1. Appellant No. 1 Jittu alias Jitendra is convicted for the offences under Sections 148 and 302 of IPC. Appellant Nos. 2 to 6 are convicted for the offences under Sections 147 and 302/149 of IPC. Appellant No. 1 Jittu is sentenced to one year''s R.I. and fine of Rs. 1,000/- for the offence u/s 148, IPC and for the offence u/s 302, IPC, he is sentenced to imprisonment for life and fine of Rs. 5000/-. Appellant Nos. 2 to 6 are sentenced to one year''s R.I. and fine of Rs. 1000/- for the offence u/s 147, IPC and for the offence u/s 302/149, they are sentenced to imprisonment for life and fine of Rs. 5,000/- by the Court of VIII Additional Sessions Judge, Jabalpur, in Sessions Trial No. 758/95, decided on 11-2-97.
2. According to prosecution, on 3-8-95, around 21.30 hours, deceased Mishrilal was returning back to his house. Near Shankar temple on Siddhbaba Road, where appellants were standing, when deceased Mishrilal requested them to give him way to go ahead, then appellant Jittu started abusing him and slapped him. Appellant Kesharbai (now dead) reached the spot and exhorted for killing deceased Mishrilal. On her exhortation, appellant Jittu stabbed Mishrilal in the stomach, Mishrilal moved back, and then he gave second blow on the scrotum and third blow on the left thigh. Appellants Bharat and Shailendra caught deceased Mishrilal. Appellants Bindu, Bharat, Shailendra and Hukki have beaten Mishrilal by fists and twisted the fingers of his hands. On the call for help of deceased, number of people gathered on the spot. Daughter of deceased Sanjeela, Kallu Singh and Mukesh were standing and watching the incident just outside of their house. On account of fear, nobody came forward to help the deceased. There was previous dispute between the family of appellant Jittu and deceased about platform and door situated near the house of deceased. Report was lodged by Mishrilal at Police Station, Ghamapur and on the report, offences under Sections 147, 148, 149 and 307, IPC were registered against the appellants. Mishrilal was sent to hospital where he died. Offence u/s 307, IPC was modified to Section 302, IPC. Weapon of offence - knife was recovered from Jittu on his memorandum.
3. After investigation, appellants were arrested and challan was filed against them in the Court of Judicial Magistrate First Class. After committal of the case to the Court of Sessions, case was made over to the Trial Court. Trial Court framed the charges and on denial of the charges by the appellants, evidence was recorded and after recording the evidence, Trial Court convicted the appellants. During pendency of the appeal, appellant No. 6 Kesharbai died and therefore, the appeal, so far as it relates to appellant No. 6 Kesharbai stands abated.
4. Shri A.K. Jain, learned Counsel for the appellants submitted that there is no intention on the part of appellants to cause the death of deceased Mishrilal. He submitted that the injuries found on the body of the deceased in post-mortem were not sufficient in the ordinary course of nature to cause death. He submitted that Dr. Anoop Jain (P.W. 10) is silent in his deposition about the nature of injuries and doctor has nowhere stated that the injuries caused to the deceased were sufficient in the ordinary course of nature to cause death. Learned Counsel for the appellants further submitted that there was no intention on the part of appellant Jittu to cause death of the deceased as the injuries are on the non-vital parts of his body. Learned Counsel for the appellants submitted that there is no overt act on the part of appellant Nos. 2 to 5. He submitted that prosecution has failed to establish the ingredients of unlawful assembly and conviction of appellant Nos. 2 to 5 u/s 302 read with Section 149 of IPC and Section 147, IPC deserves to be set aside. He submitted that formation of unlawful assembly in furtherance of common object by the appellants is not proved by the prosecution. He submitted that in this case if individual act of each appellant is considered, no offence is made out against appellant Nos. 2 to 5. He submitted that since intention to cause death of the deceased by appellant Jittu is not proved by the prosecution, conviction of appellant Jittu for the offence u/s 302, IPC is bad in law and deserves to be set aside and, at the most, he is liable to be convicted for the offence u/s 304, Part I of IPC.
5. On the other hand, learned Public Prosecutor supported the judgment of the Trial Court and submitted that the intention to cause death is apparent from the nature of injuries. He submitted that the injuries caused to the deceased are on the vital parts of his body. Injury No. 1 has cut the femoral vessel. He submitted that cutting of femoral vessel is dangerous to life and such injury is sufficient in the ordinary course of nature to cause death. He submitted that all the appellants acted jointly in assaulting the deceased which resulted into his death. He submitted that appellants have formed an unlawful assembly with a common object to kill deceased Mishrilal.
