Amar Saran, J.@mdashThis criminal appeal arises from a judgment of the Special Judge, Shahjahanpur dated 15.4.1983, passed in S.T. No. 639 of 1982 convicting and sentencing the appellants to imprisonment for life, under section 302/34 I.P.C. and five years R.I. under section 307/34 I.P.C. The sentences were to run concurrently. As two of the appellants Chandrapal and Kripal have died, their appeal was made to abate by an order dated 26.5.2014. Now the appeal survives only insofar as Raghubir and Malkhan are concerned.
2. The prosecution version as disclosed in the FIR, lodged by Smt. Rajeshwari, was that her father, the deceased Kheoraj was Ex-Pradhan of the village. In the Pradhani elections of that year, Jhabbu, brother of the appellants Raghubir and Chandrapal was intending to contest. The appellant-Raghubir was putting pressure on Kheoraj not to contest the election so that his brother Jhabbu could be elected as Pradhan on this occasion. But Kheoraj did not agree to this proposal because of which both Jhabbu and Kheoraj lost to Sri Ram of Nayagaon, causing Raghuvir to nurse a grudge against him. The appellant Chandrapal was arrested by the police with some illicit liquor on 22.7.1982 and after being released on 23.7.1982, the appellant Chandrapal had announced that Kheoraj was after them and something should be done about him. On 24.7.1982 at about 11.00 a.m. when Kheoraj was plucking out paddy plants which were being transplanted by the informant Smt. Rajeshwari, Raghubir armed with a ''Bhala'' and the appellants Chandrapal, Kripal and Malkhan, who were armed with ''Lathies'' arrived there and started assaulting Kheoraj. When the informant Smt. Rajeshwari tried to intervene, she was also belaboured by these persons. On her cries, her mother Ramwati, wife of the deceased, Manohar, Moonga and her maternal uncle Lallu arrived at the spot. On their alarms, the appellants fled in the western direction.
3. The report of this incident was lodged by Smt. Rajeshwari at P.S. Jalalabad 8 miles away on 24.7.1982 at 2.30 p.m. The Head Moharrir PW-5 Muneshwar Dayal prepared the check report (Ext. ka 4) and registered a case at Case Crime No. 251 of 1982 (Ext. Ka-5). After noting the injuries of the deceased and Smt. Rajeshwari in the general diary. He sent Kheoraj and Smt. Rajeshwari along with necessary letters for medical examination to P.H.C. Jalalabad.
4. PW-3 Dr. A.P. Dixit medically examined the injuries of Kheoraj at 3.30 p.m. on 24.7.1982, vide injury report (Ext. ka-2) and those of Smt. Rajeshwari PW-1 at 4.00 p.m. on 24.7.1982, vide injury report (Ext. ka-3) at P.H.C. Jalalabad.
5. PW-3 Dr. A.P. Dixit noted in the injury report that the deceased Kheoraj aged 50 years had the following injuries:
1. Lacerated wound on right side of head 1 cm x 0.3 cm x scalp deep 7 cm above the eye brow margins ragged and lacerated, fresh bleeding present.
2. Penetrating wound 1 cm 0.7 cm x 6 cm over fronto lateral part of left upper arm, 10 cm above the elbow bend associated with a traumatic swelling 8 cm x 8 cm underlying bone fractured deformity + crackling sound present, margins of the wounds inverted, fresh bleeding present.
Patient''s general condition was very low, hence further detailed examination for the rest of the injuries was being postponed. Pulse not perceptible, pupillary reaction. Heart sound muffled.
6. Dr. A.P. Dixit also examined the injured Smt. Rajeshwari, aged about 20 years on 24.7.1982 at 4.00 p.m. and found the following injuries on her person:--
1. Lacerated wound left side of head 6 cm x 0.5 cm x scalp deep 10.5 cm above the pinna of left ear. Margin ragged and lacerated. Fresh bleeding present.
