Bhagirath and Others vs State of M.P.

S.K. Kulshrestha, J.

The three appellants assail the judgment dated 12.5.2000 passed by the Special Judge (Attrocities) and the Additional Sessions Judge, Bhopal in Sections Trial No. 333/99 by which they stand convicted u/s 302 read with section 34 of the I.PC. and sentenced to imprisonment for life and fine of Rs. 1000, - as also u/s 307 read with section 34 of the I.P.C. and sentenced to 5 years R.I. and fine of Rs. 1000-

As per the case of the prosecution, on 3.7.1999 at about 10.30 a.m., complainant Tularam (PWI) had started from his house to look for a job and while he was returning he saw a crowd gathered near the shop of Bhagwan Singh and found that accused Bhagirath, Rajendra and Dinesh were assaulting his brother Chunnilal with knives. When he tried to intervene, accused Bhagirath assaulted him with knife over his chest twice and also assaulted him on his arm. He got down from his scooter and went to the police station. His nephew Jagdish also arrived and the accused persons ran away from the place of the incident. Jugdish took them in an auto-rickshaw to Hamdiya Hospital. Chunnilal, however, died on way. At 12.15 p.m., Sub Inspector VP. Singh recorded Dehati Nalish Ex.P/1 which was sent to the police station for recording F.I.R. Tularam was admitted to the male Surgical Ward for his treatment and the body of Chunnilal was forwarded for postmortem examination where PW5 C.S. Jain performed autopsy and gave report Ex.P/ 5. He recorded the following injuries:

(1) Stab injury on left thigh starting from medial of left thigh where on skin it is of size 2.8 x 1cm. one end is pointed other blunt. It has come out from posterior lateral aspect where size is 2.6 x 0.9 cm. Muscles in whole tract are sharply cut tissue. Edymosis visible. Middle of thigh at this point is 14.5 cm.

(2) Incised wound over left thigh 13x6x4 cm.

(3) Incised wound over medical of the thigh 5x2x0.5 cm.

(4) Incised wound medial aspect left knee 3x1x0.8 cm.

(5) Incised wound on the left leg 6x0.5x0.4 cm medial region.

(6) Incised wound on left leg lower region 3x1x1 cm.

(7) Incised wound on right thigh 6x1x2 cm.

(8) Incised wound on right thigh 4x2x1 cm.

(9) Incised wound posterior medial aspect of left leg 5x1x1.5 cm.

(10) Incised would posterior lateral aspect of left leg 4x1x1 cm.

(11) Stab injury posterior aspect of right thigh 2.8x1x4 cm. one end pointed other blunt.

(12) Three incised wounds on posterior aspect of right thigh each of size 4x1x1 cm.

(13) Stab injury cut medial of the left leg 6 cm below knee joint one end pointed other blunt size 2.5x0.5x3 cm.

According to the opinion of the Doctor, death of Chunnilal was on account of shock and haemorrhage as a result of multiple injuries. Injuries were sufficient to cause death in the ordinary course of nature.

In further investigation, spot map Ex.P/2 was prepared and samples of blood stained and control earth were seized. The accused were arrested on 5.7.99 and on their information recorded in memo Ex.P/10, P/11 and P/12, knives were recovered at their instance vide seizure memo Ex.P/14, P/15 and P/16. After completion of the investigation, the appellants were -prosecuted.

The accused denied the charges. On trial, however, the learned Judge found them guilty and convicted and sentenced them as stated hereinabove.

The prosecution examined, in all, 14 witnesses while the defence examined 2 witnesses. The star witness of the prosecution is injured Tularam (PWI). Tularam deposed that while he was returning home, he witnessed the accused assaulting his brother Chunnilal with knives. He, therefore, got down from his scooter to save him but Bhagirath assaulted him with a knife causing injuries on his right side of chest. He again assaulted and the blow landed on the right arm. From there, they were taken to the hospital where he lodged the report Ex. P/1. The version of PWI Tularam finds due corroboration from the evidence of PW11 R.K. Dehariya who, on examination of Chunnilal, had found 5 incised wounds on his person. Tularam was also examined by PW14 Dr. Raghvendra Singh and his injuries were noted in report Ex.P/21. In view of the evidence of the injured eye witness duly corroborated by the Dehati Nalishi and the medical evidence, learned counsel for the appellants was unable to assail the conviction of the appellants. However, the contention of the learned counsel is that, seeing the location of the injuries on the deceased, it cannot be said that the accused intended to cause his death.

We have already reproduced the injuries found on the body of the deceased as recorded in Ex. P/5, autopsy report. PW5 Dr.C.S. Jain peformed the autopsy in which he noted down the injuries found on the body of the deceased. All the injuries were inflicted on thighs and legs and there is no injury on any vital region. In this context, learned counsel for the appellants has referred to the decision of the Supreme Court in Molu and Others Vs. State of Haryana, as also in State of Punjab Vs. Balkar Singh and others [ 1998 SCC (Cri.) 399] to fortify his contention that where injuries are not on any vital part, it cannot be inferred that the accused intended to cause death. In the present case, as many as 13 injuries have been inflicted and it is not the prosecution case that opportunity was not available to the accused persons to cause injuries on the vital parts. Despite opportunity to cause injuries on the vital parts, only parts below the waist were attacked and injuries were caused. Had it been the intention of any of the appellants to cause death of the deceased, the injuries would have been caused on vital parts in the region of chest or abdomen. Thus, it is clear that none of the accused intended to cause death of the deceased.

However, from the number of injuries caused, the accused certainly can be credited with the knowledge that these injuries were likely to cause death of the deceased. Learned counsel for the appellants has referred to the decision in Molu and Others Vs. State of Haryana, that in a situation like the present, the case would fall within the description of an offence under Part-II of section 304 and not Part-I. The case referred to by the learned counsel was with regard to the use of blunt weapon while in the present case, all the persons involved in the incident were wielding knives and draggers. In Sarwan Singh and Others Vs. State of Punjab, in a situation where such injuries were caused, it was observed that the case would fall within the description of offence u/s 304-I of the I.P.C.

Section 299 of the Indian Penal Code defines culpable homicide as follows:

Culpable homicide. - Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

According to the definition, even the death caused with the intention of causing such bodily injuries as is likely to cause death constitues an offence of culpable homicide. Section 304 reads as under:

Punishment for culpable homicide not amounting to murder. -Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act-by which the death, is caused is done with intention of causing death, or of causing such bodily injury as in likely to cause death;

or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

Section 304-I covers the cases of causing bodily injuries as are likely to cause death. Thus, from the number of injuries inflicted, it can safely be assumed that the accused acted with intention of causing bodily injuries as were likely to cause death. The offence would, therefore, fall within Part-I of section 304 of the I.P.C.

In the result, this appeal partly succeeds. While conviction of the appellants u/s 307/34 of the I.P.C. and the sentence of 5 years rigorous imprisonment and fine of Rs. 1000/-, in default of payment of fine, 3 months R.I., is maintained, the conviction u/s 302/34 I.P.C. and the sentence awarded there under is set aside and the appellants are, instead, convicted u/s 304-I of the I.P.C. and each is sentenced to R.I. for 7 years and fine of Rs. 1000/-. In default of payment of fine; the appellants in default shall undergo further R.I. for there months.