Supreme Court of India
Devendra Nath Srivastava vs State Of U.P on 6 April, 2017Author: P C Pant

Bench: N.V. Ramana, Prafulla C. Pant




Devendra Nath Srivastava … Appellant


State of U.P. …Respondent



Preeti Srivastava … Appellant


Devendra Nath Srivastava and Anr. …Respondents


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 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

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), 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 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, 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 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.

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.

(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 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 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 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 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 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,
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.”

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.”
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.

[N.V. Ramana]

[Prafulla C. Pant]
New Delhi;
April 6, 2017.

[1] (1976) 4 SCC 382


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