- (1.) R. C. Deepak, J. The present criminal appeal has been filed by Vinod Kumar Balmiki against, the judgment and order dated 5. 5. 2003 passed by Sri Jai Mangal Sharma, learned Addl. District & Sessions Judge, Fast Track Court-III, Lucknow in Sessions Trial No. 477 of 2003 whereby he convicted the accused-appellant under section 302 IPC and sentenced him to life imprisonment with a fine of Rs. 10,000/- and in default of payment of fine 1 year rigorous imprisonment.
(2.) THE peculiar facts, in brief, of this case, as disclosed in the first information report, are that the accused-appellant Vinod Kumar Balmiki was living with his wife Meera and minor son Vishal, in a rented house of one Ajgar Yadav in village Gwahi Gaon within the limit of police station Gomti Nagar, Lucknow. Vinod Kumar Balmiki had suspicion that his wife Meera had developed illicit relationship with one Prem employed as Driver in the Central Labour Court, Lucknow, wherein his wife was also working as IVth class employee, as he had seen her in an objectionable position with Prem. Not only this, he had also observed that both of them used to accompany in the yehicle. THE first information report further discloses that Vinod Kumar Balmiki persuaded his wife at his level best to depart from him (Prem) but she paid no heed, that both the husband and wife lived in a room but she did not like to have sexual relationship with her husband. She always used to quarrel with him as a consequence he remained puzzled. It is alleged that in the night of 6. 11. 2001 after taking dinner, the husband expressed his desire to have sexual entertainment with her, but she objected, even then he (Vinod Kumar Balmiki) enjoyed sexual entertainment with her against her wishes, upon which she became angry and began to quarrel with him but avoiding her quarrel he went on sleep and she his wife too, that at about 11. 00 in the night he woke up and saw that his wife was sleeping, that his devil spirit also woke up to take revenge from his wife as she is alleged to have stabbed his belief/betrayed him, that he repeatedly caused injuries upon her head with gas cylinder and also strangulated her with her Dupatta, that apprehending his arrest by the police, that leaving the dead body of Meera and his son Vishal sleeping besides her in the room, he contacted his landlord Ajgar Yadav and disclosed him the entire episode and both of them went to the police station Gomti Nagar where he (Vinod Kumar Balmiki) dictated the entire incident to the Head Moharrir Uma Shankar (P. W. 6) who reduced his dictation into writing, that he put his thumb impression on it. Ajgar Yadav also signed it. This document is the first information report Ex. Ka-3. The investigation into the case was taken up by Siyaram Tiwari, S. I. He immediately effected the arrest of the accused Vinod Kumar Balmiki, that he also recovered two pieces of long hairs from the shirt of his right hand and one from the button of the chest. The recovery memo is (Ex. Ka-3 ). He also visited the place of occurrence, took the dead body into his possession, prepared the inquest (Ex. Ka-5), sent the dead body in a sealed cover, sketched the site plan (Ex. Ka-13), that he recovered Gas Cylinder and Dupatta, blood stained soil, hairs from the Gas Cylinder and Dupatta, prepared the recovery memos (Ex. Ka-6, Ex. Ka-7, Ex. Ka-8 and Ex. Ka-9) respectively. Dr. S. M. Kalra (P. W. 4) conducted the autopsy on the body of the deceased and he noted the following injuries on her person as disclosed in Annexure Ka-4, post-mortem examination report: 1. L. W. 2. 5 cm. x 0. 50 cm. 1 on Lt. mid line face 4. 0 cm. lateral to Lt. ear and bone deep. 2. L. W. 1. 0 cm. x 0. 5 cm. on Lt. side of face just below Lt. eye as deep. 3. L. W. 3. 5 cm. x 0. 5 cm. on Lt. fore head side near mid line and bone deep. 4. Contusion 1. 5 cm. x 1. 0 cm. on Rt. Upper eys lid.
(3.) CONTUSION 1. 0 cm. x 0. 50 cm. on Lt. eye upper lid. Contusion swelling 5. 0 cm. x 4. 5 cm. on Rt. Side of head at temporal area. Clotted blood cut at best nostril neon and Lt. ear. On. opening (sic) under neon above mentioned injury of Lt. (sic) Lit. provbal and Rt. Temporal bone, middle (sic) fossa under neon brain meneges lacerated, subdure, Mainatoma cut all over the brain. 5. The doctor determined the cause of her death coma as a result of anti mortem head injury. The Investigating Officer after completing the investigation into the case he submitted the charge-sheet (Ex. Ka-14 ). The charge under section 302 IPC was framed against the accused who pleaded not guilty and claimed to be tried. To prove its case, the prosecution examined as many as six witnesses wherein Asharfi Lal (PW1), Vishal (PW 2) and Ajgar Yadav (P. W. 3) are the witnesses of fact and the remaining are formal ones. Heard Sri Nadeem Murtaza, learned Amicus Curiae for the accused appellant, Mrs. Zeba Islam Siddiqui, learned AGA for the State and perused the record. 6. Learned Counsel for the accused appellant has vehemently argued that the accused-appellant did not commit the murder of his wife nor he dictated any first information report to the Head Moharrir (P. W. 6 ). He concluded expressing that in case the Hon'ble Court pleases to reach a conclusion that the accused-appellant has eliminated his wife the offence would not fall under section 302 IPC but section 304 IPC as it is a case of sudden provocation and not of murder.;