Pauhari Saran vs State

K.S. Rakhra, J.—This jail appeal has been filed by the Appellant Pauhari Saran challenging his conviction u/s 302, I.P.C. and sentence of life imprisonment passed by II Ird Additional Sessions Judge, Deoria through impugned judgment and order dated 23.8.1999 in S.T. No. 439 of 1995. The Appellant is represented by amicus curiae Sri Sudhist.

The charge against the Appellant was that on 29.7.1995 at about 8.00 p.m. in village Khertia within the circle of police station Baghauch Ghat district Deoria he committed murder of his wife Smt. Ranjana Srivastava in his own house in a part of which a dispensary was also being run by him. He is not a qualified doctor but was practising as a quack. First information report in this matter was lodged on 29.7.1995 at 21.15 hours by Sri Dharmendra Kumar Srivastava P.W. 1, brother of the deceased.

According to the prosecution version, there were some differences between the Appellant and his wife with regard to division of the property between the Appellant and his two brothers. The said division is alleged to have taken place about a month ago. On the fateful day, Dharmendra Kumar Srivastava P.W. 1 had come to the house of the Appellant and in his presence some tiradic discussions took place between the Appellant and his wife and they continued to quarrel despite an attempt being made by him and the neighbours to stop them. It is further alleged in the first information report that the Appellant became highly infuriated and out of provocation he shot in the head of his wife resulting into her death instantaneously. Several persons of the vicinity gathered and surrounded the place of occurrence on account of which the Appellant could not escape but since he was carrying a gun in his hand nobody could come forward to nab him.

Investigation of this crime was conducted by S.I. Mewa Ram Bharti P.W. 5 in whose presence the first information report was registered at the police station. He visited the place of occurrence immediately and found that the house-cum-dispensary was surrounded by several persons and the Appellant was standing in the verandah with D.B.B.L. Gun (No. 9925-88) in his hand. The Appellant was apprehended by the police and on search being made, three live cartridges as well as one empty shell in the barrel were recovered from his possession. All these things were taken into possession by the police who after completing necessary formalities of inquest and preparing other relevant documents despatched the body to the mortuary on 30.7.1995. Dr. K. N. Shukla P.W. 6 conducted autopsy on 30.7.1995 at 4.00 p.m. and found following ante-mortem injury on the body of the deceased:

(i) Fire arm wound of entry 18 x 15 cm. x scalp deep through and through on the right side of skull 3 cm. above and back to right ear. There was fracture of parietal, occipital and frontal bones. Bleeding was present on the whole of the injury. Upper part of skull was missing.

In the opinion of the doctor the death had occurred about one day earlier on account of shock and haemorrhage as a result of ante-mortem injuries.

The Investigating Officer had prepared the site plan Ex. Ka-17 and had recovered the blood stained and plain earth from the place of occurrence. After conclusion of investigation charge-sheet was filed and the case was committed to the Court of Sessions for trial.

In the trial six witnesses were examined in all. Out of them P.W. 5 Mewa Ram Bharti S.I. is the Investigating Officer and the P.W. 6 Dr. K. N. Shukla is the medical officer who had conducted the autopsy. P.W. 4 constable Harishchandra Yadav was head Moharrir at the police station at the relevant time. He has proved relevant entry in the general diary and stated that he registered first information report at 21.15 hours on 29.7.1995. The remaining witnesses namely Dharmendra Kumar Srivastava P.W. 1, Babu Nandan Yadav P.W. 2 and Kedar Dubey P.W. 3 have been examined as witnesses of fact.

