Madhya Pradesh High Court
Kallu Bhagchand Jain And Ors. vs State Of Madhya Pradesh on 16 August, 1991
Equivalent citations: 1992(0)MPLJ415
JUDGMENT S.K. Chawla, J.
1. By Judgment dated 29-11-1985 Additional Sessions Judge, Damoh convicted appellant No. 1 Kallu under Section 302, Indian Penal Code for the murder of one Narendra Kumar and sentenced him to imprisonment for life. The rest of the appellants were convicted under Section 302/34, Indian Penal Code for acting in concert with appellant Kallu in commission of the said murder and were also sentenced to imprisonment for life. The appellants were also convicted of lesser offences either under Section 323 or 323/34, Indian Penal Code in connection with assault on one Babulal (P.W.16) and Mamta (P.W.14) and were sentenced to imprisonment already undergone. Aggrieved by their convictions and sentences, the accused persons have filed the present appeal.
2. The appellants all belong to one family. Of them, appellants 1 and 2 Kallu and Hannu are brothers, appellant No. 3 Nanhelal is their uncle while appellant No. 4 Bhagchand is their father. Deceased Narendra Kumar and the two injured Babulal (P.W.16) and Mamta (P.W.14) also belonged to one family . Babulal (P.W.16) is father while Mamta (P.W.14) is sister of deceased Narendra Kumar. The two families are different branches of the same family tree. They also lived as neighbours in village Sansa, police station Patharia, district Damoh. They held fields adjoining to each other.
3. It was not disputed that an incident had taken place in village Sansa near the houses of the parties on a village road in the evening around 5.00 p.m. on 16-1-1985. In that incident deceased Narendra Kumar was wounded on his head as a result of assault on him by one of the members of the accused party. The head injury proved to be fatal. The deceased died of head injury on 17-1-1985 around 7.00 p.m. at Medical College Hospital, Jabalpur.
4. The prosecution story briefly stated was that the incident took place because shortly before the incident, Babulal (P.W.16) refused to lift pump of his tube-well from the embankment of the adjoining field of appellant Bhagchand, although the latter asked him to do so. It was further the prosecution case that after that refusal, appellant Bhagchand went from his field to his own house and informed the other appellants about it. Some time thereafter, when deceased Narendra Kumar was returning from his own field to his house, all the appellants made a concerted attack on the deceased at a place near the houses of parties. Appellant Kallu assaulted the deceased with an iron rod (Sabbal) on his head while other appellants assaulted him with lathis. Appellant Bhagchand's wife Heerabai was also present in the quarrel and was having a lathi. The prosecution story further was that father of the deceased viz. Babulal (P.W.16) and sister Mamta (P.W.14) tried to intervene in the quarrel but they too were assaulted with lathis by some of the accused persons. Babulal made a report, Ex.P-13, about the incident. The four appellants along with Heerabai were accordingly prosecuted for various acts of assault.
5. The defence admitted that the incident took place in the wake of refusal on the part of Babulal (P.W.16) to lift his pump. But it was pleaded that in the incident that followed, it was Babulal (P.W.16) who dealt lathi on appellant Nanhelal on his head. Deceased Narendra Kumar was also an assailant and he dealt lathi on appellant Surendra alias Hannu over his left parietal region. The deceased was about to assault Hannu again, when appellant Nanhelal dealt a lathi on the deceased in order to save Hannu from further assault. It was also the defence that appellants Kallu, Bhagchand and accused Heerabai were not at all present at the time of the quarrel. A counter report, Ex.P-38, was lodged by appellant Nanhelal in that connection.
6. Learned Additional Sessions Judge held the prosecution story to be established. But with respect to accused Heerabai, the learned Judge held that she appeared to have played no active part in the quarrel and it was doubtful if she was member of unlawful assembly. The defence plea about right of private defence was negatived. On these findings the learned Judge convicted the four appellants of various offences but acquitted Heerabai.
7. Shri S. R. Nema, learned counsel for the appellants, argued that prosecution witnesses who spoke on the point of the incident had not given a correct version. They had indulged in exaggerations," half-truths and even lies. At any rate, the offence committed by appellant No. 1 Kallu was no more than an offence of voluntarily causing grievous hurt to the deceased or at the most culpable homicide not amounting to murder. The other appellants had at the most committed the offences of simple assault.
