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               REPORTABLE

                                                IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDITION

CRIMINAL APPEAL NO. 87 OF 2008

Devendra Nath Srivastava … Appellant

Versus

State of U.P. …Respondent

WITH

CRIMINAL APPEAL NOS. 88-90 OF 2008

Preeti Srivastava … Appellant

Versus

Devendra Nath Srivastava and Anr. …Respondents

J U D G M E N T

Prafulla C. Pant, J.

1. These appeals are directed against judgment and order

dated 24.08.2007, passed by the High Court of Judicature at

Allahabad,  Lucknow Bench,  in  Criminal  Appeal  No.  201  of

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2007 whereby said Court has disposed of Capital  Reference

No. 2 of 2007 along with criminal appeals filed by appellant

Devendra Nath Srivastava arising out of judgment and order

dated  18.01.2007  passed  by  Additional  Sessions

Judge/Special Judge (E.C. Act) Gonda, relating to conviction

of the appellant under Section 302 of Indian Penal Code (for

short  “IPC”)  in  Sessions  Trial  No.  258  of  2005.   By  the

impugned order passed by the High Court, conviction of the

appellant under Section 302 IPC has been set aside, instead

he is convicted under Section 304 Part I IPC, and sentenced to

rigorous  imprisonment  for  ten  years  and  to  pay  fine  of

₹10,000/-,  in  default  to  under  further  six  months  rigorous

imprisonment

2. Prosecution  story,  in  brief,  is  that  appellant  Devendra

Nath Srivastava got married to Madhu Srivastava (deceased)

on 04.03.1994.  The couple had four children.  On 12.05.2005

at about 7.30 p.m., complainant Shailender Kumar Srivastava,

who is nephew of the appellant, heard cries of the appellant’s

children  and  rushed  to  the  house  of  his  uncle  (appellant),

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where he saw the appellant assaulting his wife with brick.  On

seeing PW-6 and others coming from the neighbourhood, the

appellant ran away.  The appellant’s wife (Madhu Srivastava)

was taken by PW-6 Shailender Kumar Srivastava to District

Hospital after arranging an ambulance.  However, the doctors

declared her brought dead.

3. A First Information Report (Ex. A-9) was got lodged by

PW-6 at Police Station Kotwali City Gonda on the very day at

about 21.45 hours.   Crime No. 169 of 2005 was registered

based  on  the  said  F.I.R.   The  Investigating  Officer,  after

interrogating the complainant, went to the spot and got sealed

the  dead  body  of  the  deceased  and  prepared  the  inquest

Report  (Ex.  A-1).   On  13.05.2005  PW-7  Dr.  Rajkumar

conducted autopsy, and opined that the deceased had died of

asphyxia on account of ante mortem injuries.  In all, nine ante

mortem  injuries  were  recorded  in  the  post  mortem

examination report (Ex. A-10).  Meanwhile, the appellant was

arrested, and on his pointing out recovery of the brick used in

the crime was made.  The blood-stained shirt and pants of the

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appellant  were  also  taken  into  possession  by  the  police  in

respect  of  which  memo  (Ex.  A-13)  was  prepared.   After

completion of investigation, a charge sheet was submitted by

Investigating Officer Rajender Prasad Singh (PW-8) against the

appellant for his trial.

4. It appears that the case was committed to the court of

Sessions  for  trial.   On 10.08.2005 learned  Sessions  Judge,

Gonda framed charge in respect of offence punishable under

Section 302 IPC against the appellant-accused Devendra Nath

Srivastava  to  which  the  accused  pleaded  not  guilty  and

claimed to be tried.  On this, prosecution got examined PW-1

Vijay Kumar Chaurasia, PW-2 Rampher Jaiswal, PW-3 Sadhna

Srivastava,  PW-4  Virender  Singh,  PW-5  Preeti  Srivastava,

PW-6  Shailender  Kumar  Srivastava  (informant),  PW-7  Dr.

Rajkumar  and  PW-8  Incharge  Inspector  Rajender  Prasad

Singh (Investigating Officer). 5. The prosecution evidence was put to the accused under

Section 313 of Criminal Procedure Code (Cr.P.C.), in response

to which he pleaded that at the time of incident he had gone to

his native village to give medicines to his mother.  Thereafter,

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on  behalf  of  the  defence  DW-1  Shyam  Rang  and  DW-2

Chandermukhi  were  got  examined.   The  trial  court  in  its

wisdom got summoned court witness Adesh Kumar Srivastava

(CW-1), the eldest son of the deceased who was minor.  His

statement  was  recorded  on  16.11.2006.   Thereafter,  this

additional evidence was also put to the accused under Section

313 Cr.P.C.

6. After hearing the parties, the trial court found that the

charge in respect of offence punishable under Section 302 is

proved against  the accused,  and convicted him accordingly.

