Paragraph numbers below are the court’s original numbering, recovered from the source text.
12. On perusal of the evidence on record, it is clear that PW-I 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 th(( 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 i:he recovery memo. PW- c 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. · F
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 ho.use 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 fm1her stated that the appellant used to torture the deceased after taking alcohol. She has proved the letters Exs.A-2,A-3, A-4 andA-5 written by the deceased to her father complaining about the ill-treatment meted out to her by the H [2017) 3 S.C.R. 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 termimlted with compromise entered between the parties in 2003 (Ex. A-8). c
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 rep01i 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 oftl~c deceased.
15. Statement of CW- I Adesh Kumar Srivastava, eight years old eldest son of the appel )ant and the deceased, does not supp01i 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 Chanderrnukhi 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 fu what was the ailment of his mother, and since when she was unwell. ln our opinion, the trial comi 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 DEVENDRA NATH SRIVASTAVA v. STATE OF U.P. [PRAFULLA C. PANT, J.] 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 tenns of compromise, and they started living together with their children.
18. As to whether the act on thepart of the appellant constitutes the offence punishable under Section 302 IPC or Section 304 Part I !PC, 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 l IPC, requires no interference.
19. In State of Andhra Pradesh v. Rauavarapu Pumwyya & 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." 1 t J 976) 4 sec 382 c c
20. In the same case, i.e·. State of All(l/1rrt Pradesli v. Rauavarapu Punnayya & anotlier (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 ofa case, it will be convenient for it te>, 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 Seetion 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 cou11 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 pm1 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. Ankit Gyan Appeals dismissed.