Patna High Court
Rambaran Mahton vs The State on 31 October, 1957
Equivalent citations: AIR1958PAT452, 1958(6)BLJR88, 1958CRILJ1077, AIR 1958 PATNA 452, 1958 BLJR 88
JUDGMENT Kanhaiya Singh, J.
1. This is an appeal from the decision of the Additional Sessions Judge, Patna, dated 22nd December, 1956, convicting the appellant under Section 325, I. P. C. and sentencing him to undergo rigorous imprisonment for five years. The charge initially against the appellant was of murder under Section 302, I. P. C. but the learned Additional Sessions Judge found that the charge of murder had not been established. In his opinion the offence the appellant committed was grievous hurt under Section 325, and he sentenced him accordingly.
2. This lamentable incident which was the development of a domestic feud between the two full brothers over almost a trifle and which resulted in the death of one of them took place at 6 P. M. on 29th May, 1956, in village Soh within the Bihar Police Station. Nokhali, the deceased, was the elder brother of the appellant, Rambaran Mahton. Both of them were separate in mess and cultivation.
This occurrence took place in the field comprised in Survey Plot 849 which, there is no dispute, had been allotted exclusively to their mother Mosstt. India (Court witness No. 1). At that time the deceased was looking after his brinjal field which was 250 yards distant from plot 849. The appellant along with his mother and two sisters was then irrigating that plot by means of Rahat fixed in a well at some distance from that plot. These ladies were living with the appellant.
One of the sisters was married, but at the time of the occurrence she was there with the appellant. The case of the prosecution is that the deceased came to plot 849 from his brinjal field and there took place some altercation between the two brothers. What actually preceded this altercation there is no evidence, According to the prosecution, there was exchange of abuses between the two brothers and the appellant dashed him to the ground and sat upon his stomach and belaboured him with fists and slaps.
This rendered him senseless. Both the appellant and his mother gave him water to drink but he did not regain his senses. Several persons arrived at the place of occurrence and a khatia was brought and Nokhali deceased was taken on the khatia to one Dr. Bhagvvan Sahay who was living a mile away from the place of occurrence. Before medical aid could be given to the deceased, he expired.
Soon after a Police Constable arrived at the place of Dr. Bhagwan Sahay and at the instance of the constable Most. Garbhi and Ramdas, the widow and the son of the deceased, took the deceased on the Ekka to the Police Station where she lodged 1st information report at 9-30 P. M. The Sub-Inspector visited the place of occurrence soon after at about midnight and forwarded the dead body for post mortem examination. Dr. H.C. Ghosh held post mortem examination on the corpse of Nokhali at 11 A. M. on 30-5-56. The examination disclosed the following ante-mortem injuries on the person of the deceased :
"(1) Diffused swelling 1 1/2" X 3/4" on the left side of the forehead. On dissection it showed extravasation of blood in the scalp tissues. No bone was injured.
(2) Diffused swelling 6" X 4" on the left side of the chest on the lateral aspect extending from 6 intercostal space downwards in axillary region. Dissection showed extravasation of blood in soft tissues on the left side of the chest more on the posterior surface. The 8th, 9th and 10th and 11th ribs on the left side were found fractured in anterior axillary line and the 10th rib was also fractured in between mid and posterior axillary line.
On opening the abdomen it was found full of blood which started pouring out. The spleen was found ruptured. One deep laceration 3" X 1" X 1/4" thickness, of the spleen on the hylum of the spleen. From it four star-shaped ruptures extended laterally from above downwards 1 1/2" X 1/8", (2) 2" X 1/4", (3) 1 1/2" X 1/8", (4) 1 1/4" X 1/8". The thickness varied from the quarter to half of the thickness of the spleen. There was another tear 2" X 1/8" X capsul of the spleen deep on outer circle of the spleen. The size of the spleen was 7" X 5" X 1 1/4" and weight about 11 to 12 ozs.