8. Deceased Narendra Kumar was brought in a critical condition in Damoh Hospital, where he was examined by Dr. Das (P.W.I). He had found a lacerated wound 1 3/4" X 1/2" X bone deep on the right parietal region and a contusion 5 1/2" X 1/2" on the right forearm of the deceased; vide injury report, Ex.P-1. He explained that he was more concerned about giving treatment to the deceased and in view of serious condition of the deceased he had immediately referred the deceased to Medical College Hospital, Jabalpur. He did not, therefore, make a detailed examination of the injuries of the deceased. In that context, there was the evidence of Dr. Yadu (P.W.22), who had done post mortem examination of the deceased. Dr. Yadu had found, besides the serious head injury of the deceased detected by Dr. Das, a lacerated wound 1/2 X 1/4 cm on the left index finger, an abrasion 3 X 2 cm on the dorsum of the left hand and an abrasion 1 X 1/2 cm on the right wrist of the deceased; vide post mortem report, Ex.P-8A. Thus, four injuries, instead of only two, were found on the deceased. It was further found in internal examination that the head injury had caused haematoma on the right temporal region of the skull 5 X 3 cm. in size. The right temproparietal suture had separated in 4 cm lenghth. There was fracture of middle cranial fossa on right side measuring 5 cms. Extra dural haematoma was seen burrowing downwards into the base of the skull and pressing the brain. The head injury was sufficient in ordinary course of nature to cause death.
9. Babulal (P.W.16) was found to have sustained a lacerated wound 4 cm X 2 cm X skin deep over left parietal region and a contusion with parallel lines 2 cms apart of the length of 4 cms on the right forearm; vide injury report, Ex.P-16. Mamta (P.W.14) was found to have sustained a contusion with two parallel lines 3 cms apart. 5 cms in length over right forearm and another contusion 2 cm X 2 cm left leg; vide injury report, Ex.P-15-A.
10. The members of the accused party were also got medically examined by the police. Appellant Hannu was found to have sustained no apparent injury; vide injury report Ex.D-1. Appellant Nanhelal was found to have sustained a lacerated wound 2 cm X 1 cm X skin deep over left parietal region; vide injury report, Ex. D-2.
11. The prosecution case rested on the evidence of five eye-witnesses named Rambabu (P.W.8), Ramesh (P.W.9), Mamta (P.W.14), Babulal (P.W.16) and Laxmi Rani (P.W.17). Of these, Mamta (P.W.14) and Babulal (P.W.16) were the persons who were themselves injured in the incident. They were father and sister respectively of the deceased who lived in the house outside which the incident had taken place. Laxmi Rani (P.W.17) was widow of the deceased and lived in the same house. Ram Babu (P.W.8) and Ramesh (P.W.9) were unrelated and independent witnesses, whose names were expressly mentioned as eye-witnesses in FIR, Ex.P-13, lodged by Babulal (P.W.16). Ramesh (P.W.9) turned hostile and deposed nothing about the incident saying that the incident was already over when he reached the place of the incident. Ram Babu (P.W.8) too turned hostile but h6 deposed partly on the incident.
12. We have carefully examined the entire evidence of the aforesaid prosecution witnesses. It is safe to hold on their evidence that deceased Narendra Kumar, who was undisputedly wounded on his head, was inflicted that injury by appellant Kallu with an iron-rod (Sabbal). That part of the story was expressly mentioned in the FIR, Ex.P-13, lodged without delay by Babulal (P.W.16). The prosecution witnesses could have no motive to substitute the name of appellant Kallu for appellant Nanhelal, who on the defence version had inflicted injury on the head of the deceased by just a lathi. This defence was expressly denied by the prosecution witnesses. There was absolutely no evidence in support of it. It further appears from the prosecution evidence that deceased Narendra Kumar was absolutely unarmed at the time of the quarrel. He could not be, and was, not an assailant. Besides sustaining injury on his head, the deceased sustained minor injuries also on his hands, which could be the result of lathi blows dealt on him by the other appellants, which was the evidence of some of the prosecution witnesses, who also exaggerated by saying that lathis were dealt also on the legs of the deceased.
