Girdhari vs State of Madhya Pradesh

This appeal under Section 374(2) of the Code of Criminal Procedure (hereinafter referred to as the Cr.P.C.) has been preferred by the

appellant challenging the judgment dated 13.2.2006 passed by Second Additional Sessions Judge, East Nimad, Khandwa in Sessions Trial No.

171/2005 by which the appellant has been convicted for the charge under Section 302 of the Indian Penal Code and sentenced to Life

Imprisonment with fine of Rs.200/-, in default of payment of fine Rigorous Imprisonment for One month.

The case of the prosecution, in short, is that the appellant was working in a Garage at Indore. About a month prior to the date of incident, he

was shifted to village Pokhar Peer, District Khandwa along with his wife Maya Bai (since deceased) and children. On 21.4.2005 at about 11:00

AM Sardar Singh (PW-1), Jamna Bai (PW-2), Rajaram (PW-3) and Chhagan (PW-4), while sitting nearby the house of the appellant, heard the

noise of Maya Bai. They reached on the spot and found that Maya Bai was inside the house of the appellant and the appellant had beaten her by a

wooden stick. The appellant did not allow them to enter in his house. Later, it was found that Maya Bai died and the blood was oozing from her

mouth. Sardar Singh (PW-1) lodged Dehati Nalisi (Ex.P-1) of the incident at about 2:05 PM at Police Station Chaigaon Makhan whereupon the

First Information Report (Ex.P-8) was lodged by Subhash Patil, Head Constable (PW- 5). The investigation was conducted by the Police and

after making necessary seizure of the documents and on completion of the investigation, challan was filed against the appellant before the

competent Court for the charge under Section 302 of the Indian Penal Code.

The case was triable by the Court of Session, however, it was committed to the competent Court where the charge under Section 302 of the

Indian Penal Code was framed against the appellant. The defence of insanity of the appellant was taken before the trial Court demanding trial.

Learned trial Court relying upon the testimony of Sardar Singh (PW-1), Dr. Shiv Savner, Autopsy Surgeon (PW-6) and the investigating officer

and considering the fact that fracture of parietaltemporal bone was sustained by the deceased, concluded that the dead body of the deceased was

found in the house of the appellant, who was his wife. Sardar Singh (PW-1) had reached on the spot but he was not allowed to enter in the house

where the dead body was lying, therefore, convicted the appellant for the charge under Section 302 of the Indian Penal Code holding that the

prosecution has established their case beyond reasonable doubt and sentenced him as described hereinabove.

Learned counsel appearing on behalf of the appellant has made an attempt to satisfy this Court that there is no cogent evidence available on

record regarding commission of murder because Jamna Bai (PW-2), Rajaram (PW-3) and Chhagan (PW-4), who reached on the spot first, have

not supported the prosecution story. So far as complainant Sardar Singh (PW-1) is concerned, he has also partly supported the prosecution case.

He merely stated that he reached on the spot on conveying by some children that there is hue and cry at the house of the appellant. It is urged that

Sardar Singh (PW-1) himself as per his original testimony reached on the spot, therefore, his statement should not be relied upon and the appellant

may be acquitted from the charge as alleged against him. In alternative, it is urged by him that if the entire case of the prosecution is looked into

then only one injury was found over the head of the deceased. Dr. Shiv Savner (PW-6) has not opined that such an injury is sufficient to cause

death in ordinary course of nature. In such circumstances looking to the nature of injury and the fact that the appellant is in custody for last more

than 12 years modifying the conviction of the appellant for the charge under Section 302 of the Indian Penal Code, he may be convicted for the

charge under Section 304 Part I of the Indian Penal Code and his sentence may be reduced to the period already undergone by him in the interest

of justice.

