Deepak Alias Devendra vs State Of Uttarakhand on 13 October, 2017

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Jail Appeal No. 33/2015

Deepak alias Devendra …. Appellant

Versus

State of Uttarakhand …. Respondent

Mr. Siddhartha Jain, Amicus Curiae, for the appellant.
Mr. T.C. Agarwal, A.G.A., for the State.

October 13, 2017

Hon’ble Servesh Kumar Gupta, J.

This jail appeal has been preferred by the convict
Deepak @ Devendra against the judgment and order dated
14.9.2015 rendered by the 4th Additional Sessions Judge,
Dehradun finding the appellant guilty for the offence of
Section 307 IPC and sentenced him to undergo 7 years’
rigorous imprisonment, in addition to fine of Rs. 20,000/-.
In default of payment of fine, convict has been directed to
undergo further one year’s simple imprisonment.

I have heard Mr. Siddhartha Jain, learned
Amicus Curiae for the appellant and Mr. T.C. Agarwal,
learned A.G.A. for the State.

The facts as emerging out from the whole
prosecution story are that the victim Smt. Ganga Devi was
married to the accused on 4.3.2005. Their matrimonial
relations somehow could not remain harmonious and the
differences aggravated to the extent of filing divorce petition
by the wife against her husband. Two children born out of
the wedlock and by the time the incident occurred, they
had grown up to the age of adolescence. The accused was
feeling aggrieved by the step taken by his wife to file the
divorce petition, though she was constrained to live with
her husband in the same house. The accused was a driver
of a small commercial vehicle and on the date of incident
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on 20.7.2013, at around 1.00 PM, when he found an
opportune moment that Smt. Ganga Devi was at the
distance of 10-15 metres from the vehicle Chhota Hathi
bearing no. UK07-CA-6148, he dashed his wife who was
going ahead along with her two children. By this act of the
accused, Smt. Ganga Devi became seriously injured
inasmuch as she suffered fracture in her hip and right
ankle. The two children were scattered in the sides by this
sudden dashing. Only one son could sustain some injuries.

This incident was witnessed by PW3 Mewa Lal
and PW4 Deveshwari Kandpal, who were residing in the
vicinity of such place. The ambulance 108 was called by
Smt. Deveshwari Kandpal and thus Smt. Ganga Devi could
first be shifted to the Combined Hospital, Prem Nagar,
Dehradun, where she could be medically examined. Since
there was swelling in the right hip as well as the right
ankle, besides the abrasion and contusion, so finding the
situation somewhat serious, the victim was referred to
higher centre at Government Doon Hospital, where she
underwent x-rays and various other necessary treatments
were provided to her. In all, she remained hospitalised for
11 days, as disclosed by her in her deposition before the
Court.

Somehow, the information could reach to her
sister PW2 Mamta Jayal, who rushed to the spot from
Pilibhit, where she was pursuing her GNM course and
could manage to lodge the FIR on 21.7.2013 at 9.20 AM.
The matter was investigated and the chargesheet was
submitted by the police on 28.11.2013, whereupon the
cognizance for the offence of Section 307 was taken by the
Magistrate on 7.12.2013. During the course of
investigation, the police arrested the accused on
19.10.2013 and since then he is under caption.

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After committal of the case to the Court of
Sessions Judge, the charge was levelled on 14.3.2014. The
trial proceeded and it culminated into the conviction and
sentence of the appellant, as mentioned hereinbefore.

PW1 is the victim Smt. Ganga Devi, whose
statement was recorded on 4.8.2014, but after recording of
the chief examination, the case was got injured at the
instance of the accused. So, she was cross-examined on
5.8.2014. She has proved all these facts as narrated by this
Court earlier. Her credibility could not be shaken in the
long cross-examination.

PW2 is Smt. Mamta Jayal, who has also proved
the receiving of information, rushing from Pilibhit to
Dehradun and filing of the FIR in the concerning police
station after gathering all details of the incident from her
sister.

PW3 Mewa Lal, who was examined on 30.9.2014,
i.e. almost after more than 14 months of the incident,
though has proved the incident in his chief examination,
but he has deviated from the statement in the later part of
the chief examination. So far as the accident and the
causing of the injury from Chhota Hathi vehicle is
concerned, the same has been proved by him. He has
accepted that the accused hails from the same village
where he dwells and has also accepted that the husband of
Smt. Ganga Devi, who is accused in the matter, is
employed to drive Chhota Hathi truck.

It has been held in the several judgments of the
Hon’ble Apex Court and, now, it is accepted position of the
law that the chief examination or the cross-examination
can be churned out to cull out the truth from the falsehood
and such truthful statement which is being corroborated
by other witnesses should be believed by the Court. So, I
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think only this part of his statement that PW2 Mewa Lal
did not see the accused dashing Smt. Ganga Devi is not
acceptable and this statement by him has been given under
influence which was made on him by the accused or his
other relatives during this long span of 14 months, and
more so when this witness and the accused, both hail from
the same village.

PW4 Smt. Deveshwari Kandpal is an eyewitness,
who has corroborated the manner and sequence of the
incident in the same way, as has been highlighted by this
Court. So, there is no reason to disbelieve her statement.

PW5 is Dr. S.K. Jha, who is a doctor in
Combined Hospital, Prem Nagar and he had initially
examined Smt. Ganga Devi. PW6 is Dr. S.K. Gupta, who is
an orthopaedic surgeon in Doon Hospital and he had
treated the injured and saved her life after 11 days.

PW7 is S.I. Uttam Ramola, who has proved the
collection of evidence in a systematic way. Nothing has
come out to disbelieve the truthfulness regarding the
submission of the chargesheet.

Learned Amicus Curiae has argued that Smt.
Ganga Devi did not disclose the vehicle number to her
sister. Then how such number could be written by her in
the FIR. Such argument is wholly unsubstantial because
there could be many other sources, besides going at the
spot itself and finding out the vehicle number. Further,
nothing has been asked from PW2 Mamta Jayal in this
regard as to how she could manage to know the exact
vehicle number, which was used by the accused to meet
his nefarious intentions.

It has also been argued that no information has
been submitted regarding the girl child. I think such
contentions are totally baseless. Minor discrepancies,
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lapses or incongruities are bound to occur in the
depositions of the truthful witnesses.

I think there is no force in this appeal. It is
hereby dismissed. However, feeling the fact that the
appellant is the husband of the victim and he is in jail
since a long period, so, there may be chances of some
reconciliation between the couple. So, I reduce the sentence
from 7 years to 5 years, but fine is left intact as has been
imposed by the learned Trial Court. However, in default of
payment of fine, the convict shall undergo only six months’
imprisonment, instead of one year. Period spent by the
accused convict during investigation, trial and pendency of
this appeal shall be adjusted in the reduced sentence of five
years.

Let a copy of this judgment and order, along with
LCR, be sent to the trial court to ensure its compliance.

(Servesh Kumar Gupta, J.)
Prabodh

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