There was clotted blood in perinephric tissues and posterior surface of the capsul of the kidney. The upper bone of the kidney was contused laterally. The splenic flexure of the colon showed congestion of clotted blood in its mesicolon. There was about 3 pints of blood in the abdominal cavity."
In the opinion of the doctor, the injuries were caused by some hard blunt substance, and in jury No. 2 was caused by hard and strong compression of the chest at the side. His further opinion, was that these injuries could be caused by strong kicks and fists. The death was caused by shock and haemorrhage as a result of the aforesaid injuries, particularly, injury No. 2. After preliminary enquiry under Chapter XVIII of the Code of Criminal Procedure, the appellant was committed to the Court of Session and was convicted and sentence as stated above.
3. The appellant did not deny the occurrence. In fact, the time and the place of occurrence and the fact that there was some dispute between the two brothers were practically admitted. The appellant, however, did not admit administration of kicks and slaps. According to the defence, when Nokhali came to the place of occurrence he was in a fit of anger and caught hold of the appellant by the throat, and the appellant, in order to extincate himself, pushed him aside and Nokhali fell on a (spade) Kodari which was lying in the field. The suggestion is that the injuries that the medical officer found on Nokhali were probably caused by fall on the handle of the Kodari.
4. There can be no doubt that the deceased received some serious injuries including injuries on the head and chest and the spleen which actually brought about his death. The important question for consideration is whether the occurrence took place in the manner alleged by the prosecution and whether the appellant was responsible for the infliction of the injuries on Nokhali.
There is no dispute that at the time of occurrence the deceased was looking after his brinjal field which was at a distance of 250 yards from the place of occurrence. There is the further evidence that the mother and the two sisters of the deceased, namely, Mt. India, and Mt. Phulia and Mt. Patia, were there helping the appellant in the irrigation of plot 849. Their presence, at the time of occurrence cannot be doubted. The mother and the sisters were, however, not examined by the prosecution. They were examined as Court witnesses.
They are Court witnesses, Nos. 1, 2 and 3. In order to prove their case the prosecution called three witnesses, namely, Mt. Garbhi, widow of the deceased, (P. W. 1) Ramdas (P. W. 2) and Hiraman Pasi (P. W. 5). The evidence of these witnesses is consistent throughout that the appellant pushed Nokhali on the ground, sat upon his stomach and gave him fists and slaps. Their further evidence is that in consequence of the injuries Nokhali became senseless just on the spot.
The presence of these witnesses at the time of occurrence cannot be doubted. Most. Garbhi (P. W. 1) has deposed that she was going to the brinjal field from her house where the husband Nokhali was from before, and when she was on the Dagar about 200 steps away from the brinjal field she saw her husband and the appellant quarrelling in the party field of the mother which is plot 849.
Her further evidence is that the appellant threw her husband down, got upon his stomach and beat him with fists and slaps. The only criticism of her evidence is that it was not possible for her to see the quarrel and also the beating of her husband by the appellant from a distance of about 200 steps. I do not find any improbability in her evidence.
Unless there was something to obstruct her vision for which there is no evidence, it is easy for a person to see a simple occurrence of quarrel and assault by fists and slaps from a distance of 200 steps. It is quite natural for her to go to her brinjal field to keep watch where her husband was working at that time. I thus do not find anything of substance to discredit her testimony.
The next witness is Ramdas (P. W. 2), and his evidence is to the same effect. It was contended, however, that his presence was extremely doubtful and that this boy had been tutored to say what has deposed to by him in the Court. According to the defence, Ramdas came there when the occurrence was over, and his father was lying in a senseless condition.
According to the prosecution this boy was in his brinjal field & from there he saw the quarrel between his father and the appellant, and he came there running. There are two important circumstances which disprove the case of tutoring. The first thing is that the whole thing took place in a very short time and the first information report was lodged with the utmost expedition, and there was absolutely no time for tutoring this boy.
