Bawa Ram vs State of Punjab

S.S. Sodhi, J.

The challenge in appeal here is to the conviction of the appellant Bawa Ram under Section 302 of the Indian Penal Code for the murder of Charan Singh and the sentence of imprisonment for life and a fine of Rs. 5,000/ imposed in respect thereof.

According to the prosecution, the house of the appellant Bawa Ram adjoined the Haveli of Charan Singh, deceased, where he used to tether his cattle. It is said that a day prior to the occurrence Bawa Ram had let loose his cattle which entered the Haveli of Charan Singh and besides causing damage they also ate up the fodder meant for the cattle of Charan Singh. Charan Singh had protested about this to the appellant Bawa Ram.

On the next day i.e. June 12, 1988, Charan Singh started digging a pit in his Haveli for fixing Thuni to put up barbed wire. At about 11.30 A.M. on that day Bawa Ram came there armed with a Kassi and objected to Charan Singh digging the pit. Charan Singh asserted that he was doing the digging in his own land, where upon. Bawa Ram gave a Kassi blow with the sharp blade thereof on the head of Charan Singh and while he was pulling it out also caused an injury on his nose. Charan Singh succumbed to his injuries and died soon thereafter. This incident is said to have been witnessed by both the sons of Charan Singh, deceased, namely Gurdev Singh and Gurmukh Singh as also Samund Singh another resident of the village. Seeing this injury they immediately ran towards the deceased Bawa Ram in the mean time had fled away taking with him his Kassi, the weapon of offence.

Immediately after the occurrence, Gurdev Singh son of Charan Singh, deceased set off for the Police Station to lodge a report. On the way, he met Inspector Jaimal Singh, S. H.O. Police Dhariwal, to whom he made his statement ExhibitPB on the basis of which the First Information Report came to be recorded at about I P.M. The Police Station being 3 Kilometers from the place of incident. The special report also reached the Judicial Magistrate at about 3 P.M., the Court of the Judicial Magistrate also being 3 kilometers from the Police Station.

The case of the prosecution rests upon the testimony of PW. 2 Gurdev Singh and PW13 Gurmukh Singh, the sons of Charan Singh, deceased, Both these witnesses narrated the incident as per the prosecution version. PW4 Gurdev Singh further deposed the lodging of the First Information Report.

As regards the investigation of this cause, there is the testimony of PW5 Inspector Jaimal Singh, who stated that he was present at the turning of the Truck Union, Dhariwal in connection with the investigation of some other case when PW2 Gurdev Singh came there and made statement Exhibit PB on the basis of which the formal First Information Report Exhibit PB/2 came to be recorded. He went on to depose that he then went to the place of incident, where he inspected the spot, prepared the report and then sent the dead body for postmortem examination. He also, testified to the lifting of blood stained earth from the place of incident and the rough site plan Exhibit PF prepared by him.

It was further the testimony of PW5 Inspector Jaimal Singh that he arrested the appellant Bawa Ram on June 13, 1988 when he was produced before him by Kishan Chand, Member Panchayat. The appellant was then interrogated. He made a disclosure statement Exhibit PJ, as a consequence of which he got recovered Kassi Exhibit P1, which was lying concealed in a field of Chari near the cremation ground. The blade of this Kassi was found to be stained with blood. According to the report of the Chemical Examiner the Kassi Exhibit P.1 was stained with human blood.

Next to note is the postmortem examination on the dead body of Charan Singh, deceased. PW1 Dr. H.S. Bajwa, who conducted the postmortem examination on June 12, 1988 found two injuries on the person of the deceased, these being

"1. 6 cm x 1 cm incised wound over left frontal and partietal region of scalp. Diffused swelling was present around it. Clotted blood was present. The wound was placed 8 cm above the ear pinne. On dissection clotted blood was present beneath the scalplaver, left side frontal bone was fractured. Suture of left frontal and paietal bone were separated. Subdural heatone was present. There was contusion of the membrane and brain on the left frontal and parietal lobe about 5 ounces of blood was present on the base of the skull.

"2. I shaped incised wound measuring 3 cm x 1/2 cm x 1/4 cm. over front of nose, Clotted blood was present."

In the opinion of Dr. H.S. Bajwa, injury No. 1 was sufficient in the ordinary course of nature to cause death and death occurred within half an hour of the infliction thereof and further that the time that elapsed between death and postmortem was within 14 hours. He specifically deposed that the head injury could have been caused with a blow by Kassi Exhibit P1 and the injury on the nose could have been possible on withdrawing the Kassi after causing the head injury.

When examined under Section 313 of the Code of Criminal Procedure Bawa Ram appellant denied the prosecution case against him and pleaded innocence. He, however, came forth with no counter version and rested content with the plea "11 was falsely implicated in this case under misguided suspicion". No evidence was led in defence.

The learned trial Judge taking into account the material on record convicted and sentenced the appellant in the manner indicated earlier.

In seeking to assail the conviction of the appellant Bawa Ram, his Counsel Mr. M. S. Rakkar sought to lay great stress upon the fact that the incident, as per the prosecution version, had also been witnessed by Samund Singh of the village, but he had not been examined. He sought to have the Court draw an adverse inference against the prosecution by the nonexamination of this witness. The argument being that the sons of the deceased were interested persons and as the only independent witness had not been examined, it would not be safe to rely upon the prosecution version. Further, in this behalf, mention was also made of the fact that the names of the two sons of the deceased PW2 Gurdev Singh and PW3 Gurmukh Singh do not find mention in the inquest report.