Dharmendra Kumar Srivastava P.W. 1, brother of the deceased stated that the deceased was married to the Appellant about ten years ago. The Appellant was not a qualified doctor but anyhow he had gathered some knowledge for working as a quack. Initially he practised for two years at a place known as Bauria where he was living alone. Later on he shifted to village Khertia within the circle of police station Baghaunch Ghat and thereto he did not keep his family with himself. Subsequently he brought his wife and two small daughters to live with him at Khertia. He has deposed further that about a month prior to the incident, division of property between the Appellant and his two brothers had taken place. Although the deceased had never complained nor had Appellant ever discussed with him anything about the aforesaid division of the property but about one week prior to the incident deceased left the Appellant's house and went to live with him at the house. After a week the Appellant brought her back to Khertia alongwith his two daughters. The Appellant and the deceased had requested him to come to Khertia for motor cycle repair work and that is why he had reached their house on the fateful day at about 5 p.m. When he had reached the house-cum-dispensary of the Appellant, the Appellant was examining patients in his dispensary and he greeted him with cheerful gesture. At about 7 p.m. the Appellant went inside the house where the deceased was preparing food. The witness deposed in the trial court that thereafter the hot exchange of words and discussions commenced between the Appellant and the deceased. He was listening all this sitting in the verandah of the shop. This discussion was with regard to the division of the property between the Appellant and his two brothers. He further deposed that he and some neighbours tried to intervene and pacify both the spouses but their quarrel did not stop. Thereafter the Appellant started hurling abuses on his wife and started strolling restlessly in front of his shop with his D.B.B.L. gun in his hand. When the witness and neighbours tried to nab, the Appellant intimidated them to keep away otherwise he would open fire. During all this, the victim kept on making comments from inside the house which further infuriated the Appellant. P.W. 1 further evidenced that the Appellant was provoked on account of slander comment being made by deceased from inside the house and out of provocation he opened fire on the head of the deceased resulting into her instantaneous death. After the incident Appellant came out and informed the informant that he had murdered his wife. The witness began to cry and collected neighbours and the landlord of the house. When he returned with them to the place of occurrence he found that the Appellant was trying to run away on a bicycle with his D.B.B.L. gun on his shoulder. On hue and cry being raised he was nabbed by the crowd and was forced to sit in the verandah of his shop. After this he went to the police station on the motor cycle of Vasishtha Yadav and gave a written report on which a case was registered. He subsequently returned to the place of occurrence alongwith police party where the Appellant was taken in custody by the police and his D.B.B.L. gun was also seized.

P.W. 2 Babu Nandan Yadav supported the prosecution story to the extent that when he went to the place of occurrence after the incident on 29.7.1995 at about 8.00 p.m. in his presence police had apprehended the Appellant and had taken the dead body of the victim in their custody. He also confirmed the fact that a gun alongwith three live cartridges were seized by the police from the Appellant at about 10 p.m. on the same day.

Kedar Dubey, P.W. 3 is the witness of inquest which was prepared on the next day at about 7 a.m. at the house of the Appellant.

The defence taken by the Appellant was that his loaded gun was hanging on a peg fastened on the wall and it accidentally fired due to mishandling by the deceased. However no evidence was led in the defence by him.

Sri Sudhist, learned amicus curiae for the Appellant argued that the trial court committed an error and illegality in not accepting the defence version. There was no motive for commission of the crime and the prosecution story that the crowd gathered from the neighbourhood nabbed the Appellant and forced him not to leave the house is not believable because there was no injury on the body of the Appellant. It was argued that if the Appellant was the culprit and the brother of the deceased was present and the crowd had nabbed him, they must have given him good beating causing injuries on his body. It was also argued by learned amicus curiae that the deceased might have committed suicide or it may be a case of accidental fire.

Sri Danish Iqbal Faridi, learned A.G.A. on the other hand argued that there was no reason for false implication of the Appellant. The victim was killed inside the house and there were circumstance to show that the Appellant had committed aforesaid misdeed. The first information report was promptly lodged. If the victim had died in accidental shooting there was no reason why her brother Dharmendra Kumar Srivastava would have named the Appellant.

We have given our careful consideration to the arguments advanced by learned Counsel for the parties and are of the view prosecution story was rightly accepted and the evidence adduced by the prosecution is wholly reliable, cogent and supported by medical evidence as well as the circumstance. From the testimony of Dharmendra Kumar Srivastava P.W. 1 it is clear that there was no previous enmity between him and the Appellant on account of which the Appellant would have been falsely implicated in this crime. If an accidental firing had taken place, there was absolutely no occasion for informant to have immediately rushed to the police. On the other hand Appellant and his two daughters would have rushed in the vicinity for help and a correct report with respect to the incident would have been made at the police station. Even if victim had committed suicide there was no circumstance to prompt the informant to lodge false report with the police.

