Rama Sundar Giri and Others vs State of Bihar

Mridula Mishra, J.—The appellants, have been convicted by the 1st Additional Sessions Judge, East Champaran Motihari in Sessions Trial No. 406 of 1989. The appellant No. 1 Ram Sundar Giri has been convicted u/s 302 and awarded rigorous imprisonment for life. No separate sentence has been awarded for his conviction u/s 148 of the Indian Penal Code (hereinafter to be referred to as the I.P.C). Appellant 2 Ramadhar Giri, Appellant No. 3 Awadh Kishore Giri, Appellant No. 4 Hari Kishore Giri, Appellant No. 5 Saraswati Devi, appellant No. 6 Fulpati Devi and appellant No. 7 Most. Kaushalya Devi have been convicted u/s 302/149 I.P.C, and sentenced to undergo rigorous imprisonment for life. Appellants 2 to 5 namely Ramadhar Giri, Awadh Kishore Giri, Hari Kishore Giri, and Saraswati Devi, have further been convicted u/s 147 I.P.C, but no separate sentence has been awarded. Appellant Fulpati Devi and Most. Kaushalya Devi have further been convicted u/s 148 I.P.C, but no separate sentence has been awarded. It seems that the dispute arose over a petty matter like construction of drainage and resulted into the death of one Jai Chand Giri.

The prosecution story is that in the morning of 31.3.1988 at 8 A.M. the villagers namely Parmeshwar Giri, Shankar Das, Arun Giri, Binda Bharti, Tarachant Bharti came at the Darwaza of Gagandeo Giri and told him that the waste water of hand pump would pass through northern Gali towards western side. Gagandeo Giri accepted this proposal, but his neighbour Ram Sundar Giri did not give his consent to this proposal. Ram Sundar Giri armed with Chura, Hari Kishore Giri armed with Chura, Ramadhar Giri armed with Bhala, Awadh Kishore Giri armed with Garasa, Saraswati Devi armed with Garasa, Phulpatiya Devi and Most. Kaushalya Devi, Indrasan Giri and Mahanth Giri came variously armed. Accused Hari Kishore Giri ordered to kill as they were going to drain out the waste water of the hand pump in front of his house. On his order Indrasan Giri caught hold of Jaichandra Giri and accused Ramchandra Giri gave Chura blow on the chest and abdomen of Jaichandra Giri. After receiving the Chura blow Jaichandra Giri fell down and immediately died. Accused Awadh Kishore Giri gave Garasa blow on the head of Sri Bhagwan Giri. Mahanth Giri caught hold of the informant and Ramsundar Giri assaulted him with Chura at the left side of his neck. Saraswati Devi gave a Garasa blow on the left wrist of Gagandeo Giri. Several villagers assembled there and they witnessed the occurrence. The accused persons after committing the offence fled away from there. Jaichandra Giri was brought to Dunkan Hospital Raxaul where the doctor declared him dead. The injured Gagandeo Giri and his nephew were treated at Dunkan Hospital, Raxaul where statement of Gagandeo Giri was recorded by the S.I. D.P. Singh of Hariyo O.P. at 10.30 A.M.

On the basis of the fardbeyan of Gagandeo Giri Raxaul P.S. Case No. 20 of 1988 was instituted against nine named accused persons under sections 147, 148, 149, 323, 324, 307 and 302 I.P.C.

The case was investigated by officer Incharge Raxaul Police Station and chargesheet was submitted against all the accused persons. Cognizance was taken. The case was committed to the court of sessions for trial. The trial court framed charge under Sections 302, 307 and 148 I.P.C. against Ram Sundar Giri, charge were framed under sections 302/149 and 307/149 I.P.C. against Ramadhar Giri Awadh Kishore Giri, Hari Kishore Giri, Saraswati Devi, Fulpati Devi and Most. Kaushalya Devi.

Further charge was framed u/s 148 I.P.C. against Hari Kishore Giri and Saraswati Devi, and u/s 324 I.P.C. against Saraswati Devi and Awadh Kishore Giri. The trial court after holding trial acquitted Ramsundar Giri from the charges u/s 307 I.P.C. and all other accused persons were acquitted from the charge u/s 307/149 I.P.C. Saraswati Devi and Awadh Kishore Giri were acquitted of charge u/s 324 I.P.C. The appellants were convicted and awarded sentence as stated above.

