Karnataka High Court
State Of Karnataka vs Harijan Dharma And Another on 23 January, 1992
Equivalent citations: 1992CRILJ2840, 1992(2)KARLJ85
JUDGMENT Hiremath, J.
1. Both the appeals are by the State being aggrieved by the judgment and order of Sessions Judge at Bellary, finding A1 guilty under S. 304 Part II of the Indian Penal Code ('IPC' for short) and extending the benefit of S. 4 of the Probation of Offenders Act, 1958 ('P.O. Act' for short).
2. Brief facts are that on the night of 23-8-1986 PW 1 Anjaneyalu and the deceased G. P. Hugar who were working as constables in the Railway Protection Force ('RPF' for short) were on duty at Bellary Railway Yard. When both of the them were walking in the Railway Yard, two persons carrying railway sleepers were sighted by them. The deceased identified both of them as Dharma and Sidda - the present accused persons. They alerted another RPF constable Kamble who was on duty. On hearing the shouts from these constables, both the accused persons threw the sleepers and ran away, PW 1 and the deceased chased them from behind whereas Kamble came from the other side. Both the accused were then found standing near a certain Kutty's hotel on Shiruguppa Road. Their mother Gangamma was also there and she abused them in Telugu language. When these three constables approached them, Gangamma who was A3 in the case, caught hold of the shirt of PW 1 - complainant and A2 assaulted him on his shoulder. When A1 wanted to stab him on his neck, he avoided it, the blow fell on the deceased. He then left the place and ran away. Therefore, he saw the deceased lying on B.G. Platform (Broad gauge). He had injury on his stomach as well as chest and he had died. With these allegations in the FIR that he filed at 10-30 p.m. at the Railway Police Station, Bellary, a case under Ss. 307 and 302 read with S. 34, IPC was registered against the three accused persons and investigation taken up. The sleepers were seized and eyewitnesses were examined.
3. The trial Court on considering the evidence on record, found A1 guilty under S. 304 Part II, IPC and also under Ss. 379 and 332 r/w S. 34, IPC. It found A2 guilty under S. 379 read with S. 34, IPC and S. 332 read with S. 34, IPC. Having called for the report of the Probation Officer under S. 6 of the P.O. Act and considering the age of the accused as well as the circumstances of the case, the trial Court released both the accused under S. 4 of the P.O. Act taking bonds from them to keep peace and be of good behaviour for a period of three years and also placed them under supervision of the Probation Officer of the District by passing a supervision order.
4. In Criminal Appeal No. 373 of 1988, the State challenged the acquittal of the accused-respondents for the offences under Ss. 302 and S. 307 read with S. 34, IPC. In the other appeal if the Court were to confirm the conviction of the respondents for the offences for which the trial Court found them guilty, they may be adequately punished. According to it, the trial Court ought not to have extended to them the benefit of P.O. Act.
5. The respondents have not challenged their conviction and in this appeal also the order passed by the Sessions Court under the provisions of P.O. Act is supported by the counsel. Therefore, we have to examine if on the facts proved, the Sessions Court was right in finding A1 guilty under S. 304 Part II, IPC as according to the learned State Prosecutor, the act of A1 - respondent No. 1 squarely falls under S. 302, IPC inasmuch as he intended to inflict a fatal blow on PW1 and though he avoided it, the intention of A1 could not have been anything else than to cause the death of PW1 and consequently, whoever was struck by such blow. As rightly urged by both the learned counsel, the proper person to speak about the actual act of A1 could be PW1 himself. Referring to the overt act of the two accused, PW1 states as follows :
"When we chased the accused person 1 and 2, we met A-3 Gangamma near the hotel of one Kutti. At that time, A-3 Gangamma stopped us and she abused us. At that time A-3 Gangamma was smelling toddy. A-3 Gangamma asked his son to kill the RPF man. So telling A-3 Gangamma held my shirt tightly. At that time A-2 Sidda gave fist blows on my back. At that time A-1 Dharma tried to stab me with a knife and when I avoided that blow the knife hit my left upper arm. Thereafter, A-1 Dharma tried to stab the second time and that blow hit on the right side of neck of the deceased Hugar. At that time A-2 Sidda and A-3 Gangamma caught hold of me and A-1 Dharma tried to stab me with a knife. I avoided that blow and the knife struck on the stomach of the deceased Hugar. The deceased Hugar sustained a bleeding injury. By that time Cws. 2 and 4 came to that place and at that time A-1 Dharma and A-2 Sidda ran away from that spot."
Rest of the evidence of the eye witnesses is corroborative in nature and does not add anything more to the evidence given by PW1.
