Gola vs State of U.P.

B.N. Shukla, J.—This appeal is preferred against the judgment and order dated 12.1.1982 passed by the Ist Additional Sessions Judge, Agra in S.T. No. 542 of 1980 (State v. Gola) u/s 302 IPC relating to Police Station Nibohara District Agra whereby convicting the accused Gola u/s 302 IPC and sentencing him to undergo imprisonment for life.

It is prosecution case that Gola son of the complainant Salaki was suffering from insanity for the last 8 days and he was shown to Jhagra Jee but there was no improvement in his plight. Even his limbs were tied with rope at house due to his insanity. On 26.5.1980 during noon hours when family members were sleeping inside house, Gola untied himself and started waiving Gandasa (an item for cutting fodder). Gola''s mother and wife Guddi woke up after hearing noise. They wanted to take Gandasa from the grip of Gola and when Guddi tried to snatch it struck at her neck and she fell down after receiving injury and died after some time. Gola was caught hold by the family members and sent to mental hospital.

Salig Ram alias Salaki (PW4) went to the Police Station and submitted written report (Ext. Ka 27) scribed by Virendra Singh (PW15) and Head Moharrir Onkar Singh (PW14) registered the FIR and made entry in the G.D. (Ext. Ka 23).

H.K. Vashisht (PW13) took up the investigation. He visited the spot, held inquest at 5.00 A.M. and prepared inquest report (Ext. Ka 10) and relevant papers (Ext. Ka11). He despatched dead body of Guddi in sealed condition for postmortem through Constable Rajendra Prasad and Home Guard Gyan Singh. Investigating Officer prepared site-plan (Ext. Ka 13), seized Gandasa (Ex.1) prepared memo (Ext. Ka 1). He took plain and blood strained earth (Ex.. 4) and prepared memo Ext. Ka 2). He recorded statements of the witnesses.

Dr.. M.K. Rawat (PW7) conducted autopsy on the dead body of Guddi on 28.5.1980 at 3.00 P.M. and found the following ante-mortem injuries:

Incised wound 3 1/2" x 1" x vertebrae deep front of neck below thyroid.

Lacerated wound 3/4" x 1/2" x skin right side front of chest.

Incised wound 11/2 " x 1/2 " x through and through ending in injury No. 4 on the back of left arm middle part.

Incised wound 11/4 " x 1/4" x through & through ending in injury No. 3 infront of left fore-arm middle part.

On internal examination, he found cut in larynx, 5th critical vertebra, great vessels of the neck and in Farynx and oesophagus. He opined that death was due to syncope as a result of shock and haemorrhage due to ante-mortem injuries. He prepared postmortem report (Ext. Ka 6).

Accused Gola was produced at mental hospital, Agra on 28.5.1980. He was examined by Dr. Harbans Singh (PW6) and Dr. B.S. Yadav (PW9). Thereafter, he was brought in custody at Police Station Hari Parbat. Investigating Officer H.K. Vashishta (PW13) interrogated him at Police Station Hari Parbat and after recording statements of doctors and other witnesses submitted charge-sheet against Gola.

Accused Gola was charged u/s 302 IPC. He pleaded not guilty and abjured the guilt.

Prosecution in support of its case has examined 15 witnesses in all and also filed affidavit of formal witness Constable Rajendra Prasad.

Accused in his statement u/s 313 Cr.P.C. has denied his involvement in the occurrence and stated that he has been falsely implicated in this case. He did not adduce defence witness.

The trial court after appreciating entire evidence recorded finding of conviction and sentenced the appellant accused.

We have gone through the entire record and heard Dr. Abida Syed. Amicus Curiae for the appellant and Sri A.K. Shukla, learned Additional Government Advocate for the State.

It is submitted by the learned Amicus Curie on behalf of the appellant that the appellant was suffering from insanity and was incapable of knowing the nature of the act or that he is doing what is either wrong and contrary to law.

Learned AGA has submitted that accused Gola is not entitled to protection u/s 84 IPC and he had apprehension about chastity of the deceased and this was the reason that he intentionally committed her murder.

