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2023 DIGILAW 458 (ALL)

Ram Awatar @ Ganesh v. State of U. P.

2023-02-15

AJIT SINGH, KAUSHAL JAYENDRA THAKER

body2023
JUDGMENT : 1. This jail appeal has been preferred against the judgment dated 22.11.2016 passed by the Addl. District & Sessions Judge/SC/ST (P.A.) Act, Ghazipur S.S.T. No. 12 of 2014 (State vs. Ram Awatar @ Ganesh), under section 302 I.P.C. and section 3(2)V SC/ST Act, arising out of Case Crime no. 468 of 2013, P.S. Elhapur, district-Ghazipur, by which he has been convicted under section 302 I.P.C. and sentenced to undergo life imprisonment and a fine of Rs. 10,000/-and life imprisonment a fine of Rs. 10,000/-under section 3(2)V SC/ST Act and in default of payment of fine the accused shall further undergo three months additional imprisonment. Both the sentences shall run concurrently. 2. Heard Sri Brij Raj, learned Amicus Curiae appearing on behalf of the appellant and learned A. G. A. for the State. 3. Brief facts as culled out from the record are that a First Information Report was lodged being Case Crime No. 468 of 2013, under section 302 I.P.C. and section 3(2)V SC/ST Act at P.S. Dulhpur, district-Ghazipur. In the FIR, it was alleged that on 19.12.2013 the wife of the informant namely, Lalti Devi was weeding in Garlic field outside village. At about 1:00 p.m. Ram Awatar alias Ganesh, who is the resident of same village reached there and started assaulting the wife of the informant with 'kudal'. At that very time the complainant along with Bhallu Ram son of Mukhram also reached and seen them, the accused Ram Awatar alias Ganesh ran away from the scene with 'kudal'. When the complainant along with other reached at the spot he found that his injured wife succumbed to the injuries at the spot. Upon hearing the noise raised by complainant other villagers reached at the place of occurrence and after leaving the dead body of his wife the complainant reported the matter to the police. 4. On investigation being put into motion, the investigating officer inspected the place of occurrence, recorded the statements of witnesses, prepared the site plan and after completion of investigation submitted charge-sheet to the learned Magistrate under section 302 I.P.C. and section 3(2)V SC/ST Act. The learned Magistrate summoned the accused and committed him to Court of Sessions as prima facie charges were for offences under Section 302 I.P.C. and 3(2)V SC/ST Act. 5. On being summoned, the accused-appellant pleaded not guilty and claimed to be tried. The learned Magistrate summoned the accused and committed him to Court of Sessions as prima facie charges were for offences under Section 302 I.P.C. and 3(2)V SC/ST Act. 5. On being summoned, the accused-appellant pleaded not guilty and claimed to be tried. The learned Sessions Judge framed charges under Section 302 I.P.C. and 3(2)V SC/ST Act. 6. The Trial started and the prosecution examined 8 witnesses who are as follows: 1 Rajendra Ram PW1 2 Gullu Ram PW2 3 Ramadhar PW3 4 Dr. Tarkeshwar PW4 5 Head constable Heera Ram PW5 6 Ram Singh PW6 7 Dr. Prabhakar Ram PW7 8 Khalikujma PW8 7. In support of ocular version following documents were filed and proved: 1 Written Report Ex.Ka-1 2 Panchayatnama Ex.Ka-2 2 Postmortem Report Ex.Ka-3 3 Chik FIR Ex.Ka-4 4 Copy of G.D. Ex.Ka-5 5 Bloodstain and simple soil from place of occurrence Ex. Ka-6 6 Site Plan Ex.Ka-7 7 Chargesheet Ex.Ka-8 8 Letter to C.M.O. Ex.Ka-9 9 Pratisaar Inspector Ex. Ka-10 10 Chalan lash Ex. Ka-11 11 Police Form 379 Ex. Ka-12 12 Specimen stamp Ex. Ka-13 8. At the end of the trial and after recording the statements of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the accused-appellant as mentioned above. 9. Learned counsel for the accused-appellant submits that he had never moved application for bail either before the trial court or before this Court. He next submits that the accused was of unsound mind and he is going under treatment since 2014 at mental hospital Varanasi for mental illness. The incident was neither preplanned nor premeditated and it occurred at the spur of moment. The accused was not having any intention to commit the murder of the deceased. He also submits that the Investigating Officer in his statement has deposed that the accused belonged to 'Kushwaha' caste, not belonged to Scheduled Caste/Scheduled Tribes category. He recorded the statement of PW1 Ramadhar son of Mosfir, under section 161 Cr.P.C., in which he has categorically stated that he he had seen the accused running away with 'kudal'. He tried to catch hold of him but the accused succeeded to ran away. He also deposed that he has not seen the accused committing the murder of the deceased. He tried to catch hold of him but the accused succeeded to ran away. He also deposed that he has not seen the accused committing the murder of the deceased. PW2 Gullu Ram has deposed that neither he had seen the accused committing the murder nor heard slang words used by the accused. 