Hon'ble Arvind Kumar Mishra-I,J.
1. The instant Criminal appeal has been preferred challenging the judgement and order of conviction dated 05.03.2004 passed by Additional Sessions Judge (Fast Track Court), Sonbhadra in Session Trial No. 107 of 2001 arising out of Case Crime No. 244 of 2001, P.S. Robertsganj, District Sonbhadra, awarding the sentence under Section 307 I.P.C. for life imprisonment with fine for a sum of Rs. 1,000/-, under Section 4 of Dowry Prohibition Act two years rigorous imprisonment with fine for a sum of Rs. 1,000/- in default six months additional imprisonment, and further directed to run the sentence concurrently.
2. Mr. Ravi Shankar Prasad, learned Advocate appeared on behalf of appellant, Mr. Chandrajeet Yadav, learned A.G.A. appeared on behalf of State.
3. Prosecution case in brief is that on written complaint made by Vijay Pratap Pandey S/o Late Sri Uma Shankar Pandey, R/o Gajraj Nagar (Villi) Obra, P.S. Obra, District Sonbhadra. F.I.R. was lodged and registered at Case Crime No. 244 of 2001, under Sections 498A, 307, 323 I.P.C. and 3/4 Dowry Prohibition Act, P.S. Robertsganj, District Sonbhadra. F.I.R. is exhibited as Exhibit Ka.5. As per F.I.R. version informant Vijay Pratap Pandey S/o Late Sri Uma Shankar Pandey R/o Gajraj Nagar (Villi) Obra, Post Office and P.S. Obra, District Sonbhadra, his daughter was married on 05.05.1999 to appellant Sunil Kumar Deo Pandey S/o Sri Ramesh Deo Pandey, R/o Village Karari, P.S. Robertsganj, District Sonbhadra and after marriage he started torturing his daughter and he was pressurizing her to demand money from her father (informant) for opening the medical shop. Since the demand could not be fulfilled by the informant, on 02.06.2009 in the morning at about 9:00 a.m. he assaulted and slit her neck with sharp edged weapon, who received severe injury on her neck and other injuries on the other part of the body. Hence, request was made to register the report against her husband Sunil Kumar Deo Pandey for appropriate steps. The F.I.R. was lodged after two days of the incident i.e. 04.06.2001 at about 06:10 a.m. She was taken to hospital by her father-in-law and other persons, for medical aids, where she was examined by the medical officer on the same day i.e. on 02.06.2001 at 09:45 a.m. The injuries noted by the doctor is Incised wound 8.0 cm x 2.5 cm x muscle deep on front of neck just below thyroid cartilage. Injury is horizontal cutting through skin, platysma, trachea sharply. Margins are clean cut. Bleeding profusely. As per opinion of the doctor the injury was caused by sharp weapon and duration was fresh. Her written statement was recorded as dying declaration before the Magistrate concerned CW1 Sri Shiv Singh in between 01:15 p.m. to 01:45 p.m. in presence of the doctor as she was not in a position to speak properly due to neck injury. The statement was proved and exhibited as Exhibit Ka.8. She was referred from Robertsganj hospital to Heritage Hospital, Varanasi and she was got admitted there.
4. When she was in Robertsganj Hospital informant (father) reached there and at that time her statement was being recorded. After recovery and discharge from Heritage Hospital, Varanasi, Investigating Officer contacted her to record her statement on 20.06.2001. He took samples by scratching blood stained floor, blood stained saree, blaoose, petikot and chadar one blood stained 'pahsul' (normally used for cutting vegetables), piece of bangles, recovery memo was prepared on the spot in presence of witnesses. Site plan was prepared which was exhibited as Exhibit Ka.3 and the same was proved by PW3 Investigating Officer.
5. After completing the investigation charge sheet was submitted. Charges were framed by Additional Session Judge-II on 02.07.2002, under Sections 307, 498A I.P.C. and 3/4 D.P. Act, however, appellant was not convicted under Section 498A I.P.C.
6. In the present case four witnesses were examined, informant Vijay Pratap Pandey (father of the victim) as PW1, Smt. Krishna Pandey (victim) as PW2, Investigating Officer Prem Narayan Singh as PW3, Dr. Kanti Kumar as PW4, Sri Shiv Singh, Sub-Divisional Magistrate, Chakar Nagar, Etawah as CW1 who was posted at that time in Robertsganj as Additional Tehsildar.
