CRLA/2665/2000 of SMT. NANDA DEVI Vs STATE

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Appeal No. 889 of 2001

(Old No. 2665 of 2000)

Smt. Nanda Devi

W/o Shri Chandra Singh R/o Jindi Suran, Patwari Kshetra Jakh Tehsil and District Champawat

…..…Appellant

Versus

State of U.P. (now State of Uttarakhand)

..…….Respondent

Mr. Sachin Mohan Singh Mehta, Advocate, and Mr. Pratul Kumar, Advocate, holding brief of Mr. Lokendra Dobhal, Advocate, present for the appellant. Mr. M.A. Khan, A.G.A., present for the State.

Honʹble Prafulla C. Pant, J.

This appeal, preferred under section 374 of Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 07.09.2000, passed by learned Sessions Judge, Pithoragarh, in Sessions Trial No. 8 of 1994, whereby said court has convicted accused/appellant Smt. Nanda Devi under section 304 part I IPC, and sentenced her to undergo rigorous imprisonment for period of ten years.

2. Heard learned counsel for the parties, and perused the lower court record

3. Prosecution story in brief is that on 13.05.1993, at about 6:00 p.m., Jodh Singh (deceased) was washing his clothes near public tap in Village Kharnaula. His wife Radha Devi was in the house. At that point of time, accused Nanda Devi alongwith her brother‐in‐law Lal Singh reached there, and started quarreling with Jodh Singh. Thereafter, accused Lal Singh picked up stone and pelted at Jodh Singh, accused/ appellant Nanda Devi who was armed with sickle (a sharp edged weapon) gave blow near the neck of Jodh Singh and caused injury. After snatching sickle from the hand of the accused Nanda Devi, Jodh Singh started running down the hill to save himself from the assault of the accused, however, when he reached near the house of Santosh Ram he fell down on the ground. Radha Devi (P.W.2) who was witnessing the incident from her house rushed and followed him (Jodh Singh). Injured Jodh Singh by signs and gestures, asked for water. Radha Devi (wife of the deceased) offered water to her husband but he got unconscious and died. Puran Singh (P.W.1/ brother of the deceased)

who was informed about the incident on 14.05.1993, went to Patwari Jakh, and gave first information report (Ex. A1) to the Revenue Official. (In Uttarakhand hills certain Revenue Officers are given police powers). On the basis of said report P.W.4 Suresh Lal Verma, the then Patwari of the area registered crime no. 1 of 1993 against accused Nanda Devi and her brother‐in‐law Lal Singh in respect of offence punishable under section 302 IPC. The crime was investigated by said revenue official, who went to the spot, took dead body of Jodh Singh in his possession and prepared inquest report (Ex. A4) on 14.05.1993. He further prepared other necessary papers like sketch of the dead body (Ex. A5), police form no. 13 (Ex. A6) etc, and got sent the dead body in sealed condition for post‐mortem examination. P.W.3 Dr. P.K. Karnatak conducted post mortem examination on the dead body of Jodh Singh (deceased) on 15.05.1993. He recorded single incised wound on left lower cervical region measuring 4cm X 1cm near the left sternoclavicular joint, in his report. He opined that the deceased had died of excessive haemorrhage causing oligenic shock. The Investigating Officer meanwhile interrogated the witnesses, inspected the spot and prepared the site

plan (Ex. A7). He also recovered sickle used in the crime and prepared recovery memo (Ex. A8). After completion of investigation, the Investigating Officer submitted charge sheet (Ex. A10) against accused Nanda Devi for her trial in respect of offence punishable under section 302 IPC.

4. The Chief Judicial Magistrate, Pithoragarh, on receipt of the charge sheet, after giving necessary copies to the accused as required under section 207 Cr.P.C., appears to have committed the case to the court of session for trial. Learned Sessions Judge, Pithoragarh, on 31.05.1994, after hearing the parties framed charge of offence punishable under section 302 IPC, against accused Nanda Devi who pleaded not guilty and claimed to be tried. On this prosecution got examined P.W.1 Puran Singh (informant), P.W.2 Radha Devi (eye witness), P.W.3 Dr. P.K. Karnatak (who conducted post mortem examination) and P.W.4 Suresh Lal Verma (Investigating Officer). The oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which he pleaded that the evidence adduced against her was false. However, no evidence in defence was adduced. The trial court,

after hearing the parties found that though prosecution has failed to prove the charge of offence punishable under section 302 IPC, but charge of offence punishable under section 304 part I IPC, was proved against Nanda Devi. She was convicted accordingly. After hearing on sentence, the convict was sentenced to rigorous imprisonment for period of ten years. Aggrieved by said judgment and order dated 07.09.2000, passed by learned Sessions Judge, Pithoragarh, in Sessions Trial No. 8 of 1994, this appeal was filed before Allahabad High Court by the convict from where it is received by transfer under section 35 of U.P. Reorganization Act, 2000 (Central Act 29 of 2000) for its disposal.

