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2002 DIGILAW 941 (MP)

Girdhari v. State of M. P.

2002-10-07

RAJEEV GUPTA, USHA SHUKLA

body2002
JUDGMENT Gupta, J. -- 1. Appellant Girdhari stands convicted under section 302, IPC with sentence of imprisonment for life vide impugned judgment dated 30.12.1989, passed by VII Addl. Sessions Judge, Bhopal in ST No. 163/89. 2. Appellant Girdhari has been found guilty of causing death of his brother-in-law Amar Singh, by causing injuries on him by means of an iron rod, in the night of 27.5.1989, leading to his dean next day on 28.5.1989. 3. At the trial, accused Girdhari abjured his guilt and pleaded false implication to the charge framed by the trial Court under section 302, IPC. 4. The charge of 'murder' against accused Girdhari was sought to be proved on the evidence of PW 1 Ghamri Bai, PW 2 Munshilal, PW 3 Dr. Pradeep Pandey PW 4 Devi Singh, PW 5 Bamini Bai, PW 6 Bharat Das Bairagi, PW 7 Gulzar Singh PW 8 Umashanker, PW 9 Dr. C.S. Jain PW 10 Moti, PW 11 Mangilal and PW 12 Bhupendra. The accused. however, chose not to examine any witness in his defence 5. The trial Court, on a close scrutiny of the evidence led by the prosecution at the trial, found it proved that deceased Amar Singh had sustained multiple external injuries in the night of 27.5.1989, leading to his death next day on 28.5.1989 and that his death was homicidal in nature. Relying upon the eye-witness account of PW 5 Bamini Bai, whose evidence was found corroborated by the other ocular and medical evidence on record, the trial Court held accused Girdhari' guilty of causing those external injuries on deceased Amar Singh which ultimately resulted in his death. On the above findings, the trial Court convicted and sentenced accused Girdhari as mentioned above. 6. Shri A.K. Chourasiya, the learned counsel for the appellant, vehemently argued that the trial Court has erred in recording the appellant's conviction on the solitary eye-witness account of PW 5. Bamini Bai, whose evidence suffers from serious infirmities. The learned counsel in the alternative submitted that as there was no prior ill-will between deceased Amar Singh and his brother-in-law appellant Girdhari and the unfortunate incident of assault took place in a sudden quarrel between the two, the offence against the appellant would not travel beyond the One punishable under section 304, IPC. 7. The learned counsel in the alternative submitted that as there was no prior ill-will between deceased Amar Singh and his brother-in-law appellant Girdhari and the unfortunate incident of assault took place in a sudden quarrel between the two, the offence against the appellant would not travel beyond the One punishable under section 304, IPC. 7. Shri G.S. Ahluwalia, the learned Government Advocate, on the other hand supported the impugned judgment of conviction and contended that as the evidence of PW 5 Bamini Bai does no suffer from any infirmity whatsoever the trial Court was fully justified in recording the appellant's conviction on her evidence 8. The facts that deceased Amar Singh sustained multiple external injuries in the night of 27.5.1989 leading to his death on 28.5.1989, and that his death was homicidal in nature were neither in dispute before the trial Court nor are under challenge before us in this appeal. Even otherwise, there is overwhelming ocular and medical evidence on record which is more than sufficient to establish the above facts beyond any shadow of doubt We, therefore, uphold the findings recorded by the trial Court in that behalf. 9. True, of the four eye-witnesses examined by the prosecution at the trial PW 1 Ghamri Bai, PW 4 Devi Singh and PW 10 Moti did not support the prosecution case and were declared hostile, and the entire prosecution case against the accused hinges on the solitary eye-witness account of PW 5 Bamini Bai 10. PW 5 Bamini Bai has categorically deposed that on the fateful night, accused Girdhari asked her brother, deceased Amar Singh, to repay the amount advanced by him. Deceased Amar Singh expressed his inability on account of lack of funds with him, but accused Girdhari insisted for immediate repayment which led to a wordy quarrel between them. Deceased Amar Singh then slapped his wife Ghamri Bai, who happened to be real sister of appellant Girdhari. The parents of Ghamri Bai raised hue and cry. Accused Girdhari then came rushing to the place of occurrence, picked up a sabbal (iron rod) lying there, and dealt one blow on the head region of deceased Amar Singh. This witness claims to have succeeded in snatching the sabbal from the accused who then grappled with deceased Amar Singh and dealt fist blows on his chest region. Thereafter, accused Girdhari fled away from the place of occurrence. This witness claims to have succeeded in snatching the sabbal from the accused who then grappled with deceased Amar Singh and dealt fist blows on his chest region. Thereafter, accused Girdhari fled away from the place of occurrence. Injured Amar Singh could be taken to the hospital only next morning, where he succumbed to his injuries. Nothing could be brought out in her cross-examination, which may render her evidence unworthy of credence Some insignificant discrepancies and omissions of minor nature in her case diary statement, in our considered view, are not sufficient to discard her otherwise cogent and reliable evidence. As PW 5 Bamini Bai is a common relative of appellant Girdhari and deceased Amar Singh, we see no earthly reason for her to implicate her own relative appellant Girdhari falsely in this case of murder. 11. Thus, on a close scrutiny of the evidence of PW 5 Bamini Bai, we are satisfied that she is a truthful witness and her evidence can safely be acted upon. We therefore, affirm the findings recorded by the trial Court holding appellant Girdhari guilty of causing those external injuries or deceased Amar Singh which ultimately resulted in his death. 