6. Counsel for both the parties read over entire evidence on record in support of their contentions. Perused the evidence on record. P.W. 1, Kallu alias Devi Prasad deposed that Mishrilal was stopped by the appellants and they started beating him by fists. Then, Kesharbai, mother of appellants, came out of her house and exhorted for killing Mishrilal. Appellants, Jittu, Bindu and Hukki assaulted the deceased by knife. He was stabbed twice near his testicles and right side of leg. Hukki stabbed him below the knee. Incident was witnessed by the daughter of Mishrilal and his son and other neighbours. Mishrilal suffered 5 to 6 knife injuries and fell on the ground. Mishrilal was taken on a bicycle-rickshaw to the police station and report was lodged by deceased Mishrilal. Mishrilal was sent to Victoria Hospital for treatment where he succumbed to the injuries before he could be admitted in the hospital and died. This witness was subjected to long cross-examination. He was confronted with his earlier statement recorded u/s 161, Cr.PC (Exh. D-l) and he deposed that there may be omission of assault by knife to the deceased by Jittu, Bindu and Hukki, but he deposed that he informed the police that two appellants had caught the deceased and other three appellants had stabbed the deceased by knife. On perusal of the evidence we find that specific portion of Exh. D-l was not confronted to this witness. Trial Court has also not cared to see the statement (Exh. D-l) before allowing the question. It is categorically stated that Bharat and Shailendra caught the deceased and he was stabbed by Jittu. Thereafter, Bindu, Bharat, Shailendra and Hukki started beating the deceased. Thus, there is no omission between earlier statement u/s 161, Cr.PC and statement before the Court. We deprecate the practice of taking such denials on earlier statement. We may point out that statement u/s 161, Cr.PC is not admissible in evidence unless particular portion of the statement is confronted to the witness as provided u/s 162, Cr.PC. Witness must be confronted with a particular portion of statement u/s 161, Cr.PC for its contradiction in the manner provided u/s 145 of the Evidence Act. Bald question that the fact is not mentioned in the earlier statement is not permissible until and unless entire statement is read over to the witness. In the circumstances there is no omission or contradiction in the evidence there is no omission or contradiction in the evidence of this witness. This witness has categorically stated about the act of all the appellants.
7. P.W. 2, Sanchila Rajput deposed about the act of appellants. She has categorically stated that Bharat and Shailendra caught Mishrilal and he was beaten by Jittu, Bindu and Hukki and on the exhortation of Kesharbai, Jittu stabbed him by knife near the scrotum. Bindu stabbed him on the right and left high and Hukki stabbed on the right knee after Bharat and Shailendra had caught the deceased. This witness was subjected to long grueling cross-examination. She was also asked that certain facts are not mentioned in her statement recorded u/s 161, Cr.PC (Exh. D-2). She was confronted with her statement (Exh. D-2) that she has not stated in her earlier statement that on the exhortation of Kesharbai, deceased was assaulted. Neither the portion is marked nor was read over to the witness. On the contrary, in her earlier statement (Exh. D-2), this witness has stated before police that mother of Jittu reached the spot and exhorted that deceased should not be left alive and after the exhortation, Jittu took out knife and started stabbing the deceased. Bharat and Shailendra caught and deceased and Jittu stabbed him. Remaining appellants were also beating the deceased by fists. Thus, we find that there is neither any omission nor contradiction from her previous statement.
8. P.W. 7, Saroj Bai is widow of deceased. She has corroborated the statement of other two eye-witnesses and specifically stated that deceased was caught by Bharat and Shailendra and was beaten by Jittu, Bindu and Hukki and Kesharbai was exhorting that Mishrilal should not be left alive. This witness was confronted with her case diary statement (Exh. D-3) regarding catching of deceased by Bharat and Shailendra. As the statement was not read over to her, she stated that she has no knowledge whether this fact is mentioned or not. On perusal of Exh. D-3 we find that she had stated in her statement (Exh. D-3) that deceased was beaten by all the appellants on exhortation of Kesharbai and when people gathered at the spot, Kesharbai went inside her house. She has categorically stated about the act of Jittu. Thus, it is apparent that all the appellants have actively participated in assaulting the deceased.
