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2017 DIGILAW 378 (JHR)

Gopal Ram Ganju v. State Of Bihar

2017-02-22

H.C.MISHRA, S.N.PATHAK

body2017
JUDGMENT 1. Heard Mrs. Alpena Verma, learned amicus curiae, as also Mr. Ravi Prakash, learned counsel for the appellant and Mr. Sanjay Shrivastava, learned counsel for the State. 2. The appellant is aggrieved by the judgment of conviction dated 30.3.1992 and order of sentence dated 31.3.1992, passed by learned VIth Additional Judicial Commissioner, Ranchi, in Session Trial No. 306 of 1989, whereby the appellant has been found guilty and convicted for the offence under Section 302 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo imprisonment for life for the said offence. 3. The FIR was lodged by one Tirit Muni Devi, who was the tenant of the deceased lady. It is stated that in the afternoon of 24.6.1988, the family members of the deceased and the informant, who was her tenant, were sitting in the courtyard of the house when a stone was thrown on the roof, whereupon they came out and found the son of this appellant, and asked him as to who had thrown the stone. It is alleged that thereupon the appellant and his wife came abusing these persons, whereupon they came back to their courtyard. It is alleged that the appellant and his wife followed them and the appellant, Gopal Ram Ganju, hurled a stone which hit the deceased Bilaso Devi and she fell unconscious. It is further alleged that the wife of this appellant Sukh Mani Devi, thereafter, scaled over the belly of the deceased and she also assaulted. Upon the alarm raised by the informant, persons of the locality came there and it is alleged that the accused persons fled away from the place of occurrence. The deceased was brought to Hatia hospital from where she was referred to RIMS, Ranchi, where in course of treatment, she died. 4. On the basis of the fardbeyan of the informant to the aforesaid effect, the FIR was lodged and Hatia P.S. Case No. 86 of 1988, corresponding to G.R. No. 1876 of 1988, was instituted for the offence under Section 302/34 of the Indian Panel Code and investigation was taken-up. After investigation, the Police submitted charge-sheet against the appellant as also against his wife, Sukh Mani Devi. 5. After investigation, the Police submitted charge-sheet against the appellant as also against his wife, Sukh Mani Devi. 5. After commitment of the ease to the Court of Session, charge was framed against the accused persons, to which they pleaded not guilty and claimed to be tried, upon which they were put to trial. In course of trial, nine witnesses were examined by the prosecution, including the I.O. and the doctor. 6. PW 1 is Tirit Muni Devi who is the informant and the eye-witness to the occurrence. She has supported the prosecution case as stated in the FIR, and reiterated that when the son of this appellant was asked as to who had thrown the stone, this appellant and his wife came there and started quarrelling with them, whereupon they returned back to their courtyard, where the appellant followed with a stone in his hand, which he threw and it hit Bilaso Devi, the deceased. She fell unconscious, then Sukh Mani Devi scaled over her belly. The informant raised alarm, upon which some persons came and the deceased was taken to Dhurwa hospital from where, she was taken to RIMS, Ranchi, where in course of her treatment, she died. She has stated that her statement was recorded by the Police, upon which she had put her thumb impression. This witness had identified the accused persons in the Court. This witness was put to extensive cross-examination, but there is nothing in her cross-examination to discredit her testimony. 7. PW 2, Sanmati Orain, PW 4, Lal Sambhu Nath Sahdeo and PW 6, Ludi Orain, are the neighbours, PW 3, Sasita Kumari is the daughter of the deceased and PW 5, Satish Kumar Mahto, is the son of the deceased. These witnesses have also supported the prosecution case as stated in the FIR. 8. PW 7, is Dr. Ajit Kumar Choudhary, who had conducted the postmortem examination on the dead body of the deceased, who found a stitched lacerated wound in the right parietal region of the head. He has stated that there was a fracture of right parietal and temporal bone and fracture line extended to base of the scalp. There was presence of blood and blood clots over both sides of the brain and more on the life side. There was also laceration of left temporal lobe brain. He has stated that there was a fracture of right parietal and temporal bone and fracture line extended to base of the scalp. There was presence of blood and blood clots over both sides of the brain and more on the life side. There was also laceration of left temporal lobe brain. He has stated that rest of the organs were normal and death was caused due to ante-mortem head injury. This witness has identified the post-mortem report to be in his pen and signature, which was marked as Ext. 2. In his cross-examination this witness has stated that the above head injury could have been possible by fall also. 9. PW 8, Ram Janam Singh is the police officer, who had only submitted the charge-sheet in this case. PW 9, is Braj Bhushan Prasad, who is the I.O. of the case, and he has proved the fardbeyan as also the FIR of the case. This witness has also proved the inquest report of the dead body of the deceased. He has stated about the investigation made by him. 10. On the basis of the evidence on record, the trial Court below has found the appellant guilty for the offence under Section 302 of the Indian Penal Code and has convicted and sentenced him for the same. So far as other accused, Le., wife of the appellant is concerned, the trial Court held that the oral evidence of the witnesses was not supported by the medical evidence, as no other injury was found on the deceased except the head injury and accordingly, she was given the benefit of doubt and was acquitted of the charge. 