Jammu & Kashmir High Court
Bishan Dass And Two Ors. vs State Of Jammu And Kashmir on 16 December, 2004
Equivalent citations: 2005(1)JKJ489
JUDGMENT S.K. Gupta, J.
1. This criminal appeal is preferred by Bishan Dass, Babu Ram and Raj Kumar, who have been convicted for committing murder of Prem Dass alias Gudu and sentenced to rigorous imprisonment for life and a fine of Rs. 25,000/- each in proof of offences under Sections 302/34 RFC by the learned Sessions Judge, Udhampur, vide his judgment and order dated 12-07-1999.
2. A freak but few facts with unique features, attracting a recondite provision of the Penal Code, constitute the subject matter of a criminal case takes us to a forensic scene of occurrence at Old Jail, Udhampur, where on the morning of 23rd January, 1993, when the prisoners were being counted, deceased Prem Dass alias Gudu serving sentence in the jail covered himself with a blanket, made an abortive attempt to flee away from the jail. The deceased was, however, spotted by the CRPF people deployed in the jail for security and guard duty and they raised the alarm, which led to the apprehension of the deceased at the main gate. The deceased was, however, handed over by the CRPF personnel to the accused. Further prosecution case is that the accused in order to teach a lesson to the deceased for making an unsuccessful endeavour to escape, took him to the 'Deodhi' of the jail handcuffed his hands and hanged him with the hook of ceiling fan and gave him severe beating with cudgels. The deceased when brought down from the hook of the ceiling fan was found unconscious and taken to the hospital. On reaching the hospital, the deceased was declared dead by the doctors. The police on receipt of information from a reliable source about the death of Prem Dass serving sentence in the jail on 23-01-1993, swang into action and initiated proceedings under Section 174 Cr.PC. Based on the evidence recorded during investigation under Section 175 Cr.PC, the police found that the appellants-accused, Bishan Dass, Babu Ram and Raj Kumar, had brutally beaten the deceased with 'dandas' as the latter had tried to escape from the prison, as a result of which the deceased had died. Police registered an FIR for offences under Sections 302/34 RFC on 29-01-1993 at 4.30 p.m. and switched on to investigation of the case. After recording the statements of the witnesses, collecting the informative material and on the conclusion of the investigation, appellants-accused were finally sent to stand their trial for the alleged offences under Sections 302/34 RFC and the learned trial court found them guilty of the offences with which they stood charged and convicted and sentenced the appellants accordingly.
3. Mr. J.P. Singh, learned counsel appearing for the appellants, argued that the trial court has not appreciated the evidence in its proper perspective. That the evidence as provided by the witnesses in support of the prosecution case is contradictory, conflicting and at variance in material particulars and, therefore, highly insufficient and unsatisfactory to prove the guilt of the accused beyond any pale of doubt. That all the incriminating circumstances appearing against the accused in the evidence have not been put to them in the statements under Section 342 Cr.PC and is, thus, itself a sufficient ground for setting aside the judgment impugned According to Mr. J.P. Singh, it has come in the prosecution evidence that the accused first slapped the deceased, thereafter Raj Kumar gave two stick blows and other accused inflicted blows with the sticks and then released the deceased at the instance of PW Jaideep Singh, SI, CRPF; Whereas doctor who conducted autopsy of the dead body of the deceased has given 51 injuries on the body of the deceased at the time of examination. The statements of the prosecution witnesses as to the number of injuries inflicted on the deceased by the accused contradict with the statement of the doctor and, thus, leaves a serious dent in the prosecution case with regard to its credibility and acceptability.
4. It was further pointed out by Mr. J.P. Singh that the appellants could be the author of few injuries and not all the 51 injuries that proved fatal. His further submission is that there was neither any intention to kill nor any prior meeting of mind to cause the murder of the deceased. His further submission is that the appellants, in the facts and circumstances of the case, could not be imputed to the knowledge connecting with the effect as a likely contingency. Further submission of Mr. J. P. Singh is that the act, which is not likely to cause death, amounts to simple hurt/grievous hurt, even though death is caused. According to Mr. Singh, the accused, three in numbers, caused seven injuries to the deceased, as is deposed by prosecution witnesses in their evidence, whereas doctor has given 51 injuries found on the dead body of the deceased and all are simple, which resulted in his death. None of the appellants-accused could be convicted for offence of murder. He further buttressed his argument in stating that even the doctor has given the opinion about the injuries from serial Nos. 1 to 51 "although simple in nature yet cumulative effect of the injuries sustained is sufficient in ordinary course of nature to prove to be fatal". Therefore, the trial court has recorded the conviction of the accused on mis-appreciation of evidence. That the act of causing simple injuries to the deceased by the accused cannot be said to have been done with the knowledge that it is likely to cause death.
