Page 1 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

Page 15 Page 15 of 16

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.