Allahabad High Court
Jhamman And Ors. (In Jail) vs State Of U.P. on 26 April, 1991
Equivalent citations: 1991CRILJ2970
JUDGMENT U.K. Verma, J.
1. This is an appeal against the judgment and order of Shri L. N. Rai, III, Additional District and Sessions Judge, Budaun dated 21-9-78 in the Sessions Trial No. 13 of 1978 convicting Hem Singh Under Sections 302 simpliciter and 307/323 read with Section 34, I.P.C., Nek Pal Under Section 307 simpliciter and 302/ 323 read with Section 34, I.P.C. and Jhumman and Jai Singh under Sections 302/307/323 read with Section 34, IPC. The appellants Under Section 302 or Section 302 read with Section 34, IPC have been sentenced to imprisonment for life, Under Section 307 or 307 read with Section 34 I.P.C. have been sentenced to undergo seven years rigorous imprisonment and Under Section 323 read with Section 34, IPC have been sentenced to six months rigorous imprisonment. The sentences have been directed to run concurrently.
2. This part of the prosecution story is uncontroverted that about 5.00 p.m. on 8-10-77 there was a quarrel between Jhumman appellant and the informant Ram Das and his deceased brother Sher Singh when the latter complained that the three buffalows and a cow of the appellant had grazed their maize crop.
3. The prosecution case is that Jhumman had let loose the above four cattle of his in the maize field of the informant's family. The informant and his younger brother Sher Singh deceased who were scraping grass in their field nearby drove away the cattle of Jhumman on noticing them. When they mentioned about the cattle trespass to Jhumman, there was an altercation between them. Jhumman rushed to the village and came back with his sons Hem Singh and Nek Pal who were armed with spears and Jai Singh who like him had a lathi. They started assaulting Ram Das and Sher Singh with their respective weapons. As Ram Das and Sher Singh raised alarm, Om Prakash and Ram Lal rushed from their fields nearby and Dhoori and Ram Lal who were in the vicinity reached there. On being challenged by them, they fled away.
4. The report of the incident had been lodged at 8-30 p.m. on 8-10-77 in the police station Bilsi which was at a distance of nine kilometers from the scene of occurrence. The medical examination of Sher Singh had been done at 8-30 a.m. on 9-10-1977 and that of. Ram Das 10 minutes later. The medical report of Sher Singh marked Ext. Ka. 1 shows him to have sustained the following injury:--
A punctured wound 1 cm. x 1/2 cm. x cavity deep on the right side of lower chest. Surgical emphysema present around the wound. Advised X-ray of chest.
5. This injury had been directed to be kept under observation and was opined to have been caused by sharp pointed object. Its duration had been recorded to be half a day.
6. The medical report of Ram Das Ext. Ka-2 indicates that he had received the under mentioned injuries.
1. Punctured wound 1/2 c.m. x 1/2 cm. x 1 cm on the front of neck in the midline 4 cm. above the supra-sternal notch.
2. Contusions 5 cm x 1 cm. on the posterior aspect of left shoulder.
3. Contusions 3 cm. x 1/2 cm. on the outer border of left arm 2 cm. above left elbow joint.
4. Abrasions 1/2cm. x 1/4 cm. on the outer border of base of right thumb.
5. Abrasions 1/2 cm. x 1.4 cm. on the dorsum of the first inter phalangel joint of index finger of the left hand.
7. The injuries were all simple. The injury No. 1 was pointed to have been caused by sharp and pointed object whereas the remaining injuries by blunt object. The duration of the injuries in his case also was estimated to be half a day approximately.
8. Sher Singh as given out by Dr. V. P. Kulshrestha (PW-8) died in the district hospital at 10.00 p.m. on 9-10-75. In connection with post-mortem examinations on the following day, Dr. Kulshrestha found that the wall of his right side chest had been punctured below the 7th rib. The lung had been punctured in the lower lobe. The peritoneum was tense. The membranes, mind, both the lungs, spleen and kidneys were congested. The abdomen wall and peritoneum were tense. The doctor opined that Sher Singh had died as a result of internal haemorrhage on account of the lung and liver injuries.
