Shyam Lal vs State of M.P.

Rajeev Gupta, J.—Appellant Shyam Lal stands convicted u/s 302, Indian Penal Code with sentence of imprisonment for life, vide impugned judgment dated 4-2-1989 passed by Additional Sessions Judge, Umaria, District Shahdol in Sessions Trial No. 79/88.

Appellant Shyam Lal has been found guilty of dealing a solitary blow on the abdominal region of his elder brother Rameshwar by means of a gupti (knife) during the course of an altercation between them, in the evening of 19-4-1988, leading to his death next day on 20-4-1988.

Appellant''s conviction is founded on the dying-declaration (Ex. P/2) of deceased Rameshwar and the eye-witness account of PW-3 Aditya Prasad and PW-4 Ramcharan. The contents of dying declaration (Ex. P/2) and the evidence of the above named two eye-witnesses are consistent that on the fateful evening Appellant Shyam Lal dealt solitary blow on the abdominal region of his elder brother Rameshwar by means of a gupti, during the course of an altercation between him and his another brother PW-1 Surati Lal when deceased Rameshwar all of a sudden came to intervene in the matter.

The Learned Counsel for the Appellant vehemently argued that the trial Court has erred in recording the Appellant''s conviction on the eye-witness account of PW-3 Aditya Prasad and PW-4 Ramcharan, whose evidence suffers from serious infirmities. The Learned Counsel further submitted that even dying declaration (Ex. P/2) suffers from serious infirmities.

PW-3 Aditya Prasad and PW-4 Ramcharan have categorically deposed that on the fateful evening during the exchange of abuses, accused Shyam Lal on being challenged by Rameshwar dealt one blow by means of gupti on his abdominal region and thereafter fled away from the place of occurrence. Both these eye-witnesses stood firm in their cross-examination and nothing could be elicited by the defense which may render their evidence unworthy of credence. We do not find any earthly reason for these witnesses to depose falsely against the Appellant. On a close scrutiny of their evidence, we are satisfied that they are truthful witnesses and their evidence can safely be acted upon.

PW-17 S.L. Prajapati, Naib Tehsildar, has deposed that in the intervening night of 19th and 20th April, 1988 he recorded the dying declaration - Ex. P/2, of deceased Rameshwar. In his dying declaration (Ex. P/2), deceased Rameshwar categorically stated that he sustained injury on his abdominal region at the hands of his younger brother Shyam Lal by means of a gupti, when he (the deceased) tried to pacify the quarrel between accused Shyam Lal and his another brother Surati Lal. In his dying declaration, he further stated that there was no prior ill-will between him and the accused.

Thus, on a re-appreciation of the evidence on record we are satisfied that the trial Court has rightly believed dying declaration (Ex. P/2) and the evidence of eye-witnesses PW-3 Aditya Prasad and PW-4 Ramcharan in holding Appellant Shyam Lal guilty of dealing solitary blow by means of a gupti, on the abdominal region of his brother Rameshwar leading to his death next day. We, therefore, do not find any substance in the above submission of the Learned Counsel for the Appellant.

The Learned Counsel for the Appellant placing reliance on the dicta of the Apex Court, in the cases of Mahesh Vs. State of M.P., and Krishna Tiwary and Another Vs. State of Bihar, next submitted that in the facts and circumstances of the present case the Appellant''s act of dealing solitary blow on the abdominal region of his elder brother Rameshwar, during the course of an altercation between them, would not amount to the offence of ''murder'' punishable u/s 302, Indian Penal Code.

In the case of Mahesh v. State of M.P. (supra) the Apex Court, while considering the nature of offence proved against the Appellant in that case, observed in para 4:

4...Thus, placed as the Appellant and the deceased were at the time of the occurrence it appears to us that the Appellant assaulted the deceased in that sudden fight and after giving him one blow took to his heels. He did not cause any other injury to the deceased and therefore it cannot be said that he acted in any cruel or unusual manner. Admittedly, he did not assault PW-2 or PW-6 who were also present along with the deceased and who had also requested the Appellant not to allow his cattle to graze in the field of PW-1. This fortifies our belief that the assault on the deceased was made during a sudden quarrel without any premeditation. In this fact situation, we are of the opinion that Exception-4 to Section 300, Indian Penal Code is clearly attracted to the case of the Appellant and the offence of which the Appellant can be said to be guilty would squarely fall u/s 304 (Part-I), Indian Penal Code....

