Holding

The appellant's act constitutes culpable homicide not amounting to murder under Section 304(1) IPC, not murder under Section 302 IPC.

Summary

Devendra Nath Srivastava was convicted by a trial court for murdering his wife after assaulting her with a brick, resulting in her death by asphyxia due to multiple ante‑mortem injuries. The trial court sentenced him to death under Section 302 IPC. On appeal, the Allahabad High Court set aside the murder conviction, holding that the killing arose from a quarrel, was not pre‑planned, and the appellant was intoxicated, thereby constituting culpable homicide not amounting to murder under Section 304(1) IPC, sentencing him to ten years’ rigorous imprisonment and a fine. The appellant challenged this order before the Supreme Court. The Supreme Court examined the medical evidence, witness testimony and the appellant’s drunken state, and concluded that the facts supported a conviction for culpable homicide not amounting to murder, not murder. Consequently, the Court upheld the High Court’s conviction and sentence and dismissed the appeals.

Issues considered

Whether the appellant's act of assaulting his wife resulting in her death amounts to murder under Section 302 IPC or culpable homicide not amounting to murder under Section 304(1) IPC.
Whether the conviction and sentence imposed by the High Court under Section 304(1) IPC are legally justified.

Legislation cited

Code of Criminal Procedure, 1973s. 313
Indian Penal Code, 1860s. 299, s. 300, s. 302, s. 304(1)

Subjects

murderculpable homicideSection 302 IPCSection 304 IPCdomestic violenceintoxicationcriminal law

Judgment

[2017] 3 S.C.R. 714

A DEVENDRA NATH SRIVASTAVA
v.
STATE OF U.P,
(Criminal Appeal No. 87 of2008)
B APRIL 06, 2017
[N. V. RAMANA AND PRAFULLA C. PANT, JJ.)
Penal Code, 1860 - s.304 fart-I - Appellant assaulted his
wife with a brick - Wife died of asphyxia on account of ante mortem
injuries - Trial court convicted appellant u!s.302 and awarded him
c death sentence -.High Court set aside the conviction u!s.302, instead
convicted appellant u/s.304 part-I and sentenced him to rigorous
imprisonment for ten years with fine - On appeal, held: In the instant
case, the incident has occurred after quarrel between the appellant
and the deceased, which was not a planned act- It is also established
D that appellant was a drunkard - Appellant _in a fit of anger caused
homicidal death of his wife - Jn facts and circumstances of the
case, the view taken by the High Court that appellant committed
offence punishable u!s.304 part~! !PC, requires no interference.
Dismissing the appeals, the Court
E HELD: 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 is
con-ect. It is established on the record that the appellant was a
drunkard. The First Information Report was lodged by none other
F than the appellant's own nephew, immediately after the incident.
There is no version_ put fo~ard 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 shows that suit for
G restitution of conjugal rights, filed by the appellant, was decided
in terms of compromise, and they started living together with
their children. [Para 17)(720-G-H; 721-A-B)
2. As to whether the act on the par! of the appellant
constitutes the offence punishable under Section 302 IPC or
H
_714
DEVENDRA NATH SRIVASTAVA v. STATE OF U.P. 715

Section 304 Part I IPC, it is clear that the incident has occurred A
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 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 I IPC, requires no interference.
B
[Para 18)(721-C-D]
State of Andhra Pradesh v. Rauavarapu Punnayya &
another (1976) 4 SCC 382 : (1977] 1 SCR 601 - relied
011.

Case Law Reference c
[1977) 1 SCR 601 relied on Para 19
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No.
87 of2008.
From the Judgment and Order dated 24.08.2007 of the High Court o
of Judicature at Allahabad in Capital Sentence No. 2 of 2007 connected
Criininal Appeal No. 201 of 2007 Connected Crimi11al Appeal No. 23 7
of2007(from Jail)
WITH
Criminal Appeal Nos. 88-90 of2008. E

K. K. Tyagi, Iftekhar Ahmad, Anoop Kumar, Sanjib K. Ray (for
P. Narasimhan), Manoj Swarup, Ms. Lalita Kohli, Abhishek Swarup (for
M/s. Manoj Swarup & Co.), Advs. for the Appellant.
C. D_. Singh, Ms. Sakshi Kakker, Vikas Bansal, Advs. for the F
Respondent.
The Judgment of the Court was delivered by
: ('._

PRAFULLA C. PANT, J. 1. These appeals are directed aga-inst
judgment and order dated 24.08.2007, passed by the High Court of
Judicature at Allahabad, Lucknow Bench, in Criminal Appeal No. 201 G
·· · of2007 whe1~eby said Court has disposed of Capital Reference No. 2 of
2007 along with criminal appeals filed by appellant Devendra Nath
Srivastava arising out of judgment and order dated 18.01.2007 passed
by Additional Sessio_ns Judge/Special Judge (E.C. Act) Gonda, relating
\
. -. ....
" H
716 SUPREME COURT REPORTS [2017] 3 S.C.R.

