Heergiri @ Heerghar S/o Narayangiri vs State

The present appeal has been preferred to challenge the

judgment dated 22.07.2011, whereby, the appellant has been

convicted under Section 302 IPC and sentenced to undergo

imprisonment for life with a fine of Rs.5000/-, in default of

payment of fine, to undergo six months'' rigorous imprisonment.

Briefly, facts in the matter are that a written complaint was

filed by one Shri Chhoggiri resident of Ratanpura stating therein

that the accused Heergiri is the son of his uncle Narayangiri

having his Dhani (hamlet) located in front of Dhani of his father

Bhemgiri. The accused Heergiri (his uncle''s son) has murdered his

mother in the past. Immediately, after having been released from

jail, he was staying with his wife Indra and kids at his in-laws

house, only 10 to 15 days back Heergiri along with his wife and

children started living in his own Dhani (hamlet). On 18 th

February, 2009 when the complainant was sitting in his father''s

Dhani along with his mother, at around 03:30-04:00 O''clock in the

evening, the daughters of Heergiri, Vimla and Ramila were

shouting that their mother is being beaten. On hearing hue & cry

he along with his mother went towards the Dhani (hamlet) of

Heergiri and saw that Heergiri was giving blows on the head and

face of Indra, Vimla & Ramila were crying/shouting on the spot.

After this, the complainant called the inhabitants of the nearby

area and ran towards Heergiri. Heergiri ran away along with Kudali

and in the meantime Sujanaram Rebari and Bhamararam Meghwal

came on the spot of incident. Thereafter, father of Heergiri,

Narayangiri and the father of the complainant Bhemgiri alongwith

other residents of their village reached the spot.

An FIR was lodged on 18th February, 2009 under Section 302

IPC. The same was also presented before the learned Additional

Chief Judicial Magistrate, Bhinmal on 19th February, 2009.

The investigation was conducted and a charge-sheet was

filed before learned trial Court under Section 302 IPC.

The trial Court framed the charge for the offence under

Section 302 IPC and the accused preferred trial in the matter after

denying the charge levelled against him.

During the course of trial total 18 prosecution witnesses

were examined and 20 documents were exhibited.

The accused/appellant was confronted with the

circumstances appearing in the evidence against him by the trial

Court by putting questions which were denied by the accused

submitting therein that he has been falsely implicated in the case

and he has not murdered his wife. He has reached on the spot

after his wife was murdered.

Learned trial Court after examining the witnesses and

hearing the counsel for the parties, found the appellant guilty of

the offence under Section 302 IPC, therefore, has convicted and

sentenced the appellant with imprisonment for life vide order

dated 22.07.2011.

A close scrutiny of the prosecution witnesses reveals that

Chhoggiri(PW-1) has submitted that Heergiri is the son of his

uncle and has also murdered his mother before this incident. That

around 03:00-04:00 PM on the date of incident when he was at

his Dhani(hamlet), the accused along with his wife Indra were

fencing their field, which is located just opposite to their Dhani

and there is only one road between their Dhanis. This witness

further states that on having heard the noise he reached the spot.

Heergiri gave blow to his wife Indra on her head and his two

daughters Vimla & Ramila also reached the spot, his mother also

went towards the place of incident. He further submits that after

this blow Indra fell on the ground.

PW-2, Kanku Devi submits that around 03:00-04:00 PM,

while she was standing in front of her Dhani, she heard hue and

cry and went towards the spot, where she saw that Indra was

lying on the spot and Heergiri was standing nearby with a Kudali

in his hand and Indra was struggling for life due to the injury

suffered. She submits that on the spot Chhoggiri, Ramila and

Vimla were also present.

PW-3, Vimla who is the daughter of the accused Heergiri

stated that at around 03:00-04:00 PM, she along with her sister

Ramila were standing in their courtyard and while fencing their

field her mother and father were having a heated altercations.

She further submits that her mother Indra was given a Kudali

blow from behind the head by his father, after this they were

terrified and therefore, both, she and her sister went to their

uncle''s house and thereafter, Chhoggiri(PW-1), Kanku Devi(PW-2)

also came on the spot. She very categorically stated that her

father has committed two murders first her grandmother i.e.

mother of the Heergiri and then their mother i.e. wife of Heergiri.

The reason for killing her mother by her father is not known to her

but she died due to the injury caused by her father to her mother.

PW-4, Ramila who is the daughter of Heergiri has also

submitted on the same lines and narrated the incident in the same

way as has been done by PW-3 her sister Vimla.