13. There was nothing to disbelieve the further version of the prosecution witnesses that Babulal (P.W.16), tried to save the fallen deceased by throwing himself over his body, when he too was assaulted with lathis by appellants Nanhelal and Kallu. This part of the story was supported even by hostile witness Rambabu (P.W.8), who showed reluctance to implicate the appellants but felt compelled to disclose a part of the story. The one thing which remarkably appeared in the evidence was that appellant Kallu, who was holding an iron rod, threw it and taking lathi from the hands of his father appellant Bhagchand, had dealt it on Babulal. Lastly, Mamta (P.W.14) came to rescue but she too was assaulted with lathi by appellant Nanhelal on her hand and leg.
14. The defence version that appellant Hannu was dealt a lathi blow by the deceased, and when second blow was about to be dealt, appellant Nanhelal dealt a lathi on the head of the deceased, could never be true. The medical report, Ex.D-1, as already noticed, showed that appellant Hannu had sustained absolutely no apparent injury. No doubt, appellant Nanhelal was found to have sustained a minor injury on his head, vide injury report Ex.D-2. The prosecution witnesses could not explain this injury. There was however no evidence to show that the prosecution party opened up the attack, first injuring appellant Nanhelal. It is quite likely that Nanhelal was injured in the midst of the incident during the melee. There was absolutely nothing to support the defence version that any of the appellants acted in exercise of the right of private defence.
15. The immediate cause of the incident could not be known. It will be too naive to accept the prosecution suggestion that the incident occurred because an hour or two before the incident, Babulal (P.W.16) had refused to lift the pipe of his pump-well from the embankment of the adjoining field of appellant Bhagchand, though asked to do so by the latter. The evidence of Babulal (P.W.16) in paragraph 13 of his deposition would show that it was just a plastic pipe which could have been easily removed. It was a petty matter over which the appellants could not have combined to attack, not Babulal but deceased Narendra Kumar, and that too not in the field but some time later, when the deceased was returning to his house. The prosecution came with a definite story that after refusal to lift the pipe by Babulal, appellant Bhagchand went from his field to his own house and informed the other appellants about it, who then all combined and lay in wait to assault the deceased. There was not an iota of evidence in support of this part off the story. It is not unlikely that deceased did something which sparked of the incident and led the appellants to make a concerted attack on him. The incident had taken place quite suddenly.
16. On the above finding regarding the incident, the question is what offences were brought home to the appellants. It was argued for appellant Kallu that he had inflicted but one injury by an iron rod (Sabbal) on the head of the deceased. A person dealing a single injury, it was argued, could not be held guilty of the offence of murder. The offence, it was further argued, would amount to culpable homicide not amounting to murder punishable under Section 304, Part II, Indian Penal Code. Reliance was placed in this regard on the decisions Tholan v. State of Tamil Nadu, AIR 1984 SC 759, and on Randhir Singh v. State of Punjab, AIR 1982 SC 55. Arguing a step further, it was contended that offence committed by Kallu was really under Section 325, Indian Penal Code and reliance was sought from the decision State of Karnataka v. Shivalingaiah, AIR 1988 SC 115, in this regard.
17. Cases of single injury, found sufficient in ordinary course of nature to cause death, in which offence committed was held to be not murder are legion. Decisions of Tholan and Randhir Singh case (supra), cited by learned counsel for the appellants are just two cases in the long list. Other such cases for instance are Harjinder Singh v. Delhi Administmtion, AIR 1968 SC 867, Laxman Kalu v. State of Maharashtra, AIR 1968 SC 1390, Chamru Budhawa v. State of M.P., AIR 1954 SC 652, Jagrup Singh v. State of Haiyana, AIR 1981 SC 1552, Kulwant Rai v. State of Punjab, AIR 1982 SC 126, Hariram v. State of Haryana, AIR 1983 SC 185, Jagtar Singh v. State of Punjab, AIR 1983 SC 463 and Kartar Singh v. State of punjab, AIR 1988 SC 2122. But it is wrong to deduce from these cases any principle that giving of a single blow on a vital part of body resulting in death of the victim must always necessarily reduce the offence to culpable homicide not amounting to murder punishable under Section 304, Indian Penal Code. The decisions are only instances in which for one reason or the other, clause 3rdly of Section 300, Indian Penal Code was held to be not attracted and on that ground it was held that offence committed was lesser offence of culpable homicide not amounting to murder punishable under Section 304, Indian Penal Code.