It will be remembered that Nokhali was taken to the place of the doctor in a senseless condition, and this boy also accompanied his father there. All of them were very much perturbed, and naturally so there was no question of tutoring at all at that time. Another thing we get from the evidence is that this boy went to bring his Mamu, Bhageru Mahton, (P. W. 6). Till then Nokhali had not breathed his last.
He informed Bhageru that the appellant had assaulted his father and that he was in a precarious condition at the house of Dr. Bhagwan Sahay and requested him to come there. But before Bhageru arrived, Nokhali had already expired. This is exactly the evidence of Bhageru, also. It follows that at the earliest opportunity this boy mentioned about the assault on his father by the appellant to Bhageru. There is in fact nothing in the evidence of Bhageru to doubt his veracity.
As a matter of fact, on the question of Ramdas informing him of the assault on his father and of his precarious condition, there was no cross-examination at all. From the house of the doctor they all went straight to the Police Station and the evidence of Ramdas was recorded that very night at the Police Station. It will thus appear that there was absolutely no time for anybody to tutor this boy.
As a matter of fact the only person who could have prepared him on this point was his mother, but considering her condition as stated by the investigating officer it is hardly probable that she would have composed herself so soon to tutor the boy to say what she considered necessary nor do I think that a lady of her immature brain could have given any such instruction to Ramdas.
Another circumstance pointed out to cast the suspicion upon his testimony is that he did not speak about the appellant sitting on the stomach of his father before the investigating officer. This is no doubt true. He did not state before the Police that the appellant assaulted his father while sitting on his stomach.
This circumstance, in my opinion, is not sufficient to render his evidence suspicious, firstly the investigating officer has not taken down his statement verbatim, and secondly, considering the nature of injuries on the person of the deceased and considering the fact that he was lying on the ground, they could not have been caused unless the assailant was leaning on his body. In fact, we find from the evidence of Most. Garbhi (P. W. 1) that he was sitting on the stomach while beating him. This omission, therefore, is of little consequence.
I think that the evidence of Ramdas is quite frank and straightforward, and do not see any reason to differ from the learned Additional Sessions Judge about the appreciation of his evidence. The last witness is Hiraman Pasi (P. W. 5). At that time he was on palm tree tapping toddy. From that tree he saw the entire occurrence. His evidence was criticised on the ground, first, that his name does not find place in the first information report, and, secondly, that both the wife and the son of the deceased did not see Hiraman at the place of occurrence.
None of these facts is sufficient to render his evidence unreliable. As a matter of fact, these circumstances rather go to reinforce his evidence and make it wholly trustworthy. When according to him, he was at the time of occurrence on the palm tree it was natural for both the wife and the son of the deceased not to find him there at the place of occurrence. It appears that they have given a most natural version of the occurrence.
This also explains the omission of his name from the first information report. Most. Garbhi who lodged the first information had not seen him at the place of assault and she could not therefore have mentioned his name as a witness in the first information report. This is another circumstance which shows that there was no attempt at embellishment of the prosecution case. It was then alleged that his evidence should be considered with caution, because there was some dispute between Hiraman and the appellant.
No substantial difference ever existed between these two persons. All that has been said is that during the time of jointness of the two brothers, Hiraman was tapping their palm trees, but after separation he was tapping only the trees which belonged to the deceased. I fail to understand how this circumstance could have caused any ill feeling between these two persons. He was as a matter of fact not the servant of either and, it is not unlikely that he could not have afforded to tap all the trees belonging to both the appellant and the deceased. In ray opinion, his evidence also is quite trustworthy.
5. These three witnesses have convincingly supported the prosecution case. In fact, there is very little difference between the prosecution and the defence version. We are confronted with two theories one put forward on behalf of the prosecution and the other on behalf of the defence. According to the defence injuries were caused by fall on the handle of the spade which was lying in the field at the time of the occurrence.
The important question is which version could be accepted having regard to the circumstances of the case. The mother and the two sisters who were examined as Court witnesses have no doubt supported the defence theory, As rightly observed by the learned Additional Sessions Judge, their evidence has to be considered with great caution, because after the death of Nokhali they will certainly make every attempt to protect the appellant who was the only member left in the family.