2. Lacerated wound in between webs of right index and middle finger over palmer aspect measuring 2 cm x 0.3 cm x muscle deep, margins ragged and lacerated. Fresh bleeding was present.
3. Traumatic swelling over back of left upper arm including elbow region measuring 12 cm x 8 cm, movement restricted and artificial.
4. Abrasion over back of left forearm, 7 cm above the wrist, measuring 1 cm x 0.5 cm slight bleeding present.
5. Traumatic swelling over back of left palm medially measuring 5 cm x 3 cm associated, abrasion in its proximal part measuring 0.3 cm x 0.2 cm.
6. Reddish contusion 3 cm x 2 cm over fronto-medial part of right knee just above the knee-bend.
7. As Kheoraj died on 24.7.1982 at 3.42 p.m., his autopsy was conducted by PW-6 Dr. Satyapal on 24.7.1982 at 4.00 p.m. According to Dr. Satyapal, the deceased was about 50 years in age. The death had taken place one day earlier at 3.20 p.m. He was of average built. Rigor mortis was present in all extremities.
8. The doctor found the following ante-mortem injuries on the deceased Kheoraj:
1. Lacerated wound 1 cm x 0.4 cm x bone deep right side scalp 7 cm above right eyebrow middle (wound found stitched and examined after stitch removal).
2. Stitched wound, on stitch removal, found to be penetrating wound 1 cm x 0.5 cm x bone deep back middle left arm, margins clear.
3. Traumatic swelling 10 cm x 8 cm post lateral side middle left arm with fracture shaft of humerus.
4. Contusion 5 c.m. x 2 c.m. ? with swelling in surrounding 18 cm x 10 cm back, right arm middle with fracture Rt. Humerus shaft.
5. Contusion with traumatic swelling 18 c.m. x 10 cm fracture of left thigh bone, and huge hematoma left thigh.
9. The prosecution has examined Smt. Rajeshwari PW-1, daughter of the deceased Kheoraj and informant, Moonga Lal PW-2 and PW-4 Ramwati, widow of the deceased as eye-witnesses of this incident. PW-5 Head Moharrir Muneshwar Dayal was the scribe of the check and G.D. reports. PW-6 Dr. Satyapal conducted the post-mortem examination on the dead body of Kheoraj. PW-7 Constable Budh Singh took the dead body for autopsy. PW-8 SSI, Ram Singh Verma conducted the investigation of this case.
10. PW-1 Smt. Rajeshwari deposed that she had dictated the report to Jagdish, outside the field on the chak-road. After her uncle arranged a Bullock-cart, her father Kheoraj was placed the same on a cot (Khatia) and was taken to Barua village, where a motor-truck was arranged and then Kheoraj was placed on the said truck on the same cot. When they reached P.S. Jalalabad, PW-1 Smt. Rajeshwari lodged the report. Thereafter, her father was medically examined at Jalalabad P.H.C. and the doctor also stitched his wounds and gave him medicines. The doctor had thereafter examined injured Smt. Rajeshwari PW-1 also. Smt. Rajeshwari also referred to the two motives for this crime, viz. the unwillingness of the deceased Kheoraj not to contest the Pradhani election on the request of Raghubir, and to sit down in favour of Raghubir''s brother Jhabbu and the consequent victory of Sri Ram of Nayagaon hamlet in the election. Also the resentment of the appellants because of the police picking up Chandrapal with some liquour on 22.7.1982 and challenging him in connection with the illicit liquour case and their releasing him the next day was also directed against Raghubir whom they felt was responsible for the police action. The manner of assault on the deceased and on this witness Smt. Rajeshwari as mentioned in the FIR has been reiterated by this witness in Court. She further stated that she had fallen down on the deceased in order to save him, when she was also assaulted, and that Raghubir had also caused a spear blow on her back.