18. In cases involving single fatal injury, for the applicability of clause 3rdly of Section 300, Indian Penal Code, two conditions are necessary to be satisfied. First, the particular injury sustained by the victim should have been intentionally inflicted by the accused; and secondly," the particular injury so intended should have been objectively sufficient in ordinary course of nature to cause death. If these two conditions are satisfied, the offence would be murder. The leading case on this point is Virsa Singh v. State of Punjab, AIR 1958 SC 465. The latest case is that of Jai Prakash v. State of (Delhi Administration), (1991) 2 SCC 32, wherein the Supreme Court reviewed the entire case law on the point. But the words "intended to be inflicted" in clause 3rdly are very significant. It is necessary to contrast "knowledge" from "intention". To extract from the decision in Jai Prakash's case (supra) at page 42 : -
"It can thus be seen that the 'knowledge' as contrasted with 'intention' signify a state of mental realisation with the bare state of conscious awareness of certain facts in which human mind remains suspine or inactive. On the other hand, 'intention" is a conscious state in which mental faculties are aroused into activity and summoned into action for the purpose of achieving a conceived end. It means shaping of one's conduct so as to bring about a certain event. Therefore, in the case of 'intention' mental faculties are projected in a set direction. Intention need not necessarily involve premeditation. Whether there is such an intention or not is a question of fact. In Clause Thirdly the words "intended to be inflicted" are significant. As noted already, when a person commits an act, he is presumed to expect the natural consequences. But from the mere fact that the injury caused is sufficient in the ordinary course of nature to cause death it does not necessarily follow that the offender intended to cause the injury of that nature. However, the presumption arises that he intended to cause that particular injury. In such a situation the court has to ascertain whether the facts and circumstances in the case are such as to rebut the presumption and such facts and circumstances cannot be laid down in an abstract rule and they will vary from case to case. However, as pointed out in Virsa Singh case the weapon used, the degree of force released in wielding it, the antecedent relations of the parties, the manner in which the attack was made that is to say sudden or premeditated, whether the injury was inflicted during a Struggle or grappling, the number of injuries inflicted and their nature and the part of the body where the injury was inflicted are some of the relevant factors. These and other factors which may arise in a case have to be considered and if on a totality of these circumstances a doubt arises as to the nature of the offence, the benefit has to go to the accused."
So totality of the circumstances have to be considered and if a doubt arises as to whether the accused "intended to inflict" the particular injury, which Objectively was found to be sufficient in ordinary course of nature to cause death, the offence would fall out of the purview of clause thirdly and get reduced to the offence of culpable homicide not amounting to murder. For example, if there was no previous enmity and accused acted without premeditation suddenly on the spur of the moment or the injury was inflicted in the course of grappling, it may be held that the particular injury actually found to be present was not "intended to be inflicted" by the accused rendering clause 3rdly of Section 300, Indian Penal Code inapplicable and therefore reducing the offence to culpable homicide not amounting to murder. This is the ratio of the decisions given in paragraph 17 of this judgment.
