Court No. - 34
Case :- JAIL APPEAL No. - 5470 of 2005 Appellant :- Asha Devi Respondent :- State Counsel for Appellant :- From Jail, Jeevan Ji Srivastav[A.C.],P.K. Singh,R K Mishra Counsel for Respondent :- A.G.A.
Hon'ble Sudhir Agarwal,J. Hon'ble Ram Krishna Gautam,J.
1. This criminal appeal under section 374(2) of the Code of Criminal Procedure has been filed by convict appellant Smt. Asha Devi through Superintendent of Jail, Sonbhadra, under section 383 of the Code, against the judgment dated 20.12.2003 passed by Sessions Judge, Sonbhadra, in S.T. No.
25 of 2001, State Vs. Asha Devi, in Case Crime No. 140 of 2000, under section 302 I.P.C. P.S. Pannuganj, District Sonbhadra, with this contention that Trial Court has failed to appreciate the facts and law placed before it. Convict-appellant is with no legal assistance and is having no one to do pairvi for her.
2. Amicus Curiae was provided to her by this Court but subsequently an Advocate Sri R. K. Mishra was engaged for convict appellant.
3. Heard Sri R. K. Mishra, learned counsel for the appellant and Sri Ratan Singh, learned AGA, for the State and have gone through the record and the judgment impugned.
4. From the perusal of the record it is apparent that case crime no. 140 of 2000, u/s 302 I.P.C. was got registered on 7.11.2000 at Police Station Pannuganj, district Sonbhadra, upon the report of Hans Lal Jaiswal against Asha Devi, wife of Hans Lal Jaiswal with this contention that the first wife of the complainant namely Smt. Shakuntala Devi had died one year back and she was blessed with one son Bhim aged about four years and two daughters. For proper up keeping and guardianship of the children, complainant remarried with Asha Devi, daughter of Kailash Sav, resident of village Gadke, Police Station Ahaura Kaimur, Bhabhua, Bihar, and she was residing at complainant's house as his wife. She was jealous towards complainant's Bhim and was very often torturing him. On 7.11.2000 at about 4.30 P.M. she by use of force by Lodha (hard blunt stone object used for home affairs) had beaten Bhim resulting his death. This occurrence had been witnessed by Shyam Bihari Yadav son of Shukalu, Parashuram Jaiswal, son of Munni as well as complainant's elder daughter Manju. Dead body of the deceased was at his home. This report was submitted by getting it scribed by Vijay Bahadur Yadav under the signature of the complainant Hans Lal Jaiswal. The investigation proceeded and the weapon of offence was recovered. Inquest and autopsy examination reports were got prepared in which this was found to be a culpable homicide amounting to murder. Charge-sheet was submitted and Magistrate took cognizance. As the offence of murder punishable u/s 302 I.P.C. was exclusively trible by the Court of Sessions, the case was committed to the Court of Sessions. The then Sessions Judge, Sonbhadra, vide order dated 19.4.2001 levelled charge for the offence of murder punishable u/s 302 I.P.C. against Asha Devi, which was read over and explained to her, who pleaded not guilty and claimed for trial.
5. Prosecution examined PW1- Hans Lal Jaiswal, PW2- Parashuram, PW3- Shyam Bihari, PW4- Dr. P. N. Singh, PW5- Constable 124 Arvind Kumar Tiwari, PW6- Ram Dulare, PW7- Manju (a child witness) and PW8- Investigating Officer P. C. Pandey.
6. Accused was examined u/s 313 Cr.P.C. in which she admitted to be the wife of the complainant married one year back from the date of occurrence and previous wife of the complainant, Shakuntala, who had died one year before her marriage with the complainant, was blessed with a son aged about four years and two daughters but she refused to have murdered the deceased. She denied the charge and assailed the witnesses to be untrustworthy. She said that esjs ifr dk ,d nwljh efgyk /keZ'khyk ls xyr lEcU/k Fkk] og Hkh mlh ?kj esa ?kVuk ls igys ls vkdj jgus yxh FkhA eSa ?kVuk ds le; /kku dh dVkbZ ds fy, ckgj x;h FkhA xkao ds yksxksa ls lwpuk feyh dh yMds dh gR;k gks x;h gSA ml efgyk ds pDdj esa esjs ifr us xyr eqdnek fd;k gSA vkt Hkh og efgyk mlh ?kj esa esjs ifr ds lkFk jgrh gSA No evidence in defence was given by her.
7. The Sessions Judge after hearing learned counsel for both sides passed the impugned judgment of conviction and sentenced with appellant with life imprisonment and fine of Rs.3000/- and in case of failure of payment of fine to further undergo three months imprisonment.
8. PW7- Manju is the crucial witness, who in her testimony has clearly stated that she along with her brother Bhim was inside home on the date of the occurrence when her mother assaulted her brother Bhim by above stone object causing injuries over him resulting his death. This child witness has been previously examined and certified by the Trial Judge to be a competent witness to understand and answer the question put to her. In her testimony there is no material contradiction or exaggeration. This testimony has been further corroborated by PW2, who was an eyewitness of the occurrence and has categorically proved the prosecution version. This has further been supported by PW3. PW1 complainant has proved registration of this case by his unimpeachable testimony. The culpable homicide owing to ante-mortem injuries under the given mode and way by use of hard and blunt object resulting death of the deceased has been proved by medical evidence too. The formal witnesses i.e. witnesses of registration of case crime number etc. by their cogent and reliable testimonies have proved the case of prosecution beyond reasonable doubt.
9. Learned counsel for defence moved an application under section 9(2) of the Juvenile Justice (Care and Protection of Children) Act, 2000 for and on behalf of the appellant Smt. Asha Devi supported with an affidavit that the appellant, who belongs to a very poor, rural and backward family, had been married under her tender age and was implicated in this case crime upon the report of her own husband. She being unable to defend herself, was not properly defended, whereas she was minor at the time of incident, but her poor father could not make pairvi of the case properly, and being subsequently advised, she moved this application with a claim for declaration of her juvenility. This Court vide orders dated 17.11.2017 and 25.8.2018 directed for age determination of the appellant by a Medical Board.
10. In order to ascertain the correct age of the appellant, she was examined medically and report has been submitted in which her age has been found to be 32 or 33 years. The incident is of the year 2000, therefore, her age, at the time of occurrence, could have been 14 or 15 years. Giving the variation in the age recorded during medical examination, still it appears that at the time of the incident the appellant was below 18 years of age and she has to be given the benefit of a juvenile. Since the maximum punishment provided under the Juvenile Justice (Care and Protection of Children) Act, 2000 is three years and the appellant has already remained in jail for 18 years, we are not sending the matter to the Juvenile Justice Board for ascertaining her age. Since the appellant has already served out the sentence of 18 years, we confine the sentence awarded to her to three years, the period which has already undergone.
11. The appeal is partly allowed. The impugned judgment of conviction dated 20.12.2003 is confirmed but the sentence awarded to her is modified. The appellant, who is in jail since long and has already remained in jail more than the maximum period of sentence provided under the Juvenile Justice (Care and Protection of Children) Act, 2000, be released from jail forthwith, if she is not wanted in any other case.
12. Office is directed to send a copy of this judgment to the C.J.M., Sonbhadra, by FAX for immediate compliance.
13. The lower court’s record along with copy of this judgment be sent back to the court concerned.
Order Date :- 29.11.2018 Pcl