Bhagwat Singh and another vs Emperor

Courtney-Terrell, C.J.—The accused Bhagwat Singh and Rup Narain Singh have been convicted culpable homicide under S. 304, I.P.C. in respect of the death of a man Bikan Singh who appears to have died from drowning. They have been sentenced respectively to three years'' rigorous imprisonment and a fine of Rs. 100 and to one year''s rigorous imprisonment and fine of Rs. 100.

It appears that on 1st August last year Bikan took his mare to graze in a field not far from his house. He hobbled her and returned home. He received news that she had been seen straying and he went out to look for her. His daughter Mt. Piaria anticipated that some trouble might arise by reason of the mare grazing on the fields of neighbours and she went out and spoke to her kinsman Deo Singh and requested him to go out and see that no trouble occurred over the straying of this mare and she mentioned the fact that her father had gone out to look for the mare. The witness Deo Singh and another person named Kapil Singh are the principal witnesses for the prosecution and it is upon the reliability of their evidence that the conviction has been based.

In the first information report Deo Singh gave the following account of what he said he had observed: He related first of all the incident of the deceased having left his mare for grazing in a field at a little distance from the village and he said that Bikan Singh''s daughter came'' and said that some one had seized the mare and taken it away and that her father had run after it. He went on to say that he went in search of the mare and he met an individual who has given evidence, Ramdayal Ahir, and enquired if he had seen the mare and Ramdayal Ahir pointed it out in the distance. When he got at distance of about one rassi from where the mare was standing on or very close to a bandh which runs on the margin of a ditch, on the further side of ditch from the field he said he saw the two accused Bhagwat Singh whom be knew by name and his brother, whose name he did not know but could identify him, kicking and punching the deceased and that he cried out what are you doing" and that Bhagwat Singh said that if he interfered he would be treated in the same way and that his entire field had been grazed by the straying mare. On reaching the place he said he found Bikan Singh lying unconscious and tried to bring him to his senses; that he hiccoughed twice and died. Thereupon he raised an alarm and the two accused ran away and left in the field their ploughs and bullocks. Then he went back to the village mounted on the mare and met the witness Kapil Singh and told him that ho had seen Bhagwat Singh and his brother, the two accused, assaulting the deceased and Kapil Singh told him that he had seen the two accused taking the mare away. Kapil Singh went to the corpse and witness Deo Singh went to give information to the village. That was the account given by Deo Singh in the first information report.

Ramdayal Ahir who also gave evidence said before the Sessions Judge that on the morning in question he was ploughing and Deo came up to him and asked if he had seen the mare and Ramdayal pointed it out from a distance and that Deo then turned away and went after the mare, so that the story up to that point is amply confirmed. In his evidence before the Sessions Judge Deo gave a somewhat different account of the matter which is really a more elaborated account; he again repeats the story which I have related about the straying of the mare, his information of the fact from the deceased''s daughter and he gives this account of what he saw of the assault by the accused upon the deceased. He said that he saw the accused beating the deceased with their fists and the he saw Bhagwat Singh push the deceased''s head under water. He arrived upon the scene and Bhagwat Singh and he lifted the body out of the water and made attempts to restore the injured man but without success. He repeats again the story that the deceased hiccoughed and died and he says that the other accused Rup Narain was standing by and trembling. He then goes on to say that the two accused also ran away and left their ploughs and bullocks in the khet close to the bank and he repeats again the story that on his way back on the back of mare he met Kapil Singh to whom he told all that had happened.