6. PW 16 Dr. K. W. D. Ravichandar who conducted autopsy over the dead body of Hugar found the following external injuries on the body :
"1. An abrasion cum contusion measuring 4 cm. x 2 cm. over the right cheek on the upper part;
2. An abrasion measuring 2 cm. x 0.2 cm. horizontally situated below the chin on the left side;
3. A vertically situated stab wound measuring 2.5 cm. x 0.5 cm. with avaision of on its inner margin over the right shoulder near the outer end of right clavicle. The avaised inner flap was of 2.6 cm. in length;
4. An obliquely situated stab wound measuring 2.5 cm. x 5 cm. in mid line of the chest on the front, and 2 cm. below the xiphi sternum;
5. An oblique stab wound measuring 3 cm. x 2 cm. x 8 cm. situated on the back of left fore-arm in the upper 1/3, the direction of the wound was upwards and backwards; and
6. An obliquely situated abrasion measuring 2 cm. x 0.2 cm. over the dorsem of left hand in its middle.
On dissection, he noticed that the external injury No. 4 had passed below the xiphi-sternum traversed backwards and leftwards. Perforated the peri-cardium in its lower, medical side and perforated the anterior-wall of the right ventricle, 6 cm. above the conus pulmenalis and had entered the cavity of the right ventricle. The external injury No. 3 has however ended blindly in the sub-cutaneous facial pane. The fifth external injury was bone deep injuring the muscles and vessels and there was also a stab wound of perforation present on the anterior and lower medical aspect of pericardium and on the another wall of the right ventricle 6 cm. above the corresponding external injury No. 4. The deceased died due to shock and haemorrhage as a result of stab injury to the heart and the knife produced at MO. 2 could cause the same. The other medical witness PW18 who examined PW1 at 3.15 a.m. of 24-8-1986 noticed the following injuries on him :
"1. An incised wound measuring 2" in length over the middle of the left upper arm;
2. A scratch abrasion measuring 2 1/2" x 1/4" over the root of the neck and supra clavicle on the left side;
3. A horizontal scratch abrasion measuring 2 1/2" x 1/4" over the right side of the chest below the clavicle;
4. The patient had complained of bleeding from the mouth."
Thus to a certain extent injury No. 1 which was an incised wound measuring only 2" could be considered more severe than the other two injuries. In para 71 of its judgment, the trial Court says :
"The evidence of PW1 B. Anjineyalu makes it very clear that A-1 Dharma had no intention at all to cause the death of G. P. Hugar and that the deceased G. P. Hugar had sustained the stab injuries accidentally when A-1 Dharma tried to stab PW1 Anjineyalu with a knife. The evidence on record is totally insufficient to hold that A-1 Dharma and A-2 Sidda had any common intention to cause the death of either PW1 Anjineyalu or the deceased G. P. Hugar. I find no justifiable grounds to hold that the accused persons have committed an offence punishable under S. 307 read with S. 34, IPC. As the evidence of PW1 Anjineyalu does not disclose that A-2 Sidda had taken any active part at the time when A-1 Dharma caused injuries to the deceased G. P. Hugar, I am of the view that there is no justification to hold that A-2 Sidda is liable for punishment in respect of the injuries caused by A-1 Dharma to the deceased G. P. Hugar."
It further found that A-1 had caused the death of G. P. Hugar by assaulting with a knife without any intention, but having knowledge that his act of stabbing with a knife was likely to cause death and thereby committed an offence punishable under S. 304, IPC Part II, IPC. Section 304, IPC reads as follows :
"Whoever commits culpable homicide not amounting to murder, shall be punished with (imprisonment for life), or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;
or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death; but without any intention to cause death, or to cause such bodily injury as is likely to cause death."
It is apparently clear from the evidence of PW1 referred to above that the blow of A-1 was not aimed at the deceased Hugar but only when it was aimed at PW1, he avoided the blow, and that was how the deceased Hugar sustained injuries including the fatal injury. What is further pertinent to note is that PW 1 nowhere states where exactly blow on him was intended but simply states that A-1 wanted to stab him. It is noteworthy that one of the blows fell on his shoulder. It is not in his evidence that the knife blow was intended on any vital part of the body of PW1. The Supreme Court in the case of Hardev Singh v. State of Punjab, 1975 SCC (Crl.) 186 : (1975 Cri LJ 243) had an occasion to deal with the case in which the deceased Tej Kaur happened to intervene when Kewal Singh was being assaulted. When she fell on the body of Kewal Singh, the accused gave a blow on her head with kirpan and she died. At the concluding portion of para 8 of the report, the Supreme Court observed that it was not clear from the evidence of the prosecution that appellant Hardev Singh aimed his kirpan blow at the head of Tej Kaur. It may well be that Hardev Singh wanted to give a kirpan blow to Tej Kaur as she lay herself upon Kewal Singh but not necessarily on her head. Falling of kirpan accidentally on the head of Tej Kaur cannot be ruled out. On the facts and in circumstances of the case, it should be held that the appellant Hardev Singh did not intend to cause fatal injury to Tej Kaur but when he struck her with a kirpan he must have known that the deceased then being in bent position the blow could land on any vital part of her body and it was likely to result in her death. This is how the Supreme Court found that the appellant's act fell under S. 304 Part I. IPC.
