@JUDGMENTTAG-ORDER
G.S. Chaubey, J.@mdashThe three Appellants in both the appeals stated above stand convicted by the 1st Additional Sessions Judge of Sitamarhi in Sessions Trial No. 263 of 1988 u/s 302 read with Section 34 and Section 447 of the Indian Penal Code (in short the "Code") and have been sentenced to undergo imprisonment for life and rigorous imprisonment for one year respectively. Appellant No. 2 Surat Jha alias Ram Surat Jha (hereinafter to be referred to as Surat Jha) in criminal appeal No. 351 of 1990 has been further convicted u/s 323 of the Code and sentenced to undergo rigorous imprisonment for one year. The sentences of all the Appellants have been directed to run concurrently.
2. The prosecution case, as disclosed in the first information report/fardbeyan (Ext. 4) of deceased Ram Naresh Jha of village Baradih within Runnisaldpur Police Station in the district of Sitamarhi recorded at 5 P.M. on 23.4.1988 at Athri Primary Health Centre (P.H.C), is that on that day at about 1 in the afternoon he was taking food at his darwaja when Appellant Sita Ram Jha arrived at the nearby well with his she-buffalo and started bathing the animal very close to the well so that the waste water started finding its way into the well. Consequently, the deceased protested and it led to some altercation. In the meantime, Appellants Behari Jha and Surat Jha, accompanied by Pawan Jha son of Appellant Behari Jha arrived there armed with a spear, a lathi and an iron rod respectively. They went to the darwaja of the deceased and started abusing him. Appellant Behari Jha threw him on ground. As a result he fell down on a wooden log kept there and sustained injuries. Thereafter Appellant Behari Jha picked up the metal water pot (lota) from the place where the deceased was taking food, caught the latter by his locks and inflicted a few blows therewith on neck and scapula. When Appellant Behari Jha freed the deceased Appellant Sita Ram Jha struck him with lathi on his neck. At about the same time P.W. 2 Baleshwar Jha, the younger brother of the deceased, present at his kolhuar (place where sugarcane is crushed and Gur is prepared) arrived there and protested. Consequently, he was assaulted by Appellant Surat Jha and co-accused Pawan Jha.
3. Later on, both the injured were taken to P.H.C. at Athri on a bullock-cart, where they were treated and first information report of the deceased was recorded by Sub-Inspector Md. Kalimuzzama of Runnisaidpur Police Station (C.W. 2) and investigation followed. Both the injured were examined on the same day by P.W. 6 Doctor Narendra Prasad Mishra of P.H.C. at Athri. Later on, the deceased was transferred to medical college hospital at Muzaffarpur where he died on 12.5.1988. His autopsy was held by Doctor Mumtaj Ahmad of S.K. Medical College, Muzaffarpur (C.W. 1) according to whom, the deceased had died due to shock and haemorrhage as a result of the antemortern injuries found on his person. On such facts, these Appellants were put on trial on charge u/s 302 read with Section 34, Section 447 and Section 504 of the Code. Appellant Surat Jha was further charged u/s 323 of the Code for voluntarily causing hurt to P.W. 2 Baleshwar Jha. As Pawan Jha was found to be a juvenile, his case was separated from that of these Appellants for being tried by a juvenile Court in accordance with the provisions of the Juvenile Justice Act, 1986.
4. The Appellants denied the charges and pleaded false implication due to enmity. The defence of the Appellants is that one Dev Narayan Jha, an uncle of the deceased had sold part of his homestead land to Appellant Behari Jha and Anr. part to two other brothers of Appellants Sita Ram Jha and Surat Jha who are related, Inter se, as brothers; and the deceased did not like it. Therefore, due to such grudge he has falsely implicated the Appellants.
5. In course of trial prosecution examined eight witnesses including two formal ones. The doctor who conducted postmortem and the investigating officer were examined as Court witnesses. On consideration of the evidence on record the learned Additional Sessions Judge has convicted and sentenced the Appellants as stated above. He has, however, acquitted them of the charge u/s 504 of the Code.
6. It has been submitted by the learned Counsel appearing for the Appellants that the witnesses, two of whom are the widow and the brother of the deceased and the remaining two associated with him, have made contradictory statements. Therefore, no conviction can be sustained on such evidence. The fardbeyan of the deceased which has been treated as his dying declaration is also a tainted document in view of the testimony of the widow of the deceased that the deceased had lost his senses at the place of the occurrence itself and in the same state of unconsciousness he was taken to the hospital at Athri and then to medical college hospital at Muzaffarpur. It was, further submitted that, in any event, the injuries caused to the deceased could not amount to the committing of murder punishable u/s 302 of the Code inasmuch as there was no intention of the part of the assailants to kill.