What, however, discounts their evidence and renders it unreliable is the injuries on the person of Nokhali. Having regard to the nature of these injuries it seems difficult to accept the theory that they were caused by fall on the handle of a spade. The injuries, that were on his person, namely, on the head and chest, could not have possibly been caused by mere fall on the spade. In that circumstances we could have expected at best one injury on his body. Further, it will appear from the nature of the injuries that they must not have been caused without application of some force. It is unlikely that a mere fall will bring about those injuries. The defence theory about the manner of the causation of the injuries must therefore be discarded.
On a consideration of the entire evidence and the circumstances of the case I have no manner of doubt in my mind that the occurrence took place as alleged by the prosecution. I hold with the learned Additional Sessions Judge that the appellant threw Nokhali on the ground, sat upon his stomach and assaulted him with fists and slaps.
6. The important question is what offence is disclosed by the evidence produced by the prosecution. Sir Sultan Ahmad contended that the existence of grievous hurt is not by itself adequate to complete the offence under Section 325 I. P. C. His contention is that apart from the grievous hurt, there must be on the part of the accused either intention to cause grievous hurt or likely knowledge to cause it. He did not dispute that some of the injuries on the deceased were grievous. He urged, however, that the necessary knowledge or intention to cause grievous hurt was lacking in this case.
I am in entire agreement with Sir Sultan so far as the general proposition of law enunciated by him is concerned. Section 320 I. P. C. described "grievous hurt". Section 325 provides for punishment for voluntarily causing grievous hurt. What is meant by the expression "voluntarily to cause hurt," is laid down in Section 321 I. P. C. It provides that whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt" what will in law amount to voluntarily causing grievous hurt is described in Section 322 I. P. C. It is in the following terms :
"Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said, voluntarily to cause grievous hurt.
Explanation: A person is not said voluntarily to cause grievous hurt except when he both causes grievous hurt and intends or knows himself to be likely to cause grievous hurt. But he is said voluntarily to cause grievous hurt, if intending or knowing himself to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of another kind. "
7. Sir Sultan largely relied upon Explanation to Section 322, and his contention was that in this case it cannot be said that grievous hurt was in contemplation of the accused. Explanation to Section 322 really unfolds the significance of the expression "voluntarily to cause grevous hurt." It states in clear terms that the offence of grievous hurt is not caused unless the offender both causes grievous hurt and intends or knows himself to be likely to cause grievous hurt.
It will appear from Section 325 read with Section 322 I. P. C. that the essential ingredients of the offence of voluntarily causing grievous hurt, are three in number : (1) grievous hurt as described in Section 320 must first be caused. If the hurt actually caused is simple, a person cannot be held guilty of voluntarily causing grievous hurt even if it was in his contemplation; (2) the offender intended, or knew himself, to be likely to cause, grievous hurt. If he intended or knew himself to be likely to cause only simple hurt, he cannot be convicted for the offence under Section 325 even if the resultant hurt was grievous. In other words, to constitute the offence of voluntarily causing grievous hurt, there must be complete correspondence between the result and the intention or the knowledge of the accused (3) the hurt was caused voluntarily.
In other words, the causation of grievous hurt was either in contemplation or was the likely result of the act done. It is manifest that in the nature of the things it is difficult to obtain direct proof of what the offender thought was likely to happen. In all cases it is really a question of inference from the nature of the act committed by the offender, his conduct and the surrounding circumstances of the case.
When the act that he did in the process of causing hurt is such as any person of ordinary prudence knows it likely to cause grievous hurt, he may safely be taken to have intended grievous hurt, or at least to have contemplated grievous hurt as likely to occur. If the act was such that nothing more than simple hurt could reasonably be thought likely to ensue from it, then although grievous hurt may unexpectedly have ensued, the offender can be convicted of simple hurt, only assuming that grievous hurt was not in his contemplation.