In course of trial the prosecution in order to substantiate its case examined altogether eight witnesses P.W. 1 to P.W. 6 were examined as eye witnesses to occurrence. P.W. 6 Gagandeo Giri is the informant and father of deceased Jaichandra Giri. All other witnesses i.e. P.W 1, 2, 3, 4 and 5 are related to P.W. 6. P.W. 1 Jagdeo Giri is brother of P.W. 6. P.W. 2 is son of P.W. 6. P.W. 3 is son of P.W. 1 and nephew of P.W. 6, P.W. 4 is wife of P.W. 2 and daughter-in-law of P.W. 6. P.W. 5 is widow of deceased and daughter in law of P.W. 6, P.W. 7 Dr. Vijay Narain Singh is the Medical Officer who held the post-mortem on the dead body of the deceased on 31.3.1988 at 5.05 P.M. P.W. 8 Samsan H. Rahi is an employee of Dunkan Hospital, Raxaul who proved the injury report Ext. 3 and 3/1.1.O. as well as the doctor who treated the injured witnesses were not examined.

The defence of the appellants is total denial of the charge and false implication on account of land dispute and previous rivairy in between the parties.

Counsel appearing for the appellant has assailed the judgment of conviction on the ground that the witnesses who have been examined in the trial by the prosecution, are family members of the informant. They were not named as witness in the F.I.R. Persons who were named as panches and witnesses to the occurrence have not come to depose in the case. The doctor who treated the injured at Hospital has also not been examined to prove the case of the prosecution on the point of assault on the injured witnesses. The I.O. has not been examined and as such the place of occurrence and other important facts have not been proved. Non examination of the doctor and I.O. and impartial independent witnesses have caused prejudice to the appellants.

P.W. 1 Jagdeo Giri has admitted that he is the brother of the informant and uncle of the deceased. He has stated that on 31.3.1988 at about 8 A.M. a Panchaity was convened at the Darwaja of Gagandeo Giri in which Binda Bharti, Shankar Das, Tarachand Bharti, Chandrika Giri, Punyadeo Sah and Parmeshwar Giri participated as Panches. It was resolved that the water of hand pump would flow in the Gali adjacent to the northern wall of the informant from north to west. The informant Gagandeo Giri accepted the decision of the panches but Ramsundar Giri who was also present there objected to this decision of the Panches. Harikishore Giri said that all these persons should be killed. He also said that the water would not flow towards north. In retaliation to this decision Ramsundar Giri came armed with Chura, Awadh Kishore Giri armed with Garasa, Saraswati Devi armed with Garasa, accused Phulpati Devi armed with brick & stone at the place of occurrence. In the meantime Jaichandra Giri was caught hold by indrasan Giri and Ramsundar Giri gave Chura blow on the chest of Jaichandra Giri. Jaichandra Giri after receiving injury fell down on the ground and died instantly. Mahanth Giri caught hold of Sri Bhagwan Giri and Awadh Kishore Giri gave Bhala blow on his head. Mahanth Giri again caught hold of Gagandeo Giri and accused Ramsundar Giri gave Chura blow on his neck. Kaushalya Devi gave Garasa blow on left wrist of Gagandeo Giri causing injury in his palm. Jaichandra Giri was taken to hospital where he was declared dead. His dead body was sent for post-mortem examination. Sri Bhagwan Giri and Gagandeo Girt were given medical aid at Dunkan Hospital, Raxaul. P.W. 1 has stated that the dispute arose regarding the flow of the water in the Gali of the hand pump which was being installed, the hand pump could not be installed as dispute arose at the time of installation itself and the installation of the hand pump was stopped. This witness has stated that he came at the place of occurrence when Gagandeo Giri was being assaulted by Ram Sundar Giri. He also admitted that the house of Gagandeo Giri and accused persons are adjacent to each other and the prosecution party as well as accused persons are co-sharers coming from same branch of family. It was suggested to this witness that in his statement before the police he did not name any other accused persons except Ramsundar Giri which was denied by him. Like P.W. 1 other witnesses i.e. P.W. 2, 3, 4 and P.W. 5 have narrated the occurrence in the similar manner, so far as assault by Ramsundar Giri on Jaichandra Giri is concerned, P.W. 2, 3 and 5 have corroborated the assault on Jaichandra Giri by Ramsundar Giri. They said that Chura blow was given by Ramsundar Giri in the chest of Jaichandra Giri and after receiving injury he fell down and died instantly. So far as assault on Gagandeo Giri and Sri Bhagwan Giri is concerned P.W. 2, 3, 4 and 5 did not name any other accused persons specifically. They did not state who assaulted Gagandeo Giri and Shri Bhagwan Giri. Simply omnibus statement regarding assault has been made that all accused persons assaulted P.W. 6 and P.W. 3. They have not stated that who gave Bhala blow to P.W. 6 and 3. No specific overt act has been assigned by these witnesses to any other accused except Ramsundar Giri.