7. The witnesses who have come to support the prosecution version that these Appellants were the assailants of the deceased are P.W. 1 Mahakant Jha, P.W. 2 Baleshwar Jha, P.W. 3 Dineshwar Jha and P.W. 4 Bachchi Devi. While P.W. 2 is younger brother of the deceased, P.W. 4 is (sic) his widow. P.Ws. 1 and 3 are related, inter se, as brothers. Their house, is situate at a distant place; according to P.W. 1 half mile away and according to P.W. 3 one mile away from the place of the occurrence towards east. In his evidence P.W. 2 has stated that at the time of the hence he was separating sugarcane leaves as fodder for his cattle and when he came therewith at his house which was separated from that of the deceased, he noticed that these Appellants and Pawan Kumar Jha were assaulting the deceased by throwing him on ground. While Appellants Behari Jha and Sita Ram Jha we assaulting him by means of lota and lathi respectively, Pawan Kumar Jha was inflicting blows vyith iron rod. When he himself went to rescue the deceased, both Surat Jha and Pawan Kumar Jha assaulted him by means of lathi and iron rod respectively. The witness stated that he was separating sugarcane leaves at a distance of 15 laggis towards north of his house. That place was known as Kolhuar. The Appellants were assaulting the deceased at a distance of 5 laggis west to his house. From the evidence of C.W. 2 (I.O.) it will appear that this witness had not given the details of assault on the deceased by individual assailants as stated in Court nor had he stated that all the four assailants were assaulting the deceased after throwing him on ground. However, the fact remains that the witness had sustained injuries on his person in course of the same occurrence. Therefore, the presence of P.W. 2 at the time and place of the occurrence can hardly be disputed.
8. P.W. 4 Bachchi Devi the widow of the deceased has stated that she was inside the house when the occurrence took place. She came out when altercation started over the question of bathing she buffalo by Appellant Sita Ram Jha close to the well. In the meantime, Appellants Behari Jha, Surat Jha and accused Pawan Jha also arrived there. According to her, it was Appellant Surat Jha who threw the deceased on a piece of wood and thereafter Appellants Behari Jha, Surat Jha and Pawan Kumar Jha started assaulting him by means of lota, lathi and bhala respectively. Of course, according to her, Pawan Kumar Jha assaulted her husband by means of bhala as well as iron rod. When P.W. 2 came and intervened, he was given rod. blow by Appellants Behari Jha and lathi blow by Appellant Surat Jha on head. Her such statement is not in conformity with either the first information report version or her statement made u/s 161 of Code of Criminal Procedure according to C.W. 2. It is needless to say that her evidence in Court goes ill with the version of other witnesses.
9. Both P.Ws. 1 and 3 have stated that they were at the Kolhuar engaged in crushing sugarcane when the occurrence took place. According to P.W. 1., when he went to the place of the occurrence, he found that all the four assailants were assaulting the deceased. However, while Behari Jha, Pawan Kumar Jha and Sita Ram Jha were inflicting blows by means of lota, iron rod and lathi respectively, Appellant Surat Jha had caught hold of the neck of the deceased, a fact not whispered by any other witness including P.W. 2 who was first to arrive at the scene of the occurrence. However, he has stated that Appellant Surat Jha and Pawan Kumar Jha had struck P.W. 2 by means of lathi and iron rod respectively. The witness had first stated that he was crushing sugarcane at the Kolhuar of the deceased situated at a distance of 15 laggis north of the house of the deceased. However, when pursued in further cross-examination, he stated that he had installed his own machine on the land of the deceased and was crushing sugarcane on the field of the deceased himself, which he had purchased from the latter at the rate of Rs. 200/- per katha. The witness does not appear to have given to the investigating officer the details of the occurrence regarding specific role played by the individual assailant in assaulting the deceased. Contrary to the evidence of P.W. 1, his brother Dineshwar Jha (P.W. 3) has stated that when the row between the deceased and Appellant Sita Ram Jha started over the question of bathing she buffalo at the well, at first the deceased and Appellant Sita Ram Jha grappled with each other and it was thereafter that Appellant Behari Jha arrived there and started pushing and assaulting the deceased. The deceased fell down on a wooden log on being pushed by Appellant Behari Jha. It was thereafter that Pawan Kumar Jha struck the deceased with iron rod. When Baleshwar Jha went there to rescue the deceased, he was given a blow on his head by Pawan Kumar Jha. He has specifically stated that none else had struck P.W. 2. While P.W. 1 has stated that the machine for crushing sugarcane was installed on the land of the deceased, P.W. 3 has stated, that it was the land of one Mohan Jha on which the Kolhuar was situated.