This is quite obvious on the plain reading of Section 322 along with Section 325 I. P. C. Bearing in mind these underlying principles, the question is whether the appellant in this case intended to cause or had the knowledge of the likelihood of causing grievous hurt. Sir Sultan contended that at the time of the occurrence the appellant was admittedly without any weapon, and assuming the entire prosecution case to be correct, he assaulted him, only with fists and slaps and therefore, the appellant could not possibly have known that the consequence of his act was grievous hurt.
I do not agree with Sir Sultan on this point. The means by which the injury was caused is not the true criterion. If it were, so howsoever, grievous an injury may be, the provisions of Section 325 will not be attracted if no weapon was used in causing it. The answer really depends upon the nature of the injury caused and the manner in which the blows were administered, whether by fists and slaps or by a weapon.
What we find in this case is that Nokhali had been dashed to the ground. He was wholly undefended. While he was lying on the ground, the appellant sat on his stomach and administered him fists and slaps. He had sustained no injuries, not even a scratch. If the absence of injuries on the person of the appellant is indicative of anything it is this that Nokhali was completely in his grip, totally, unable either to strike him in self-defence or extricate himself from his hold.
While Nokhali was lying in such a helpless condition, the appellant, assaulted him recklessly with fists and slaps on every part of his body. This is not all. It appears that the blows must have been given with more than usual force. As will appear from the opinion, of the doctor, three of his ribs were fractured and the spleen was ruptured. It is true that the spleen was in enlarged condition, as stated by the doctor, and it is likely, that even slight force might have resulted in the rupture of the spleen.
But there is absolutely no explanation so far as the fracture of the ribs is concerned. These injuries, in my opinion, could not have been caused unless blows were given to him with great force. There will absolutely no justification for the appellant to strike him with strong fists and slaps when he neither retaliated nor tried to defend himself. If in such circumstances a person belabours a man with fists and slaps, it is I think obvious, as it will be obvious to everybody of ordinary prudence, that grievous hurt would ensue.
I agree with Sir Sultan that there could have been no intention on the part of the appellant to cause grievous hurt to his elder brother, but I have no doubt that the way in which he assaulted his brother, he should have known that he was likely thereby to cause grievous hurt to him. In my opinion, the of fence that was caused in this case was grievous hurt, as contemplated by Section 325, I. P. C. and the appellant was rightly convicted by the learned Additional Sessions Judge of this offence.
8. Lastly, Sir Sultan contended that even if the offence came within the purview of Section 325 the sentence of five years was in the circumstances of the case, too severe. It is common ground that plot 849 which was the venue of the occurrence did not belong to the deceased but that it had been allotted exclusively to his mother who was admittedly residing with the appellant. Nokhali had no business to go to plot 849 where the appellants along with his mother and sisters was carrying on irrigation work peacefully.
Further, after Nokhali became senseless, he did not forsake him and leave the place. He stayed on to tend him. The evidence shows that he gave him water to drink and also sprinkled water upon his body in order to bring him to his senses. It is indicative of the fact that remorse eventually overpowered him when passion subsided, and the humane in him triumphed.
The learned Additional Sessions Judge took into consideration these special features of the case and for that reason held him guilty not of murder but of causing grievous hurt. In my opinion, these very circumstances also call for a lenient consideration of his case. They show that the appellant beat his brother under great provocation given by the deceased himself and in the heat of the moment.
Having regard to the relationship between the parties and also the fact that this unfortunate incident occurred on the spur of the moment due to provocation given by the deceased himself and also considering the fact that there was absolutely no intention on the part of the appellant either to kill him or to cause him such bodily injury as was likely to cause his death, I think the ends of justice will be sufficiently met if he is awarded one year's rigorous imprisonment.
I would, therefore, alter the sentence from five years' rigorous imprisonment to one year's rigorous imprisonment.
9. With this modification in the sentence, the appeal is dismissed.