A to conviction of the appellant under Section 302 of Indian Penal Code
(for short "IPC") in Sessions Trial No. 258 of 2005. By the impugned
order passed by the High Court, conviction of the appellant under Section
302 IPC has been set aside, instead he is convicted under Section 304
Part I !PC, and sentenced to rigorous imprisonment for ten years and to
B
pay fine of ~I 0,000/-, in default to under further six months rigorous
imprisonment
2. Prosecution story, in brief, is that appellant Devendra Nath
Srivastava got married to Madhu Srivastava (deceased) on 04.03.1994.
The couple had four children. On 12.05.2005 at about 7.30 p.m.,
c complainant Shailender Kumar Srivastava, who is nephew of the
appellant, heard cries of the appellant's children and rushed to the house
of his uncle (appellant), where he saw the appellant assaulting his wife
with brick. On seeing PW-6 and others coming from the neighbourhood,
the appellant ran away. The appellant's wife (Madhu Srivastava) was
taken by PW-6 Shailender Kumar Srivastava to District Hospital after
D arranging an ambulance. However, the doctors declared her brought
dead.
3. A First Information Repo1i (Ex. A-9) was got lodged by PW-
6 at Police Station Kotwali City Gonda on the very day at about 21.45
hours. Crime No. 169 of2005 was registered based on the said F.I.R.
E The Investigating Officer, after interrogating the complainant, went to
the spot and got sealed the dead body of the deceased and prepared the
inquest Report (Ex.A-1). On 13:05.2005 PW-7 Dr. Rajkumarconducted
autopsy, and opined that the deceased had died of asphyxia on account
ofante mortem injuries. In all, nine ante mortem injuries were recorded
F in the post mortem examination report (Ex. A-10). Meanwhile, the
appellant was arrested, and on his pointing out recovery of the brick
used in the crime was made. The blood-stained shi1i and pants of the
appellant were also taken into possession by the police in respect of
which memo (Ex. A-13) was prepared. After completion ofinvestigation,
a charge sheet was submitted by Investigating Officer Rajender Prasad
G Singh (PW-8) against the appellant for his trial.
4. It appears thatthe case was committed to the comi of Sessions
for trial. On 10.08.2005 learned Sessions Judge, Gonda framed charge
in respect of offence punishable under Section 302 IPC against the
appellant-accused Devendra Nath Srivastava to which the accused
H
DEVENDRA NATH SRIVASTAVA v. STATE OF U.P. 717
[PRAFULLA C. PANT, J.]

pleaded not guilty and claimed to be tried. On this, prosecution got A
examined PW-J Vijay Kumar Chaurasia, PW-2 Rampher Jaiswal, PW-
3 Sadhna Srivastava, PW-4 Virender Singh, PW-5 Preeti Srivastava,
PW-6 Shailender Kumar Srivastava (informant), PW-7 Dr. Rajkumar
and PW-8 lncharge Inspector Rajender Prasad Singh (Investigating
Officer).
B
5. The prosecution evidence was put to the accused under Section
313 of Criminal Procedure Code (Cr.P.C.), in response to which he
pleaded that at the time of incident he had gone to his native village to
give medicines to his mother. Thereafter, on behalf of the defence DW-
1 Shyam Rang and DW-2 Chandermukhi were got examined. The trial
court in its wisdom got summoned court witness Adesh Kumar Srivastava c
(CW-I), the eldest s.on of the deceased who was minor. His statement
was recorded on I 6.11.2006. Thereafter, this additional evidence was
also put to the accused under Section 313 Cr.P.C.
6. After hearing the parties, the trial court found that the charge
in respect of offence punishable under Section 302 is proved against the D
accused, and convicted him accordingly. The paities were heard also on
sentence and the trial court awarded death sentence to the convict, and
submitted the record to the High Comt vide judgment and order dated
18.01.2007, for affirmation of the sentence.
7. Aggrieved by the judgment and order of the trial court the E
convict preferred appeal (Criminal Appeal No. 20 I of2007) to the High
Court. He further got submitted another appeal (Criminal Appeal No.
237 of2007) from jail. Both these appeals were clubbed together with
the Reference made by the Court of Sessions, and disposed oftogethef
by the High Court vide common judgment and order dated 24.08.2007, F
impugned before us. The High Court held that the incident had taken
place after altercations between the deceased and the accused, who
was drunk, and the homicidal death is caused by the appellant, and the
act is covered under Section 304 Part I IPC, and not under Section 302
IPC. Accordingly, the High Court set aside the conviction and sentence
under Section 302 IPC recorded by the trial court and convicted the G
appellant under Section 304 Part I IPC and sentenced him to undergo
ten years rigorous imprisonment and to pay fine of' 10,000/-, in default
to undergo further six months rigorous impr!sonment.
S. Convict Devendra Nath Srivastava and victim's sister Precti
Srivastava moved this Court through separate Special Leave Petitions H
718 SUPREME COURT REPORTS [2017] 3 S.C.R.

