Shiv Giri vs The State
1986 Latest Caselaw 142 Del

JUDGMENT

Malik Shariefuddin, J.

(1) The appellant Shiv Giri along with his brother Baba Kasturi Lal were charged under section 302 )PC. Kasturi Lal was also charged under section 27 of the Arms Act. Both were convicted under section 302 IPC. Shiv Giri was convicted for the aforesaid offence with the aid of section 114 IPC. Kasturi Lal was also convicted under section 27 of the Arms Act. The order is dated 25-8-1982. By a sentence order of the even date both were sentenced to life imprisonment under section 302 Indian Penal Code while Kasturi Lal was also sentenced to rigorous imprisonment for three years under section 27 of the Arms Act. Both the sentences in his case were directed to run concurrently.

(2) The incident is of 4-1-1981 at 11.30 a.m. Deceased is one Baba Bishamber Dass who has died on spot. The convict Baba Kasturi Lal was apprehended on spot along with the sword, the weapon of offence stained with blood. The blood stained Chadder which convict Kasturi Lal was putting on was also taken possession of soon after his arrest. On receiving information from P.C.R. police station Kashmeri Gate sent A.S.I. Shri Rattan Singh to the scene of incident.

(3) The facts are that one Baba Phawarewala stated to have died 5 years earlier to the date of incident was having six Derras, four at Amritsar and two including one Goushala Derra at Delhi. Another Derra situated at Delhi was known as Baba Phawarewala Jamuna Bazar. Baba Phawarewala had not appointed any one to be the Mahant at this Derra. The deceased had worked at this Derra as a sewadar for a period of Jo to 12 years and the convict Baba Kasturi Lal had also joined as sewadar. Apprehending that the deceased might by virtue of his long stay as sewadar assume the charge as a Mahant, convict Kasturi Lal bad managed to send the deceased to Arnritsar. The appellant Shiv Giri, who was running a Halwai' shop at Islamabad Amritsar was also called to Delhi at this Derra by Kasturi Lal with a view to execute his scheme to control this Derra as a Mahant. This happened about 2" months prior to the date of incident. The scheme thought of by convict Baba Kasturi Lal was to take over the sole control of this Derra at Delhi, Baba Kasturi Lal as such did not like the visits of the deceased and one Inder Singh to this Derra as in their presence as old sewadars, his scheme in his view may not have materialized.

(4) On 2-1-1981 the deceased along with Inder Singh came to Derra and delivered the ration for the Derra to Baba Kasturi Lal. On 4-1-1981 at about 11.30 a.m. while Inder Singh and the deceased Baba Bishamber Singh were messaging their bodies with oil on a wooden plank in the Derra, Baba Kasturi Lal was standing near them. Inder Singh soon went outside the gate of Derra to make water. On his return he found that Baba Kasturi Lal was holding a sword in both his hands and was giving blows to the deceased on his neck. Other sewadars who were also present in the Derra at that time on receiving alarm, also saw the incident. Inder Singh fearing he might also be done to death tried to run always but Baba Kasturi Lal chased him with the naked sword. Inder Singh while on run, raised alarm, when two police constables and one more person chased Kasturi Lal, disarmed him and apprehended him. On return to Derra Inder Singh found Baba Bishamber Dass lying dead.

(5) As already stated A.S.I. Shri Rattan Singh had reached on spot but, soon thereafter, S.I. Kashav Bandhu also reached on spot and recorded the statement of Inder Singh unfolding the facts and sequence of events. Shiv Giri appellant was also found on spot and apprehended. Thereafter the Investigating Officer fulfillled all the formalities and investigated the case.

(6) At trial Baba Kasturi Lal the main culprit has taken the stand that Inder Singh, Baba Bishamber Dass and others wanted to take the possession of this Derra from him and, they have got him falsely implicated. He has also stated that at the time of incident he was away with his brother, Baba Shiv Giri on that day. Appellant's statement is to the same affect.

(7) We have heard Miss Neelam Grover for appellant and also Mr. O.P. Lao for the Slate. The compass within which this case requires our consideration has been considerably narrowed down. It is hardly necessary for us to refer to the medical and formal evidence. The appellant and Baba Kasturi Lal convict have not challenged the steps taken during the course of investigation and, whatever is in dispute we shall be making a reference to the evidence in that regard. The cause of death and the weapon of offence is not in controversy. Why then to refer to the medical evidence. All that needs to be considered is whether the appellant Shiv Giri can in law be said to be connected with the commission of this crime. We shall turn back to this aspect but before we do so if it necessary to notice the evidence adduced by the prosecution.

