Budhi Lal vs State Of Uttarakhand

4. Prosecution story in brief is that house of Budhi Lal (appellant) is one kilometer away from village abadi in village Airash. Appellant got married firstly to one Sobati Devi, but he had no issue from her. Later, he got married to Jashu Devi (hereinafter referred to as the `deceased') and from her he had seven children. Out of the seven, eldest daughter Sushila was married. Both the ladies used to live with Budhi Lal in aforesaid house. Jaspal (PW.3) of village Kaphalkhet came to the house of Budhi Lal on 9.8.1985, in connection with purchase of a pair of bullocks, belonging to him. The deal was settled at Rs.1200/- and in that night Jaspal stayed in the house of Budhi Lal. After having meals the family members and Jaspal slept in the house. In said intervening night i.e. 2 9/10th August, 1985, appellant Budhi Lal at about 2 a.m. committed murder of Jashu Devi. According to the prosecution Jaspal woke up to go to toilet and saw from a window that Budhi Lal sitting on the chest of Jashu Devi, assaulting her with his hands. On being questioned, why he is doing so, Budhi Lal told him that he was telling his wife to behave. Appellant asked Jaspal being guest he should leave the place and sleep in another room. Next morning, Budhi Lal told the villagers that his wife Jashu Devi has died of pain in her stomach. He asked Jaspal to go to the houses of his brothers and relations living in village Jilasu and inform them about the death of Jashu Devi. Jaspal (PW.3) informed the relatives of Budhi Lal, as told by him about the death of his wife due to pain in her stomach and came back to the village. Meanwhile, Sobati Devi informed the village Pradhan about the death of Jashu Devi. The village Pradhan came to the spot at 10 a.m. and thereafter got sent the information of death of Jashu Devi to Patwari of the area (in Uttarakhand hills Patwaris are given police powers). The Patti Patwari Sri Kareem Bux (PW.6) received the information on 10.8.1985 at 3 his Chauki when he returned back in the evening. The entry of written information (Ext. A-2) sent through Ashadu Lal was made in the General Diary (copy of which is extract Ext. A-3), by the Investigation Officer Kareem Bux on the next day at 11.30 a.m., Patwari came to the spot and took the dead body in his possession, sealed it and prepared the inquest report (Ext. A-4) and sketch of the dead body (Ext. A-5). He also prepared a letter of request (Ext. A-6) for the post mortem examination and sent the dead body for autopsy. Meanwhile, he prepared site plan (Ext. A-9) on same day i.e. 11.8.1985. He also recorded the statements of the witnesses of the inquest report. The post mortem examination was conducted by Dr. S.K. Srivastava (PW.1) on 12.8.1995 at 4.30 p.m. at District Headquarter, Gopeshwar (District Chamoli). The said Medical Officer prepared post mortem examination report (Ext. A-1). He opined that Jashu Devi had died due to suffocation as a result of obstruction in respiratory passage. He also recorded the ante mortem injuries found on the body of the deceased. Investigating Officer Kareem Bux (PW.6) thereafter examined Budhi Lal and his daughter Sushila. The 4 Investigating Officer also interrogated other witnesses. On completion of the investigation, charge sheet (Ext. A-8) was filed by Investigating Officer on 20.11.1985, before the Magistrate concerned.

5. The case was committed by the court of learned Magistrate concerned to the Court of Sessions. Since the appellant pleaded innocence, trial was held. Six witnesses were examined to further the prosecution version. Primarily, relying on the evidence of PW.3, the learned Trial Judge directed conviction of the accused, as aforenoted. The Trial Court, it needs to be pointed out, also referred to the evidence of PW.5 before whom accused gave varying versions as to how the deceased had died. The Trial Court also took note of the fact that the deceased and the accused were last seen and in the examination under Section 313 of the Code of Criminal Procedure, 1973 (in short `the Code'), the accused had accepted that he and the deceased were sleeping together in the night of the incident.

6. In appeal before the High Court, the primary stand was that the evidence of PW.3 should not have been relied upon and in any event, a case under Section 302 IPC was not made out. The High Court did not find substance in the plea and dismissed the appeal.

First, it must establish, quite objectively, that a bodily injury is present.

Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."

23. The above are only broad guidelines and not cast iron imperatives. In most cases, their observance will facilitate the task of the Court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other that it may not be convenient to give a separate treatment to the matters involved in the second and third stages.

25. Considering the factual scenario and the manner of assault, as alleged by the prosecution, in our considered view, the appropriate conviction shall be under Section 304 Part-I IPC. Custodial sentence of 10 years would meet the ends of justice.

26. The appeal is allowed to the aforesaid extent.