10. Thus, P.Ws. 1 and 3 have not made only statements contradictory to each other, they have made narrations not disclosed either in the first information report or in the evidence of P.W. 2. Even though in the first information report P.W. 3 was cited as a witness to the occurrence, his own brother Mahakant Jha (P.W. 1) was not stated to be present together at the Kolhuar as stated by them and arrived at the place of the occurrence to witness it, the deceased could not have omitted to name P.W. 1 as such. In the circumstances stated above, I find that the testimony of P.Ws. 1, 3 and 4 being inconsistent with the earliest version is not worth believing.
11. Apart from the oral evidence discussed above, one has on the record the fardbeyan of the deceased recorded at P.H.C., Athri within four hours of the occurrence. Since the maker of the statement subsequently died as a result of the injuries inflicted to him that statement is to be treated as a dying declaration for all practical purposes and is to be treated substantive evidence u/s 32 of the Evidence Act. According to the statement of the deceased, when row between him and the Appellant Sita Ram Jha started over the question of bathing the she-buffalo of the latter near the well, Appellants Behari Jha and Surat Jha arrived there armed with bhala and lathi respectively accompanied by Pawan Jha or Pawan Kumar Jha armed with iron rod. It was Appellant Behari Jha who threw him on ground due to which he fell down on a wooden log to be given lota blows on his neck and scapula. Sita Ram Jha also struck a lathi blow on his neck. Surat Jha and Pawan assaulted P.W. 2. Relying on the statement of P.W. 4 made in course of her cross examination that her husband had become unconscious at the place of the occurrence itself soon after getting hurt and he remained so even upto being taken to Muzaffarpur medical college hospital, it has been argued by the learned Counsel for the Appellants that the fardbeyan/dying declaration of deceased Ram Naresh Jha is a suspicious document. If he was not in his senses, how could he make such statement regarding the occurrence? I find no force in this contention. None of the prosecution witnesses, except P.W. 4, has stated that the deceased had lost his senses at the place of the occurrence and did not regain it so long as he was at P.H.C. at Athri. P.W. 4 is a rustic, illiterate women and appears to have made such statement regarding the state of mind of the deceased under stress of cross-examination. Therefore, (sic) the notice need to be taken to such statement of P.W. 4. That at the time the deceased made his statement/dying declaration he was in his senses is not only borne out in the evidence of C.W. 2 (sic) Kalimuzzama who recorded it, but also in the evidence of the medical officer attending him, namely, P.W. 6 Doctor Narendra prasad Mishra. It shall not be out of place to mention here that even though C.W. 2 was cross-examined at length while in the witness box, there was not even suggestion to him by the defence that when he recorded the statement of the deceased, the latter was not in his senses.
12. On his part P.W. 6 has stated that on 23.4.1988 at 3.15 P.M. he had examined deceased Ram Naresh Jha (who had been brought to the P.H.C. in injured condition along with P.W. 2.). He had found swelling and tenderness of the whole back part of the neck; swelling of right side of the front of the chest, and sensory loss of upper part of abdomen upto both lower limbs. He has stated that the injury on chest was simple in nature and the sensory loss of upper part of abdomen upto both the lower limbs was of grievous nature and dangerous to life. Regarding the injury to neck no opinion was expressed by the doctor and the patient was referred to S.K. Medical College at Muzaffarpur. All the injuries found on the person of the deceased were caused within six hours prior to the examination. The injury certificate (Ext. 1/1) prepared by him corroborates his testimony.
13. I may hasten to point out that even though P.W. 6 had opined the chest injury as simple, on autopsy by C.W. 1 it was found to be grievous in-as-much as fracture of ribs and sternum were detected, besides rupture of right lung. Tenderness is a sensation of pain marked by doctor on reaction of the patient on touching the particular part of the body. Therefore, when P.W. 6 said that the swelling on the neck of the deceased was associated with tenderness, he meant to say that the sensation of pain was disclosed by the patient. Similarly, unless the patient was in his full senses the doctor could not have diagnosed regarding the sensory loss of his abdomen and both the lower limbs. Like C.W. 1, no question regarding the state of mind of the patient (deceased) was put to the doctor in course of his cross-examination. Therefore, by no stretch of imagination it can be said that the deceased was pot in his senses when his statement/dying declaration was recorded by C.W. 2, to make the document a matter of suspicion.