5. Mr. S.C. Gupta, learned additional Advocate General, on the other hand, argued that the evidence relied upon by the prosecution is credible, trustworthy and consistent only with the hypothesis that the accused alone had killed the deceased by inflicting the injuries with 'dandas' possessed by them actuated by a common intention to cause the death of the victim.
6. We have heard Mr. J.P. Singh, learned counsel appearing for the appellants, as well as Mr. S.C. Gupta, learned Additional Advocate General, in extenso. A minute examination of facts on file has also been made meticulously.
7. It may be pointed out at the first flush that the witnesses examined by the prosecution have provided two sets of evidence. First set of evidence consisted of the witnesses of the CRPF personnel, namely, PWs Bhagwan Rao, Jaldeep Singh, SI, and Praja Nand Pandey; second set of evidence is provided by, the under-trial prisoners, namely, Krishan Chand, Yashpal, Bhushan Lal and Chur Singh. The first set of evidence supports the prosecution version; whereas second set of evidence has bolstered up a rival story that the accused are innocent persons and, in fact, the CRPF personnel have beaten up the deceased and inflicted several injuries and caused his death.
8. In a criminal case, it is incumbent upon the prosecution to prove the guilt of the accused before holding them guilty by convincing, reliable, cogent and positive evidence beyond any pale of doubt. Link after link must be forged so firmly in the credible testimony of the rival witnesses that it manacles the accused inescapably in the commission of the crime.
9. The prosecution version of the occurrence narrated by the first set of evidence is like this. PW Jaldeep Singh, SI, stated that he was performing his duty on 23-01-1993 in old sub-jail, Udhampur, alongwith 19 CRPF men. Prem Dass deceased, convict, when made an attempt to escape from the Jail in the morning was spotted by CRPF sentries, B.B. Dalvi and constable Dhani Ram, who caught him a little short of the main gate. In the meanwhile, Babu Ram accused was following the deceased also reached there. On hearing the conversation, the witness also reached there and handed over the deceased to the accused person. It is also in his evidence that the deceased Prem Dass was taken by the accused to the meeting room alongside the 'deodhi'. He saw the deceased beaten up by the accused in the meeting room. The accused handcuffed the deceased and hanged with the hook of the ceiling fan and were beating him. It was at his instance that the accused opened the handcuffs of the deceased and took him inside the jail. The witness further stated to have informed the Incharge of the jail when the latter came at 10.00 a.m. about the attempt of the deceased to escape from the jail and subsequently was beaten up by the accused. According to this witness, a three-wheeler was brought by Babu Ram accused at 10.45 a.m. and removed the deceased to the hospital, as his condition was stated to be deteriorating. Bishan Dass accused also accompanied the deceased to the hospital. The witness, however, later on learnt that the deceased has died. In his cross-examination, the witness affirmed the deployment of the CRPF personnel on guard duty in the jail. He also stated that when the deceased was hanged from his handcuffs with the hook of the ceiling fan, his feet did not touch the ground.
10. PW Bhagwan Rao is another constable of the CRPF posted in the jail and was performing duty at the main gate. He was on duty outside the inner gate. Babu Ram entered the jail for counting the heads of prisoners. . He raised alarm when saw a man covered by blanket running away towards the main gate in order to flee away from the jail. PW Dhani Ram, sentry, posted at the outer gate became alert and caught hold of the deceased. He also ran towards the main gate and by that time, Babu Ram accused had also reached there. The deceased was brought back by Babu Ram towards the main jail and as soon as they reached near the 'deodhi' of the jail, PW Jaldeep Singh, SI -- their Incharge -- also arrived there. Jaldeep Singh was also apprised of the occurrence and on his instructions, the deceased was handed over to Raj Kumar and Babu Ram accused. The witness further stated that the deceased was taken to the meeting room adjoining the 'deodhi', where Bishan Dass accused also reached there by that time. It is also in his evidence that during interrogation when the deceased did not reply, he was slapped by the accused and thereafter started beating him with sticks in their possession. He further stated that two stick blows were given by Raj Kumar while others, bet him with hands. Thereafter the deceased was handcuffed by the accused and hanged with the hook of the ceiling fan. The accused also bet the deceased by inflicting 2/3 stick blows. In the meantime, Jaideep Singh PW also arrived on the spot and asked the accused to leave the deceased, as his condition was deteriorating. On this, the handcuffs of the deceased were removed by the accused and he was taken inside the jail by the accused. In his cross-examination, the witness affirmed that after the deceased was handcuffed, the accused Raj Kumar pulled the other end of the handcuffs and the deceased started hanging in the air. He, however, emphatically denied that the CRPF men bet the deceased after the latter was apprehended by them while running away towards the main gate in order to make his escape from the jail. In the like manner, Praja Nand Pandey, a CRPF constable, who was on duty at the main gate from 10.00 a.m. to 12.00 a.m. on the alleged day of occurrence, stated that the deceased Prem Dass brought from inside the jail by Bishan Dass and Babu Ram accused and removed him in unconscious condition and took him away in the auto to the hospital. The witness also stated that in the morning between 8.00 a.m./8.30 a.m., he was sitting alongwith others outside the guard room when saw the man, who had been beaten in the morning by the accused Bishan Dass, Babu Ram and Raj Kumar with sticks, was being taken to the hospital in auto. He further stated to have seen in the morning that accused Raj Kumar holding the other end of the handcuffs of the deceased while passing through a hook. It is also in his evidence that the deceased was seen hanging in the air while his hands touched the hook of the ceiling fan and beaten up by the accused.