There is neither any evidence in rebuttal nor is any denial to the effect that about a month prior to the incident there was a division of property between the Appellant and his two brothers. The testimony of P.W. 1 Dharmendra Kumar Srivastava shows that on the fateful day, Appellant and his wife were quarrelling on the question of division of property and so much heat was generated that the Appellant started walking restlessly to and fro in front of his shop with a gun in his hand. It has also come in the evidence that the deceased kept on making comments from inside the house. In the light of this, the fact that about a week prior to the incident deceased had left house of the Appellant and started living at the house of her brother Dharmendra Kumar Srivastava is also in conformity with the prosecution version. To our mind the fact that the deceased prior to the incident never discussed the partition issue at her parental house would not make any difference because quite often married girls avoid discussing inconvenient or embarrassing matters relating to their matrimonial home at the house of their parents.

A complete reading of deposition of P.W. 1 Dharmendra Kumar Srivastava supported by testimony of P.W. 2 Babu Nandan Yadav and the medical evidence clearly shows that the Appellant is the person who in a fit of rage, finding that his wife was not submitting to his stand and was engaging herself in the tiradic altercation with slanderous comments in presence of her brother became furious and opened fire on her from a close range. Thus, we find that the Appellant is guilty of crime.

Now turning towards the offence which has been committed by the Appellant we are of the opinion that the Appellant cannot be held guilty for the offence of murder. On the facts of the case intention to cause death or to cause such bodily injury as is likely to cause death or to cause such bodily injury without grave and sudden provocation as to result in death in all probability is not established in the case. The offence of the Appellant would fall within Exception 1 to Section 300, I.P.C.

Exception 1 to Section 300 is quoted hereunder:

Culpable homicide is not murder if the offender, whilst deprived of the power of self control by grave and sudden provocation causes the death of the person who gave the provocation or caused the death of any other person by mistake or accident.

The above exception is subject to the following provisos:

First: That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly: That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

Thirdly: That the provocation is not given by anything done in the lawful exercise of the right of private defence.

Explanation.--Whether the provocation was grave, and sudden enough to prevent the offence from amounting to murder is a question of fact.

In the instant case up to 7 O'clock nothing special had happened between the Appellant and his wife although earlier there might have been discussions between them on the point of division of property between Appellant and his two brothers. At about 7 p.m. hot exchange of words between the husband and wife with regard to above issue started. The husband out of anger picked up his gun and was walking restlessly to and fro in front of his shop before he crossed the limit of tolerance and went inside the house with an object of opening fire on his wife. The degree of tolerance is subjective element and in the circumstance of the case involvement of the deceased in hot exchange with husband on the said issue gave provocation and in view of the circumstances of the case he lost his self control. The fact that the victim had not received any injury on his body, to our mind is not necessarily a circumstance in his favour. He was walking to and fro restlessly in front of his shop in a very infuriated condition armed with gun and out of grave provocation he opened fire. There was no prior plan to commit murder. It appears that before the Appellant could realise what has been done on hue and cry a crowd of people gathered in front of his house and he therefore, could not get a chance to run away.

We are therefore, of the opinion that the case of the Appellant would fall u/s 304, Part I of the Indian Penal Code for committing culpable homicide not amounting to murder. In the circumstances of the case, we find that a sentence of ten years and fine of Rs. 5,000 in default of payment of which further rigorous imprisonment of one year would meet the ends of justice.

Consequently the appeal is partly allowed. The conviction of the Appellant u/s 302, I.P.C. and his sentence of life imprisonment is hereby set aside. He is held guilty u/s 304, Part 1, I.P.C. and is sentenced to ten years rigorous imprisonment with fine of Rs. 5,000 and in default of payment of fine he shall undergo further rigorous imprisonment for a period of one year. If the Appellant has already undergone the period of imprisonment awarded by this judgment he shall be released forthwith and if he has not been in jail for the above period of sentence he shall be kept in jail for the said period in accordance with this order and shall be released thereafter.

Let a copy of this judgment be certified to the lower court for it's intimation.