PW-5, Bhemgiri submits that when he reached the spot his

son Chhoggiri and his wife were standing on the road and the body of Indra was lying nearby. He also submits that the accused

was giving beatings to his wife in the past also.

PW-6, Bhamararam submits that around 04:00 O''clock while

he was going from Ratanpur to Chitalwana road along with Sujana

Rebari, on hearing the noise from the close vicinity when they

walked further they saw that Heergiri was running with a Kudali

and his wife Indra was lying dead on the spot.

PW-7, Sujanaram Rebari also stated on the same lines has

submitted by PW-6 (Bhamararam).

PW-8 Lalaram is a Police Constable who has attested the

arrest memo of the Heergiri.

PW-9, Khangar @ Thangar is the attesting witness of

Exhibits-P-4, P-7, P-8, P-9 & P-10, which are the recovered

articles from the spot.

PW-10, Umaram has attested the arrest memo(Ex.P-7).

PW-11, Rajgiri is the person who has visited the site and has

prepared Naksha Mauka (Site Plan), he has also collected the

samples of blood stained soil from the spot and has placed in the

sealed cover. Thereafter, he has submitted that after having

conducted the postmortem has handed-over the dead body of

Indra to Chhoggiri for last rites. He has also submitted that in the

opinion of Panchan the death of Indra was caused due to the

injuries suffered on her body.

PW-12, Dr. Rohitash Kumar who was a Member of the Board

who has conducted post-mortem submits that on external examination of the body an incised wound of dimension 12 X 2.00

cm X brain deep with some part of brain protruding out on the

back side of head and one more scratch of 1 X 1 cm on the left

knee was seen. On internal examination, it was also found that on

the back side of the head the occipital bone was fractured with

congested membrane. He has submitted that the cause of death

of deceased Indra was brain haemorrhage due to the above-

mentioned external and internal injuries suffered by her.

PW-15, Dharmendra Hudda who was the head constable and

was posted at Police Station Chitalwana on having received the

written information at around 05:30 PM, registered the same. He

was also holding the charge of Maalkhana on that particular day,

where the recovered material was received by him and, thereafter,

the same was sent to the Forensic Science Laboratory.

PW-16, Derawar Singh who is the Investigating Officer, who

has also recorded the statements of Narayangiri, Dharmendra

Hudda, Mahendra Singh, Amar Singh & Bhemgiri as narrated by

them.

PW-17, Amar Singh who was posted as Station House Officer

of Police Station Chitalwana. During the course of investigation, he

inspected the site of incident and has made the recoveries in the

matter and after having prepared all the reports along with

memos (Fard) the entire result of investigation was given to ASI

Meethalal for submitting it before the trial Court.

PW-18, Mahendra Singh has submitted that while he was

working in the Forensic Science Laboratory Branch of the Superintendent of Police Office, Jalore, he received six packets in

the sealed condition from constable Amar Singh.

Heard learned counsel for the parties and have scanned the

records minutely.

Learned counsel for the appellant vehemently argued that in

the earlier matter in which the appellant was charged with the

murder of his mother has been decided in his favour and he has

been acquitted for the charge of killing his mother, further it has

also been argued that there is only a single injury which has been

caused by the appellant, therefore, the case of the appellant does

not travel beyond Section 304 Part-II IPC. He further submits that

appellant is behind the bar for more than eight years. He submits

that in order to look after his two daughters, the offence alleged

against the appellant not being premeditated, with only a single

injury case, the same is liable to be converted under Section 304

Part-II IPC and hence having already undergone a sentence of

more than eight years, the appeal to that extent should be

allowed.

On the other hand, the learned Public Prosecutor while

opposing the arguments of the learned counsel for the appellant

submits that the offence under Section 302 IPC is proved without

any shadow of doubt against the appellant, the life imprisonment

is the only appropriate punishment and has therefore, supported

the judgment dated 22.07.2011. Learned Public Prosecutor

further submits that in view of the statements of PW-1, PW-2, PW-

3 & PW-4 namely Chhoggiri, Kanku, Vimla & Ramila along with the

postmortem report and the recoveries made from and at the instance of accused, conviction and sentence under Section 302

IPC is just and proper and the same is required to be upheld.

There is no reason that the testimony of PW-3 and PW-4 who are

the daughters of the accused be disbelieved.

