Rajasthan High Court - Jaipur
Ram Bihari And Anr. vs State Of Rajasthan on 1 April, 1986
Equivalent citations: 1986(1)WLN584
JUDGMENT Gopal Kishan Sharma, J.
1. This appeal is preferred against the judgment of Sessions Judge, Jhunjhunu dated 20-2-1986 by which he convicted appellant Rambehari under Section 302 IPC and sentenced him to life imprisonment. He also convicted appellant Raju under Section 323 IPC and released him on sentence already under gone by him.
2. Raghuvar Dayal lodged a written report at police station, Mandawa on 5-6-1985 alleging that at 8.30 p.m. he was in the market near the shop of Govind where son of Gujar Godani informed him that his brother Prahalad has been beaten by Rambehari, Raju and some other persons. Prahalad was lying unconscious. At this he came to the spot and found Prahalad lying unconscious and Manohar Lal and other family members were present there. He called Dr. Vishvanath Sharma who examined Prahalad and asked them that the matter was serious one so he should be taken to Government Dispensary. Prahalad was taken to Government Dispensary in car where Dr. Meghsingh examined him and he declared Prahalad dead., On. this report the police registered case under Section 302 IPC and started investigation.
3. Bhagwan Singh PW 12 investigated the matter. On the basis of written report Ex. P 3 a regular FIR was drawn which is Ex. P 4. The Panchayatnama Ex. P 21 was prepared and site was inspected and the site memo is Ex. P 5. the buffalo cart was seized vide memo Ex. P 22. The accused appellants were arrested. After completing the investigation a challan against Rambehari, Raju and Arunkumar was submitted before Judicial Magistrate First Class, Jhunjhunu who committed them to the court of Sessions Judge for trial.
4. The Sessions Judge framed charge against Rambehari under Section 302 IPC against Raju and Arunkumar under Section 302/34 IPC. All the accused pleaded not guilty and claimed trial.
5. The prosecution has examined 12 witnesses. No witness was examined by the accused persons. The contention of accused Rambehari and Raju was that they were putting their buffalo cart in the chouk and tying their buffalo in the Nall of Haveli of Chandra Prakash. They were using it for the last three or four years. On the date of incident they also put their cart in the Chouk and tied the buffalo in the Nall. In the night at about 8.30 p.m. or 9 p.m. when they reached in front of the Haveli of Chandra Prakash, Prahalad armed with Lathi came there and started abusing them. Prahalad gave a blow of Lathi on the buffalo and the buffalo became out of control which resulted that the cart hit Prahalad who received injuries. Prahalad was then lifted and taken on the Charpoi. Prahalad was a patient of paralysis and also heart. They denied that they had inflicted any injury to Prahalad.
6. The learned Sessions Judge after completing trial did not find any case against Arunkumar and he acquitted him. He found that a case under Section 302 IPC has been established against Rambehari and sentenced him as mentioned above. He acquitted the accused Raju of the offence under Section 302/34 IPC but found him guilty of the offence under Section 323 IPC.
7. Dr. Vishavnath PW 1 has stated that on 10-6-1985 he was working as Medical Officer, Mandawa. When he was standing near the betal shop and a boy came to him and took him to his house to see a patient. He went infront of the house of Chandra Prakash and found that the Prahalad was lying unconscious. Four or five persons were sitting by his side and they told that Some beating has been done with him. He told that this is a matter of criminal nature so he may be taken to Government hospital. This date was declared hostile by the prosecution. According to this date on 10-6-1985 he was called to see Prahalad. We think that this 10-6-1985 has been either wrongly mentioned because the incident took place on 5-6-1985 and Prahalad died on 6-6-1985. Therefore, there was no question of calling Dr. Vishvanath on 10-6-1985. Any way the statement of this Doctor is not material and helpful to either party.
8. Dr. Megh Singh PW 2 has stated that he was posted as Medical Officer Incharge Government Dispensary Mandawa on 6-6-1985 and on that day he conducted the autopsy of Prahalad son of Shankar Lal Mahajan at 10.35 a.m. The Doctor found that the deceased was having paralysis on left limb. He found bleeding from left eye and lot of blood was present on both the eyes and scalp hair. He also found 11 injuries on the body which have been mentioned in the post mortem report. On dis-section of the body he found the following:
Organs generation External and Internal : Penis healthy, route of penis and right scrotum abrasion as described above. Internal right testicles crushed and irregular. Left testies is normal. According to his opinion cause of death was shock due to injuries. The scrotum and eye injury contributed major part in causing the shock. He has also opined that these injuries were sufficient to cause death in the ordinary course of nature. In the cross-examination he has clarified that the injury on the eye cannot be cause of death but no question was asked about injury on scrotum upto root of penis more of a right side scrotum anteriorly.