(8) We have in this case the evidence of Public Witness 2 Inder Singh, the man who had come with the deceased from Amritsar. He has deposed that when he returned to Derra, after making water, he found Baba Kasturi Lal attacking the deceased with sword and when Baba Kasturi Lal saw him, he was chased with a naked sword in hand; that Baba Kasturi Lal was apprehended with the help of some persons by two police constables. This has been corroborated by Raghbir and Hari Kishan PWs 4 and 6 respectively. Both PWs 4 and 6 are inmates of the Derra as Sewadars. They are the natural witnesses to the incident. Public Witness 5 Surjit Singh is the witness who also helped in apprehending Baba Bishamber Dass. PWs 4 and 6 Sewadars of the Derra were no contenders for the Mahantship. There is no reason to disbelieve their evidence. Same is the case with Inder Singh Public Witness 2 and Pw 5 Surjeet Singh. We see no reason-to disbelieve their testimony.

(9) This is a case in which there is overwhelming and independent eye witness account. The evidence shows that Kasturi Lal who, perhaps, in his blind rage wanted to kill Inder Singh also. was caught with blood stained sword just outside the Derra. while he was attempting to pounce upon his next victim. It is an act of providence that Inder Singh Public Witness 2 was saved. Constable Magar Singh and constable Shiv Parshad PWs 13 and 16 have also corroborated that while on routine patrol duly they caught Baba Kasturi Lal with a blood stained sword while he was chasing Inder Singh Public Witness 2. Rw 11 Harbhajan Singh has also supported the motive part of the incident. It can as such not be said that all these PWs are lying. They were never the contenders for Mahantship of the Derra.

(10) The next piece of evidence is the blood stained sword recovered from the possession of Baba Kasturi Lal convict when he was apprehended while chasing inder Singh Public Witness 2. The witnesses to this fact again are Public Witness 5 Sarjeet Singh, Public Witness 13 Magar Singh and PW16 Shiv Prashad. There is no reason to disbelieve their testimony which is also supported by Inder Singh Pw 2. Along with it we have another piece of evidence regarding the seizure of chaddar of Baba Kasturi Lal, convict, stained with blood. Its seizure is witnessed by the same set of witnesses as that of sword. Both are seized by Public Witness 1.S.I. Salek Chand. On both sword and chadder as evidenced by the report of C F.S L , human blood of B group, the same as that of the deceased has been noticed. This evidence is clinching against Baba Kasturi Lal convict. Since we do not have an appeal by him before us we leave him to his own fate as in our view he rightly deserve.

(11) In this appeal we are only concerned with the appellant Shiv Giri. The case as set out against him by Public Witness 2 Inder Singh is that he heard that the appellant had brought the sword for Baba Kasturi Lal. Public Witness 3 Ram Singh has given evidence that he cannot tell from where and who had given sword to Baba Kasturi Lal. Public Witness 4 Raghbir Singh gave evidence that the appellant who was at that time standing in verandah brought a sword and gave the same to Kasturi Lal. That Kasturi Lal took out the sword from the sheath and attacked Bishamber Dass. Public Witness 6 Shri Hari Kishan has given evidence that Shiv Giri gave sword to Kasturi Lal. That Kasturi Lal took out the sword from sheath which was in the band of Shiv Giri and started giving sword blows to Bishamber Dass. There is no other evidence against the appellant.

(12) It is difficult for us, to base a conviction on this evidence against the appellant. There are in all two pieces of evidence against him. In the first place we are told that appellant was brought back from Amritsar by Kasturi Lal to enforce his scheme to control this Derra as a Mahant and, the second piece of evidence is that he handed over the sword to his brother, thereby perhaps suggesting that, he bad a concert with Kasturi Lal his brother to kill the deceased.

(13) It may be that the appellant was there but, surely it is not possible to believe this sequence of events. Our reasons, for so saying are short and sure. Once Public Witness 4 and 6 says that he brought the sword then one has to assume that something preceded the incident which attracted them to the scene to witness the event. If that assumption is justified then the deceased would not wait till a sword is fetched by Shiv Giri appellant. In that event, the deceased would not wait there to be attacked. If the appellant had a concert with Kasturi Lal, he would actively participate and chase Public Witness 2 Inder Singh. He has done nothing of the sort. We are, as such, unable to understand this type of allegation. There is, in our view, no case against him. So we allow the appeal and set aside the conviction and sentence against the appellant. He shall be released from prison forthwith if not required in any other case.