10. It is submitted by the counsel for the appellant that as far as commission of offence under Section 3(2)(v) of S.C./S.T. Act, 1989 is concerned, the learned Sessions Judge convicted the accused due to the fact that the victim was a person belonging to Scheduled Caste Community, though there were no allegations as regard the offence being committed due to the caste of the deceased and there were no allegations of commission of offence which would attract the provision of Section 3(2)(v) of SC/ST Act. 11. It is submitted by learned counsel for the State that deceased belongs to Scheduled Caste community and the judgment of learned Trial Judge cannot be found fault with just because there is silence on the part of the informant about atrocity committed. It is submitted that the incident occurred because of the caste of the deceased. It is further submitted that any incident on person belonging to a particular caste would be an offence. It is further submitted by learned counsel for the State that the accused killed the deceased as she was belonging to lower strata of life and hence conviction under section 3(2)V SC/ST Act is justified. 12. Learned counsel for the accused-appellant further submits that with regard to nature of mental illness the trial court owed an obligation to undertake an inquiry under section 329 of the Code so as to ascertain whether the accused-appellant was capable of making his defence. Section 329 Cr.P.C. is mandatory. The trial court should have undertake an inquiry under section 329 Cr.P.C. and only thereafter could have proceeded further with the framing of the charge and recording of the evidence. In terms of Section 329 (I) Cr.P.C. the duty of the Court is to try such fact of unsoundness of mind and incapacity of the accused to defend himself. If on the basis of the material brought on record the Court is so satisfied, it should record the finding accordingly and in such case the trial shall have to be postponed. If on the basis of the material brought on record the Court is so satisfied, it should record the finding accordingly and in such case the trial shall have to be postponed. The provisions contained in Section 329 Cr.P.C. serve an important purpose of not proceeding a trial against a person, who on account of his unsoundness of mind is unable to defend himself. It is not difficult to appreciate that such requirement would be mandatory in nature. The proceeding against a person of unsound mind and holding him guilty of criminal offence would be clearly violative of the guarantee contained under Article 21 of the Constitution of India, that no person shall be deprived of his life or liberty without following the procedure established by law. 13. Learned counsel for the accused-appellant further submits that even if the accused had not raised such a plea and even if the defence counsel had not bothered to look into it, still if the materials on record in the form of the documents disclose something about the mental condition of the appellant-accused, then it is the duty of the trial court to look into the materials and ascertain the capacity of the accused to enter the defence in accordance with the provisions of Section 329 Cr.P.C. The satisfaction of the trial court should be recorded in so may words. The provisions of Section 329 do not embrace an idle formality but are calculated to ensure to an accused person a fair trial which cannot obviously be afforded to an insane person and the non-observance of those provisions must be held to convert a trial into a farce. The courts must, therefore, guard against dealing with the matter of suspected sanity of an appellant/accused. 