12. The 'next submission of the learned counsel for the appellant is that the above proved act of the appellant in causing those injuries on deceased Amar Singh which led to his death next day, would not travel beyond the one under section 304, IPC. 13. Admittedly, appellant Girdhari and deceased Amar Singh were closely related through appellant's sister Ghamri Bai who was married to the deceased. There is not even an iota of evidence to even suggest any prior ill-will between them. It is the prosecution case itself (as contained in first information report Ex. P-1 and para 3 of the trial Court's judgment) that it was deceased Amar Singh who initiated the quarrel by first abusing appellant Girdhari filthily and then dealing a blow by means of a rod on his left shoulder. The immediate cause of the unfortunate incident of assault on the deceased appears to be the refusal of deceased Amar Singh to repay the amount taken by him from the appellant. The immediate cause of the unfortunate incident of assault on the deceased appears to be the refusal of deceased Amar Singh to repay the amount taken by him from the appellant. To us, it appears that appellant Girdhari, on account of the filthy abuses and his assault by deceased Amar Singh, got enraged; lost his self-control; and, in the heat of passion, picked up the rod lying there and dealt some blows on his brother-in-law Amar Singh. It further appears that one of the external injuries sustained by deceased Amar Singh unfortunately proved fatal leading to his death next day. 14. The Apex Court, while considering the nature of the offence proved against the accused persons in the case of Krishna Tiwary and another v. State of Bihar reported in AIR 2001 SC 2410 , observed in para 4 : "4. In our view, there is much substance in the contentions raised by the learned senior counsel for the appellants. From the evidence on record, it is apparent that incident took place all of a sudden. It has been admitted by the prosecution witnesses that prior to the incident relations between the brothers were cordial. It has been specifically stated by informant PW 7 Anil Tiwary in his cross-examination that they were having best of relations with the accused prior to the incident. He has also denied the suggestion that there was property dispute between them. The witness has also admitted that the appellant Krishna Tiwary came empty-handed and that incident took place because they scolded Manoj Kumar and deceased removed him from the middle of the door. He has also stated that after coming down Krishna Tiwary caught hold the collar of Paramhans and asked him why his cleaner was beaten. So, it is apparent that some quarrel took place between the deceased and Krishna Tiwary. At that moment, it is alleged that Krishna Tiwari uttered the work 'assault' and thereafter Dadan Tiwary inflicted two knife blows. It is true that first knife blow proved fatal; with regard to the second knife blow, admittedly, it is a simple injury which is skindeep. From the record, it is apparent that the prosecution has suppressed the evidence of other witnesses, particularly that of Manoj Kumar who was the cause of quarrel. It is true that first knife blow proved fatal; with regard to the second knife blow, admittedly, it is a simple injury which is skindeep. From the record, it is apparent that the prosecution has suppressed the evidence of other witnesses, particularly that of Manoj Kumar who was the cause of quarrel. However, taking the prosecution case as it is, it is apparent that the role played by A 1 is absolutely limited. Therefore, the trial Court has convicted him by resorting to sections 190 and 111 of IPC. Further, it is admitted that relationships between brothers and the family members were cordial prior to the incident. The incident took place all of a sudden and without any premeditation. Manoj cleaner of the appellant, was standing in the middle of the door and the ladies of the house were having obstruction in coming and going out from the house therefore, he was scolded by deceased and removed from that place by use of force. It appears that he conveyed something, which has not come or record because Manoj is not examined to the appellants. Appellants came down and the quarrel took place between deceased and Krishna Tiwary (A 1). In such a sudden quarrel and in heat of passion, appellant No.2 son of Krishm Tiwary A 1, inflicted a fatal blow to the deceased. Further, he has not acted in any cruel or unusual manner nor he has taken any undue advantage. Hence, at the most, appellant No.2 would be liable to be convicted for the offence punishable under section 304 Part I, IPC and the appellant No. 1 for the offence under section 304 Part I read with section 109 and section 111, IPC......" 15. The crucial question now is whether in the above factual matrix of the case and in the absence of any prior ill-will between appellant Girdhari and deceased Amar Singh, can it be held with certainty that the appellant, while causing those injuries on his brother-in-law Amar Singh, had intended to cause his death? The answer to the above question, in view of the above mentioned broad features of the case, is bound to be in 'negative' and so it is, as there was absolutely no motive or reason for the appellant to have intended to cause death of his own brother-in-law, deceased Amar Singh. The answer to the above question, in view of the above mentioned broad features of the case, is bound to be in 'negative' and so it is, as there was absolutely no motive or reason for the appellant to have intended to cause death of his own brother-in-law, deceased Amar Singh. Thus, the above proved act of appellant Girdhari in causing those external injuries on deceased Amar Singh which led to his death next day, would not amount to the offence of 'murder' punishable under section 302, IPC Nevertheless, the appellant cannot escape from the liability of his above-proved act altogether and in the fact-situation of the present case, the above-proved act would certainly amount to the offence of 'culpable homicide not amounting to murder' and would be punishable under section 304 (I), IPC. 16. As for the sentence, considering the relationship between the deceased and the appellant: the background, nature and manner of the incident; and the other attending circumstances of the case, we an of the opinion that sentence of rigorous imprisonment for 10 years would be the sufficient punishment for the offence now found proved against appellant Girdhari under section 304 (I), IPC, and would meet the ends of justice. 17. For the foregoing reasons, the appeal filed by appellant Girdhari against his conviction and sentence is allowed in part Appellant's conviction under section 302 IPC and sentence of imprisonment for life are hereby set aside. Instead, appellant Girdhari is convicted under section 304 (I) IPC and is sentenced to rigorous imprisonment for 10 years. 18. From the records, we gather that appellant Girdhari has all along been in custody since his arrest on 29.5.1989, and as such has already undergone whole of the sentence of rigorous imprisonment for 10 years now awarded under section 304 (I) IPC. 19. We, therefore, direct that appellant Girdhari be set at liberty forthwith, if no wanted in connection with any other case.