On the other hand, learned Government Advocate appearing on behalf of the State submits that it is a case wherein the dead body of the wife of

the appellant was found in the house and this circumstance has not been explained by him. The evidence of Sardar Singh (PW-1) co-relates the

incident because he is the person who reached on the spot first but he was not allowed to enter in the house of the appellant. In such

circumstances, looking to the nature of the injuries whereby the brain material came out, it cannot be said to be a case of even conversion of the

conviction from the charge under Section 302 of the Indian Penal Code to the Section 304 Part I of the Indian Penal Code, therefore, maintaining

the conviction of the appellant for the charge under Section 302 of the Indian Penal Code, this appeal may be dismissed.

After having heard learned counsel appearing on behalf of both the parties and on perusal of the facts of the present case and the evidence

brought on record, it is apparent that the appellant was working in a Garage at Indore. About a month prior to the date of incident, he was shifted

to village Pokhar Peer, District Khandwa where he was residing along with his family. One fine morning, the incident took place without there

being any pre-meditation. Sardar Singh (PW-1) has also not deposed that there were repeated incidence of quarrel in between the husband and

the wife. In fact the testimony of Sardar Singh (PW-1), if considered as a whole, then it can be relied upon to the extent that he had reached on the

spot along with three other persons namely Jamna Bai (PW-2), Rajaram (PW-3) and Chhagan (PW-4), who have not supported the prosecution

case but Sardar Singh (PW-1) stated that he was not allowed to enter in the house of the appellant where the dead body of the deceased was

found. Looking to the said evidence and if the nature of injury is looked into, as per the statement of Dr. Shiv Savner (PW-6), it is apparent that

only one injury was found over the head of the deceased, however, it can be understood from such situation corroborated by the medical evidence

that if the appellant was having any intention of causing death or bodily injury to deceased Maya Bai, he may cause repeated blows but caused

single injury without having any pre-meditation, in such circumstances, the conviction of the appellant for the charge under Section 302 of the

Indian Penal Code is not sustainable and it can be converted for the charge under Section 304 Part I of the Indian Penal Code. In this regard,

guidance can be taken from the judgment of the Arjun and another Versus State of Chhattisgarh reported in (2017) 3 SCC 247 wherein in

Paragraph-23, the Supreme Court has observed as under:-

When and if there is intent and knowledge, then the same would be a case of Section 304 Part I IPC and if it is only a case of knowledge and

not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II IPC. Injuries/incised wound caused on

the head i.e. right parietal region and right temporal region and also occipital region, the injuries indicate that the appellants had intention and

knowledge to cause the injuries and thus it would be a case falling under Section 304 Part I IPC. The conviction of the appellants under Section

302 read with Section 34 IPC is modified under Section 304 Part I IPC. As per the Jail Custody Certificates on record, the appellants have

served 9 years 3 months and 13 days as on 2-3-2016, which means as on date the appellants have served 9 years 11 months. Taking into account

the facts and circumstances in which the offence has been committed, for the modified conviction under Section 304 Part I IPC, the sentence is

modified to that of the period already undergone.

In view of the foregoing discussion of facts, our view fortifies from the law laid down by Supreme Court in the case of Arjun (supra), therefore,

the conviction of the appellant for the charge under Section 302 of the Indian Penal Code is modified to the charge under Section 304 Part I of the

Indian Penal Code. The appellant is in custody for last more than 12 years, therefore, in our considered opinion, the sentence already undergone

by him would be sufficient in the facts and circumstances of the case to meet the ends of justice.

Accordingly, this appeal succeeds and is hereby allowed. The conviction of the appellant recorded by the trial Court for the charge under

Section 302 of the Indian Penal Code is hereby modified to the charge under Section 304 Part I of the Indian Penal Code. The sentence of Life

Imprisonment awarded by the trial Court is reduced to the period already undergone by the appellant. The appellant is in jail. The Jail Authorities

are directed to release him forthwith, if he is not required in any other offence.

Let a copy of this judgment be sent to the trial Court concerned, and also to the jail authorities and the SHO concerned to release the

appellant.

At the end, it our duty to record the words of appreciation in favour of Amicus Curiae, who assisted this Court in the disposal of this case

wherein the appellant is in jail for the last more than 10 years, however, his assistance is acknowledged.