14. This Court after having gone through the facts and circumstances of the instant case, fact is that which is evident from the material on record that there was hostility between accused and the deceased and criminal litigation had taken place between the deceased and the accused. It also emerges from the material evidence on record that the attack on the deceased by the accused person was not premeditated and preplanned and it happened at the spur of moment in sudden altercation between the deceased and the accused person and there was no intention of the accused person to kill the deceased. It also emerges from the material evidence on record that the attack on the deceased by the accused person was not premeditated and preplanned and it happened at the spur of moment in sudden altercation between the deceased and the accused person and there was no intention of the accused person to kill the deceased. Whether the injury inflicted by the accused person was sufficient in the ordinary course of nature to cause death or not, must be determined on the basis of the facts and circumstances of the case. In the instant case, only one injury was on the vital part, which proved fatal. The injury caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel or unusual manner. Where, on a sudden quarrel, a person in the heat of the moment picks up an instrument which acts as a weapon and causes injuries, one of which proves fatal, he would be entitled to the benefit of exception provided in section 300 of I.P.C. 15. After considering the rival submissions made by learned counsel for the appellant, We concur the finding of Sessions Judge regarding mental status of the accused-appellant, as we do not find any reliable evidence that the accused was of unsound mind. We are fortified in our view by the decision of Gujarat High Court in the case of State of Gujarat vs. Manjuben in R/Criminal Confirmation Case No. 1 of 2018 with R/Criminal Appeal No. 474 of 2019. 16. Facts before us to prove that the appellant had no preintention to commit the murder of the deceased. The injuries come to show that it was not intentionally but it was homicidal death without intention. It has been pointed out by learned counsel for the accused-appellant that the accused-appellant has been in jail for more than 10 yeas. 17. From the above discussion, it is evident that appellant was not having any intention to cause death of the deceased. It has been pointed out by learned counsel for the accused-appellant that the accused-appellant has been in jail for more than 10 yeas. 17. From the above discussion, it is evident that appellant was not having any intention to cause death of the deceased. However, he had knowledge that death would be likely caused by the use of the alleged weapon and he has caused with knowledge bodily injuries as were likely to cause death and in view of the above, a case against the appellant under Part-II to Section 304 I.P.C. is made out and he is not found guilty of the offence punishable under Section 302 I.P.C. 18. Offence under Section 3(2)V SC/ST Act is not made out against the accused-appellants as there was no evidence for commission of offence under section 3(2)V of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Neither the First Information Report nor the oral testimony of prosecution witnesses even remotely suggest that the offence has been committed only on the ground that the deceased belongs to a particular community. The decision in the case of Vishnu vs. State of U.P. decided on 28.1.2021 in Criminal Appeal No. 204 of 2021 and in the case of Pintu Gupta vs. State of U.P. decided on 28.7.2022 in Criminal Appeal No. 4083 of 2017 will also come to the aid of accused-appellants. 19. In view of the matter, the conviction of the accused is altered from Section 302 I.P.C. to 304 Part-II I.P.C. 20. Considering all these facts, it would be appropriate and proper that the accused be sentenced with the period already undergone in prison by him and the amount of fine be imposed. 21. In the result the conviction of the present accused is altered from Section 302 I.P.C. to section 304 Part-II and he is convicted under Section 304 Part-II with imprisonment already undergone in prison with no fine as the appellant is a poor person and was not able to engage even a lawyer for himself. The fine as ordered by trial court is set aside. 22. Sri Brij Raj, learned Amicus Cuarie has argued this appeal on behalf of appellant Ram Awatar @ Ganesh and he shall be paid a sum of Rs. 15,000/- as his remuneration. 23. The fine as ordered by trial court is set aside. 22. Sri Brij Raj, learned Amicus Cuarie has argued this appeal on behalf of appellant Ram Awatar @ Ganesh and he shall be paid a sum of Rs. 15,000/- as his remuneration. 23. Office is directed to transmit the lower court record along with a copy of this judgment to the learned court below for information and necessary compliance as warranted.