9. Now we consider the argument of Counsel for the appellants about the intention to cause the death of Mishrilal by the appellants.
10. Body of the deceased was sent for post-mortem. Post-mortem was performed by Dr. Anoop Jain. Post-mortem report is Exh. P-13. Doctor found following six injuries on the dead body:
(1) Penetrating incised wound present over the right femur region 1/2" x 1/2" - 4" deep, direction is medially upward.
(2) Penetrating wound present over the left inguinal region 1" x 1" direction is upward, medially upto 3" deep.
(3) Penetrating wound present on left thigh upper l/3rd, middle of anterior surface 1" x 1" direction upward and subcutaneously connected to injury No. 2.
(4) Incised wound present over the lower 1/3rd of right thigh, supra patella region, 3/4" x 1/2" - depth is 4", direction is upward.
(5) Incised wound present over the lateral to right patella 1" x 1/2", skin deep.
(6) Incised wound present over the right leg below the patella, 3/4" x 1", skin deep.
Femoral artery of right side was cut and filled with blood. There was no blood on the other portion of the body. Doctor opined that the injury is caused by sharp pointed weapon and cause of death was cutting of right femoral vessel and excessive bleeding and shock. Thus, injury No. 1 which has cut the right femoral vessel was sufficient in the ordinary course of nature to cause death. Even if doctor has not opined that the injury was sufficient in the ordinary course of nature to cause death, then also the fact remains that this vessel is directly connected to the heart and cutting of the vessel has stopped blood supply to the heart. It is apparent that stab wounds were given near the private parts of the deceased which indicates the intention of appellant Jittu in causing the death.
11. Now we examine the contention of Counsel for the appellant that this offence, at the most, will fall u/s 304 of IPC. Learned Counsel for the appellant has relied upon the judgment in the case of
12. To put it shortly, the prosecution must prove the following facts before it can bring a case u/s 300 "thirdly";
First, it must establish, quite objectively, that a bodily injury is present;
Secondly, the nature of injury must be proved;
These are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.
Once these elements are proved to be present, the enquiry proceeds further and,
Fourthly, it must be proved that the injury of the type just described made up of three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
13. Once these four elements are established by the prosecution (and, of course the burden is on the prosecution throughout) the offence is murder u/s 300 "thirdly". It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional.
12. Considering the facts of this case, we find that prosecution has proved that the fatal injury is present on the body of the deceased, nature of injury is proved and the intention to inflict the particular injury is also proved. There is nothing on record to suggest that the injury was accidental or unintentional or some other kind of injury was intended. Since the three elements are proved by the prosecution, it is also clear that the injury received by the deceased was sufficient to cause death in the ordinary course of nature. The question is not whether the appellant intended to inflict a serious injury or trivial one but whether he intended to inflict that injury which is proved. If the accused can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill or to inflict an injury of a particular degree of seriousness but whether he intended to inflict the injury in question and once the existence of injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion.
13. Eye-witnesses have categorically stated that the deceased was stabbed by the appellants and they started beating him. Later when their mother Kesharbai came out of her house and exhorted for killing him, then all the appellants started beating him. Deceased was caught by appellant Bharat and Shailendra and appellant Jittu stabbed him twice on both sides of the scrotum. Thus, it is apparent that there was intention on the part of appellants to inflict the injury to the deceased which cut the femoral vessel and resulted into the death of deceased. Thus, intention of appellant to cause the injury is established which resulted into death of deceased Mishrilal. All the appellants have jointly acted in assaulting the deceased and therefore appellant No. 1 Jittu is rightly convicted for the offence u/s 302, IPC and remaining appellant Nos. 2 to 5 have been convicted for the offences u/s 302/149 of IPC. As discussed, we hold that unlawful assembly was formed by the appellants along with their mother Kesharbai in furtherance of common object in assaulting the deceased. Therefore, conviction of appellant Jittu u/s 148, IPC and conviction of appellants Nos. 2 to 5 u/s 147 of IPC is affirmed.
14. In the result, appeal fails and is dismissed. Judgment and sentence passed by the Trial Court is affirmed. Appellants are on bail. They are directed to surrender to their bail bonds to serve out remaining part of the sentence passed by the Trial Court. Bail bonds and sureties are forfeited.