9. Dr. V. K. Srivastava (P.W. 1) in his statement during trial pointed that the injury of Sher Singh was sufficient to cause his death.
10. The prosecution had examined Ram Das informant (PW-3), Om Prakash (PW-4) and Ram Lal (PW-5) as the witnesses of the occurrence. They pointed that Hem Singh appellant had caused spear injury to Sher Singh and Nek Pal had caused spear injury to Ram Das and Jhumman and Jai Singh had assaulted Ram Das with their lathis. The witnesses did not affirm that after the altercation Jhumman had gone running and brought his sons who were armed as above. They on the other hand gave out that Jhumman had taken his cattle to his house after the altercation and a little later had come with his sons. Ram Das (PW-3) and Ram Lal (PW-5) had estimated this gap to be of half an hour duration. The witnesses in their statements had clarified that Hem Singh had assaulted Sher Singh with spear and Nek Pal had assaulted Ram Das with his spear. Jhumman and Jai Singh both were stated to have assaulted Ram Das with lathis.
11. The prosecution witness Ram Singh Head Constable PW-2 pointed to have taken down the oral report Ext. Ka-3 and registered a case against the accused by the G. D. entry Ex. Ka-4 Under Sections 323/324, IPC. On receipt of the information about the death of Sher Singh he stated to have converted the case against the appellants Under Section 304, IPC by the G.D. Entry Ext. Ka-5. He also proved the G.D. Entry Ext. Ka-6 regarding deposit of the clothes of the deceased in the police station.
12. Vishwanath Pandey (PW. 6) proved the inquest report Ext. Ka-7 and the documents Exts. Ka-8 to Ka-10 which he had scribed for obtaining post mortem report from the doctor.
13. The constable Lalloo Singh (PW. 9) merely stated that he had carried the dead body of Sher Singh from the hospital to the mortuary in a sealed cloth and it had not been allowed to be tampered with.
14. Man Singh, Inspector of the police station Bisauli (PW 7) narrated as to how he had investigated the case. He proved the statement of Sher Singh recorded Under Section 161, Cr. P.C. as his dying declaration. He did not give satisfactory explanation with regard to the non-compliance of the provisions of Section 44 of the Police Act and also as to why he did not request the concerned Magistrate to record the dying declaration of Sher Singh. He pointed that the appellants could be taken into custody only after proceedings had been done against them under Sections 82 and 83 of the Code of Criminal Procedure. In his cross-examination, he, however, pointed that Ram Das had not told him that after altercation Jhumman had taken his buffalo to his village. Om Prakash and Ram Lal were also not stated to have told him that Jhumman after his quarrel with Ram Das and Sher Singh had taken the cattle to his house. He was put this question as to why he had not shown in the site plan the place where he found the crops of Ram Das and Sher Singh to have been damaged. He did not give any satisfactory explanation therefor.
15. The appellants Jhumman and Hem Singh while pleading not guilty pointed that Ram Das and Sher Singh resented the taking of cattle by Jhumman by the path which was to the side of their field. Jhumman retorted that it was public path. Ram Das and Sher Singh at this hurled filthy abuses at him. They slapped and belaboured him. On coming to know of all this going on, he came rushing from his field. The quarrel was going on. He had in his hand a 'Paina' at that time. He defended his father. Sher Singh and Ram Das got hurt while he was exercising the right of private defence. Nek Pal and Jai Singh pointed that they were not present at the scene of occurrence.