P.W. 6 the informant has stated that on the day of occurrence at 7.30 Panches came to his Darwaza to resolve the dispute. The dispute arose as Ramsundar Giri had blocked the drainage of the waste water of the hand pump. The panches after hearing both the sides resolved that the water should be drained towards north to west. Ramsundar Giri alongwith other accused persons when came to know about this resolution he alongwith other accused persons came with Chura, Garasa, Bhala etc. and assaulted Jaichandra Giri. Jaichandra Giri came out from his house when Indrasan Giri caught hold of him and Ramsundar Giri gave Chura blow on left side of his chest. Receiving the Chura blow Jaichandra Giri fell down and he died instantly. Mahanth Giri caught P.W. 6 and he was assaulted with Chura by Ramsundar Giri. Saraswati Devi assaulted him with Garasa on left wrist. Shri Bhagwan was assaulted by Awadh Kishore with Garasa. Awadh Kishore had ordered to kill all the persons. P.W. 6 and P.W. 3 brought Jaichandra Giri to Dunkan Hospital where he was declared dead. P.W. 6 and P.W. 3 were thereafter treated at Dunkan Hospital, Raxaul. His statement was recorded by the police in the hospital which was read over to him and on finding it to be correct he put his signature on the same. P.W. 6 has stated that his house and the house of the accused persons are side by side. He stated that ten days prior to the occurrence hand pump was installed. At the time of installation of hand pump no one had raised any objection. The dispute started after ten days of installation of hand pump when drainage for waste water was being constructed. The construction was stopped by the accused persons and in order to resolve this problem Panches, Mukhia and Sarpanch were called. A Panchayati was convened in which the accused persons had also participated and their consent was also taken. The accused persons being aggrieved by the decision of the panches left the place and came back armed and thereafter occurrence took place. The police came at the place of occurrence and some blood stained earth were shown to the police. P.W. 6 denied the suggestion that the accused persons have falsely been implicated when the fact is that initially Ramsundar Giri was assaulted and in retaliation the occurrence took place.

P.W. 7 Dr. V.N. Singh conducted the post-mortem on the dead body of the deceased. He stated that on 31.3.1988 he was posted at Sadar Hospital, Motihari on that day at 5.05 P.M. he conducted postmortem on the dead body of Jaichandra Giri and found following ante-mortem injuries:

(i) Incised punctured wound deep into thoracic cavity 1" left and below left turnocalvicular joint 1" x 1/2 deep x thoracic cavity.

(ii) Incised punctured wound left and upper part of abdomen on left anterior exclavary line 1" x 1/2 x abdomen cavity.

Rigor mortis was present and injuries were caused by hard sharp cutting pointed weapon, such as dagger. He has further stated that the injuries found on the person of the deceased were fatal and sufficient to cause death.

