NANKO DAVI Vs. STATE

JUDGEMENT

(1.) By this appeal the Appellant challenges her conviction for offences under Section 304 (Part I) and 323 IPC and the order of sentence whereby she has been directed to undergo Rigorous Imprisonment for 5 years and a fine of 1,000/- in default of payment of fine to undergo simple imprisonment for two months and Rigorous Imprisonment for six months and a fine of 500/- in default of payment of fine to undergo simple imprisonment for 15 days respectively for the two offences.

(2.) On 17th March, 1997 at about 12.30 p.m. some construction work was going onin house No. K-23 Dakshinpuri of Hazari Lal, the complainant and his father RamGopal was supervising the said construction work. The Appellant Nanko Devi and herhusband Kalyan Singh were residing in the adjoining house. Kalyan Singh husband ofthe Appellant complained that mortar of the construction work was falling intotheir house. Ram Gopal, father of the complainant denied the same and they startedquarreling and grappling. In the meantime, the Appellant came armed with onebasoola (used for cutting pieces of wood) and hit on the head of the Keli Devi wifeof the complainant, as a result of which she sustained head injury. When HazariLal was looking after his wife, Smt. Nanko Devi gave a blow to his father by thebasoola. Thereafter, accused Kalyan Singh gave iron blow on the head of the fatherof the complainant. The injured were removed to the hospital where subsequently thefather of the complainant, Ram Gopal died on 26th March, 1997 at about 8.30 p.m. On a charge sheet being filed charges under Sections 304/308/323/34 IPC were framedagainst both the accused persons i.e. the Appellant Nanko Devi and Kalyan Singh,her husband. During the trial the prosecution examined 11 witnesses including thecomplainant Hazari Lal as PW1 and his injured wife PW4 Keli Devi. The otherrelevant witnesses are - PW3 Const. Ms. Bimlesh who witnessed the arrest of accusedNanko Devi, on whose disclosure, basoola Ex. P-1 was recovered from beneath the cotin her house; PW5 Dr. Alexander who conducted the post mortem examination and PW6Dr. S.V.R. Chandramurthy who has proved the MLC of the deceased. The statement ofthe accused was recorded under Section 313 Code of Criminal Procedure who denied their presence or anyquarrel having taken place. They also denied having caused any injury on theperson of eye witness Keli Devi or the deceased Ram Gopal. The accused KalyanSingh in his statement took the plea that on the relevant date and time he was onhis duty in his office and has examined two defence witnesses in this regard. Inview of the plea of alibi of accused Kalyan Singh the learned Trial Court gave himthe benefit of doubt and acquitted him, however, the Appellant was convicted of theoffences mentioned above.

(3.) Learned Counsel for the Appellant contends that there are material contradictions in the testimony of PW1 Hazari Lal and PW4 Keli Devi. PW1 even as per his statement allegedly is a witness only to the injury to the deceased and notto his wife Keli Devi. PW1 in his examination in chief deposes about witnessing theinjury to his father only and not to his wife. However, in his cross examinationby the learned APP he affirms that accused Nanko Devi attacked his wife withbasoola on her head. This witness in his cross examination on behalf of theaccused again has changed his version as he states that he did not see theAppellant beating his wife who was lying at the spot. PW4 has stated that therewere number of labourers and mistries present at the spot, however, none of themwas examined as a witness. The date of incident is 17th March, 1997 at about 12.30p.m., whereas the deceased died on 26th March, 1997 and thus the cause of death wasnot the injury caused by the Appellant. The Appellant was arrested on 25th March,1997 and allegedly on her disclosure the basoola was recovered lying under the cotin the house itself. It is highly improbable that the Appellant will keep theweapon of offence for nearly a week in her own house. Moreover there was no bloodfound on the basoola. The weapon of offence i.e. the basoola was not sealed afterseizure. According to PW5 Dr. Alexander the cause of death was because of heavyblunt object/weapon whereas Exhibit PW11/DB death summary prepared at SafdarjungHospital records that on 26.3.1997 at 8:30 a.m. the patient developed sudden cardiorespiratory arrest and his pulse was not recordable. It is recorded therein thattill 9:30 a.m. treatment was given to the patient and ultimately at 9:30 a.m. thepatient was declared dead. No opinion of the doctor has been obtained for theweapon of offence has not been shown to the doctor and hence the recovery is notconnected with the injury caused. Even as per the prosecution case only one injurywas given and that too by blunt object and thus the Appellant cannot be said tohave the intention to cause culpable homicide not amounting to murder. In thealternative it is urged that the Appellant is aged 45 years and has six children. She has already undergone a sentence of 1 year and has paid the fine so thesentence be modified to already undergone.