11. The evidence provided by the aforesaid witnesses have given a consistent account of occurrence as to how the deceased Prem Dass while running towards the main gate in an attempt to escape from the jail was caught and handed over to the accused, who later on took him to the meeting room adjoining the 'deodhi' and started interrogation. It is also exacted in their evidence that the accused inflicted blows with lathis to the deceased in their possession and thereafter handcuffed the deceased and hanged him with the hook of the ceiling fan and administered beating with sticks in their hands. It was with the intervention of PW Jaldeep Singh that the accused removed the handcuffs and took him inside the jail as the condition of the deceased was found worsening by the witness at that time. It is also in the evidence of the aforesaid witnesses that Babu Ram and Bishan Dass accused brought the deceased in unconscious condition from jail and removed him in auto to the hospital. Praja Nand Pandey has seen the accused taking the deceased to the hospital in precarious condition, as he was on duty at the main gate from 10.00 a.m. to 12.00 a.m. It is also elicited from his evidence that soon after he learnt that the deceased, who was taken to the hospital, had died. The evidence provided by these witnesses is consistent, straightforward, positive and cogent and nothing inherently improbable or unnatural has been trotted out from their pungent cross-examination to cast a speck of doubt from his veracity. Their evidence inspires confidence in the court and we have no reason to disbelieve their testimony.
12. Another set of evidence forthcoming from the statements of the witnesses, namely, Krishan Chand, Yashpal, Bushan Kumar and Chur Singh, who happened to be the prisoners in the jail at the relevant time, is that it were the CRPF personnel who were seen beating the deceased when latter made an abortive attempt to escape from the jail and thereafter brought him inside the jail through the window of the gate. It is also in their evidence that when asked from the deceased, the latter told them that for his attempt to escape, the CRPF Jawans had beaten him. The witnesses have further stated that it was on account of the beating by the CRPF personnel, the condition of the deceased became worsened and he was taken to the hospital where he died.
13. It is pertinent to point out that all these four witnesses examined by the prosecution were the under-trial prisoners in the jail at the relevant point of time. The evidence provided by these witnesses during trial contradicted to what they stated during investigation under Section 161 Cr.PC. They were declared hostile by the prosecution when did not support its case during their streamlined cross-examination.
14. The second set of evidence with regard to the occurrence narrated by the aforesaid witnesses, in resume, may be noticed. PW Bhushan Kumar was a prisoner in the jail on the date of occurrence and stated that the accused entered the jail premises for counting heads of the prisoners. When deceased Prem Dass covered by blanket ran towards the main gate in an attempt to flee away, an alarm was raised by the CRPF men. He along with other prisoners alighted over a water tank on the roof and saw seven CRPF Jawans beating the deceased on the outer gate. When confronted with the statement under Section 161 Cr.PC and suggested to have made the statement to the police that the accused had beaten the deceased with 'dandas' after hanging him with the hook of the ceiling fan with handcuff, he denied and was declared hostile. In cross-examination, the witness is stated to have enquired from the deceased, who told him that he was beaten up by the CRPF personnel when he made an attempt to escape from the jail. Similar is the statement made by Yashpal, Chur Singh and Krishan Chand, under-trial prisoners. In order to test the credibility of these witnesses of second set of evidence and truthfulness of the variation given by them, it is deemed necessary to advert to the other evidence on record provided by PWs Harbans Singh, Assistant Superintendent, District Jail, Udhampur, Harish Kotwal, Deputy Superintendent, District Jail, Udhampur, Chanchal Singh, Superintendent, Jail, Gian Chand Sharma, Inspector Police and Mulkh Raj Sharma, SHO-Inspector, Investigating Officer. The evidence of PW Harbans Singh is to the effect that on 23-01-1993 when he reached oldjail, Udhampur, at 9.00 a.m., Bishan Dass, who happened to be Munshi of the jail, reported that Prem Dass deceased had been beaten up by the CRPF personnel when the prisoner tried to flee away from the jail. The witness, conducted a round of the jail and when saw Prem Dass taking tea and inquired about the incident and his health, the deceased in reply narrated that while making an attempt to escape from jail, he had been beaten up by the CRPF personnel. The witness stated to have reported the matter to Harish Kotwal, Deputy Superintendent, District Jail, at about 11.30 a.m. He further stated that while sitting in the office, one Nikki informed that