16. It is first to be examined whether all the appellants had participated in the assault or merely Jhumman and Hem Singh appellants were involved in the incident. The medical reports show that the number of injuries inflicted totalled six out of which two were contusions and two were abrasions. The appellants Jhumrnan and Hem Singh were not shown to have sustained any contusion or abrasion or any other injury by a Khurpi or any other incised or pointed weapon, Nek Pal and Jai Singh did not state that they were not at the house about 5-00 p.m. on 8-10-77 or near by the place of incident. The prosecution witnesses Om Prakash (P.W. 4) and Ram Lal (P.W. 5) corroborated the testimony of Ram Das (P.W. 3) that Nek Pal and Jai Singh had also participated in the assault. The fact that none on the side of the appellants had received any scratch shows that they were in a position to completely subdue Ram Das and Sher Singh by their number. Ram Das who had sustained four injuries by a blunt object pointed that he had received two injuries by the lathi of Jhumman and two by the lathi of Jai Singh. The spear injury sustained by Ram Das was attributed to Nek Pal. The participation of all the four accused had been alleged in the first information report and in our opinion has been established.
17. The next question is as to whether the injuries caused could reasonably be presumed to have been inflicted in the exercise of the right of private defence. It has been pointed above that none of the appellants had sustained any injury. It cannot be justifiably held on the mere statement of Jhumman and Hem Singh that Jhumman had been belaboured by Ram Das and Sher Singh and these two sustained injuries by the paina of Hem Singh when he tried to save him from them. We have pointed above that the lung, bladder and liver of Sher Singh had been punctured and he died as a result thereof. Ram Das too had sustained spear injury on the neck besides four contusions. There is in our opinion nothing to show that Ram Das and Sher Singh sustained the injuries in the legitimate exercise of the right of private defence by Hem Singh and Jhumman.
18. It remains now to be examined as to what are the offences which could be held to have been committed by the appellants with assurance. The prosecution has tried to suggest that Jhumman after reaching his house, planned with his sons Hem Singh, Nek Ram and Jai Singh the murder of Sher Singh and Ram Das; and Hem Singh and Nek Ram arming themselves with spears and he and Jai Singh with dandas reached the field of Ram Das and Sher Singh to execute their common intention. The counsel for the appellants argued that the story set up at the time of trial was an innovation for in the first information report there is no such allegation that Jhumman and his three sons again reached the field of Ram Das and Sher Singh after a gap of half an hour or after sufficient gap at least and that while going to his house to call his sons to teach a lesson to Ram Das and Sher Singh, he had taken his cattle along with him. The averment in the first information report that Jhumman had gone running to his house shows that he could not have taken his cattle along with him. The sons of Jhumman, it appears more probable from the first information report, would not have come half an hour later but in no time. The half an hour gap between the first altercation and the subsequent assault appears to have been introduced to present the offence as one of calculated murder though it is not in accord with the allegations in the first information report wherein there is not the slightest suggestion that the appellants had intended to murder Sher Singh or Ram Das. If the appellants could have been suspected by Ram Das (P.W. 3) to have had the design to commit murder, he would have lodged a report against the appellants Under Section 307, I.P.C. and not merely Under Sections 323/324, I.P.C. The investigating agency too did not sense that there was any intention to commit the murder of either Ram Das or Sher Singh or else would have investigated the case in that light. Mention may be made in this connection to the fact that there is nothing to suggest that there was exhortation to kill by any of the appellants. Ram Das (P.W. 3) pointed that the injury caused by Nek Pal to him with spear was light. Simply because the injury was on his neck, it would not be justifiable to infer that the appellants had the intention to kill him when no second injury had been inflicted by Nekpal on him and the one caused by him was light and Hem Singh had also not hurt him and Jhumman and Jai Singh had admittedly caused very minor injuries on his non-vital parts although they were in a position to inflict much more severe injuries. Sher Singh too it is to be noted had sustained merely one injury. If Jhumman, Jai Chand and Nek Pal had all planned to murder him, they should have inflicted very many more injuries on him to make sure that he did not survive for they could not have the idea about the depth of the injury inflicted on him by Hem Singh. Ram Das informant (P.W. 3) although denied that he and the appellants were of the same family admitted that they were, brothers by the village relationship. It was for this reason also unlikely that the appellants could have planned to murder Sher Singh or Ram Das on account of the quarrel which took place just before when their cattle were alleged to have grazed some crop of the latter.
