Allahabad High Court Delivers Split Verdict In Case Involving Alleged Murder Of Wife By Advocate In 1991

The Allahabad High Court has delivered a split verdict in a case involving alleged killing of wife by an Advocate in the year 1991.

A Criminal Appeal was preferred by the accused Advocate who was convicted under Section 302 of the Indian Penal Code, 1860 (IPC) and sentenced to undergo life imprisonment by the Trial Court.

Justice Salil Kumar Rai acquitted the accused, whereas Justice Sandeep Jain affirmed the Trial Court’s Judgment of conviction.

Justice Salil observed, “It has been held by our courts that where on evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits the accused, the accused is entitled to benefit of doubt.”

On the other hand, Justice Sandeep was of the view that the accused is an Advocate, who has very skilfully crafted his defence under Section 313 of the Criminal Procedure Code, 1973 (CrPC) which has no substance, which is an afterthought, in order to escape from the credible ocular evidence against him.

Advocate Apul Misra represented the Appellant/Accused, while Government Advocate represented the Respondent/State.

Facts of the Case

As per the prosecution case, Sunita Devi (deceased) was initially married to the elder brother of the Appellant-accused, who was employed with the Air Force. Two sons were born out of the said wedlock. However, the accused’s brother died in an air crash and after his death, the deceased was given a cheque of Rs. 2 lakhs by the Air Force which was deposited in the bank. Subsequently, the deceased married the accused and out of the said wedlock, a daughter was born. The deceased also had certain landed properties in her name.

Allegedly, the marital relations between the deceased and accused were strained because she refused to accede to the continuous demand of accused to transfer her money and the properties in his favour. It was alleged that in July 1991, the accused again enquired from the deceased as to whether she would transfer her money to him, to which the deceased refused. Hence, the accused allegedly shot her saying that he was killing her because she had refused to transfer her money to him. Resultantly, an FIR was lodged by the brother of the deceased, stating that he took the deceased to the hospital on a rickshaw where the deceased died. The defence case was that the gun got accidentally fired due to tussle between the deceased and accused.

Justice Salil’s Observations

In view of the above facts, Justice Salil Kumar Rai said, “The explanation of the appellant cannot be rejected without any evidence by the prosecution proving it to be a false defence. There is no evidence on record to prove that the explanation of the appellant is false and should be rejected. The testimony of P.W.-1 can not be relied upon to convict the accused/appellant. It has been held that the evidence of P.W.-4 and P.W.-5 show signs of tutoring by P.W.-1. In their evidence P.W.-4 and P.W.-5 conceal the visits of Pradeep at the instance and tutoring of P.W.-1. The case of the defence that the deceased had been in illicit relationship with Pradeep and Pradeep used to visit the deceased in absence of the appellant cannot be ruled out.”

He noted that the prosecution has not been able to prove the motive of the accused to kill the deceased and that the prosecution withheld material witnesses who could have thrown light on the events after the act of firing which includes the subsequent conduct of the accused relevant under Section 8 of IEA.

“The explanation of the appellant that the firing was accidental and not intentional cannot be rejected as implausible. Even a charitable assessment of prosecution evidence leads to the conclusion that two views are possible, one of which is that the gun got accidentally fired in the tussle between the deceased and the appellant when the appellant was going out to settle scores with Pradeep”, he added.

Therefore, he concluded that the prosecution has not been able to prove beyond doubt that the accused had intentionally fired at the deceased and had committed an offence punishable under Section 302 IPC.

Justice Sandeep’s Observations

Considering the facts of the case, Justice Sandeep Jain observed, “It is apparent from the law laid down by the Apex Court in Narayan Yadav(supra) and Vijay @ Vijayakumar(supra), that for attracting Exception-4 of Section 300 IPC, there must be no premeditation, the incident should take place in sudden fight, in the heat of passion, upon a sudden quarrel, without the accused having taken undue advantage and the accused should not have acted in a cruel or unusual manner. It is also proved that there must be mutual combat or exchange of blows on each other, there should not be one side action. Where the accused is armed with a deadly weapon, then it will deny him the benefits of Exception-4.”

He reiterated that for attracting Exception-1 of Section 300 IPC, there must be sudden and grave provocation on the part of deceased, as a result of which a reasonable man was likely to lose his self-control.

“Such reasonable man should be a member of the society, in which the accused was living, as such, education and social conditions of the accused are relevant factors. Further, ordinary exchange of abuse cannot be a basis for grave provocation. The case can only fall under this exception when the court is able to hold that provided the alleged provocation is given, every normal person would behave or act in the same way as the accused, in the circumstances in which the accused was placed, acted”, he added.

He emphasised that where the accused pleads that his case falls within one of the exceptions of Section 300 IPC, the burden lies upon him to prove this fact.

“From the evidence of PW-4 and PW-5, it is proved that there was no mutual combat between the accused and Sunita. Further, Sunita was unarmed whereas, the accused was armed with gun. From the discussion made herein before, it is also proved that the accused had loaded his gun, before Sunita returned back with water, as such, the accused had already premeditated to settle the matter with Sunita. It is also proved that Pradeep had not visited the house of the accused that day and there was no extramarital affair between Pradeep and Sunita, as such, there was no provocation on the part of Sunita. In the above facts and circumstances, the accused cannot take shelter behind Exception -4 to Section 300 IPC”, he further said.

He remarked that there was absolutely no provocation on the part of deceased, what to say of grave provocation, as such, there was no justification on the part of the accused to shoot her dead.

“It is also proved that the accused shot Sunita fatally in her breast, from close range, which proves the intention of the accused of murdering her. The burden lies upon the accused to prove that there was sudden and grave provocation on the part of Sunita or his case falls within the exceptions of Section 300 IPC, which he utterly failed to prove”, he also noted.

He, therefore, held that the deceased was intentionally killed by the accused on a refusal to transfer property in his favour and hence, he rejected the version of the accused that the deceased had extramarital affair, to which he objected, and due to this affair, the incident occurred.

“I am of the considered opinion that in the facts and circumstances of the case, the trial court has not committed any illegality in convicting the accused under section 302 IPC, for committing the murder of his wife Sunita and sentencing him to undergo the minimum sentence of life imprisonment. Accordingly, the appeal deserves to be rejected”, he concluded.

Accordingly, due to disagreement between the Judges regarding the final Order in the Appeal and the reasons for the same, the case was put up before the Chief Justice for nomination under Section 392 of CrPC.

Cause Title- Shailendra Kumar Mishra v. State of U.P. (Neutral Citation: 2025:AHC:197781-DB)

Appearance:

Appellant: Advocates Apul Misra, Km. Laxmi Srivastava, Pradeep Kumar Tripathi, Rashmi Srivastava, and Shyam Sunder Mishra.

Respondent: Government Advocate

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