Prem Dass has fallen because of giddiness. On this, Babu Ram accused sent Bishan Dass Havaldar to bring auto and thereafter the deceased was removed to the hospital. The witness, however, admitted that on the day of occurrence, Bishan Dass, Raj Kumar and Babu Ram only were on duty in the jail. Harbans Singh PW also stated that the deceased Prem Dass was unconscious, while being shifted to hospital. Doctor when examined Prem Dass in his presence stated that his condition bad and could not be saved. The witness, however, returned back to the jail. A report to this effect was given to the Deputy Superintendent, PW Harish Kotwal, through Joginder Singh, constable, and the Deputy Superintendent, Jail, Harish Kotwal, also visited the Jail. The witness, however, in his evidence admitted that he had not considered it proper to make report to the police. Whereas PW Harish Kotwal, Deputy Superintendent, deposed that he was on duty on 23-01-1993 when Assistant Superintendent, Jail, Harbans Singh reported that one prisoner in the jail had died. He also stated to have sent wireless message to IGP, Jammu and SSP, Udhampur. Harish Kotwal, PW, in his cross-examination, admitted that Assistant Superintendent, Jail, Harbans Singh, had informed him that the prisoner was beaten by the CRPF men when he was trying to escape. Whereas PW Chanchal Singh, Superintendent, stated that the security of the old jail was the duty of the CRPF men; whereas counting of the prisoners, to keep record thereof and to produce them in the court, to arrange for their treatment and maintain the record was the duty of the accused. PW Gian Chand Sharma, Inspector, who had conducted a part investigation, seized the file of admission of accused (Roznamcha), vide EXPW-GC and prepared seizure memo EXPW-AL/1, Superdnama EXPW-AL/III, receipt of the dead body EXPW-P, seizure memo of clothes EXPW-SL and docket EXPW-CG/1.
15. This witness, however, denied when suggested during cross-examination to have entered into exchange of words/altercation with Bishan Dass. Whereas Mulkh Raj, Inspector, SHO, stated that he started proceedings under Section 174 Cr.PC on the receipt of information from a reliable source with regard to the death of Prem Dass, prisoner, in the hospital and seized the dead body of. the deceased Prem Dass in the hospital vide EXPW-HR. He prepared the Fard Surat-Hal EXPW-MR, site plan of the recovery EXPW-MR/1 and site plan of the occurrence EXPW-MR/II, seizure memos EXPW-AL, EXPW-BB, EXPWBB-1. EXPW-BB-2 and Superdnama EXPW-AL/1. He also stated to have recorded the statements during inquest proceedings under Section 175 Cr.PC. The witness further stated that the statements of the witnesses and post-mortem report disclose that the deceased died because of injuries caused by accused Bishan Dass, Raj Kumar and Babu Ram. Based on the inquest report and evidence recorded during the proceedings, FIR No. 50/93 dated 29-01-1993 stood registered for offence under Sections 302/34 RPC and investigation commenced. The witness in cross-examination categorically stated that he proceeded to hospital on the receipt of the information with regard to the death of the deceased. However, he stated to have not indicated the place in the site plan where the deceased was caught by CRPF personnel or where the eye witnesses Bhagwan Rao, Dhani Ram, Kama Karn and other witnesses were standing at the time of occurrence.
16. As regards the second version unfolded from the evidence of PWs Bushan Kumar Krishan Chand, Yashpal and Chur Singh, which favours the accused, it is meaningful to point out that all these witnesses were prisoners and present in the jail. Bhushan Kumar PW claims to have seen the occurrence from the roof where he, after hearing the noise that the CRPF personnel were beating the deceased, had climbed. Another witness, Krishan Chand, also stated to have seen the occurrence from a ventilator, when the CRPF people were beating the deceased in the compound. Similar is the version given by Chur Singh and Yashpal, PWs. Their evidence in the court is in contradiction to the statements made under Section 161 Cr.PC. Assuming that the version of occurrence given by the second set of witnesses is believable that the deceased had died with the beating administered by the CRPF people, then the accused Bishan Dass being the Incharge of the prisoners at the relevant time, as a prudent man, was required to lodge a complaint against the CRPF personnel involving in the assault on the prisoner. Further, it is in the evidence that PW Harbans Singh, Assistant Superintendent, Jail, also accompanied the accused to the hospital alongwith deceased, but he too did not report the matter to the police. Harbans Singh, however, stated to have informed the Deputy Superintendent, Jail, Harish Kotwal, that the deceased died because of the beating by the CRPF personnel. Whereas Harish Kotwal, in his evidence on oath, stated that on being informed by PW Harbans Singh, Assistant Superintendent, old jail, that one prisoner has died, he reported the matter to IGP, Jammu and SSP, Udhampur through wireless.