9. The statements of other eye-witnesses are that Prahalad was beaten by the accused persons. Thus their statements are corroborated by the statement of Dr. Megh Singh and post mortem report Ex. P.2. It is, therefore, clear that Prahlad was paralytic and heart patient but on account of the injuries received by him he had shock and died on account of the shock. Therefore, the death of' Prahalad was homicidal in nature.
10. The Learned Counsel for the appellant argued that the prosecution has not proved that particular injury which caused death of Prahalad. Dr. Megh Singh does not specifically say that by which injury shock was caused to Prahalad. Prahalad was a paralytic and heart patient. He died on account of these factors. We do not agree with this argument. Dr. Megh Singh has conducted post mortem on the dead body of Prahalad. He has, no doubt, stated that he was having a paralysis on left limb but he had very specifically stated that there was bleeding from left eye and a lot of blood was present on both the eyes and scalp hair. On examination he found 11 injuries. In the post mortem report he has mentioned that internal right testicles were crushed and found irregular. The injury number 11 relates to testicles. No doubt, he had stated that injury on the eye cannot be the cause of death but certainly the injury on testicles is a cause of his death. The injury was to such an extent that right testicles were crushed. This injury caused shock to Prahalad and consequently he died on account of this shock. The evidence is that accused Ram Behari gave blows on the testicles of Prahlad by his leg. This injury resulted in crushing the testicles. So blow on testicles is one of the cause for causing death of Prahalad. Therefore, the argument of the learned Counsel for the appellant on this aspect has no force.
11. The learned Counsel for the appellant has argued that Kajodi PW 5 Pramila PW 6, Deoki Nandan PW 9 and Naresh PW 10 are the eyewitnesses. Their statements are not sufficient to arrive at a conclusion that the accused Ram Behari had intentionally murdered Prahalad. PW 5 Mst. Kajodi widow of deceased Prahalad has stated that the accused persons came with buffalo cart and wanted to keep it in the 'Chowk'. Her husband Prahalad asked them not to keep the cart there. Then, Arun inflicted fist blow on the chest, Raju inflicted lathi blow on the back and Ram Behari inflicted blows by his leg on the testicles. She came to rescue her husband Prahalad but she was also pushed by Ram Behari. In the cross examination she has stated that her husband was never paralytic. She was confronted with her statement Under Section 161 Cr.PC which is Ex. D2 and she has denied to have given some protions before the police. She has also denied the suggestion that her husband got injuries on account of buffalo-cart. She has also stated that there is no enmity between her husband and accuses except a dispute regarding keeping buffalo-cart in the 'Chowk'. It was also brought to our notice that she has stated in her cross-examination when her husband fell down, Raju inflicted lathi blow and other accused persons beat with legs. From reading the statement of Kajodi we find that there is nothing to disbelieve this witness. It was argued that from the statement of both the witnesses it cannot be inferred that Ram Behari had inflicted fatal injury to Prahalad. We do not agree with this argument. Her statement is very clear and she has stated that Ram Behari gave blow by leg on the testicles of Prahalad and this version she stated in the cross-examination also.
12. Smt. Pramila PW 6 has also stated that on 5-6-85 at 6 p.m. Prahalad was at the house. Prahalad came out of the house for going bathroom and she then heard some cry. She and Mst. Kajodi came out and sam that the accused persons were tying their buffalo to which Prahalad was obstructing. Raju had a 'Danda' in his hand, The accused persons were forcibly tying the buffalo. All the three accused persons started beating with Danda, fist and legs to Prahalad. Prahalad was also given push and he fell down on the 'chabutari'. She in her cross-examination has stated that Prahalad was having paralysis on the left limb since his birth, Thus, she has given statement contrary to the statement of Smt. Kajodi PW 5. Other witnesses have also stated that Prahalad was having paralysis on left limb. Thus, on this point Smt. Kajodi has falsely stated, but this false statement does not have any effect on the merits of this case. In the cross-examination nothing more was asked to this witness which discredits her.