11. PW-2 Moonga Lal has deposed that the deceased was also a resident of his village Naya Gaon @ Narainpur and was known to him. He was also working on his paddy field when the deceased and his daughter Smt. Rajeshwari were working in the adjoining paddy field. The deceased and Smt. Rajeshwari were assaulted by Raghubir with a spear and the other assailants were also armed with lathis. He also stated that on the alarm, he was the first to, reach the spot and thereafter, Ramwati, widow of the deceased, Lallu, Manohar also arrived there. On the cry of the witnesses to stop the assault, the appellants had run away towards the west.
12. PW-4 Smt. Ramwati, widow of the deceased Kheoraj and mother of the informant, Rajeshwari deposed that she was going to the field at about 11.00 a.m. on the fateful day carrying food for her husband. She saw the four appellants assaulting the deceased Kheoraj and Rajeshwari. The appellant Raghubir was armed with a spear and the three other appellants were carrying Lathis. The deceased and the informant Rajeshwari started crying and this witness also raised an alarm. Moonga also reached there and other persons Lallu and Manohar (who have not been examined in this case) also arrived at the spot. After that the deceased was placed on a cot. Thereafter Rajeshwari had dictated the report to Jagdish and the cot was placed on a motor truck at Baruwa village, from where she was taken to the police station, where the report was lodged. Thereafter, the deceased Kheoraj and Rajeshwari were medically examined, but shortly after the medical examination, Kheoraj died.
13. The next day, Kheoraj''s corpse was sent to the District Hospital. Ramwati also applied some local medication such as milk and Fitkiri to the deceased at the spot after calling for the same from her house. The appellants were inimical to her husband because of the Pradhani election as the accused Raghubir and Chandrapal had asked her husband Kheoraj not to contest the election so that their brother Jhabbu could be elected but Kheoraj had not agreed to this proposal and suggested that whoever won the election, he could become the Pradhan of the village. In the election, Jhabbu, Subhash and Kheoraj had lost and Shree Ram Kanchhi won the election.
14. Sri Raunak Chaturvedi, learned Amicus Curiae has rightly not seriously contested the case on merit as it was a broad day light incident and there was an injured witness Smt. Rajeshwari Devi and it was not very material that one or two witnesses viz. Manohar and the informant''s maternal uncle, Lallu have not been produced as there was no need to multiply the witnesses. The presence of Smt. Rajeshwari, an injured witness, on the spot could not be doubted and her testimony could also not be doubted simply because there is no typical spear injury on her person, even though she had stated that Raghubir had also assaulted her along with the other accused.
15. However, learned Amicus Curiae principally argued that on these allegations, no case under section 302/34 I.P.C. was disclosed. The common intention of the appellants appeared more to teach a lesson to the deceased Kheoraj for not abstaining from contesting the election of Pradhan which had taken place three and a half months earlier and in which election Shree Ram Kanchhi, resident of the neighbouring hamlet which fell under the same gram sabha had been declared successful, and both Kheoraj and Jhabbu who belonged to Raghubir''s hamlet had lost.
16. It was rightly argued by learned Amicus Curiae that simply because the deceased as well as Jhabbu, brother of appellant Raghubir and Chandrpal had lost the Pradhani election and Kheoraj had refused to abstain from contesting in the election, which was held three and a half months earlier, would hardly provide a motive to the appellants to commit the murder of the deceased. Even the other motive which has been developed in this case that two days earlier on 22.7.1982, the appellant Chandrapal had been picked up by the police along with some illicit liquor, for which he was released on 23.7.1982 would hardly constitute a strong motive for commission of the crime of murder, as the deceased was not the existing Pradhan, but an ex-pradhan and only a suspicion if at all, could have come into the minds of the appellants that the deceased was instrumental in their arrest. That could hardly provide a motive at that stage for commission of the murder of the deceased, because they nurtured a suspicion that it was the deceased who had called the police which had resulted in the apprehension of Chandrapal for one day at the police station, and also because Raghubir and Chandrapal''s brother Jhabbu had lost the election. But the deceased Kheoraj had also lost the same election, which had taken place 3 1/2 months earlier.