17. It is really enigmatic that when accused informed PW Harbans Singh, Assistant Superintendent, about the deceased having been beaten by the CRPF personnel and Harbans Singh further informed Harish Kotwal in the like manner, but none of them filed an FIR with the police. The case, however, stood registered on the FIR lodged by the SHO on 29-01-1993 based on the statements recorded under Section 175 Cr.PC and the material collected during inquest proceedings that the accused had beaten up deceased Prem Dass in the manner narrated by the first set of evidence provided by the CRPF personnel. This clearly shows that till the FIR was registered, neither the accused nor the Jail Superintendent nor the Assistant Jail Superintendent and Deputy Jail Superintendent asserted before the police that the deceased had died due to the beating by the CRPF personnel. These witnesses even did not disclose these facts to the police during, investigation. It was PW Harbans Singh, who had given a version with regard to the involvement of the CRPF personnel in the occurrence for the first time when he came in the witness box. Whereas Harish Kotwal in his evidence stated to have been informed by PW Harbans Singh, Assistant Superintendent, old jail, Udhampur, about the death of the prisoner due to beating by the CRPF personnel when he, in turn, informed the IGP, Jammu and SSP, Udhampur through wireless message. Had there been a little truth in their evidence or had produced copy of the wireless message, there could be no reason for non-registration of a case against the CRPF personnel for murder of a prisoner. The copy of the wireless message found on the record stated to have been sent to SSP, Udhampur under the signatures of Harish Kotwal, Deputy Superintendent, does not reveal that prisoner Prem Dass had received injuries on account of beating by the CRPF personnel, in consequence of which he was sent to hospital for check up and treatment and doctor declared him dead. Wireless message further recites, as reported by Assistant Superintendent, Incharge, old sub-jail, Udhampur, that Prem Dass, convict, was alleged to have received the acute injuries in a fall from the wall while making an attempt to escape from the jail, on account of which he was declared dead by the doctor when taken to the hospital. The wireless message narrating a different story with regard to the injuries sustained by the deceased, in consequence thereof, he was declared dead when taken to the hospital, to the one narrated by Harbans Singh, Assistant Superintendent, jail, Deputy Superintendent, jail, Harish Kotwal, Chanchal Singh, Superintendent, and the prisoners. Their evidence can neither be termed as plausible nor credible and, thus, cannot be accepted as trustworthy. Had the version given in the wireless message by PW Harish Kotwal based on the information given to him by PW Harbans Singh, Assistant Superintendent, jail, they should have stuck to their version instead of projecting a different story, we may say a false story with a purposive intent to save the appellants-accused from their department. In the absence of any explanation rendered by the aforesaid witnesses that if the version of the prosecution is, in fact, true and correct, what prevented them from making a report to the police about the occurrence, viz., beating up of the deceased by the CRPF personnel on account of which the deceased had died when taken to the hospital. This story manifestly seems manufactured, engineered and cooked up and this belief gets strengthened when till 29-01-1993, no report was lodged by them nor any one of them came out with a version that the deceased had died due to beating by the CRPF personnel when he attempted to flee away from the jail.