13. Devki Nandan PW 9 has stated that on 5-6-85 at 7-30 p.m. he came to the 'chowk' after hearing hue and cry and saw that Arun, Raju and Ram Behari were beating Prahalad. He then informed to Raghuvar Dayal who was at the shop of Govinda Betel shop keeper. In the cross-examination he has not been shattered.
14. Naresh PW 10, has stated that on 5-6-1985 at 8.30 p.m. he was in his Nohra where he heard hue and cry and came out of his Nohra. Raju was having lathi and Arun, Ram Behari and Raju were beating his father Prahalad. He has also admitted that his father was hear patient and was having paralysis on his body but this does not effect the merit of this case. In the cross-examination he has stated that as soon as his father fell down he bacame unconscious. So he too was not shattered in the cross-examination.
15. After scrutinising the entire evidence we are of the opinion that Prahalad was beaten by Rambehari and Raju. There was no clear evidence against Arun and he was, therefore, acquitted by the learned Sessions Judge. We also agree with the learned Sessions Judge on this aspect. It is clear that Ram Behari and Raju inflicted injuries to Prahalad. It is also clear in the evidence that Ram Behari gave blow by his leg on the testicles of Prahalad which resulted in crushing the balls.
16. The learned Counsel for the appellant argued that there was no intention of the appellants to commit murder of Prahalad. According to him the case is not covered under Section 299 or 300 IPC. Culpable homicide is defined in Section 299 IPC which reads as under:
Who ever caused death by doing an act with the intention of causingh death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
17. The culpable homicide is murder if the act by which death is caused is done with the intention of causing death, or if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person, or if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
18. While referring Sections 299 and 300 IPC the learned Counsel for the appellant argued that the case is not covered under these sections and it cannot be said that the appellant Ram Behari intentionally murdered Prahalad. The case is not covered in any of the clauses of Section 300 IPC. He had also argued that his case is similar to the case of Arun Kumar who has been acquitted by the learned Sessions Judge. No case is made out against Ram Behari also and he also deserves to be acquitted of the offence under Section 302 IPC. In that alternative he argued that at the most a case under Section 323 IPC is made out against Ram Behari also.
19. In reply to his argument the learned Counsel who appeared on behalf of the complainant argued that the case is covered by third clause of Section 300 IPC. The appellant Ram Behari inflicted repeated blows by his leg on the testicles of Prahalad. This part of the body is very vital part and inflicting continuous blows on testicles is clear that Ram Behari had intention to commit murder of Prahalad. A single blow on testicles is sufficient to cause death. In the present case Ram Behari inflicted continuous blows and this shows that he had clear intention to commit murder. Therefore, the learned Sessions Judge has correctly held him guilty Under Section 302 IPC.
20. The learned Counsel for the appellant has cited Jagrup Singh v. State of Haryana . In this case while dealing Section 300 of IPC their Lordships have observed as under:
The ingredients of Clause Thirdly of Section 300 of the Code were brought out by Vivian Bose, J. in Virsa Singh v. State of Punjab in his terse language;
To put it shortly the prosecution must prove the following facts before it can bring a case under Section 300 Thirdly.
First, it must establish quite objectively that a bodily injury is present. Secondly, the nature of the injury must be proved. These are purely objective investigations;
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury that is to say that it was not accidential or unintentional or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further; and Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
21. The learned Counsel for the complainant has also relied on this and he has brought to our notice the observation in para 6 of the judgment by Hon'ble Lordships. This para reads as under:
There is no justification for the assertion that the giving of a solitary blow on a vital part of the body resulting in the death must always necessarily reduce the offence to culpable homicide not amounting to murder punishable under Section 304, Part II of the Code. If a man deliberately strikes another on the head with a heavy Jog of wood or an iron rod or even a lathi so as to cause a fracture of the skull, he must, in the absence of any circumstances negativing the presumption, be deemed to have intended to cause the death of the victim or such bodily injury as is sufficient to cause death. The whole thing depends upon the intention to cause death and the case may be covered by either Clause Firstly or Clause Thirdly. The nature of intention must be gathered from the kind of weapon used the and part of the body hit, the amount of force employed and the circumstance attendant upon the death.