The parties were heard also on sentence and the trial court

awarded  death  sentence  to  the  convict,  and  submitted  the

record  to  the  High  Court  vide  judgment  and  order  dated

18.01.2007, for affirmation of the sentence. 7. Aggrieved by the judgment and order of the trial court the

convict preferred appeal (Criminal Appeal No. 201 of 2007) to

the  High  Court.   He  further  got  submitted  another  appeal

(Criminal  Appeal  No.  237  of  2007)  from  jail.   Both  these

appeals were clubbed together with the Reference made by the

Court of Sessions, and disposed of together by the High Court

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vide  common  judgment  and  order  dated  24.08.2007,

impugned before us.  The High Court held that the incident

had taken place after altercations between the deceased and

the  accused,  who  was  drunk,  and  the  homicidal  death  is

caused by the appellant, and the act is covered under Section

304 Part I IPC, and not under Section 302 IPC.  Accordingly,

the High Court set aside the conviction and sentence under

Section 302 IPC recorded by the trial court and convicted the

appellant under Section 304 Part I IPC and sentenced him to

undergo ten years rigorous imprisonment and to pay fine of

₹10,000/-, in default to undergo further six months rigorous

imprisonment.

8. Convict  Devendra  Nath  Srivastava  and  victim’s  sister

Preeti Srivastava moved this Court through separate Special

Leave  Petitions  challenging  the  order  passed  by  the  High

Court.  Criminal Appeal No. 87 of 2008 has arisen out of the

Special Leave Petition filed by the convict, and Criminal Appeal

Nos.  88-90  of  2008  have  arisen  out  of  the  Special  Leave

Petitions filed by Preeti Srivastava, sister of the deceased.

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9. We have heard learned counsel for the parties at length

and perused the record of the case.

10. Before further discussion, we think it just and proper to

mention  the  ante  mortem  injuries  recorded  by  PW-7  Dr.

Rajkumar in  the  autopsy  report  (Ex.  A-10).   The  same are

reproduced as under: - “(1) Lacerated wound 5 cm x 4 cm x bone deep on

back  of  left  ear.   Clotted  blood  seen  in  the wound.

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

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

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

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

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

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

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

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

PW-7  Dr.  Raj  Kumar  has  stated  that  on  internal

examination both upper and lower jaws’ bones found broken

and some portions of upper and lower teeth were also found

broken.   He  further  found  hyoid  bone  fractured  and  both

lungs  blocked.   These  observations  are  also  made  in  the

autopsy report.  It has been opined by the said Medical Officer

that Madhu Srivastava (deceased) died of strangulation with

the above mentioned ante mortem injuries.

11. The  medical  evidence,  discussed  above,  clearly

establishes  that  Madhu  Srivastava  (wife  of  the  appellant

Devendra Nath Srivastava) has died homicidal death.  Now, we

have to examine whether the appellant has caused the death

of his wife, as suggested by the prosecution, or not.

12. On perusal  of  the  evidence  on  record,  it  is  clear  that

PW-1 Vijay Kumar Chaurasia, PW-2 Rampher Jaiswal, PW-3

Sadhna Srivastava, PW-4 Virender Singh and PW-6 Shailender

Kumar Srivastava have turned hostile to prosecution, but on

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careful  scrutiny  of  their  evidence  there  is  no  difficulty  in

finding the ring of truth in the prosecution story.  PW-1 Vijay

Kumar Chaurasia  though states  in  his  examination-in-chief

that  before  the  incident  he  had  no  acquaintance  with  the

appellant, but has proved the inquest report (Ex. A-1) in the

cross-examination  stating  that  he  witnessed  the  inquest

proceedings.   PW-2  Rampher  Jaiswal  in  his

examination-in-chief,  denies his presence at the time of  the

incident,  but  in  cross-examination  this  witness  has  proved

that the brick, allegedly used in the crime, was recovered on

pointing  out  of  the  accused Devendra Nath Srivastava.   He

proved his signatures in the recovery memo.  PW-6 Shailender

Kumar Srivastava  has  stated  that  he  is  the  nephew of  the

deceased and the accused, but he does not know how his aunt

(Madhu  Srivastava)  died.   He  has  further  stated  that  the

accused  and  the  deceased  had  strained  relations.   In  the

cross-examination he admits that he gave written report (Ext.

A-26) to the police, soon after the incident on 12.05.2005.  He

further  stated  that  he  took  Madhu  Srivastava  (in  injured

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condition) to the hospital at about 8.50 p.m. where she was

declared brought dead.

13. PW-5 Preeti Srivastava, sister of the deceased, has stated

that  the  deceased was married  to  appellant  Devendra  Nath

Srivastava.  She further stated that the appellant was Field

Inspector with Khadi Gramodyog Board.  She further disclosed

that she used to live at a distance of some 1-1.5 kilometers

away from the house of  the appellant  and his family.   She

further  told  that  there  were  four  children  born  out  of  the

wedlock between the deceased and the appellant.  She further

stated that the appellant used to torture the deceased after

taking alcohol.  She has proved the letters Exs. A-2, A-3, A-4

and A-5 written  by  the  deceased to  her  father  complaining

about the ill-treatment meted out to her by the appellant.  In

all these letters, it is specifically mentioned by the deceased

that the appellant was a drunkard and used to beat her after

getting drunk.  PW-5 Preeti Srivastava has further stated that

there  had  been  litigation  between  the  deceased  and  the

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appellant, but it terminated with compromise entered between

the parties in 2003 (Ex. A-8).