Even no explanation is forthcoming from the witnesses as to why this story of occurrence was narrated to the Investigating Officer while making statements under Section 161 Cr.PC. Their evidence can neither be believed nor relied upon being contradictory to their earlier versions before the Investigating Officer and their inaction to report the matter to the police till 29-01-1993 when the case stood registered against the accused under Sections 302/34 RPC. Further, the contradiction in the statements made by PWs, Harbans Singh and Harish Kotwal, with the recital of the wireless message to SSP, Udhampur, makes the second version given by the witnesses highly unbelievable and unacceptable. In the similar manner, the evidence rendered by Krishan Chand, Yashpal, Bhushan Kumar and Chur Singh cannot be said to be credible and trustworthy for obvious reasons that whatever is stated to have been told to them by the deceased when asked, viz., beaten up by the CRPF personnel while making an attempt to escape from jail, must have been narrated to the Investigating Officer in their statements under Section 161 Cr.PC. They came with this part of the story for the first time in the Court while making statements on oath. These witnesses having given altogether different version after resiling from the statements given under Section 161 Cr.PC to the Investigating Officer, for the first time in the Court, cannot be accepted without corroboration in material particulars from other evidence, which is lacking in this case. The rival story bolstered up by the witnesses of the second version of the case, cannot be believed and accepted. The first set of evidence given by the witnesses of the CRPF personnel, which is consistent, unimpeachable and reliable, renders the version of the second set of witnesses highly improbable and unnatural for the reasons explicitly delineated above. The contention raised by Mr. J.P. Singh that the trial Court has not appreciated the evidence properly in declining to accept the version given by second set of witnesses, does not merit acceptance. Taking a practical view of the legitimate inferences flowing from the direct evidence of the first set of witnesses consisting of the CRPF personnel, convincingly established that the accused inflicted injuries to Prem Dass, convict, lodged in old jail, Udhampur, when latter made an abortive attempt to flee away from the jail, in consequence thereof, the deceased died in the hospital.
18. Torturing a person in hanging him by handcuffs with the hook of a ceiling fan and beating him with the sticks is barbaric and contrary to law. The accused who happened to be the jail personnel, would be accomplishing behind the closed doors precisely what the demands of our legal order forbid. If the Incharge of the jail who has to provide all security and protection to the inmates if allowed to indulge in such methods, it will create a sense of insecurity. It is more heinous than a gamekeeper becoming a poacher.
19. Another leg of argument advanced by Mr. J.P. Singh is that each incriminating circumstance appearing in the evidence during trial against the accused has not been put to them separately in their statements under Section 342 Cr.PC, which amounts to non-compliance of the mandatory provisions of the 24 section and renders the conviction and sentence improper and, thus, deserves to be set aside.
20. Undoubtedly, Section 342 Cr.PC prescribes a procedural safeguard for an accused facing the trial to be granted an opportunity to explain the facts and circumstances appearing against him in the prosecution's evidence. That opportunity is valuable one and cannot be ignored. This provision is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion. The provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem, as is handed down by the Apex Court in Basavaraj R. Patil v. State of Karnataka, (2000) 8 SCC 740.
21. The present case is not a case of non-examination of the accused at all. The main thrust of Mr. J. P. Singh, learned counsel appearing for the appellants, is that the opportunity to be granted to the accused to explain each circumstance is a valuable one and cannot be ignored. In such an event, the question would arise as to whether or not the appellants have been prejudiced on account of alleged omission in recording of the statements under Section 342 Cr.PC. It may be pointed out that every error or omission not in compliance with the provisions of Section 342 Cr.PC will not necessarily vitiate the trial. Error/omission, as pointed out by Mr. J. P. Singh in not putting each circumstance separately to the appellants-accused in their statements, in our view, is a type of error that falls within the category of curable irregularities. The question in each case will depend upon the degree of the error and whether prejudice has been occasioned or is likely to have been occasioned. It is well recognized that a judgment is not to be set aside merely by reason of inadequate compliance with Section 342, particularly, when based on evidence, led by the prosecution, being consistent, cogent and unimpeachable in character and proved the guilt of the accused beyond hilt, as in the instant case. It is further settled that clear prejudice must be shown. No omission to comply strictly with Section 342 can render a conviction liable to be set aside unless it has, in fact, occasioned a failure of justice. The error being purely technical, question of prejudice not interfered from the cumulative facts and circumstances of the case, it does not, in any manner, render conviction illegal and improper. This we say so because the appellants-accused were aware of all the pieces of evidence and raised no objection in respect of them during trial and, thus, prejudice cannot be said to have been established. The contention of Mr. J. P. Singh that to accomplish the object of the section, fair and proper opportunity had to be afforded to the appellants of explaining the circumstances, which appeared against them in the evidence, and which had not been afforded, in our view, is also without any legal force to be accepted.
22. It was next contended by Mr. J. P. Singh, appellants' counsel, that only simple injuries had been found on the deceased by the doctor who conducted autopsy on the dead body of the deceased. It indicates that the accused had not intended either to kill the deceased or cause such injuries as in the ordinary course of nature would be sufficient to result in his death. His further contention is that common intention of the accused at the most was to beat the deceased only to teach him a lesson for his endeavour to slip away from the jail and, thus, their case was not covered within the purview of offences under Section 302/34 RPC.
