Devendra Nath Srivastava vs State Of U.P

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-

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).

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.

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.

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.

April 6, 2017.