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IN THE HIGH COURT OF ALLAHABAD
Kaushal Jayendra Thaker, Gautam Chowdhary, JJ.
Smt. Madhu Goshwami and another – Appellants
Versus
State of U.P. – Respondent
Criminal Appeal No. 4795 of 2012
Decided On : 13-04-2021
Indian Penal Code, 1860 – Sections 504, 302, 34, 304, 299, 300, 434 and 433 - Code of Criminal Procedure, 1973 - Section 313 - Offence of murder – Appeal against convicted – Whether, on reappraisal of the peculiar facts and circumstances of case, conviction of appellant under Section 302 of I.P.C. of Indian Penal Code should be upheld or conviction deserves to be converted under Section 304 Part-I or Part-II of Indian Penal Code .
Finding of the court: Evidence of PW-2 and PW-3 and when read as a complete testimony would show there was no such enmity between parties - Accused was not carrying weapon rather they brought from home blow was in act of sudden quarrel there was no pre-meditation there was hit of passion in view of matter and latest – Court are even fortified in our view by latest decision of Apex Court – Court are taking would be in consonance with facts as proved and said decision and findings would apply to facts of our case also – Court are inclined to substitute life imprisonment to ten years with all benefits of remission under sections 433 and 434 of I.P.C. namely remissions and also decision of Apex Court in case titled - Accused are in jail for a period of more than 9 years - It is transpires from F.I.R. and as we have held that it is homicidal death but not murder – Court hold accused guilty for commission of offence under Section - Fine is maintained, if fine is not paid, sentence would be default sentence of three months simple imprisonment - Concerned jailor shall immediately compute period and if remissions are granted – Conviction modified
Result: Appeal disposed of
JUDGMENT :
1. Heard Shri Piyush Kumar Shukla, learned counsel for the appellants and learned AGA for the State. The judgment was ordered to be pronounced on 9.4.2021 but as Courts were closed, we directed matter to be listed on 16.4.2021, but the surge of Covid cases may force Courts to be closed on 16.4.2021, hence, we pronounce judgment today, i.e., 13.4.2021.
2. This appeal has arisen from the judgment and order dated 2.11.2012 passed by learned Additional Sessions Judge, Jhanshi in Sessions Case No.72 of 2010 in State of U.P. v. Jai Prakash Goswami and another (Case Crime No.1498/09) under Section 302 and 504 I.P.C lodged in Police Station Sipri Bazar, District Jhansi. The learned Sessions Judge convicted both the accused for life imprisonment under Section 302 read with section 34 of Indian Penal Code with fine of Rs.5,000/- and in default for one year simple imprisonment.
3. The factual scenario as it unfurls from the record and the F.I.R are that the accused in unison caused death of the deceased on 2.9.2009 in the morning. The genesis of the offence as narrated in the first information report is that the deceased along with his wife and daughter was going to Temple, his wife Kastoori and sister of the complainant Radha Rai also were following him. It is mentioned in the first information that Radha Rai who was married with one Daya Chand Rai. Daya Chand Rai had deserted his sister and had performed another marriage for which maintenance petition was also pending in the Court at Jhansi. Unfortunatley, Madhu Goshwami and her husband is known to Daya Chand and it was because that the parties are unable to amicably settle the dispute with Madhu Goswami and her husband Jai Prakash and his wife started abusing the deceased and during the altercation Jai Prakash brought what can be said to be to iron rodes (known as ‘Sabbal’) and after further abusing both husband and wife started assaulting the father and when neighbours entering, both husband and wife ran towards Rasbahar Colony and when the complainant reached the place of the offence, his father was lying injured and he conveyed to the complainant that Madhu Goswami and her husband Jai Prakash Goshwami had beating with Sabbal. The Complainant tried to arrange for vehicle to take him to hospital, but he succumbed to the injures. The Complainant lodged the complaint with the Police Station Incharge. It is this F.I.R. which gave rise to the investigation being carried out against both the accused.
4. The prosecution started against both the accused who are husband and wife for commission of offence under Section 302 read with section 34 of Indian Penal Code and the charge sheet was laid against them for commission of offence under Section 302 read with section 34 of Indian Penal code. The accused were committed to the court of session as the case was triable exclusively by the court of sessions.
5. It is admitted position of fact that both the accused are in jail. The decision of the trial court was pronounced on 2.11.2012 since the said date they are in jail. The bail application came to be rejected on 8.1.2013. We are not aware as to whether during the trial the accused were enlarged on bail or not.
6. The prosecution examined several witnesses so as to bring home the charge framed against the accused as enumerated here-in-below:
1 Deposition of Satya Prakash Rai 25/05/10, 16/06/10 and 30/07/10 PW1
2 Deposition of Radha Rai 04/09/10, 01/10/10 and 25/10/10 PW2
3 Deposition of Kasturi 04/12/10, 20/12/10 and 17/01/11 PW3
4 Deposition of Dr. Anil Kumar Saxena 09/03/11 PW4
5 Deposition of Sri Ram Patel 04/06/11 PW5
6 Deposition of Jai Narayan Verma 30/06/11 PW6
7 Deposition of Rajeev Pratap Singh 29/07/11 PW7
7. In support of ocular version following documents were filed:
1 First Information Report 02/09/09 Ex.Ka.4
2 Written Report 02/09/09 Ex.Ka.1
3 Recovery Memo of blood stained and plain earth 02/09/09 Ex. Ka.2
4 Recovery memo of Sabbal and arrest of a
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