14. PW-8 Inspector Rajendra Prasad Singh, the Investigating

Officer, has stated that during interrogation he recovered brick

(Ex. I) on pointing out of the accused.  He has further stated

that the blood stained pantaloons and the shirt of the accused

were  taken  into  possession,  and  memo  (Ex.  A-13)  was

prepared,  and  sent  for  chemical  analysis  along  with  other

blood stained articles including the blood stained piece of floor

collected from the spot as also the clothes of the deceased (Ex.

2,  3,  and  4).   Forensic  Science  Laboratory  report  dated

14.10.2005 (Ex. A-27) shows that in the blood stained clothes

of the accused contained human blood.  It further discloses

that human blood was also found in the piece of cement floor

and the clothes of the deceased.

15. Statement of CW-1 Adesh Kumar Srivastava, eight years

old  eldest  son of  the  appellant  and the  deceased,  does  not

support prosecution but it can be easily gathered that after he

lost his mother, he does not want to lose his father.  At one

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stage he says his mother fell on a brick, and then discloses

that she had fallen from the staircase.  At the end, he states

that at the time of the incident he was playing at the boundary

of the house.

16. Though the  defence  witnesses  DW-1 Shyam Rang and

DW-2 Chandermukhi  have  attempted  to  say  that  Devendra

Nath Srivastava (appellant) had gone to village on the day of

the  incident  to  give  medicines  to  his  mother,  but  there  is

nothing  to  corroborate  on  the  record  if  any  medicine  is

purchased from any chemist by the appellant.  It is also not

clear  as  to  what  was  the  ailment  of  his  mother,  and since

when she was unwell.  In our opinion, the trial court and the

High Court have rightly disbelieved these two witnesses.

17. On  re-appreciation  of  entire  evidence  and  having

considered the submissions of learned counsel for the parties,

we  agree  with  the  view taken by  the  High Court  that  it  is

clearly  established  from  the  evidence  on  record  that  the

appellant  caused  homicidal  death  of  his  wife,  after  quarrel

between  the  two.   It  is  established  on  the  record  that  the

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appellant was a drunkard.  The First Information Report was

lodged  by  none  other  than  the  appellant’s  own  nephew,

immediately  after  the  incident.   There  is  no  version  put

forward by the appellant  as to how his  wife died homicidal

death in his house.  Considering the facts and circumstances

of the case, it appears that the appellant acted in a fit of anger.

It  is  nobody’s  case  that  the  appellant  had  any  concubine.

Rather statement of PW-5 Preeti Srivastava shows that suit for

restitution  of  conjugal  rights,  filed  by  the  appellant,  was

decided  in  terms  of  compromise,  and  they  started  living

together with their children.

18. As  to  whether  the  act  on  the  part  of  the  appellant

constitutes the offence punishable under Section 302 IPC or

Section 304 Part I IPC, we are of the view that the incident has

occurred after quarrel between the appellant and the deceased

which is  not  a planned act.   It  is  also established that  the

appellant was a drunkard.  In our opinion, in the facts and

circumstances of the case, the view taken by the High Court,

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that  the appellant  has  committed offence  punishable  under

Section 304 Part I IPC, requires no interference.

19. In State of Andhra Pradesh v. Rauavarapu Punnayya

& another [(1977) 1 Supreme Court Reports 601 at 606]1,

this  Court,  explaining the scheme of  Penal  Code relating to

culpable homicide, has laid down the law as under:-

“In  the  scheme  of  the  Penal  Code,  “culpable homicide” is genus and “murder” its specie. Every “murder” is “culpable homicide” but not vice-versa. Speaking  generally,  “culpable  homicide”  sans “special  characteristics  of  murder”,  is  “culpable homicide  not  amounting  to  murder”.  For  the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, “culpable homicide of the  first  degree”.  This  is  the  greatest  form  of culpable homicide, which is defined in Section 300 as  “murder”.  The  second may  be  termed  as “culpable  homicide  of  the  second degree”.  This  is punishable  under  the  first  part  of  Section  304. Then,  there  is  “culpable  homicide  of  the  third degree”. This is the lowest type of culpable homicide and  the  punishment  provided  for  it  is,  also,  the lowest  among  the  punishments  provided  for  the three  grades.  Culpable  homicide  of  this  degree  is punishable under the second part of Section 304.”

1 (1976) 4 SCC 382

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20. In  the  same  case,  i.e.  State  of  Andhra  Pradesh  v.

Rauavarapu Punnayya & another  (supra),  this Court has

further observed at page 608 as under: -

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

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21. In view of the above discussion of facts and law, we are in

agreement with the conviction and sentence recorded against

the appellant by the High Court.  Therefore,  the appeals are

dismissed.

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

      .........................J. [Prafulla C. Pant]

New Delhi; April 6, 2017.