It is true that between the first information and the account that he gave in evidence he has elaborated the story but in my view the elaborations do not differ in material respects nor in any important respect. It is true that in his evidence Before the Sessions Judge he relates the incident of the pushing of the head under water and he omits that statement in his first information report and on that discrepancy between the two statements Mr. Varma has placed great reliance as indicating that the witness was unworthy of credence. Deo accompanied the body to the thana and also identified the body at the post-mortem examination but he does not appear to have been actually present at the dissection of the body and he seems to have had no means of learning as a result of the post-mortem examination of the discovery that the deceased actually died from drowning until a very considerable time afterwards and before he had time to ascertain the result of the post-mortem examination he had already related the fact that the deceased died from drowning to many people. It is not surprising in my view that this man should merely have in his mind at the time when he gave the first information that the important part of the physical violence done to the deceased was in the blows with the fists. He was necessarily in a somewhat agitated frame of mind but the story he gives of the pushing of the head under water, holding the deceased down and then the attempts to restore him, ring true. It is perfectly clear that the mere blows which were given with fists on the body of the deceased could not have brought about his death by themselves because they were blows of a character which apparently left no serious trace upon the body as appeared on examination after death.

The conduct of the accused in leaving their bullocks and ploughs in the field at the time of the occurrence, making no attempt to recover them and running away and not yielding to custody until a considerable time after the occurrence, to my mind indicates clearly that these men knew that Bikan was dead as the result of their attack and they could not have believed that his death was due to merely striking him with their fists. To my mind the evidence clearly shows that inasmuch as be undoubtedly met his death by drowning they must have known that fact and must have known that it was a motive for leaving their ploughs and bullocks and running away and keeping out of custody for some days.

The points made by Mr. Varma in his very careful address to us were first of all that the evidence of the eyewitnesses and of Deo in particular was unreliable, first on account of the discrepancies between the story told in his first information report and the deposition before the committing Magistrate and in his evidence before the Sessions Judge, and further he stated that the witnesses'' evidence should be regarded with great suspicion because on a former occasion some five and twenty years ago this witness had been convicted of giving false evidence but it appears from what we know of that former case that it was not a case of any great magnitude, and having regard to the habits of the people in this particular part of the world where the giving of false evidence, however, deplorable it may be, is not considered an offence which is fatal to a man''s reputation to say the least of it, I do not think that much importance need he placed on that fact.

Then Mr. Varma said that the deceased may have met his death in this way. He says that there is some evidence that the deceased suffered from epilepsy and that being the case he may have fallen into the water in an epileptic fit and got drowned. The evidence of the deceased having suffered from epilepsy is minute to a degree. It naturally of courser would not be revealed by the post-mortem examination and one cannot exclude it altogether as a remote possibility although the probabilities are strongly against it, but in our view the evidence that the deceased met his death in the way described by the prosecution outweighs, probably to an almost conclusive degree, the possibility that he met his death in the way suggested by Mr. Varma.

As to the second accused Rup Narain Mr. Varma contends that this particular man cannot be held to be guilty under S. 304 read by the light of S. 34, because he merely was present, that he merely had the intention of indulging in a relatively harmless assault upon the deceased, and that there is no evidence to show that he actually took part in holding the deceased under water. The answer to that contention is, to my mind, first of all, that to drown a man takes an appreciable period of time. It may not be long; it may not even exceed one minute but at any rate it takes quite an appreciable period of time and there was ample time for Rup Narain to interfere with his companion in carrying out the attack in the way in which it developed by pushing him under water. By S. 32, I.P.C., an act includes an omission and that consideration was pointed out by Lord Sumner in the famous case of AIR 1925 1 (Privy Council) . If a man joins with another to assault a third, even though the original intention may be merely to inflict relatively harmless injuries, and he sees his companion in a course of action which may reasonably be expected to bring about the death of the deceased and takes no steps to interfere with that action or to assist the deceased, such an act is an act or omission which to my mind renders him liable under the section. Therefore in my view, both the accused have been rightly convicted and having regard to the grave results the sentences do not seam to me to be excessive. After all, it should be apparent to any person of however low a grade of intelligence that to hold an elderly man''s head under water for any time longer than is required to inflict a mere ducking is liable to bring about the death of the man. The sentence therefore seems to me to be proper in the circumstances and in my view the convictions and the sentence should be upheld.

Adami, J.

I agree.