Then again in the case of Krishna Tiwary and Anr. v. State of Bihar (supra) the Apex Court while holding that the act of the accused, in that case of dealing two knife blows on the deceased, did not amount to the offence of ''murder'' punishable u/s 302, Indian Penal Code, observed in para-4:

In our view, there is much substance in the contentions raised by the learned senior counsel for the Appellants. From the evidence on record it is apparent that incident took place all of a sudden. It has been admitted by the prosecution witnesses that prior to the incident relations between the brothers were cordial. It has been specifically stated by informant P.W. 7 Anil Tiwary in his cross-examination that they were having best of relations with the accused prior to the incident. He has also denied the suggestion that there was property dispute between them. The witness has also admitted that the Appellant Krishna Tiwary came empty handed and that incident took place because they scolded Manoj Kumar and deceased removed him from the middle of the door. He has also stated that after coming down Krishna Tiwary caught hold of the collar of Paramhans and asked him why his cleaner was beaten. So, it is apparent that some quarrel took place between the deceased and Krishna Tiwary. At that moment, it is alleged that Krishna Tiwary uttered the word ''assault'' and thereafter Dadan Tiwary inflicated two knife blows. It is true that first knife blow proved fatal; with regard to the second knife blow, admittedly, it is a simple injury which is skin deep. From the record, it is apparent that the prosecution has suppressed the evidence of other witnesses, particularly that of Manoj Kumar who was the cause of quarrel However, taking the prosecution case as it is, it is apparent that the role played by A-1 is absolutely limited. Therefore, the trial court has convicted him by resorting to Sections 109 and 111 of Indian Penal Code. Further, it is admitted that relationship between brothers and the family members were cordial prior to the incident. The incident took place all of a sudden and without any premeditation. Manoj, cleaner of the Appellant was standing in the middle of the door and the ladies of the house were having obstruction in coming and going out from the house, therefore, he was scolded by deceased and removed from that place by use of force. It appears that he conveyed something, which has not come on record because Manoj is not examined, to the Appellants. Appellants came down and the quarrel took place between deceased and Krishna Tiwary (A-1). In such a sudden quarrel and in heat of passion, Appellant No. 2 son of Krishna Tiwary. A-1, inflicted a fatal blow to the deceased. Further, he has not acted in any cruel or unusual manner nor he has taken any undue advantage. Hence, at the most Appellant No. 2 would be liable to be convicted for the offence punishable u/s 304 Part-I, Indian Penal Code and the Appellant No. 1 for the offence u/s 304 Part-I read with Section 109 and Section 111, Indian Penal Code....

Now, reverting to the present case we gather from the evidence on record that the initial quarrel was between accused Shyam Lal and his brother Surati Lal. Deceased Rameshwar appears to have intervened with a view to pacify the quarrel between his two younger brothers. It is further in the evidence of the eye-witnesses that during the course of exchange of abuses between deceased Rameshwar and Appellant Shyam Lal, the deceased threw a challenge asking the accused to cause injury on him if he could, and it was at this juncture that Appellant dealt one blow by means of gupti on the abdominal region of his elder brother Rameshwar, which unfortunately resulted in his death next day. Deceased Rameshwar in his dying declaration - Ex. P/2, categorically stated that there was no prior ill-will between him and accused Shyam Lal. To us, it appears that the Appellant in the heat of passion and in a spontaneous and natural reaction to the challenge thrown by his elder brother Rameshwar took out the gupti and dealt one blow on him, which unfortunately proved fatal. In the above mentioned factual matrix of the case, we find it difficult to hold with certainty that Appellant Shyam Lal while dealing solitary blow by means of a gupti, on the abdominal region of his elder brother Rameshwar, intended to cause his death. Thus, the above proved act of Appellant Shyam Lal of dealing solitary gupti blow on the abdominal region of his elder brother Rameshwar, ultimately resulting in his death, in our considered view, would not amount to the offence of ''murder'' punishable u/s 302, Indian Penal Code. Nevertheless, Appellant Shyam Lal cannot escape from the liability of his above proved act altogether, and his above act would certainly amount to the offence of ''culpable homicide not amounting to murder'' and in the fact situation of present case would be punishable u/s 304(1), Indian Penal Code.

As for the sentence, in our considered view sentence of rigorous imprisonment for 10 years in the facts and circumstances of the present case would be the sufficient punishment for the offence found proved against Appellant Shyam Lal u/s 304(1), Indian Penal Code and would meet the ends of justice.

For the forgoing reasons, the appeal filed by Appellant Shyam Lal against his conviction and sentence is allowed in part. Appellant''s conviction u/s 302, Indian Penal Code and sentence of imprisonment for life are hereby set aside. Instead, he is convicted u/s 304(1), Indian Penal Code and is sentenced to rigorous imprisonment for 10 years.

From the records, we gather that Appellant Shyam Lal has all along been in custody since his arrest on 22-4-1988, and as such has already undergone whole of the sentence of rigorous imprisonment for 10 years, now awarded on his conviction u/s 304(1), Indian Penal Code. We, therefore, direct that Appellant Shyam Lal be set at liberty forthwith, if not wanted in connection with any other case.