Counsel for the appellants has stated that the witnesses who have deposed during trial are closely related to each other, interested and partisan. None of these witnesses were named in the F.I.R. which was instituted on the basis of fardbeyan of P.W. 6, who is brother of P.W. 1, father of P.W. 2, uncle of P.W. 3 and father-in-law of P.W. 4 and P.W. 5. Their evidence in the trial as eye witness cannot be relied for the purpose of conviction. Ranches who are named as witnesses in the F.I.R. did not choose to come and support the prosecution story knowing that a false and concocted case has been instituted by the prosecution. Not a single independent witness come to depose in support of prosecution, when all the witnesses have stated that several villagers had assembled at the place of occurrence. I do not find force in the submission of the Learned Counsel for the appellants. It is well settled that the evidence of interested witnesses cannot be thrown out simply on the ground that they are related to the deceased or to each other. If the interested witnesses are consistent and circumstances show that their presence at the place of occurrence is most natural and normal conduct on their part, no doubt can be raised against their evidence simply on the ground of their being interested witness. It has come in the evidence that panchayat was convened at the Darwaja of P.W. 6, the informant. The place of occurrence is in front of the house of P.W. 6. Naturally the prosecution witnesses who are family members and who reside in the same house, their presence at place of occurrence is most natural and normal. There is no reason to disbelieve their presence at the place of occurrence and witnessing the occurrence. The witnesses are most competent to depose though they are family members and interested. So far the assault on the deceased by Ramsundar Giri is concerned, has also been corroborated by the medical evidence. Considering the circumstance and the evidence of P.W. 1 to P.W. 6 it cannot be discarded or disbelieved simply because they are interested. The evidence of P.W. 1 to P.W. 6 is sufficient to prove the manner of occurrence and the assault made by Ram Sundar Giri on Jaichandra Giri.

It has also been argued by the counsel for the appellants that the genesis of the occurrence as stated by the prosecution is the installation of the hand pump and construction of drainage for flowing water of the hand pump. There is contradiction in the evidence of witnesses on this count. P.W. 1 has stated that the dispute started at the time of installation of the hand pump. Since the dispute started at the time of installation itself, the hand pump could not be installed and it was stopped. Other witnesses have stated that the hand pump was installed ten days prior to the occurrence and the cause for dispute was the construction of drainage for the flow of water of the hand pump. If the evidence of P.W. 1 is to be believed then the evidence of other witnesses that hand pump had already been installed and was functional should be disbelieved. If the hand pump itself was not there then there cannot be any dispute regarding drainage of water coming from hand pump. Since the genesis of the occurrence itself has not been proved it is fatal for the prosecution. I do not find any force in this argument. All the witnesses including P.W. 1 have stated about the hand pump and its installation. They have also stated that drainage of water was the cause for the occurrence. The evidence of prosecution witnesses have amply been supported by the statement of the accused persons recorded u/s 313 Cr.P.C. All accused in their statement u/s 313 Cr. P.C. have admitted that the hand pump was installed ten days prior to the occurrence. In this way installation of hand pump and its presence at the place of occurrence on the date of occurrence is proved and it cannot be said that the genesis of occurrence has not been proved by the prosecution.