17. What is more material for this Court for arriving at a conclusion that there was no intention on the part of the appellants to commit the murder of the deceased were the nature of injuries sustained by the deceased. Significantly, only a single spear blow appears to have been given to the deceased and that too, was caused on his left arm which has been described by the doctor to be a penetrating wound 1 cm x 7 cm x 6 cm x bone deep. Although there was fracture of the bone with hematoma, but significantly there was no attempt to repeat the blow on the chest or any other vital region of the deceased, or even on the arms of the deceased. There was also only a single Lathi injury on the head of the deceased which as per the autopsy report it was 1 cm x 0.4 cm x bone deep, but there was no apparent damage below that injury. The injury report mentioned no other injury but the post-mortem report noted two other contusions, on non vital parts, one of which was 5 cm x 2 cm which had a swelling 10 cm x 10 on back of right arm under which the bone was fractured. The last injury was on the left thigh on the frontal and lower aspect, under which the femur bone was fractured with hematoma. Thus, we think that there was no grievous injury on any vital part on the body of the deceased Kheoraj, which might have indicated an intention to murder the deceased. We also think that as medical attention was only provided to the deceased after about five hours and initially even some local medication such as milk and Fitkiri were given to the deceased as mentioned by Smt. Ramwati, widow of deceased, even the complainant side were not considering this case to be of such a serious nature calling for proper and serious medical attention at the earliest. Looking to the fact that there were no grievous injuries on his vital parts, he may well have survived and that it would appear more likely the deceased had died as a result of haemorrhage, as the bleeding did not stop, even though PW-3 Dr. A.P. Dixit had stitched the wound to try and stop the bleeding.
18. The daughter of the deceased Smt. Rajeshwari was also assaulted by the appellants. She had a lacerated wound and contusions and most of her injuries were also on non-vital parts such as on her arm and on the back of her fingers and the injury on the head was described as simple, although the injuries on the arm had traumatic swellings. Also there was no averment of the doctor that the injuries of Smt. Rajeshwari were dangerous for life. In these circumstances, we are of the opinion that the learned Amicus Curiae has rightly argued that the common intention of the appellants could only have been to give a sound thrashing to the deceased and to cause grievous injuries to him by beating the deceased with a spear and lathis, and looking to the aforesaid motives and circumstances and nature of injuries, the appellants could only be said to be sharing a common intention to commit the crime of causing grievous injuries to the deceased Kheoraj, and not to commit his murder.
19. In
20. Learned A.G.A. on the other hand placed reliance on the decisions of the Apex Court in
21. We are of the view that this is too wide an interpretation of Virsa Singh''s case which has been recently reiterated in the case of Richhpal Singh Meena. It may be noted that in Virsa Singh''s case, the intention to inflict the particular injury was to be seen along with the nature of the bodily injury intended. Supposing during the course of a quarrel or when the deceased was moving around, an injury intended to land on a non-vital part, had landed on the heart, resulting in the death, could it be said that the injury received was the actual injury caused. However once it is held that the injuries intended to be inflicted, which had struck the deceased was objectively sufficient in the ordinary course of nature to cause death, then in view of the third clause of section 300 IPC, a finding that the offence amounted to murder could be reached. Even in the case of Virsa Singh, we find that the Trial Court and the High Court had recorded a finding that except the main accused Virsa Singh, who had caused the identifiable fatal injury by thrusting a spear into the abdomen of the deceased, the other co-accused had been acquitted of the murder charge by the Trial Court and they had only been convicted under sections 326, 324 and 323 read with section 149 I.P.C. by the Trial Court for having a common object of causing injuries simple or grievous to the deceased or injured, and they were even acquitted by the High Court. There was thus only a single accused who is said to have caused the fatal injury on the abdomen of the deceased.