14. Once the statement/dying declaration of the deceased is accepted as a genuine piece of document containing the statement of the deceased regarding the circumstances leading to his death, there can be no escape from the conclusion that occurrence had taken place in the manner stated by the prosecution in which these Appellants and Pawan Jha/Pawan Kumar Jha were involved. According to this document no part was played by Appellant Surat Jha in inflicting any blow on the person of the deceased. The entire occurrence took place at the spur of moment without any pre-meditation. Therefore, it can hardly be said to be a case of committing homicide or even hurt in furtherance of common intention of all the persons present there. According to the statement/dying declaration of the deceased it was Appellant Behari Jha who threw him on ground, and he fell on a wooden log lying there, followed by lota blows on his neck and scapula. The document further discloses that a lathi was also struck by Appellant Sira Ram Jha on his neck. The injuries found by P.W. 6 on the person of the deceased have been adverted to hereinbefore. They included swelling with tenderness on the back of the neck.
15. When C.W. 1 performed autopsy on the dead body of the deceased on 13.5.1988 at 10.05 A.M., he had found the following injuries on the dead body:
I. Blood coming out from both the nostrils;
II. Three abrasions measuring 2 1/2" x 1 1/2" and 1" x 1" on left side of the back;
III. Bed-sore on the lower part of sacrum over an area of 2 1/2",3". Besides, catheter was inserted into the penis;
IV. On opening of the chest, the doctor had found blood clots in the intercostal space on left side and 2nd and 3rd intercostal space on the right side. Blood clots were also found in the inner part of left side of sternum which was fractured. Some amount of dark clots of blood were found in the thoracic cavity. The 3rd rib on the right side was found fractured. There was rupture of right lung.
V. On dissection of the back of the deceased, blood clots were noticed in the 2nd thoracic vertebra. There was fracture of the 2nd thoracic vertebra with laceration of the spinal cord.
In the opinion of the doctor, the deceased had died due to shock and haemorrhage as a result of the abovementioned injuries which were antemortem in nature. They were caused by some hard and blunt substance like lota and lathi.
16. Thus, from the medical evidence of C.W. 1 it becomes manifest that fatal wounds were those on chest of the nature of fracture of the sternum, third rib of the right side and rupture of right lung; and on the top thoracic area of back of the nature of fracture of the 2nd thoracic vertebra and laceration of spinal cord. Bedsides, there was bleeding through both the nostrils of the deceased indicating internal haemorrhage which could be one of the causes of the shock resulting into the death of the deceased. However, from the evidence of P.W. 6 one finds that when the deceased was taken to P.H.C. at Athri, no such bleeding had been discerned. From P.H.C. at Athri the deceased was sent to S.K. Medical College at Muzaffarpur where he remained under treatment till he expired on the 20th day of the occurrence, i.e., on 12.5.1988. The bed head ticket or any document maintained at the medical college hospital respecting the deceased has not been brought on the record. Therefore, one does not know when the bleeding through the nose commenced and what was its real cause. The bleeding through the nostrils of the deceased, as detected by the C.W. 2 in course of autopsy, was either the result of secondary haemorrhage due to infection and sloughing of the wall of the artery; or at best due to haemorrhage as a result of the rupture of the right lung. Even though both the doctors had found injury on the chest of the deceased, there is not even a semblance of evidence that the said injury was inflicted by any of the assailants of the deceased. In course of the scuffle that followed over the question of bathing of the animal of Appellant Sita Ram Jha than deceased was thrown on ground and fell on a wooden log lying there. It might be that he fell down on the log on being pushed in course of the scuffle. According to the statement/dying declaration of the deceased, it was Appellant Behari Jha who was responsible for the fall of the deceased on the wooden log. In absence of any specific evidence from the mouth of the eye witnesses or from the narration of the deceased in his statement/dying declaration regarding inflicting of any blow by any of the assailants on the chest the deceased, the natural inference will (sic) that in all probability the injuries to the sternum bone, right third rib and the (sic)lung were the result of fail of deceased on the wooden log. Even (sic) has stated in course of his cross-examination that those injuries were possible to fall on some hard and blunt substance with considerable force. The abras (sic) found on the left side of the back (sic) also be the consequence of such fail cause there is no evidence that any (sic) assailants had hit the deceased on the part of the body. Therefore, the injurie, the chest of the deceased could never intentional; rather they appear to be accidental and never intended to cause death.
