned counsel for the appellant then rightly contended that the latter had no intention to kill his deceased wife Sarna Devi and if he had intended to kill her, he would have caused her CRA No. D-187th-DB OF 2008 16 either grevious hurts or hurts dangerous to her life. Even initially, Sarna Devi deceased was admitted in Government Hospital, Yamuna Nagar and was discharged and she herself reported the incident to the police vide her statement Ex.P3 at Vishvakarma Chowk, Yamuna Nagar. If the condition of the deceased would have been precarious, she would not have been able to move out of the Civil Hospital, Yamuna Nagar for getting recorded her statement Ex.P3 at Vishvakarma Chowk, Yamuna Nagar.
Hurts/injuries that were caused on the person of Sarna Devi were simple in nature. That is why, the police registered the case under Section 324 IPC against the appellant. If the appellant intended to kill the deceased, injuries would have been either grevious in nature or dangerous to her life and, in that event, the police would have registered a case under Section 307 IPC. So, when initially, the case under Section 307 IPC was not registered against the appellant, then how the present case can be held to be a case of murder of Sarna Devi.
Even, the injuries caused by appellant on the person of Sarna Devi were not the cause of her death. In other words, deceased did not succumb to these injuries, who, on the contrary died due to septicemia, as can be seen from testimony of PW11. So, from this testimony, it is made out that it is the case of the prosecution itself that the cause of death of Sarna Devi deceased was septicemia and not the injuries which were caused to her by the appellant. Even, as per the testimony of PW11, septicemia usually occurs due to lack of timely and proper treatment, although, it can also occur even after treatment is given. One thing is certain from this testimony that septicemia usually occurs due to lack of timely and proper treatment. Since, the injuries on the person of deceased were simple in nature, if those had been tackled and treated properly, the death of deceased could be averted. Even, PW13 Dr.Naresh Kaushal deposed that no septicemia can occur if a CRA No. D-187th-DB OF 2008 17 simple injury is properly medically treated. So, the testimony of these witnesses would lead to an inevitable conclusion that the cause of death of Sarna Devi deceased was septicemia.
Apart from that, the appellant and deceased were not pulling on well. Deceased had come to her brothers and appellant came there to meet her. During night, he consumed liquor and slept after taking meal and when he woke up in the early morning, he found his wife not present in the hut of her brother and then he went in her search. It appears that due to absence of deceased from the hut of her brother, the appellant became furious and went in her search and her absence from the hut of brother provoked him to cause injuries which were not intended to cause her death.
However, it must be held that the appellant had sufficient knowledge that with these injuries, her wife could die, if she was not medically treated properly. She is from lower strata of the society. She did not have sufficient funds for her treatment of injuries because of her poverty. She could not get her treated medically properly and she suffered septicemia. Even, in the autopsy report Ex.P7, there are seventeen injuries which occured as a bed sore, as also, due to the operation carried on the injuries, but the basic number of injuries was four only. Even, the death of the deceased occured after 18 days of incident.
So, the fact remains that appellant had no intention to kill his wife, but sufficient knowledge must be ascribed to him that with the injuries that were caused by him to the deceased, she could die, if those injuries were not properly treated.
In these circumstances, appellant could not be held guilty for commission of offence punishable under Section 302 IPC. On the contrary, he was guilty of commission of offence punishable under Section 304-II IPC. The learned trial Court, thus, erroneously convicted the appellant of CRA No. D-187th-DB OF 2008 18 commission of offence punishable under Section 302 IPC and sentenced him to imprisonment for life vide impugned judgment of conviction and order of sentence, which being erroneous, must be set aside.
Accordingly, the appellant is acquitted of the offence punishable under Section 302 IPC. In its place, appellant is held guilty of commission of offence punishable under Section 304-II IPC. He has already undergone imprisonment for a period of five years, four months and fourteen days as on 05.07.2012, as can be seen from the record. Uptill now, he has undergone imprisonment of seven months and seventeen days more after 05.07.2012. In this manner, the appellant has already undergone imprisonment for a period of more than six years. He is, therefore, sentenced to the period already undergone by him in jail during investigation, trial and pendency of the appeal.
Resultantly, the appeal is allowed partly and the impugned judgment and order of sentence are set aside partly. Appellant is acquitted of offence punishable under Section 302 IPC and convicted for commission of offence punishable under Section 304-II IPC and sentenced to the period already undergone by him in jail during investigation, trial and pendency of the appeal.
(S.P. BANGARH) (S.S.SARON)
JUDGE JUDGE
February 20,2013
mamta