7. In the case of Ram Udgar Jha v. State of Bihar, 1987 Cri LJ 113, para 20 of the report is the material part of the judgment. The third accused in that case Mahabir Jha had wielded a bamboo pole which hit on the head of the deceased causing severe fatal injury. The deceased Nunu Jha became the victim as he came in between when the accused were running after Bindeshwari who ran to his house. It was quite material that Mahabir Jha might not have intended to cause the death of Nunu Jha but at the same time it must be held that brandishing the bamboo pole on the head, in all probabilities might cause death and in fact death ensued sometime after. In the opinion of the learned Judges of the High Court, the offence did not fall under S. 302, IPC but under S. 304 Part I, IPC.
8. Having given our careful thought to the facts of this case in the light of the decisions referred to above, we find that there was no intention on the part of A-1 to cause the death of even PW1 Anjineyalu and nowhere PW1 stated that the knife was aimed on any vital part of his body. As already stated by us, it is a simple evidence that A-1 wanted to stab him and when he avoided, the blow fell on the deceased including the fatal blow. That being So, the act of the accused falls under S. 304 Part II, IPC as the A-1 must be attributed with knowledge that use of such deadly weapon as a knife could in all probability cause the death of the deceased. We therefore find no error in the finding of the trial Court that A-1 was guilty under S. 304 Part II, IPC. Similarly, the act of any of the accused does not fall under S. 307, IPC for an attempt to commit the murder of PW1 Anjineyalu and the trial Court rightly found that the offence under S. 332 read with S. 34, IPC was proved against A-2 as also under S. 379 read with S. 34, IPC. It may be stated here that A-3 Gangamma died after charge sheet was filed and the case against her has abated. We therefore confirm the finding of the trial Court with regard to the sections under which the trial Court found the accused-respondents guilty.
9. This takes us to the grievance of the State that the trial Court was not justified in extending the benefit of P.O. Act to the respondents. Admittedly A-1 respondent No. 1 was 18 years of age. The Act is a reformative measure and its object is to reclaim amateur offenders who can be usefully rehabilitated in the society. Its object is to prevent conversion of youthful offenders into obdurate criminals as a result of their association with hardened criminals of mature age in case the youthful offenders are sentenced to undergo imprisonment in jail. These objects of the act were recognised by the Supreme Court in some of the judgments rendered by it, Jugal Kishore Prasad v. State of Bihar, 1973 SCC (Cri) 48 : (1973 Cri LJ 23).
10. Before exercising its power under section 4 of the P.O. Act, the trial Court called for the report of the Probation Officer under Section 6 of the P.O. Act and thought at one point of time i.e., in the year 1985 A-1 was found guilty for an offence under section 379, IPC and was extended the benefit of the P.O. Act, still in the opinion of the Probation Officer an opportunity could be given to the accused persons to reform themselves. The Probation Officer has reported that they have fixed residence in Bellary and were living by doing coolie work. Perhaps in view of the previous order extending the benefit of the P.O. Act, the trial Court felt it proper and reasonable to place the two offenders on probation by passing a supervision order. Bonds for three years in a sum of Rs. 3,000/- with a surety were sought for and there is no allegation that even thereafter while under supervision order or while the bonds were in force, they detracted from the path of peaceful living and honest means. It is also living and honest means. It is also not alleged that they were found to have committed any other offence. The trial Court relied on a decision reported in (1983) 1 Crimes 1120 : (1983 Cri LJ NOC 108) in the case of Paramjit Singh v. State in which a Division Bench of Delhi High Court on appeal from conviction under S. 302 read with S. 34, IPC found the accused Surinder Singh guilty of an offence punishable under S. 323 read with S. 34, IPC and Paramjit Singh under S. 304 Part II, IPC and as Paramjit Singh was 20 years of age, it was held that he was entitled to the benefit of the P.O. Act. In the instant case, A-1 was 18 years off age and though A-2 was 28 years of age he was found guilty only under Ss. 379 and 332 read with S. 34, IPC. In our view therefore when the trial Court kept in view the avowed and salutary object of the P.O. Act and extended its benefit to the two respondents accused persons, at this length of time when nearly five years have elapsed after that order was passed, we do not find any good grounds to interfere with the discretion exercised by the trial Court. In that view of the matter, both appeals of the State must fail and they are dismissed.
11. Appeals dismissed.