19. It requires further examination from this angle also whether on the facts of the case inference is to be drawn that the assault on Sher Singh had been made on account of grave and sudden provocation taking the case not beyond the scope of Section 304 of the I.P.C. It is the prosecution's own case that at first there was an altercation when Jhumman arrived after his cattle had been driven out of the bajra field. Jhumman asserted that his cattle had not gone inside the field of Ram Das and Sher Singh but had passed by the common path, Ram Das (P.W. 3) deposed that from both the sides abuses had been hurled and at that time Jhumman had no lathi with him and none of the witnesses had come. Om Prakash (P.W. 4) and Ram Lal (P.W. 5) also pointed that there was 'gali galoj'. Om Prakash (P.W. 4) and Ram Lal (P.W. 5), however, did not specifically state as to what abuses had been uttered by Sher Singh deceased and Ram Das (P.W. 3). Sher Singh deceased at the time of the incident was merely 16 years of age as recorded by Dr. V. P. Kulshrestha in his post mortem report. Jhumman admittedly was almost four times his age and so his sons on coming to know about the abuses for Sher Singh and Ram Das, particularly when they were at least from the same birdri would have been gravely provoked. In Mansa Ram v. State reported in 1975 Cri LJ at page 1772, it has been observed that filthy abuses do cause grave and sudden provocation. The mere fact that persons with equanimity are likely to ignore abuses, it cannot be said that they should not be held to provide grave provocation. The impact of provocation on human frailty is to be judged in the context of social position. The restraints expected out of sophisticated people can hardly be expected in villagers. In the case of K. M. Nanvati v. State of Maharashtra reported in AIR 1962 SC at page 605 : 1962 (1) Cri LJ 521 it had been observed that the court should not be influenced by considerations of exemplary restraint or exceptional ideal behaviour of highly cultured people. The test is as to what the conduct of a reasonable person of that strata of society would be on account of the abuses and if a reasonable person in such circumstances could be provoked and could lose self control and in such a state of sudden and temporary loss of self control caused injury which proved fatal, it would not be proper to deny him the benefit of the exception 1 to Section 300 of the I.P.C. which saves the act from falling within the definition of murder and brings it within the ambit of culpable homicide not amounting to murder. We have already observed that there was no time gap of half an hour between the altercation and the assault. At the worst the only intervening time was that which had been consumed by Jhumman in running up to his house and returning with his sons although this too does not flow from what the prosecution witnesses had stated in the course of investigation Under Section 161, Cr. P. C. Om Prakash (P.W. 4), at any rate it may be noted gave out that before the assault there was an altercation between Ram Das and Sher Singh on the one side and the appellants on the other. There was thus no time to get over the sudden and grave provocation and it would not be justifiable to hold that it is a case of calculated murder as had been sought to be pointed by the prosecution. The appellant Hem Singh then had merely caused one blow by the spear to Sher Singh. None of the other appellants had assaulted him. Hem Singh had not caused any injury to Ram Das admittedly. The other appellants had merely inflicted simple injuries on Ram Das. They did not take any undue advantage of the provocation to act in a cruel manner. The assault further was not pre-arranged. The appellants Jhumman and Jai Singh appear to us to be guilty only of the offence Under Section 323, IPC and 324 read with Section 34, IPC for they had not intended the murder of any one nor attempted to cause it. Similarly Nek Pal is guilty of the offences Under Sections 324 and 323 read with Section 34, IPC, So far as Hem Singh is concerned he appears to be guilty Under Section 304 Part-I of the Indian Penal Code for he had caused injury to Sher Singh under grave and sudden provocation which according to the medical evidence did cause his death. The learned Additional Sessions Judge in holding the appellants guilty under Section 302 has referred to the decision of he Supreme Court in Virsa Singh v. State of Punjab reported in AIR 1958 SC at page 465 : (1958 Cri LJ 818). The facts of the instant case are different from Virsa Singh's case firstly because as discussed