22. In the present case, we have seen that none of the individual injuries actually inflicted could be said to be sufficient in the ordinary course of nature to cause death, though the proposition cannot be disputed that the death had resulted due to the injuries inflicted. But we find all the injuries except one landed on non-vital parts of the deceased''s body. The injury on the head is also only scalp deep, and has not caused any internal damage. Even the injury which was imputed to the spear wielded by the appellant Raghubir was on the lower part of the upper arm, although there was a fracture of an underlying bone. But there was no effort to repeat that injury. Two other injuries were on the right arm and were a lacerated wound and a contused traumatic swelling. There was a contusion with a swelling over the right forearm, under which there was a fracture of a bone. The last injury was also a contusion with a swelling on the left thigh, under which the bone was broken.
23. No attempt was made to assault the deceased on his chest, or to make any other assault on the head or other vital part of his body. From a perusal of the injuries, at least this could be inferred as indicated above, that there was no intention to cause the death of the deceased or even to cause any fatal injury to the deceased, though there could have been a common intention to cause grievous injuries to the deceased, which had in fact been caused.
24. The circumstance as we have also pointed out above only indicate that the appellants wanted to teach a lesson to the deceased for having contested the Pradhani election which resulted in the election defeat of the appellant''s brother Jhabbu as well as the deceased and success of one Shree Ram Kanchhi and that the election had been taken place three and a half months earlier. There is also another motive of appellant Chandrapal having picked up by the police along with some illicit liquor that he was selling. It appears that he had immediately got bail the next day, therefore, on these circumstances it can be inferred that although the appellants might have been interested in causing the grievous hurt to the deceased but it could not be inferred that they were interested in murdering the deceased.
25. Learned Counsel for the appellant has also drawn our attention to the three Judge decision of the Apex Court in
26. It would also be useful to peruse the section 72 I.P.C. here which reads as follows:
"72. Punishment of person guilty of one of several offences, the judgment stating that it is doubtful of which--In all cases in which judgment is given that a person is guilty of one of several offences specified in the judgment, but that it is doubtful of which of these offences, he is guilty, the offender shall be punished for the offence for which the lowest punishment is provided if the same punishment is not provided for all".
27. In view of this provision also, as a doubt has been raised as to whether on the disclosed facts the appellants are guilty of murder or only of causing grievous injuries which had resulted in the death or the deceased, we think that it would be more appropriate for this Court to award the punishment for the lesser offence which in the background of the present case would fall under section 326/34 IPC and not under section 302 IPC for causing the death of Kheoraj, and under section 325/34 IPC, and not under section 307 IPC for causing injuries to Smt. Rajeshwari Devi, who has not received any spear injury and which injuries have not been found to be dangerous to life by the examining doctors. In the aforesaid circumstances, it would be appropriate to set aside the conviction and sentence of the appellants, under section 302 I.P.C. and instead to convict them under section 326/34 I.P.C. for causing grievous hurt by use of a dangerous weapon (spear) which resulted in the death of Kheoraj. As over 32 years have elapsed since the incident, and the appellants who are alive would now be fairly old men, and two of the appellants have even died in the meanwhile, whose appeals have abated, we think that the ends of justice would be met if the appellants are sentenced to seven years RI with a fine of Rs. 30,000/- (thirty thousand only). In default of payment of fine, the appellants will have to undergo one year additional sentence under section 326/34 IPC. The appellants are also sentenced to 4 years RI, with a fine of Rs. 5000 under section 325 IPC, for causing the injury to Smt. Rajeshwari and to a further sentence of 6 months SI in default of payment of the fine. The sentences are to run concurrently.
28. The appeal is partly allowed as above. The appellants are on bail. Their bail bonds are cancelled and they are directed to be taken into custody forthwith to serve out the sentence awarded as above, to the extent that they have not already undergone the sentence along with admissible remissions as awarded above. Copy of this judgment be forwarded to the Chief Judicial Magistrate concerned for compliance within ten days.