22. We have kept principles laid down in this case of Jagroop Singh (supra) the argument of learned Counsel for the complainant is that the case is covered under Section 300 "3rdly". Ram Behari had the intention to cause that bodily injury which was sufficient in the ordinary course of nature to cause death. He intentionally inflicted continuous blow by leg on the testicles so his intention was clear to commit murder. We do not agree with this argument. It is in the evidence that two or three days prior to this incident there was some quarrel about keeping the buffalo cart in the chowk. The appellants were tying buffalo in the 'nall' of the 'Haveli' of Chandra Prakash. All the prosecution witnesses have stated that the accused were tying their buffalo in the nall. There was dispute about keeping the cart in the chowk. It is also in the evidence that there was no house of the accused persons opening in the chowk. Their house is at a distance from the chowk so the entire dispute was with regard to the keeping buffalo cart in the chowk. On 5-6-1985 when the accused were persons were trying to keep buffalo cart in the chowk. Prahalad objected to it and some altercation took place between them. Thus, the intention of the accused Ram Behari was to keep their cart in the chowk. They arrived in the chowk with this intention of keeping the cart in the chowk. They had no intention to beat Prahalad or to commit murder of Prahalad but in the process of keeping cart when Prahalad objected, a dispute took place and Raju and Ram Behari inflicted blows to Prahalad. It is not the case of the prosecution that the accused persons were armed with any weapon or that Ram Behari used any weapon to inflict injury. Ram Behari gave fist blows as well as blow by leg. While beating Prahalad with the legs Ram Behari inflicted injury on the testicles. No doubt, that injury was with force which resulted in crushing the testicles but it cannot be inferred that Ram Behari had any intention to inflict such bodily injury to Prahalad and the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death. It must be proved by the prosecution that Ram Behari had intended to inflict such injury which, if inflicted was sufficient in the ordinary course of nature to cause death. Ram Behari had, no doubt, inflicted blows on testicles but there is nothing on record to infer that he intended to inflict that injury that is on testicles with the intention of causing death, therefore, "3rdly" of Section 300 IPC is not attracted in the present case. In our opinion the case is covered under Section 304, Part 2, IPC. From the evidence in this case it cannot be inferred that Ram Behari had acted or gave blows on testicles with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death. But it is defined that testicles are a very vital part of the body. Ram Behari had this knowledge that beating on the testicles is likely to cause death. He inflicted blows on testicles but had no intention to cause death. He simply inflicted the blows with the knowledge that it is likely to cause death but he had no intention to cause death. Therefore, the case is covered under Section 304 Part 2, IPC. We do not agree with the learned Sessions Judge that this case is covered under Section 302 IPC. We do not maintain the conviction of the appellant Ram Behari under Section 302 IPC. We find him guilty of offence under part 304-11, IPC.
23. The learned Counsel for the appellants has also argued that the learned Sessions Judge found appellant Raju guilty of offence under Section 302 IPC and awarded him sentence already undergone by him. He argued that appellants Raju was below the age of 21 years at the time of incident and according to Section 360 Cr. PC when any person under 21 years of age is convicted the offender should be released on probation on good conduct. If the court does not release the offender on probation on good conduct then the court should record in its judgment the special reasons for not granting this benefit as has been laid down in Section 361 Cr.PC. Raju being under 21 years of age and he was found guilty of Section 323 IPC. There was no previous conviction proved against him. It was incumbent on the learned Sessions Judge to release Raju on probation on good conduct. The learned Sessions Judge has commuted error in not granting the appellant Raju the benefit of Section 360 Cr.PC.
24. We have considered this argument. It is not disputed that Raju was under the age of 21 years at the time of this incident. He was found guilty under Section 323 IPC. The learned Sessions Judge should have granted benefit of releasing him on probation. Therefore the learned Sessions Judge has committed error in convicting Raju for the period already undergone by him. The proper order was to order him to be released on probation on good conduct. Therefore, argument of learned Counsel for Raju is accepted.
25. As a result the appeal is partly accepted. The appellant Ram Behari is not found guilty of offence under Section 302 IPC and he is acquitted of this offence. Ram Behari is convicted Under Section 304(2) IPC and sentenced to 5 years rigorous imprisonment and a fine of Rs. 500/- and in default of payment of fine to, further undergo 1 months' rigorous imprisonment. The appeal of Raju is accepted and instead of confirming the judgment of the learned Sessions Judge we direct that appellant Raju be released on probation on good conduct on furnishing personal bond of Rs. 500/- and one surety of the same amount to the satisfaction of the trial court for keeping peace and good behaviour during the period of two years.