On a thoughtful consideration of the entire material before

us, we are of the view that in view of the categorical statements

made by Chhoggiri(PW-1), Kanku(PW-2), Vimla(PW-3) &

Ramila(PW-4), the fatal injury caused to the deceased Smt. Indra

attributed to accused Heergiri is proved beyond doubt. In one

voice all the four witnesses mentioned above have stated that

Smt. Indra was given a Kudali blow by accused Heergiri on the

back of her head due to which Smt. Indra fell on the ground and

ultimately succumbed to the injury caused by her husband

Heergiri. PW-3 and PW-4 are the two daughters of Heergiri and

both have very categorically mentioned that they have seen the

incident from their court-yard and the present accused i.e. their

father has given a Kudali blow on the back side head of their

mother, deceased Smt. Indra and due to which Smt. Indra has

died. There is no reason for us to disbelieve the evidence given by

the two daughters of accused Heergiri, which is corroborated by

the medical evidence, postmortem report and the recoveries made

therein.

In the statements of PW-12 Dr. Rohtash Kumar who has

conducted the postmortem of deceased Indra, incised wound 12 X

2.00 cm X brain deep with some part of brain protruding out and

fracture of occipital bone was mentioned and cause of death is

also mentioned as the external and internal injury causing brain

haemorrhage.

Further, the recovery of Kudali at the instance of Heergiri

with blood stains and Forensic Science Laboratory report stating

that blood stains of human origin found on the articles recovered

from the spot corroborates the statements recorded during trial.

We find that the chain of events and the corroboration of the

prosecution case with the eye-witnesses conclusively goes to show

that the offence under Section 302 IPC is proved against the

appellant beyond reasonable doubts.

In Jagrup Singh V/s. State of Haryana; AIR 1981 SC 1552 it

was held that there is no justification for the assertion that the

giving of a solitary blow on a vital part of the body resulting in the

death must always necessarily reduce the offence to culpable

homicide not amounting to murder punishable under Section 304

Part II of the Code. If a man deliberately strikes another on the

head with a heavy log of wood or an iron rod or even a lathi so as

to cause a fracture of the skull, he must in the absence of any

circumstances negativing the presumption be deemed to have

intended to cause the death of the victim or such bodily injury as

is sufficient to cause death. The whole thing depends upon the

intention to cause death and the case may be covered by either

Clause Firstly or Clause Thirdly. The nature of intention must be

gathered from the kind of weapon used, the part of the body hit,

the amount of force employed and the circumstances attendant

upon the death.

In Bavisetti Kameshwara Rao @ Babai V/s. State of Andhra

Pradesh; AIR 2008 SC 1854 it was held that it is seen that where in the murder case there is only a single injury, there is always a

tendency to advance an argument that the offence would

invariably be covered under Section 304 Part II IPC. The nature of

offence where there is a single injury could not be decided merely

on the basis of a single injury and thus in a mechanical fashion.

The nature of the offence would certainly depend upon the other

attendant circumstances which would help the court to find

definitely about the intention on the part of the accused. Such

attendant circumstances could be very many, they being (i)

whether the act was pre-meditated; (ii) the nature of weapon

used; (iii) the nature of assault on the accused. This is certainly

not exhaustive list and every case has to necessarily depend upon

the evidence available. As regards the user of screw driver, the

learned counsel urged that it was only the accidental use at the

spur of the moment and, therefore, there could be no intention to

either cause death or cause such bodily injury as would be

sufficient to cause death. Merely because the screw driver was a

usual tool used by the accused in his business, it could not be as if

its user would be innocuous.

In view of the judgments of the Hon''ble Supreme Court in

the present case the injury caused with a sharp edged weapon on

the vital part of the body i.e. behind the head of the deceased

giving an incised wound and fracture of the occipital bone brings

the present case within ambit of Section 300 IPC and a sentence

awarded under Section 302 IPC is, therefore, correct and we are

not impressed by the contention that only single blow was given

to the deceased Smt. Indra and no repeated injury was caused, but the very fact that the injury was caused by a sharp edged

weapon on the vital part of the body i.e. head with such a force

that the occipital bone of deceased Smt. Indra got fractured shows

the force with which the blow was given clearly indicates the

intention that the same was sufficient to cause death in the

ordinary course of nature, therefore, a case to convert the same

under Section 304 Part II IPC is not made out.

We cannot lose sight of the allegations leveled against the

accused of having murdered his mother, although, acquittal was

recorded in that case on account of witnesses having been

declared hostile. The conduct of the accused-appellant also

reflects his mentality and to take lenient view in the matter may

not be a healthy sign for a cultured and peaceful society.

In view of whatever stated above, we are of the view that

the judgment dated 22.07.2011 is required to be upheld and the

conviction recorded and sentence awarded is thus, maintained.

Resultantly, the appeal fails and the same is hereby rejected.