The contention raised, though plausible, on the face of it cannot, however, stand scrutiny. It will be seen that, there was no history of any enmity or strained relations between the appellant Bawa Ram and Charan Singh deceased. Indeed they were neighbours. In the absence of any motive or reason for them to have done so, song of the deceased would not leave out the real culprit, if indeed he was some one else and seek to falsely implicate instead the appellant Bawa Ram as the culprit here. As regards the two eye witnesses being the sons of the deceased, it was now well settled that relationship by itself is no ground to discard or doubt the veracity of an eyewitness. In the present case, it has also come on record that PW2 Gurdev Singh was constructing his house near the haveli where the incident occurred. This clearly renders the presence of the two eyewitnesses there at the time both natural and probable. The fact that their names did not figure in the inquest report cannot be treated as a matter of any consequence when the regard is made to the fact that the First Information Report was lodged without any under loss of time and they are named there. To lend further support to it there is the receipt of the special report by the Judicial Magistrate within two hours of the lodging of this report. It is also note worthy that no question was put to the Investigating Officer regarding the names of the sons of the deceased not figuring in the inquest report. The circumstance, therefore, of Samund Singh not having been examined as a witness cannot, therefore, detract from the veracity of the prosecution case.

It would also be pertinent to note that both PW2 Gurdev Singh and PW 3 Gurmukh Singh have given a consistent account of occurrence, which is duly corroborated by the version as set forth in the First Information Report nor could counsel for the appellant, point to any discrepancy or contradiction to create any doubt in their testimony. Not only this, the appellant on his part, has not come forth with any counter version or any other reason to account for the sons of the deceased naming him as the culprit if indeed it Was some one else. Having regard, therefore, to the totality of the circumstances of this case and the evidence on record, there can be no escape from the conclusion that the incident occurred as per the prosecution version.

Faced with this situation, Mr. M.S. Rakkar, counsel for the appellant sought to raise the contention that the offence here would fall under Section, PartII and, not under Section 302 of the Indian Penal Code. The emphasis, in this behalf, being upon the fact that this was a singly injury case. The plea being that as only one injury had been caused and there was no previous enmity between the appellant and the deceased, he could not be imputed with the intention to cause death. In support reference was made to Bishwanath Dusadh v. State of Bihar, 1991 Crl. L.J. 109, where on a sudden quarrel the accused had given a Farsa blow on the head of the deceased, the offence was held to be punishable, not under Section 302, but under Section 304 PartII of the Indian Penal Code. Next cited in support was Tholan v. State of Tamil Nadu, AIR 1954 SC 759, where the incident had occurred on the spur of moment, in the course of which a knife blow was given to the deceased and the offence was, on that account treated as one under Section 304 PartII of the Indian Penal Code.

Whether an offence falls under Section 302 or Section 304, PartII of the Indian Penal Code, depends entirely upon the facts and circumstances of the particular case. Further, as observed by the Supreme Court in : Jagrup Singh v. The State of Haryana, AIR 1981 SC 1552, there is no justification for the assertion that the giving of a solitary blow on a vital part of the body resulting in the death must always necessarily reduce the offence to culpable homicide not amounting to murder punishable under Section 304, PartII of the Code. If a man deliberately strikes another on the head with a heavy log of wood or an iron rod or even a lathi so as to cause a fracture of the skull, he must, in the absence of any circumstances, negativing the presumption, be deemed to have intended to cause the death of the victim or such bodily injury as is sufficient to cause death. The whole thing depends upon the intention to cause, and the case may be covered by either clause, Firstly or Clause Thirdly. The nature of intention must be gathered from the kind of weapon used, the part of the body hit the amount of force employed and the circumstances attendant upon the death."

As regards Section 304, PartII of the Indian Penal Code, the classic judgment relevant to it still continues to be that of the Supreme Court in Virsa Singh v. State of Punjab, AIR 1958 SC 465, where it was clarified

"To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 "thirdly";

First, it must establish quite objectively, that a body injury is present;

Secondly, the nature of the 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 three 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 the 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.

Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under Section 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 the 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."

Applying this test to the present case, no warrant arise for holding the offence committed by the appellant to be otherwise than.

One under Section 301 of the Indian Penal Code. It, would be pertinent to note in this behalf that the injury was caused to the deceased on a vital part of his body namely the head which was found by the doctor to be sufficient in the ordinary course of nature to cause death. Further, this injury was caused with the sharp side of the Kassi and the circumstances clearly suggest that it was brought there by the appellant with a view it being used as a weapon of offence. It is not that he was busy in digging and the happened to have the Kassi with him and then caused an injury with it. He deliberately brought the Kassi and then gave the fatal blow with it to the deceased. As mentioned, earlier there is also no counter version forthcoming from the side of the appellant.

Such being the situation, the conviction of the appellant under Section 302 of the Indian Penal Code and the sentence imposed upon him there under calls no interference in appeal.

This appeal is accordingly hereby dismissed.