11. Learned amicus curiae as also learned counsel for the appellant have submitted that even though all the prosecution witnesses have fully supported the case, but the fact remains that the occurrence had taken place in a spur of moment followed by quarrel. Learned counsels have submitted that the prosecution has not been able to prove the case against the appellant beyond all reasonable doubts, in view of the fact that the prosecution story, as stated. In the FIR, has not been believed in its entirety even by the trial Court below. Learned counsels have submitted that the prosecution has not been able to prove the case against the appellant beyond all reasonable doubts, in view of the fact that the prosecution story, as stated. In the FIR, has not been believed in its entirety even by the trial Court below. It is submitted that there is a specific allegation of assaulting the deceased against the wife of the appellant also, but that part of the allegation has not been believed by the trial Court below in view of the fact that oral evidence on that point was not supported by the medical evidence. Learned counsel accordingly, submitted that this makes the entire prosecution story doubtful and in facts of this case, the appellant was also entitled to the benefit of doubt. 12. Learned counsels alternatively submitted that there was no intention on the part of the appellant to have committed murder of the deceased. Rather, in a sudden provocation during the quarrel, it is alleged, that he had hurled the stone which hit the deceased which ultimately proved fatal. There being no allegation of repeating the assault against the appellant, even on the basis of the evidence of the prosecution witnesses, the case of the appellant would come within Exception 4 of Section 300 of the Indian Panel Code, and accordingly, it is not a case of murder, rather, it shall be a case of culpable homicide not amounting to murder and the case of the appellant shall come under Part-II of Section 304 of the Indian Penal Code, as the assault, If any, was made by the appellant without there being any Intention to cause the death. 13. Learned counsel for the State on the other hand has submitted that all the eye-witnesses have fully supported the prosecution case that it was this appellant who had hurled the stone which ultimately proved fatal to the deceased and accordingly, the offence is fully made out under Section 302 of the Indian Panel Code, for which the appellant has been rightly convicted and sentenced by the trial Court below. 14. Having heard learned counsels for both the sides and upon going through the record, we find that the occurrence had taken place in course of quarrel between the parties. 14. Having heard learned counsels for both the sides and upon going through the record, we find that the occurrence had taken place in course of quarrel between the parties. It is stated that in course of quarrel, the appellant followed the deceased, and other persons to the courtyard of the house of the deceased and he hurled the stone which hit the head of the deceased and it ultimately proved fatal. Admittedly, there is no allegation of any repetition of blow against this appellant and none of the witnesses have stated that. Exception 4 of Section 300 of the Indian Panel Code reads as follows - "Section 300. Murder - .... Exception 4 . - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender''s having taken undue advantage or acted in a cruel or unusual manner." 15. We are of the considered view that even on the basis evidence brought on record, the case of the appellant is fully covered by Exception 4 of Section 300 of the Indian. Panel Code and the offence made out against the appellant, is culpable homicidal not amounting to murder. We are also of the considered view that the case of the appellant shall fall within Part-II of Section 304 of the Indian Panel Code, as there was no intention to cause the death of the deceased which is apparent from the fact that there is no allegation of repetition of blow against the appellant. Accordingly, we are of the considered view that the conviction of the appellant for the offence under Section 302 of the Indian Panel Code cannot be sustained in the eyes of law. Rather, it is a fit case for conviction of the appellant under Section 304, Part-II of the Indian Panel Code. Accordingly, the operative part of the impugned judgment of conviction dated 30.03.1992, passed by learned VIth Additional Judicial Commissioner, Ranchi, in S.T. No. 306 of 1989, is hereby, set aside and modified to the extent that the appellant is found guilty under Section 304, Part-II of the Indian Penal Code and convicted for the same. 16. Accordingly, the operative part of the impugned judgment of conviction dated 30.03.1992, passed by learned VIth Additional Judicial Commissioner, Ranchi, in S.T. No. 306 of 1989, is hereby, set aside and modified to the extent that the appellant is found guilty under Section 304, Part-II of the Indian Penal Code and convicted for the same. 16. The impugned judgment shows that at the time of passing the judgment, the appellant was aged above 53 years and we are informed that the appellant is presently around 80 years of age. At the time of filing of this appeal, the appellant had already served more than four years of imprisonment. In our considered view, the interest of justice shall be served, if the appellant is sentenced for the period already undergone by him. Accordingly, the Order of sentence dated 31.3.1992 is hereby, set aside, and the appellant, who is found guilty and convicted for the offence under Section 304, Part-II, IPC, is sentenced to the imprisonment for the period already undergone by him. The appellant is on bail and he is discharged from the liabilities of his bail bond. 17. This appeal is accordingly, allowed in part, with the modifications in the impugned judgment of conviction and order of sentence, as above. Let the Lower Court Records be sent back forthwith to the Court concerned along with a copy of this judgment. 18. Before parting with this case, we must record that we have got able assistance from the learned amicus curiae. Mrs. Alpana Verma, and she shall be entitled for her admissible fees from the JHALSA, Ranchi. Let a copy of this judgment be sent to the Member Secretary, JHALSA, Ranchi, for the needful.