23. In order to appreciate the contention of the learned counsel, we deem it imperative to deal with the medical evidence. Dr. Romesh Chander Gupta stated that Medical Superintendent constituted a Medical Board to conduct the post-mortem examination of the deceased, at the instance of the police. As many as 51 injuries were found on the person of the deceased by the doctor. According to the doctor, the injuries were though simple in nature yet cumulative effect of the injuries sustained by the deceased was sufficient, in the ordinary course of nature, to be fatal. The doctor further stated that the injuries mentioned in the certificate could be caused by two sticks of different diameters. He further opined that the sticks shown to him in the Court and allegedly, seized by the police during investigation could have caused the injuries found on the person of the deceased. The doctor, however, ruled out that any of the injuries found on the person of the deceased was caused by the butt of the rifle. He also did not find any cuff mark on the wrist of the deceased or in its vicinity. Doctor further clarified that if a man is hanged by handcuff for 20 minutes, there is no likelihood of presence of any bruise, as bruise never make its appearance over the seat of the injury or distant apart from the seat of the injury as well. The doctor also stated that it requires one hour's time for appearance of the bruise mark.
24. The distinction between culpable homicide (Section 299 RPC) and murder (Section 300 RPC) has always to be carefully borne in mind while dealing with the charge under Section 302 RPC. It is true that the difference between an act of causing such bodily injury as is likely to cause death and the act with the intention of causing such bodily injury as is sufficient in ordinary course of nature to cause death is one of degree. For the application of Clause (3) of Section 300 RPC, all that is required is that the injury intended must be such as would in the ordinary course of nature be sufficient to cause death: There may be a case in which even though the injury was sufficient in the ordinary course of nature to cause death the injured may escape death, but if he dies as a result of such an injury, offence would be covered by Clause (3) of Section. 300 RPC and be murder. If, however, the injury is of such a nature as is only likely to cause death and would not in the ordinary course of nature be sufficient to cause death, it would be culpable homicide not amounting to murder. In other words, the question of offence depends upon the degree of criminality and that again depends upon the offender's knowledge and intention.
25. In deciding the question whether the act of the accused amounts to the offence of murder or culpable homicide simpliciter, the Court has to see if the killing comes within any one of the four clauses of Section 300 RPC, it is, exceptions apart, murder. While Clause (3) to Section 300 RPC refers to a bodily injury sufficient in the ordinary course of nature to cause death. Section 299 RPC refers to bodily injury likely to cause death and it is the use of the word "sufficient" in Clause (3) of Section 300 RPC and the word "likely" where it occurs in Section 299 RPC. If on referring to Section 300 RPC, the Court finds that the killing does not come within one of the four clauses, then it can refer to Section 299 RPC. If the killing comes within the second part of Section 299 RPC, that which relates to the intention or causing a bodily injury likely to cause death, it comes under Section 304, Part I, RPC and if there is no intention, but only knowledge, that is to say, if there is no intention to cause death or bodily injury likely to cause death, but only knowledge that death is likely to be caused, the offence is under Section 304, Part II, RPC.
26. It may be useful here to point out that the Code contemplates that, when an act is culpable homicide, whether amounting to murder or not amounting to murder by reason of the act being done with the knowledge described in Clause (c) of Section 299 RPC (or with the knowledge described in Clause (4) of Section 300 RPC), which knowledge satisfies the definition in Clause (c) of Section 299, an intention to cause death or to cause such bodily injury as is likely to cause death must be absent. When intention of either kind exists with the knowledge described, the knowledge merges in the intention, and a higher degree of guilt is imputable.
27. It is thus clear from the above that in order to sustain the charge under Section 302 RPC, the prosecution has to establish the inclusion of thirdly under Section 300 RPC. In this case, all the appellants caused injuries on the body of the deceased with sticks in their possession has been fully established. The doctor in his evidence has clearly deposed that the injuries 1 to 51 noted in the medical certificate are simple in nature yet cumulative effect of the injuries sustained was sufficient in the ordinary course of nature to be fatal. If a man intentionally causes injuries by way of chastisement and consequences beyond his comprehension result, it is for the Court to determine how far he can be held to have the knowledge that he was likely by such act to cause the actual result. If such knowledge can be imputed, the result is not to be attributed to mere rashness; if it cannot be imputed, still the wilful offence cannot take the character of rashness, because its consequences have been unfortunate. It follows that acts, which are offences in themselves, must be judged with regard to the knowledge, or means of knowledge, of the offender and placed in their appropriate place in the class of offences of the same character. Criminal knowledge is then, in such cases, demonstrated a posteriori. It takes into account not only knowledge but means of knowledge, not only the knowledge which is, but which, judging from the effect, ought to have been in the accused. But where the accused did not jointly propose to kill the deceased, but only to cause such bodily injury as was likely to cause death, and that no one of them supposed the hurt inflicted by himself in particular to be likely to cause death, and that the offence is, therefore, taken out of the category of murder and would be under Section 304 RPC. In other words, that where the injury inflicted is with the knowledge that it would likely to cause death and that such bodily injury as was likely caused death, the offence would be one which will fall under Clause (2) of Section 304 Part II. Similarly, in inferring knowledge the Court looks to the result. If it is one which could not have been arrived at without fore-knowledge, the Court presumes it. Such knowledge may be legitimately presumed where the assault is committed with an axe or any other dangerous weapon, or where a man is hit with great force on a vital part of his body.
