IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 721 OF 2020
AVDESH KUMAR SINGH ….. APPELLANT
VERSUS
THE STATE OF HIMACHAL PRADESH ….. RESPONDENT
O R D E R
The impugned judgment dated 01.08.2016 passed by the High Court of Himachal Pradesh is a judgment of reversal as the appellant Avdesh Kumar Singh, who was acquitted by the trial court, has been convicted under Section 302 of the Indian Penal Code, 1860 for murder of his wife Santosh Kumari. By order dated 04.08.2016, the appellant Avdesh Kumar Singh has been sentenced to undergo imprisonment for life and pay fine of Rs.25,000/-. We have heard the learned counsel for the parties at some length. Questioning the conviction, counsel for the appellant has relied on the testimonies of Sapna Devi (PW-14) and Ashish Singh (PW-19) to urge that the crime was committed by an unknown third person, and when the appellant Avdesh Kumar Singh and Ashish Singh (PW-9) had returned home at about 10:30 11:00 p.m. on 21.05.2009, Santosh Kumari had already died. It is highlighted that the prosecution has not been able to establish any motive for the appellant Avdesh Kumar Singh to commit the offence.
1 We do not agree. Mast Ram (PW-1), Roshan Lal (PW-2), and Prashant Kumar (PW-4), as well as Dhanender Singh (PW-16)(who was the investigating officer), were first persons to have reached the place of occurrence and have affirmed the presence of the appellant Avdesh Kumar Singh. They have not deposed that, either the appellant Avdesh Kumar Singh or his son Ashish Singh (PW-9) had claimed that Santosh Kumari was already dead when they had returned home. Further, this contention of the appellant is at variance with the stand and stance of the appellant during the course of cross- examination of Mast Ram (PW-1), Roshan Lal (PW-2), and Prashant Kumar (PW-4), and Dhanender Singh (PW-16). The alibi taken by the appellant was that the deceased has suffered a natural death as she was suffering from asthma. In fact, initially the Police had not registered any crime, treating the death of Santosh Kumari as natural and not homicidal. This alibi of the appellant is belied and cannot be accepted in view of the injuries on the body of the deceased Santosh Kumari recorded in the post mortem report marked Ext. PW-11/C. Dr. Piyush Kapila (PW-11), has also deposed and affirmed the injuries. There were several small injuries in the form of contuse abrasions etc. on the head and the neck, elbows, which injuries were ante mortem in nature. There was also a contusion over the body of the sternum in the upper part. In addition, we have the deposition of Dr. Rajender Singh Tegta (PW- 10), who had initially examined the dead body of the deceased and has recorded several injuries. Similarly, the inquest report refers to the injuries on the body of the deceased Santosh Kumari, and also the plea of alibi, then taken by the appellant. The appellant 2 had also suffered injuries, as has been noted in Ext.PW-12/B and as deposed to by Dr. Manjeet Singh Sain (PW-12). Thus, it is apparent that the defence that a third person had committed crime when the appellant was not at home is an afterthought and should not be accepted.We need not, in the present case, elaborate on the aspect whether statement given by the appellant Avdesh Kumar Singh to the police officers on 21.05.2009 is admissible in evidence under Section 8 of the Indian Evidence Act, 1872, as even if we discard the said evidence, we find there is sufficient evidence to show that the appellant was the perpetrator and responsible for the injuries and the death of Santosh Kumari. Therefore, we are of the opinion that the High Court had rightly reversed the finding of the trial court acquitting the accused and finding him guilty for offence of causing homicidal death of his wife, Santosh Kumari, on 21.05.2009 at about 11.00 pm. However, we are inclined to convert the conviction of the appellant from Section 302 of the IPC to one under Section 304 Part I of the IPC. As noticed above, there were injuries on the body of the deceased and injuries on the appellant. The injuries reflect that they had a scuffle, and resultantly injuries were caused and suffered by the deceased and the appellant. The deceased was found to be lying dead on the bed with the quilt on her. Strangulation by hand is not established. Ligature marks were not present on the neck of the deceased. The post mortem report Ex.PW-11/C records the presence of gross contusions below the skin and in subcutaneous tissue and underlying muscles, but also records absence of fracture 3 of hyoid bone, thyroid cartilage and cricoid cartilage. In these circumstances, we are of the opinion that the appellant should be given the benefit of Exception (4) to Section 300 of the IPC. The crime was not committed in a pre-meditated manner, and was apparently committed in a sudden fight in the heat of passion upon a sudden quarrel. No weapon or sharp/blunt object was used. The deceased Santosh Kumari, as noted above, was lying on the bed with the quilt on her. It appears that the accused had possibly used a pillow or the quilt, which prevented her from breathing and chocked her, as a result of which she died.We are informed that the appellant had already suffered actual incarceration for over 10 years. The sentence accordingly is reduced to the period undergone. In addition, the appellant will pay fine of Rs.25,000/- and in default undergo simple imprisonment for a period of six months. The fine would be deposited within a period of two months with the trial court. The appeal is partly allowed and disposed of.
Pending application(s), if any, stand disposed of.
………………J.
(SANJIV KHANNA)
………………J.
(M.M. SUNDRESH)
NEW DELHI;
JANUARY 18, 2023. ps
4ITEM NO.104 COURT NO.7 SECTION II-C S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CRIMINAL APPEAL NO(S). 721/2020
AVDESH KUMAR SINGH APPELLANT(S)
VERSUS
THE STATE OF HIMACHAL PRADESH RESPONDENT(S)
(IA No. 56105/2022 – GRANT OF BAIL)
Date : 18-01-2023 This matter was called on for hearing today.
CORAM :
HON’BLE MR. JUSTICE SANJIV KHANNA
HON’BLE MR. JUSTICE M.M. SUNDRESH
For Appellant(s)
Mr. Ajay Marwah, AOR
Mr. Adhitya Srinavasan, Adv.
Mr. Tapan Masta, Adv.
For Respondent(s)
Mr. Manish Kumar, Adv.
Mr. N D Kaushik, Adv.
Mr. Rahul Singh, Adv.
Mr. V K Shukla, Adv.
Mr. Jayanta Bhattacharyya, Adv.
Ms. Archana Kumari, Adv.
Mr. Ankit Verma, Adv.
Mr. S S Bandyopadhyay, Adv.
Mr. Anand Kumar Singh, Adv.
Mr. Vishal Batra, Adv.
Mr. Satish Kumar, AOR
UPON hearing the counsel, the Court made the following
O R D E R
The appeal is partly allowed and disposed of in terms of the signed order. The operative portion of the order reads as under: We are informed that the appellant had already suffered actual incarceration for over 10 years. The sentence accordingly is reduced to the period 5 undergone. In addition, the appellant will pay fine of Rs.25,000/- and in default undergo simple imprisonment for a period of six months. The fine would be deposited within a period of two months with the trial court.
Pending application(s), if any, shall stand disposed of.
(POOJA SHARMA)
COURT MASTER (SH) (R.S. NARAYANAN)
COURT MASTER (NSH)
(Signed order is placed on the file.)
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