19. Coming to the present case, it is not known how the incident actually commenced. No doubt, on the very day of the incident, some time prior thereto, Babulal (P.W.16), father of the deceased, had refused to lift his plastic pipe from the embankment of the field of appellant Bhagchand. It will be too naive to believe that for such a petty matter the appellants had combined to attack the deceased. Moreover, that could be a reason to attack Babulal (P.W.16), who had refused to lift the pipe, and not the deceased. On the other hand, Babulal (P.W.16) was treated very softly than the deceased. It is the prosecution case itself that appellant Kallu at the time of assaulting Babulal (P.W.16) threw away the iron rod and taking lathi from the hands of his father, appellant Bhagchand, dealt it on Babulal. Babulal was thus caused a simple injury by means of lathi instead of a serious injury by an iron rod. It is very likely that the deceased must have done something which sparked off the incident and led the appellants to make a concerted attack on him. The incident was sudden and could not have been contemplated. The appellants had no previous enmity with the deceased, who was in fact their own cousin. What is more important is the circumstance that appellant Kallu chose for attacking not a conventional sharp edged weapon like a dagger, a spear or a sword. In all probability he might be holding the iron rod (Sabbal) innocently, being a domestic or agricultural implement. Appellant Kallu dealt just one blow, and only one blow, with it on the deceased at the spur of the moment without previous enmity. He did not persist in the assault. On a totality of these circumstances, it is not unlikely that the fatal head injury of the deceased was not "intended to be inflicted" by the appellant, in the sense that he desired the said injury to be caused. But he could safely be credited with the knowledge that by inflicting that kind of injury he was likely to cause the death of the deceased. The act of appellant Kallu therefore fell not within clause 3rdly of Section 300, Indian Penal Code but only within 3rd part of Section 299, Indian Penal Code to amount to culpable homicide not amounting to murder in part II of Section 304, Indian Penal Code. We are of the view that in the facts and circumstances of the case, common intention which could fairly be attributed to other appellants, could only be to assault or beat deceased Narendra Kumar with weapons which were likely to cause grievous hurt. It would be difficult to hold that common intention was to cause the death of deceased Narendra Kumar. As such, the other appellants could be held guilty only under Section 325/34, Indian Penal Code for participating in the concerted assault on the deceased. There was no case to convict them of the offence under Section 302/34, Indian Penal Code So far as convictions of the appellants for assaults on Babulal (P.W.I6) and Mamta (P.W.14) are concerned, they do not require any interference..
20. On the question of sentence, it was urged by learned counsel for the appellants that appellant No. 1 Kallu had already suffered sentence of little less than six years and in addition he would be entitled to set off for the period of pre-conviction detention suffered by him amounting to almost 10 months. Appellants Nos. 2 and 3 Hannu and Nanhelal were released on bail by order of this Court dated 2-4-1990 during pendency of this appeal. Even they had suffered sentence of 4 years and 3 months and had also suffered pre-conviction detention of the same period as that of appellant No. 1 Kallu. Appellant No. 4 Bhagchand had suffered sentence of 5 months before he was let out on bail by order of this Court dated 24-4-1986. He had further suffered pre-conviction detention for 7 days. It was urged that he is a very old man in his seventies. It will be nothing short of cruelty to send him back to jail for a crime committed by him more than 6 years back. In our opinion, had appellants 2 to 4 been tried of the offence under Section 325/34, Indian Penal Code by a Judicial Magistrate First Class, they could not have been visited with imprisonment exceeding 3 years and this Court in appeal could not have also sentenced them to more than that punishment, in view of second proviso to Section 386, Criminal Procedure Code. That limit does not however apply in the present case because the appellants were tried by Additional Sessions Judge. We think that the sentence already suffered by appellants 2 and 3 Hannu and Nanhelal is more than the normal punishment awarded for such offence. So far as appellant No. 4 Bhagchand is concerned, considering his advanced age, we are of the view that after a long lapse of time, ends of justice would be met by sentencing him to imprisonment already undergone. In the facts and circumstances of the case, we are further of the view that a sentence of seven years' imprisonment on appellant No. 1 Kallu would be commensurate with the offence and meet the ends of justice.
21. For the foregoing reasons, this appeal is partly allowed. The conviction of appellant No. 1 Kallu is altered from 302, Indian Penal Code to 304, Part II, Indian Penal Code and instead of imprisonment for life, he is sentenced to R.I. for 7 years. He shall be given advantage of set off for the period of pre-conviction detention suffered by him. The conviction of the remaining appellants 2 to 4 namely Hannu, Nanhelal and Bhagchand is altered from Section 302/34, Indian Penal Code to 325/34, Indian Penal Code. In place of imprisonment for life awarded to them, they are sentenced to imprisonment already undergone by them. In other words, these appellants need not surrender to their bail and their bail bonds shall stand discharged.
The convictions of all the appellants with regards to assaults on Babulal (P.W.16) and Mamta (P.W.14) under Section 323 or 323/34, Indian Penal Code, for which they have already suffered the sentences, do not need any interference and are maintained.