Deceased Guddi was wife of the accused Gola. Guddi died homicidal death and this fact is supported by Dr. M.K. Rawat (PW7) who conducted autopsy on dead body. We also appreciate this fact that dead body of Guddi was found inside house of the accused. Investigating Officer H.K. Vashishta (PW13) seized blood stained Gandasa from the spot and collected blood stained and plain earth as shown in the site-plan prepared by him. Salig Ram (PW4) who is father of the accused Gola has also deposed that Guddi died at the same place shown in the site-plan.

Salig Ram (PW4) has resiled from his statement. Being father of the accused it was but natural that he would not support the prosecution version. His wife Smt. Ummedia (PW5) also turned hostile. Now case is based in circumstantial evidence. Langur Prasad (PW1) has deposed that he was informed by Salig Ram that Gola has killed his wife. Prosecution version is corroborated by medical evidence. Injuries of Guddi could be caused by Gandasa. Guddi died inside house of the accused. There is extra-judicial confession of the accused before witnesses Chilkan Singh (PW10), Jawahar Singh (PW11), Dr. Harbans Singh (PW6) and Dr. B.S. Yadav (PW9). Unchallenged testimony of village Chaukidar Sarwan (PW3) also gives impetus to the prosecution case. Although Chilkan Singh and Jawahar Singh have turned hostile on the point of extra-judicial confession by the accused yet statement of Dr. Harbans Singh (PW6) and Dr. B.S. Yadav(PW9) support this factum. Doctors examined Gola and then recorded his statement. They are independent witnesses and their testimonies could not be doubted.

There was motive on part of the accused to commit murder of his wife. He had apprehension about chastity of his wife Guddi which put him under strain and stress. We find that there was no other person to commit murder of Guddi. Hence circumstances go against the accused without any break in the link.

There is no evidence on record in order to prove that the accused was of unsound mind within the meaning of Section 84 IPC and at the time of commission of offence, he was incapable of knowing nature of the act. Rigor for proving unsoundness of mind is not such as required for the prosecution but overall accused has to create reasonable doubt or apprehension in mind of the court. This burden has not been discharged by the accused. Case of the accused would not fall in general exception contained u/s 84 IPC.

From above conclusion, we are of definite view that murder of Guddi was caused by the accused Gola.

Whether act of the accused Gola would fall u/s 302 IPC or u/s 304(1) IPC, it is to be appreciated by us keeping in view the legal aspect.

In case, A. Maharaja v. State of Tamil Nadu AIR 2009 SC 480, the Hon''ble Apex Court has considered about Exception-4 of Section 300 IPC. It has been held that Exception-4 can be invoked if death is caused:

(a) without premeditation;

(b) in a sudden fight;

(c) without the offenders'' having taken undue advantage or acted in a cruel or unusual manner; and

(d) the fight must have been with the person killed.

For getting exception- (4) it is to be shown that the offender had not taken undue advantage or not acted in a cruel or unusual manner.

Keeping in view the parameter laid down by the Apex Court, we appreciate this fact that accused Gola never hit the deceased intentionally. He was wavering Gandasa and when Guddi tried to snatch it, then she received injuries and fell down and died thereafter. Prior to the occurrence accused was suffering from insanity. His behaviour was not normal and he had struck a brick bat at the face of his elder brother Bhudan and for that reason he was kept tied with rope. Considering these facts, we are of opinion that act of the accused would fall under Exception 4 of Section 300 IPC and his conviction is liable to be altered u/s 304(1) IPC.

Appeal is partly allowed. Conviction and sentence of the appellant Gola for life imprisonment u/s 302 IPC awarded by the trial court is set aside and he is convicted u/s 304(1) IPC and sentenced to undergo rigorous imprisonment for ten years. Accused Gola is in jail and shall be detained to serve out remaining sentence.

Office is directed to certify the judgment to the court concerned for necessary action.

The fee of the Amicus Curiae Dr. Abida Syed. is fixed at rupees eight thousand for her able assistance to this Court.