28. In order to hold a person guilty for offence of culpable homicide or murder, the requisite intention or knowledge must be imputed to the cause when he committed the act which caused death, as the case may be. The words used in the section are "intention" and "knowledge" and it must be taken that its framers intended to draw a distinction between these two expressions. The knowledge of the consequences which may result in the doing of an act is not the same thing as the intention that such consequences should ensue, Except in case where mens rea is not required in order to prove that a person had certain knowledge, he must have been aware that certain specified harmful consequences would or could follow. This awareness is termed as knowledge. If an act is done by a man with the knowledge that certain consequences may follow or will follow, it does not necessarily mean that he intended such consequences and acted with such intention. Intention requires something more than a mere foresight of the consequences. It requires a purposeful doing of a thing to achieve a particular end.
29. In the instant case, all the three appellants caused injuries to the deceased with sticks in their possession after hanging him with the hook of the ceiling fan, has been fully established by unimpeachable evidence of the eye witnesses, who happened to be the CRPF personnel, admittedly posted on duty in the jail at the relevant time. It is further established from the evidence that the injuries caused by the appellants though were simple in nature and indicated that act was done not to cause death or with the intention likely to cause death. However, the injuries when taken in its cumulative, as is opined by the doctor, were sufficient in ordinary course of nature to prove to be fatal, impute only knowledge in respect of the injuries inflicted may be likely to cause death but does not show any intention to cause death and, thus, consequently falls within the ambit of Section 304 Part II of the Ranbir Penal Code. It is further absolutely clear on evidence that the appellants intended to cause bodily injuries to the deceased. Thus, the first part of thirdly is not established. The Court has to judge objectively from the nature of the injuries and other evidence, including medical opinion as to whether the injuries intentionally inflicted by the appellants on the deceased were sufficient in the ordinary course of nature to cause death.
30. It is further indisputably gatherable from the prosecution evidence that the accused used violence and injuries were caused to the deceased due to which he ultimately died. It was a clear case of doing criminal act in furtherance of common intention. It was in the evidence of Dr. Romesh Chander Gupta that as many as 51 injuries were found on the person of the deceased at the time of examination. He further stated that all the injuries taken together in cumulative were sufficient in ordinary course of nature to prove to be fatal. Section 34 RPC enacts that when a criminal act is done by several persons in furtherance of a common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. The section thus lays down a principle of joint liability in the doing of a criminal act. The essence of that liability is found in the existence of 'common intention' animating the accused leading to the doing of a criminal act in furtherance of such intention. The section intended to meet a case in which it is difficult to distinguish between the acts of individual members of a party and to prove exactly what part was played by each of them. It is thus an exception to the general rule of criminal jurisprudence that it is the primary responsibility of the person who actually commits the crime and only that person is held guilty and punished in accordance with the law for his individual act.
31. Taking into consideration the facts of the case in totality and the manner in which the violence has been used and injuries caused in furtherance of a common intention, the case of the accused would not be covered by Section 300 RPC but, however, it is proved that they cannot escape conviction for offence punishable under Section 304, part II, read with Section 34 RPC. In our opinion, by applying Section 34, RPC, the offence of the appellants-accused for conviction under Section 304, part II, RPC read with Section 34 RPC, instead of Section 300 RPC, is proved.
32. We are, therefore, of the opinion that the trial Court has weighed the evidence produced by the prosecution fairly, and decided the character of the witnesses correctly and reached the result rightly. We are also of the opinion that the trial Court has rightly rejected the evidence produced by the second set of witnesses because these witnesses do not inspire any confidence.
33. After taking conspectus of the entire concatenation of the facts and circumstances of the case discussed above, we allow the appeal in part, set aside the conviction and sentence of the appellants under Section 302 RPC read with Section 34. RPC, and convict and sentence them under Section 304 Part II RPC read with Section 34 RPC to suffer five years' rigorous imprisonment and a fine of Rs. 25,000/- each. In case of default in making the payment of fine, the appellants shall further undergo one year's imprisonment.
34. The appellants are on bail. Their bail bonds shall stand cancelled and they shall be taken in custody to undergo the sentence awarded.
35. Both the appeal as well as reference made by the trial court are disposed of accordingly.