Patna High Court
Chandra Bhusan Dubey And Anr. vs The State Of Bihar on 28 April, 1964
Equivalent citations: 1965CRILJ841
JUDGMENT Anant Singh, J.
1. The two appellants have been convicted under Sections 307, 452 and 324 of the Penal Code with seven years, three years and one year's rigorous imprisonment respectively.
2. The date of occurrence as alleged was about 2 p.m. on 1-10-1901, and the place, the residential house of Sri Baleshwar Singh (P. W. 1) jointly occupied by his brother Sri Sureshwar Singh (P. W. 7) in Mahabir Tola of Arrah town. P. W. 1 was a Professor in Geology and P. W. 7 a Demonstrator in Botany in Manama College at Arrah, Appellant Chandra Bhusan Dubey had before the date of the occurrence passed out I. Sc. and Ramratan Prasad was an ex-student of the same college.
3. The facts of the prosecution case briefly stated are as follows. Ramratan, who was appealing at the supplementary I. A. examination of the college was found using unfair means and Professor Baleshwar Singh had to take some disciplinary action against him. Ramratan had a wrath and he assaulted the professor in the lawn some time thereafter. The professor had filed a case against him under Section 323 of the Indian Penal Code and it was pending. On the date of the occurrence, the two appellants went to the house of the professor each carrying a knife concealed on his respective person. Ramratan wanted the professor to withdraw his case against him. The professor refused, when Ramratan brought out his Knife and wanted to assault the professor with the knife. His brother (P. W. 7) and another brother Kameshwar Singh (P. W. 9) were also present there. But before Ramratam could hit the professor in his abdomen, as he had aimed, P. W. 7 intervened and caught hold of Ramratan and there was a scuffle between the two. At that point of time, appellant Chandra Bhushan Dubey took out a dagger from his pocket and attacked the professor with it aiming at bis abdomen. The professor caught hold of the right hand of Chandra Bhushan and the dagger fell down on the ground. Chandra Bhushan tied away there, after. In the scuffle, the professor and the demonstrator both got some injuries. Ramratan also sustained some injuries in the same scuffle, probably when the professor and the demonstrator, as also his another brother wanted to keep him down. In due course, there was a case and the two appellants have been convicted in the manner aforesaid and they have since filed this appeal.
4. It appears that during the pendency of the case before the trial Judge, who was an Assistant Sessions Judge, a petition signed by the two appellants and the two injured persons. Professor Baleshwar Singh and Demonstrator Sureshwar Singh, and their respective lawyers, was filed on 30-7-1962 compounding the offence with a view to restoring good relation-ship between the parties and further stating therein that the offences actually committed were under Sections 323 and 324 of the Indian Penal Code. The trial court, however, did not accept the compromise holding that the offences committed being under Sections 307 and 452, they were not compoundable.
5. Mr. Nageshwar Prasad appearing for the appellants has tried to show that, on the facts as proved, no offence, either under Section 307 or Section 452 of the Indian Penal Code can be established. The injuries sustained by the Professor and the Demonstrator had been examined by the Deputy Superintendent of Arrah Sadar Hospital. Dr. Bhawanand Jha (P. W. 2) on the date of the occurrence itself. Baleshwar Singh (P. W. 1) had only three swellings, one on his right hand at the root of the thumb, second on his right palm 1/2" x 1/2" and the third on the left elbow about 2" in diameter. The injuries could have been caused by some hard blunt substance, such as, the handle of a dagger, -Sureshwar Singh (P. W. 7) had the following injuries ;
(1) One sharp cut injury skin deep 1/2" transverse on right palm.
(2) One sharp cut injury skin deep 1/4" linear and vertical on the middle finger of the left hand latteral side.
(3) Three irregular skin cut marks on the left hand middle finger, (4) Swelling on the left elbow 1/2" in diameter.