The conviction of the appellants 2 to 7 u/s 302/149 I.P.C. has been assailed by the counsel appearing for the appellants. It has hotly been agitated in course of argument that the appellants 2 to 7 are not liable for conviction u/s 302/149 I.P.C. Referring the prosecution story and the evidence on record, it has been argued that on the date of occurrence panchayati had been convened. Accused persons as well as informant had participated in the same. There is no allegation that the accused persons created any disturbance at the time of Panchayati. It is also not alleged that they came armed at the time of panchayati. The case of the prosecution is that finally when the panches decided that waste water of hand pump would flow from a certain direction Ramsundar Giri objected it. He lost his temper and went inside his house, which is adjacent to the place of occurrence and from there he came armed with Chura and assaulted Jaichandra Giri and killed him. It has been submitted that there is nothing on the record to show that common object of the unlawful assembly was to kill Jaichandra Giri and assault injured P.W. 3 and P.W. 6. There is no iota of evidence that appellants any had knowledge that such offence was likely to be committed in prosecution of common object. The evidence which is on the record do not show that there was any discussion among the appellants regarding their next move. Whatever occurrence took place, it happened on the spur of moment. Ramsundar Giri and other accused persons who are all family members were also present in Panchayati, P.W. 5 wife of the deceased has also supported that the family members of Ramsundar Giri had participated in Panchayati. Except P.W. 1 no witness have assigned any specific act or overt act against any accused. In their evidence all the witnesses have stated that except Ramsundar Giri no other accused even came near the deceased at the time of occurrence. So far assault on P.W. 3 and P.W. 6 is concerned that story has already been disbelieved by the trial court on account of non production of any medical evidence specially when the injured were hospitalized and treated at Dunkan Hospital. The doctor who treated them has also not been examined as witness. There is no evidence to show that the accused shared common intention to kill Jaichandra Giri. The evidence on record show that the murderous assault on the deceased by Ramsundar Giri was his individual act. It was not done in prosecution of common object of members of unlawful assembly. Other members have no knowledge that any such act would be committed as they had come to resolve the dispute peacefully from Panchayati. There was no talk of killing or assault. Section 149 I.P.C. deals with the vicarious liability of overt act done by other accused in furtherance of common object of that assembly if for such offence the member of unlawful assembly had knowledge that any such act is likely to be committed in prosecution of that object. Since common object and knowledge of the act done by Ramsundar Giri is lacking, the appellants 2 to 7 cannot be convicted u/s 302/149 I.P.C. I find force in the argument advanced by the appellants. There is no evidence to bring the offence under the purview of Section 149 I.P.C. Under the circumstances conviction of appellant 2 to 7 u/s 302/149 I.P.C. is set aside and they are acquitted of the charge.

The case of Ramsundar Giri is on a different footing. All witnesses have consistently stated that Ramsundar Giri came and suddenly started assaulting with Chura which resulted into death of Jaichandra Giri. The evidence of P.W. 1, 2, 3, 4, 5 and 6 is consistent on this point. Their evidence cannot be disbelieved as they are residing in the same house which is adjacent to the place of occurrence and they are most natural witnesses. Though all the witnesses have consistently deposed regarding assault made by Ramsundar Giri on deceased, but it is apparent from their evidence that due to grave and sudden provocation he lost his temper and the assault was made. Ramsundar Giri lost his temper when the panches resolved that the water coming from the hand pump would flow towards his house. The evidence is that Ramsundar Giri peacefully participated in panchayati''. His behaviour did not indicate that he had any intention to assault or kill any one. He was not armed when he participated in panchayati. Circumstances became so compelling that he lost his temper. In a rage he went inside the house brought Chura and assaulted Jaichandra Giri. The argument has been advanced that it was only on account of grave and sudden provocation that Ramsundar Giri made an assault which caused death of Jaichandra Giri. The trial court without considering this vital part of evidence erroneously convicted appellant Ramsundar Giri u/s 302 I.P.C. His conviction utmost should have been u/s 304 Part II I.P.C. I find force in the argument advanced by the counsel for the appellants. The evidence which is on the record clearly indicates that Ramsundar Giri had also participated in the panchayati and he had not come there with any intention to kill. He lost his temper after decision was taken in Panchayati against his interest. On account of this sudden provocation he lost his temper and attacked Jaichandra Giri which resulted into his death. The act done by Ramsundar Giri is clearly covered u/s 304 part II I.P.C. action sufficiently indicated that he had no intention to kill though he made assault with Chura, knowing that it may cause fatal injury. There is evidence to corroborate the conviction of Ramsundar Giri u/s 304 Part II I.P.C.

From the records, it transpires that Ramsundar Giri was 68 years of age on 12.1.1999 when his statement was recorded u/s 313 Cr. PC. He has remained in custody from 5.4.1982 to 2.1.1989 and from 25.11.2000 till date. Now he must have crossed the age of 70 years. He has also remained in custody for near about five years. The conviction of appellant Ramsundar Giri u/s 302 I.P.C. is modified u/s 304 Part II I.P.C. and sentence is reduced to the period already undergone. The appeal is partly allowed so far appellant 2 to 7 are concerned and it is dismissed against appellant Ramsundar Giri with the aforesaid modification in conviction and sentence.