17. As regards the injuries to the second thoracic vertebra and laceration of the spinal cord there is evidence that Appellant Behari Jha had dealt some lota blows on the neck and a lathi blow had been dealt on the neck by Appellant Sita Ram Jha. Fracture of the second thoracic vertebra with laceration of spinal cord corresponding to the root of the neck in the middle was found by the doctor in course of the autopsy. Even though a person well versed in human anatomy may not agree that the second vertebra forms part of neck, when a layman witness says of ''neck; he says so loosely and includes even root of the neck where the first and second vertebrae are seated beneath the trapezius. It may not be out of context to mention that the cervical curve which runs through neck, according to Gray''s Anatomy, ends at the second thoracic vertebra (Gray''s Anatomy, 34th Ed., page 290). Therefore, that injury can certainly be attributed to Appellants Behari Jha and Sita Ram Jha. According to autopsy evidence, those injuries were also responsible for the death of the deceased. The learned Counsel for the Appellants argued that by inflicting such injury to the deceased the assailants, namely, Appellants Behari Jha and Sita Ram Jha could never intend to cause his death. According to the statement/dying declaration of the deceased Behari Jha was armed with a bhala. Had he ever intended to kill the deceased, he could have easily pierced the bhala in the body of the deceased. He did not do so. Instead he picked up the metal water pot (lota) of the deceased, which was lying there and dealt a few blows on his neck and scapular region followed by a solitary lathi blow by Sita Ram Jha.
18. The learned Counsel appearing for the State conceded that such act of Appellants Behari Jha and Sita Ram Jha is not covered by the first and second clauses of Section 300 of the Code, but submitted that since the assailants used lota and lathi for inflicting injury on the neck of the deceased just above the region of thoracic vertebra their act in causing such injury falls within the mischief of the third clause thereof. That clause lays down that if the act is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of injury to cause death, the act amounts to murder. In the case of
We are concerned under clause Thirdly with the intention to cause that particular injury which is a subjective enquiry and when once such intention is established and if the intended injury is found objectively to be sufficient in the normal course of nature to cause death, clause Thirdly is attracted and it would be murder, unless one of the exceptions to Section 300 is attracted. If on the other hand, ingredient of ''intention'' is not established or if a reasonable doubt arises in this regard, then only it would be reasonable to infer that Clause Thirdly is not attracted and that the accused must be attributed knowledge that in inflicting the injury he was likely to cause death in which case it will be culpable homicide punishable u/s 304 part II of the Indian Penal Code.
19. In the case of
20. The Appellants have also been convicted u/s 447 of the Code for committing criminal trespass. Except P.W. 3, no other witness of the prosecution has stated where the occurrence actually took place. P.W. 3 has said that he was near the well close to the darwaja of the deceased where the incident of assault occurred. The investigating officer has said that the place of occurrence was by the side of the village road. Thus, there is no clear evidence that, the assault took place on the land of the deceased. In other words, there is no evidence that the Appellants entered upon the land of the deceased with the ingredients necessary for constituting offence of criminal trespass, in their mind. Hence, conviction of the Appellants u/s 447 of the Code cannot be maintained. However, in view of overwhelming evidence including of the doctor (P.W. 6) that Appellant Surat Jha had caused injury/injuries to P.W. 3 by means of lathi, his conviction u/s 323 of the Code warrants no interference.
21. Both crime and the criminality should be taken into consideration while awarding punishment to an accused. Appellant Behari Jha is a teacher by profession and the other two Appellants farmers. While inflicting blows, they never intended to clothe deceased. In course (sic) a sudden brawl that took place over (sic) fling matter the deceased was given (sic) lota and lathi blows which proved fatal (sic) is stated at the Bar that Appellant Be(sic)Jha has already spent about four months jail while Appellants Sita Ram Jha has spen (sic) nearly eight months before being granted bail. Therefore, in the circumstance of case I find some reasonableness in the plea of the learned Counsel that in the present case sentences of fine for compensating the widow/Dependants of the deceased shall meet the ends of justice.
22. In the result, both the appeals are (sic) allowed in part and the conviction of the (sic) Appellants u/s 302 read with Section 34 and Section 447 of the Code is set aside and instead Appellants Behari Jha (in cr. Appeal No. 344/90) and Sita Ram Jha (Appellant No. 1 in cr. appeal No. 351/90) are convicted u/s 325 of the Code. Their sentences are reduced to the period already undergone. They are also sentenced to pay a fine of Rs. 8,000/- each and in default thereof to undergo rigorous imprisonment for five years. The conviction of Appellant No. 2 (in cr. appeal No. 351/90), namely, Surat Jha alias Ram Surat Jha u/s 323 of the Code is maintained but his sentence is reduced to the period already undergone. The entire amount of fine if realised from Appellants Bahari Jha and Sita Ram Jha shall be paid to the widow/Dependants of the deceased. Appellant Surat Jha alias Ram Surat Jha is discharged from the liability of his bail-bond. However, the bail granted to the remaining two Appellants is hereby cancelled.
J.N. Dubey, Actg.C.J.
23. I agree.