Injuries Nos. 1 and 2 were caused by some sharp-cutting weapon, such as, dagger, whereas injuries Nos. 3 and 4 were caused by hard blunt substance or by fall on some hard blunt substance. The injuries were obviously only superficial as the doctor also opined in bis cross examination and they were by no means deadly so as to attract the application of Section 307 of the Indian Penal Code. If an act is an indication of the mind, surely the assailants cannot be attributed the intention of causing deadly injuries. It is true that for the purpose of invoking the provisions of Section 307 of the Indian Penal Code, it is not necessary that some deadly injuries must always be caused before an offender can be found guilty of this charge. There may be cases of mere attempt to injure or cause any deadly injury, although the actual injury may not be produced, when one can be found guilty of this charge. But there must always be an indication that the offender had really intend-ed or attempted to cause any deadly injury. In the instant case, there is no such indication that any of the two appellants had tried to cause any deadly injury. It is no doubt true that P. Ws. 1, 7 and 9 tried to show that the aim of each of the two appellants was directed on the abdomen of P.W. 1 but this, to my mind, was an obvious exaggeration and at best was based only on an impression, for the circumstances by no means point out to the conclusion that the appellants had aimed their knives on any vital part of the body, either of P. W. 1 or P.W. 1.
In the very written report (Ext. 1) which P. W. 1 filed and, on the basis of which, the first information report was drawn up, there was no specific allegation that either the two appellants had tried to hit with his respective knife on any vital part of the body of either P. W. 1 or P. W. 7. The report, as it was originally written and signed by the informant (P. W. 1), is ended with "Ochit Kityavahi ki jae" and then it was fcigped. It, however, appears that three lines were insetted by the writer in small letters obviously for want of space. The squeezed writing is an indication of this fact. It was only in subsequently added portion that it was introduced that the two appellants had dealt their blows with a view to kill. I am not surprised that it was the result of some after, thought that an allegation of giving of deadly blows was introduced and it was obviously to keep up to the subsequent development that the witnesses spoke to that effect. The reading of the mind of the appellants that they had gone prepared to kill, as indicated in the subsequently added portions, supposing they were written in due course, was only an inference, depending on certain facts.
Nowhere in the report, not even in the added portions, the Professor gave any indication that any of the two appellants had aimed his blow at any stage on any vital part of his body or that of any Other person. The evidence given at the trial to that effect was an afterthought, calculated to add to the gravity of the offence, so as to attract the provisions of Section 307 of the Indian Penal Code. From the circumstances also, no such inference can reasonably be made out. The two appellants had gone to the house of the Professor in broad day light. They met him, while he was with his brothers (P. W. 7 and 9), I wonder, if, in such a situation, they could have dared attack the Professor or any of his brothers, intending or knowing that they could give either of them any deadly blow with their obviously small knives which they had carried in their respective pockets, At this stage, I may also refer to the injuries sustained by Ramratan. His injuries were examined by the Jail Doctor Sri Hamanto Kumar Ghosh (D. W. 1) on the date of the occurrence itself. He had .one incised wound 1 1/2" x 1/2" x 1/2" on the left shoulder blade, three swellings in his both hands, his both cheeks and left shoulder blade besides several scratches. The swelling on the left shoulder-blade, after X-ray examination disclosed dislocation of the bone and that it was a grievous injury. The incised injury was caused by some sharp cutting weapon like knife, whereas the other injuries were caused by hard blunt substance. The age of the injuries coincided with the time of the occurrence. There can be no manner of doubt that Ramratan received more injuries and of more serious nature than either P. W. 1 or P. W. 7.
It is obvious that Ramratan had been given a good beating and he may have deserved it, having trespassed into the house of the Professor. But it cannot be safely held that ha bad gone prepared to commit any deadly injury or that, in the circumstances of the case, he was at all in a position to have caused any deadly injury either to P. W. 1 or to any of his brothers. It is the prosecution's own case that the other appellant Chandra Bhushan Dubev ran away after the dagger fell from his hand, when he was first caught by P. W, 7. I cannot agree with the learned trial court in holding that the two appellants commuted any offence under Section 307 of the Indian Penal Code. The offence, in the matter of committing assaults was purely one under Section 324 of the Indian Penal Code. The two injured persons (P.W. 1 and 7) themselves in their compromise petition also admitted this position in their sober mood.