5. Before further discussion this Court thinks it

just and proper to mention the ante mortem injuries recorded by P.W.3 Dr. P.K. Karnatak in the autopsy report (Ex. A2). The ante mortem injury observed by said medical officer at the time of post mortem examination report mentioned in Ex. A2 is reproduced below:‐ “Single incised wound, left lower cervical region measuring 4cm X 1cm. running obliquely upward. Medial margin is 4cm above left sternoclavicular

joint, and upper (lateral) margin is 7cm above the upper border of left clavicle. Depth is involving soft tissue. Clotted blood is present all around and inside the wound.”

On internal examination of the above injury the

medical officer found that carotid vessel and other vessels were cut causing torrential haemorrhage externally. P.W.3 Dr. P.K. Karnatak found that deceased Jodh Singh had died of excessive haemorrhage causing oligenic shock. As such, from the medical evidence on record, it is established that Jodh Singh died homicidal death. Now this Court has to see whether accused Nanda Devi caused injury as alleged by prosecution on the person of Jodh Singh and thereby committed culpable homicide.

6. P.W.2 Radha Devi is the only witness of the incident. She is widow of the deceased. She has stated that on 13.05.1993, at about 6:00 p.m., she was in her house and her husband was washing clothes near public tap. She further told that her house was situated at 30‐35 steps away from the tap. She further told that she heard noise of quarrel and came out

from her house. P.W.3 Radha Devi has further told that she saw that accused Nanda Devi and Lal Singh were quarreling with her husband, the two were asking the deceased to provide some land elsewhere as he (deceased) allegedly had encroached upon their land and constructed the house. The witness has further narrated that after sometime Lal Singh picked up stone and pelted at her husband. She further told that accused Nanda Devi assaulted Jodh Singh with sickle in her hand. P.W.2 Radha Devi has further stated that her husband succeeded in snatching the sickle from the hand of Nanda Devi, but he had already suffered injury on the neck. The witness has further stated that after her husband went down the hill, he fell down near the house of Santosh Ram. P.W.2 Radha Devi has further stated that she followed her husband. She further told that her husband by signs asked for water, and she offered the same from the tap but meanwhile he died.

7. Learned counsel for the appellant drew attention of this Court to the statement given by P.W.2 Radha Devi in her cross‐examination and pointed out that she has told that Nanda Devi gave

several blows to the deceased, but the autopsy report (Ex. A2) discloses only one incised injury. In this connection reliance was placed on behalf of the appellant in the case of Raghunath vs. State of Haryana, 2003 SCC (crl) 326, and pointed out the inconsistencies and contradictions found in respect of material fact makes the prosecution case unreliable. This Court has carefully considered the contention of learned counsel for the appellant and found that the facts of the case referred are totally different to the present case. In the case of Raghunath (supra) several accused were named and false implication due to the political rivalry was not ruled out. In said case the injuries suffered by the injured could have been caused in the melee which was version of the defence, and not in the manner suggested by the prosecution. But, in the present case sickle (sharp edged weapon) was used by the accused, and injury suffered by the deceased also appears to have been caused by the sharp edged weapon. Whether all the blows gave by the accused landed on the body of the deceased or not, could not have been stated by P.W.2 Radha Devi who was at distance of 30‐35 steps away from the place of incident as such, in the present case there is no

reason to doubt the testimony of P.W.2 Radha Devi on the above ground particularly when her presence at the spot was natural. Not only this, the widow of the deceased would be the last person to implicate anyone else leaving the real culprit. It is pertinent to mention here that the incident in question is day light incident as in the month of May sunset occurs only after 6:00 p.m.

8. Forensic Laboratory Report (Ex. A11) on the record shows that the sample of blood stained soil from the place of incident contained human blood. The sickle which was seized by the Investigating Officer was also chemically examined by the Forensic Expert and it is mentioned in the report that said item also contained human blood.

9. Having reassessed the entire evidence of record, this Court finds that trial court has rightly held the accused guilty from the charge of offence punishable under section 304 part I IPC. However, on the point of sentence, considering the facts and circumstances of the case instead of awarding maximum sentence of ten years, this Court is of the view that reducing

the sentence of rigorous imprisonment for period of seven years would meet the ends of justice.

10. Accordingly, this appeal is dismissed on the point of the conviction. However, on the point of sentence the appeal is partly allowed and the sentence of rigorous imprisonment for period of ten years awarded by the trial court is modified and the accused/appellant Nanda Devi is sentenced to rigorous imprisonment for period of seven years under section 304 part I IPC. Accused/appellant Nanda Devi is on bail. Her bail is cancelled. She shall surrender before the court concerned to serve out the remaining part of the sentence. Period already undergone shall be set of. Lower court record be sent back.

Parul

(Prafulla C. Pant, J.) 29.11.2012