above the injury had been caused by Hem Singh appellant under grave and sudden provocation. Secondly we do not find that Hem Singh had inflicted the injury with force in contrast to Virsa Singh's case far from outer appearance it merely looked like a simple penetrating wound regarding which a case had been registered at the police station initially Under Section 324, IPC. In this connection it also cannot be lost sight of that it had not been put to Dr. V. P. Kulshrestha (P.W. 8) who had conducted the post mortem examination that it was sufficient in the ordinary course of nature to cause death. It was Dr. V. K. Srivastava (P.W. 1) alone (who had seen the injury from outside and made a note that it was being kept under observation) who stated that it was sufficient in the ordinary course of nature to cause death. The medical report of Dr. V. K. Srivastava does not show that he had found the condition of Sher Singh to be critical or even poor at the time of examination. The prosecution on the basis of the evidence adduced as such cannot be held to have satisfactorily established beyond reasonable doubt that the injury inflicted by Hem Singh was sufficient in the ordinary course of nature to cause death. In Virsa Singh's case as a result of the punctured wound inflicted on the left side of the abdominal wall in the lower part of the iliac region just above the inguinal car(SIC), three coils of intestines were coming out of the wound. The offence substantiated against Hem Singh thus was merely under Part II of Section 304 of the I.P.C. for his act was done with the knowledge that it was likely to cause death but without the intention to cause death or such bodily injury as was likely to cause death.
20. We think that it would meet the ends of justice if Nek Pal Under Section 324, IPC, and Jhumman Jai Singh and Hem Singh Under Section 324 read with Section 34, IPC are sentenced to imprisonment already undergone and to pay a fine of Rs. 250/- each. So far as the offence Under Section 323 read with Section 34, IPC is concerned it would suffice if they are sentenced to imprisonment already under gone. The question of award of sentence Under Section 307 read with Section 34, I.P.C. does not arise for none of the accused had been found guilty of this offence. The question of award of sentence to Jhumman Nek Pal and Hem Singh Under Section 302 read with Section 34, I.P.C. also does not arise as they are not guilty of this offence. Hem Singh alone Under Section 304, Part II of the I.P.C. is to be sentenced to undergo rigorous imprisonment for four years.
ORDER
21. The appeal is partly allowed. The conviction of Hem Singh Under Section 302, I.P.C. and the appellants Jhumman, Nek Pal and Jai Singh Under Section 302 read with Section 34 IPC and the conviction of Nek Pal Under Section 307, I.P.C. and the conviction of Jhumman, Hem Singh and Jai Singh Under Section 307 read with Section 34, IPC are set aside along with the sentences awarded to them on these counts. They are acquitted of these charges.
The appellant Hem Singh instead of Section 302, I.P.C. is convicted Under Section 304, Part II of the Indian Penal Code and is sentenced to undergo rigorous imprisonment for four years. He is further convicted Under Section 324 read with Section 34 I.P.C. and is sentenced to imprisonment already undergone and to pay a fine of Rs. 250/-. So far the offence Under Section 323 read with Section 34, IPC is concerned he is sentenced to imprisonment already undergone.
The appellant Nek Pal instead of Section 307, I.P.C. is convicted Under Section 324, IPC and is sentenced to imprisonment already undergone and to pay a fine of Rs. 250/- Nek Pal Under Section 323 read with Section 34, IPC is sentenced to imprisonment already undergone.
The appellants Jhumman and Nek Pal are convicted Under Sections 324/ 323 read with Section 34, IPC. They are sentenced to imprisonment already undergone and to pay a fine of Rs. 250/-Under Section 324 read with Section 34, IPC. They are sentenced to imprisonment already undergone Under Section 323, IPC. Each of the appellants is directed to deposit fine awarded to them Under Section 324, IPC within three months from today failing which they shall undergo rigorous imprisonment for two months.
The appellant Hem Singh is on bail. His bail bonds are cancelled. He shall be taken into custody to serve the sentence of four years rigorous imprisonment awarded to him Under Section 304, Part II of the I.P.C.
The bail bonds of the remaining appellants shall only be discharged after they have deposited the fine awarded to them Under Section 324, I.P.C.