A challenging the order passed by the High Court. Criminal Appeal No.
87 of 2008 has arisen out of the Special Leave Petition filed by the
convict, ·and Criminal Appeal Nos. 88-90 of2008 have arisen out of the
Special Leave Petitions filed by Preeti Srivastava, sister of the deceased.
9. We have heard learned counsel for the parties at length and
B perused the record of the case. ·
10. Before further discussion, we think it just and proper to mention
the ante m011em injuries recorded by PW-7 Dr. Rajkumar in the autopsy
report (Ex. A-lO). The same are reproduced as under: -
"( 1) Lacerated wound 5 cm x 4 cm x bone deep on back of left
c ear. Clotted blood seen in the wound.
(2) Multiple red contusion in area of 10 cm x .8 cm on left side
of face.
(3) Lacerated wound 3 cm x I cm x bone deep just below the
left mandible and 2.5 cm on left to the chin. Clotted blood
D
seen in the wound.
(4) Lacerated wound 1.5 cm x .5 cm x bone deep on the chin
surrounded by red contusion in the area of 4 cm x 3 cm.
(5) Lacerated wound 2 cm x I cm x muscle deep on right side
E of forehead adjacent to the right eyebrow. Blood clots seen
in the wound.
(6) Incised wound 6 cm x I cm x muscle deep on left side of
neck 7 cm below the left ear.
(7) Red contusion 5 cm x 3 cm across the trachea on the front
F of neck.
(8) Red contusion with abrasion in the area of 13 cm x 5 cm ·
along right collar bone.
(9) Red contusion with abrasion 3 cm x 2 cm on top of left
G shoulderjoint."
PW-7 Dr. Raj Kumar has stated that on internal examination bo.th
tipper and lower jaws' bones found broken and some portions of upper
and lower teeth were also found broken. He further fou)ld hyoid bone
fractured and both lungs blocked. These observations are also made in
the autopsy report. It has been opined by the said Medical Officer that
H
DEVENDRA NATH SRIVASTAVA v. STATE OF U.P. 719
[PRAFULLA C. PANT, J.]

Madhu Srivastava (deceased) died of strangulation with the above A
me~tioned ante mortem injuries.
I I. The medical evidence, discussed above, clearly establishes
that Madhu Srivastava (wife of the appellant Devendra Nath Srivastava)
has died homicidal death. Now, we have to examine whether the appellant
has caused the death of his wife, as suggested by the prosecution, or B
not.
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 c
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, D
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-
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 E
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 G
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
720 SUPREME COURT REPORTS [2017) 3 S.C.R.

A 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).
B 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
c 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.
D 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
E 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
F 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. '

G 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
H
DEVENDRA NATH SRIVASTAVA v. STATE OF U.P. 721
[PRAFULLA C. PANT, J.]

none other than the appellant's own nephew, immediately after the A
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
B
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 c
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 & D
another [(1977) 1 Supreme Court Reports 601 at 606]1, this Court,
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" E
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 F
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 G
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 H
722 SUPREME COURT REPORTS [2017] 3 S.C.R.

A 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
B 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
c 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
D 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
E
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."
F 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.