6. The charge under Section 452 of the Indian Penal Code also cannot be sustained. This section con. templates house trespass with previous preparation made "for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint" and not otherwise. It is the dominant intention which is the determining factor of the offence and unless the dominant intention, was to cause hurt or wrongful restraint or any fear of either, the provisions of the section cannot be attracted, even if some hurt is actually caused during the course of executing any other purpose, for which the trespass has been committed. The mischief of the section can be attracted only when it is established that the trespass was committed in order to cause hurt to or to assault or to wrongfully confine any person after having made preparations for that purpose. The cases in Pirmohammad Kukafi v. State of Madhya Pradesh , Chatra v. State and Fakir Chandra De v. Emperor AIR 1921 Cal 556 are clear authorities for this proposition of law.
The circumstances of the case do not indicate that the appellants had gone to the residence of P. W. 1, having made preparations to cause hurt or to assault any person or cause wrongful restraint of any person, although, in fact, they did commit some assaults on P. Ws. 1 and 7, but their primary object was to intimidate the Professor to withdraw the case he had filed against appellant Ramratan. It appears that P. W. 1 had told the Investigating Officer during the course of investigation, although this fact was denied by the Professor, that for five or ten minutes Ramratan kept on asking for forgiveness to effect withdrawal of the case. There is no reason why the Investigating Officer should have made a wrong recording of the statements of P. W. 1. It appears that the Professor had repeated his statements also to the Inspector. P. W. 1, however, has said that the Inspector was working against him and he had filed a petition (Ext. 2) complaining against his conduct. He further stated in his evidence that his statement was not recorded by the Inspector or any other police officer in the office of the Principal of the college, as it was subsequently found to be. But P. W. 1 himself contradicted this (act, when, in his petition (Ext. 2), he had admitted that the Inspector had contacted him in the Principal's Office and had some casual talk regarding this case for about three to lour minutes and then went away. The Inspector was obviously testing his statements which had already been recorded by the Investigating Officer. I wonder, why the police should have at all misquoted the statement of any prosecution witness, when in the written report (Ext. 1), some assertion was obviously allowed to be made by the police after the close of the writing of the report.
Anyway, the evidence as given in Court also is that the two appellants had gone to the Principal and had asked him to withdraw the case filed against Ramratan. Thus, their primary object was the withdrawal of the case and since they were ex-students of the college, it was only natural that they had gone to the Professor to ask his forgiveness and thereby prevail upon him to withdraw the case. P. W. 1 has also admitted that earlier Ramratan's uncle had also been to him to request him to withdraw the case. Thus, it appears that Ramratan was naturally anxious for the withdrawal of the case It, however, appears that Ramratan and his companion, the other appellant, at some stage, tried to intimidate the Professor by show of force, so that he could withdraw the case and it was at that point of time that this unfortunate incident of actual assault occurred. Thus, it was a case of mere house trespass falling under Section 448 of the Indian Penal Code and not under Section 452 of the Indian Penal Code.
7. Now Section 448 is compoundable and Section 324 is also compoundable with the permission of the Court the two assailants and the two assailed were after all he teachers and the taught, and it appears that the ought have realised their follies and both the teachers have excused them by acceding to the compounding of the case. It would also be conducive to good relationship between the teachers and the taught that permission to compound the offences should be accorded. I accordingly permit the compounding of the offence under Section 324 of the Indian Penal Code. The offences having already been compounded between the parties, the appellants are acquitted of the charges under Section 345 of the Criminal P. C. The convictions and sentences imposed upon the appellants are set aside and the appeal is allowed. The appellants will be discharged from their bail bonds.