7. Learned counsel for the appellant submitted that there is a contradiction in the statement and evidence of the prosecution and no one has seen the incident causing injury to PW2 Smt. Krishna Pandey W/o appellant, Anand Kumar Dev Pandey. Son of the appellant who was present at the place of alleged incident was not examined who was the best witness in the present case. As far as the statement of victim recorded under Section 164 Cr.P.C. before the Magistrate concerned as a dying declaration is concerned, there is a contradiction in that statement and her statement recorded before the trial Court, when she was examined as PW2.
8. According to her statement incident took place behind Gurdwara situated in Kasba Robertsganj and subsequently she stated that the incident took place in the house, hence, place of incident is also disputed.
9. According to her statement when her husband, who was demanding Rs. 1,00,000/- for opening the medical shop, caught hold her neck she became unconscious, hence, she was not aware that by which weapon he slit her throat even she could not tell why he caught hold and pressed her neck with his hands. Subsequently, in the statement recorded before the Court she stated that earlier she was living in Robertsganj in a rented house, subsequently, her father-in-law purchased the house in Robertsganj then she started living in that house which was also situated in Robertsganj and further that the incident took place in the house. After committing offence the door was closed from the outside which was opened by Anand Kumar Dev Pandey son of the first wife of appellant. He further submitted that since there was some quarrel between the husband and wife, hence, incident took place in sudden quarrel and as such there was no intention to commit murder and it appears that it was accidental injury caused to her.
10. Hence, in view of the facts and circumstances of the case since the prosecution failed to examine the witnesses present on the spot namely, Anand Kumar Dev Pandey and father-in-law of the deceased and such other witnesses who reached on the spot and as such prosecution failed to prove the case beyond reasonable doubt. Hence, the impugned judgment and order is liable to be set aside.
11. The alternative argument on behalf of appellant was advanced that even if due to some altercation injury was caused, though there was no intention to kill, but the punishment of life imprisonment awarded to the appellant/applicant is a severe punishment and disproportionate considering the evidence and offence committed by the appellant. He also contended that the appellant has already completed more than 14 years sentence in jail because he was in jail during trial and since August, 2001 he is continuously in jail and as such in view of the facts and circumstances of the case taking lenient view the sentence be reduced to the period of custody already undergone.
12. Learned A.G.A. vehemently opposed the argument raised on behalf of the applicant/appellant. He submitted that from perusal of the statement of the victim before the Magistrate as well as the statement recorded before the Court concerned when she was examined as PW2, there was no material contradiction in her statement. The incident took place in the house where she was living along with the appellant and the Anand Kumar Dev Pandey son of previous wife of appellant but he was not present in the room at the time of incident. The injured herself is a best witness in the present case and there was no reason of false implication of her husband. No evidence otherwise has been placed on behalf of appellant to show how the incident took place in his house. There is reasonable ground to believe that there was intention to kill her as injury was caused on the vital part i.e. neck and as such in view of the facts and circumstances no other view is possible in the present case. The appellant was guilty and rightly sentence was awarded and as such appeal is liable to be dismissed.
13. Considered the submissions of learned counsel for the parties. As far as the contention regarding the place of incident is concerned it was stated that the incident took place behind the Gurudwara. From perusal of the statement of victim who was examined and appeared as PW2, it is clear that earlier she was residing in the rented house in Robertsganj, subsequently, house was purchased by her father-in-law in Robertsganj and in cross-examination it was also clarified by her that house was situated behind Gurudwara. Hence, there was no contradiction regarding place of incident.
14. There is a clear allegation in her statement which was recorded in the presence of Doctor and Magistrate as dying declaration. Considering the condition as she was not in a position to speak and as such she wrote her statement in presence of Doctor and Magistrate, signed and put her thumb impression. She has passed intermediate examination, her husband was also a teacher in a school. The Magistrate concerned considering her condition, in presence of the doctor allowed her (victim) for written statement. He asked the questions and the answers were written by her. The Magistrate was examined as CW1. According to Magistrate concerned the statement was written by her in the presence of Doctor and certificate was given by the Doctor, who has seen and examined her. The statement was exhibited as exhibit Ka.8. There was no reason of giving false statement by the Magistrate concerned when he was examined as CW1. According to that statement there is a clear allegation against the appellant. Further when the statement of victim Smt. Krishna Pandey was recorded who was examined as PW2. There is an allegation against her husband that there was a demand for payment of money to open medical shop, but there is no allegation of demand of dowry or to pressurize the victim to fulfill the dowry demand. It was a re-marriage of the appellant but according to the statement of PW2 she heard that the first wife was killed by giving sulphas, who had three children i.e. two sons and one daughter. She was not aware regarding the daughter of first wife and subsequently, after marriage she came to know.
15. Both the sons were not present in the same room at the time of incident. Subsequently, the elder son Anand Kumar Dev Pandey came over there after hearing the noise and he opened the door closed from outside. He was aged about 13 years at the time of incident. Hence, there is no doubt about the place of incident which took place in the house of the appellant/applicant and he caused injury by 'pahsool' (used in the kitchen for cutting vegetables). Blood was also found on the spot by the Investigating Officer. The dried blood was also found on the 'pahsool' (exhibit Ka.2). Blood stained saree, blaoose, petikot, chadar, broken bangles were also recovered by Investigating Officer on 20.06.2001.
16. The incident is of 02.06.2001 and the F.I.R. was lodged on 04.06.2001 and her statement was recorded by Magistrate concerned on the same day i.e. on 02.06.2001 at about 01:45 p.m. at the time of recording her statement she was not in a position to speak properly. After recovery Investigating Officer went to record her statement and inspected the place of occurrence who was also examined as PW3 and supported the recovery and investigation conducted by him. There is no material contradiction in her statement recorded before the Magistrate on 02.06.2001 and her statement recorded by the trial Court when she was examined as PW2. There is no reason to falsely implicate her husband, sparing real culprit. Even in defence Anand Kumar Dev Pandey and other persons including the neighbours were not examined to show that the incident has not taken place as mentioned in the F.I.R. and in the statement of the victim. As per the injury report, incised wound 8.0 cm x 2.5 cm x muscle deep on front of neck just below thyroid cartilage was found. Injury is horizontal cutting through skin, platysma, trachea sharply. Margins are clean cut. Injury was kept under observation. Bleeding profusely. Hence, there is a clear intention to cause death and it is clear case of commission of offence under Section 307 I.P.C. Spot inspection report is Exhibit Ka.3 which was proved by the Investigating Officer-PW3 and the place of incident is inside the room of the house of the appellant.
17. Though the charges were framed under Section 498A I.P.C. also however, appellant has not been convicted under Section 498A I.P.C. as in view of the allegation made by the father/informant of the victim as well as the victim herself, there is no allegation of demand of dowry and torture for non-fulfillment of demand of dowry. Hence, in support of allegation and conviction under Section 4 of the Dowry prohibition Act there is no reliable material, and as such the conviction under Section 4 of the Dowry Prohibition Act against the applicant/appellant is hereby set aside.
18. The additional argument of learned counsel for the appellant is regarding quantum of sentence. It is not a case of sudden quarrel, and considering the injury caused by the applicant/appellant, it was rightly held that applicant/appellant was guilty of committing offence punishable under Section 307 I.P.C. As far as conviction for life imprisonment is concerned it is the maximum period of punishment awarded under Section 307 I.P.C. In case of attempt to murder, if it is done with such intention or knowledge that it might have caused death the accused would be guilty of murder, he shall be punished with imprisonment for life which may extend to 10 years with fine. However, if hurt is caused to any person by such act then the offender shall be liable either to imprisonment for life or to such punishment as is herein before mentioned. He has already completed more than 14 years in jail which is more than 10 years and as such in view of the facts and circumstances since there is no repeated blow and as such the period of sentence of 14 years, already under-gone, would be sufficient, in the interest of justice, in the present facts and circumstances.
19. Hence, in view of the aforesaid discussion the conviction under Section 307 I.P.C. is confirmed but the sentence is reduced to the period already under-gone i.e. 14 years. If the applicant/appellant has completed 14 years without remission, he shall be released in the present case, after compliance of the provision under Section 437-A Cr.P.C. As far as penalty imposed under Section 307 I.P.C. is concerned, the same has to be deposited before his release, if he has already not deposited the same.
20. Accordingly, the present criminal appeal is hereby partly allowed.
21. Let a copy of this order be communicated to the Court concerned for compliance of the order.
Order Date :- 19.1.2016 M/A.
Case :- CRIMINAL APPEAL No. - 2492 of 2004 Appellant :- Sunil Kumar Deo Pandey Respondent :- State Of U.P.
Counsel for Appellant :- I.B. Yadav,Ravi Shankar Prasad Counsel for Respondent :- Govt. Advocate Hon'ble Arvind Kumar Tripathi,J.
Hon'ble Arvind Kumar Mishra-I,J.
Partly allowed.
For order see order of date passed on separate sheets.
Order Date :- 19.1.2016 M/A.