Bhambar vs State of Punjab

S.C. Malte, J.

The accusedappellant was convicted of the charge under Section 302, Indian Penal Code, and sentenced to suffer rigorous imprisonment for life and to pay fine of Rs. 2000/; in default of fine further rigorous imprisonment for six months. Against that conviction and sentence dated 11.7.1992, passed by the Additional Sessions Judge, Ropar, this appeal has been filed.

Briefly stated the prosecution case is as follows :

At about 8.30 a.m. on 2.1.1988, complainant Paramjit along with deceased Rajwant Singh were proceeding towards their tubewell. Deceased Rajwant Singh was the son of the sister of the father of complainant Paramjit. The evidence indicates that said Rajwant Singh is the resident of village Niamu Majra, which is about 16 Kms. from the village of the complainant Paramjit. Rajwant Singh had casually come to the house of Paramjit. That is how on the date of incident, Paramjit and Rajwant Singh together were proceeding towards the tubewell. On way when they arrived near the school, where they noticed in all four accused, namely Roda (since acquitted), Mukhtiar Singh (since acquitted), Phambi (since acquitted) and Bhambar (present accusedappellant). Accused Bhambar was armed with an iron chain, whereas the other acquitted three accused were armed with sotis (sticks). Allegedly, Roda, Mukhtiar Singh and Phambi gave stick blows, which caused injuries to the ankle, cheek, shoulder and neck of Paramjit. On seeing that Paramjit was thus being attacked, the deceased Rajwant Singh intervened to his rescue. Thereupon, appellant Bhambar gave blow with iron chain on the left ear of Rajwant Singh and caused bleeding injury. Acquitted accused Phambi gave stick blow on the left leg of Rajwant Singh. It was followed by another blow with iron chain by Bhambar appellant on the left wrist of Rajwant Singh. It was further followed by a first blow by the appellant on the lips of Rajwant Singh. Paramjit and Rajwant Singh then raised shouts. On hearing the shouts, Mohinder Singh, the father of Paramjit, rushed to the spot and rescued the victims of the assault. The accused fled away with their respective weapons. The reason for this attack was stated to be an earlier incident regarding the allegation of theft of sugarcane by the acquitted accused Roda. The evidence indicates that the injured was then taken in tractortrolley, and initially rushed to hospital, at Kharar. While on way to the hospital, the Police SubInspector, who was on patrol duty, met the party near the busstand. On getting the information, the said SubInspector Kuldip Singh recorded the first information report and duly sent it to the police station for its being formally registered there. The FIR was thus initially recorded at about 2 a.m. in the night between 2nd and 3rd January, 1988. It came to be formally entered in the register of the FIR at about 5 a.m. on 3.1.1988. While steps were being taken for registering the offence at the police station, the injured were duly sent to the Civil Hospital Kharar. Injured Paramjit was treated at Kharar. Following injuries were noticed on his person :

Abrasion 2 cm x 2 cm on the right cheek 4 cm. from the lateral angle of right eye;

Abrasion 4 cm. x 1/2 cm on the right cheek; 1/2 cm. from the right angle of mouth; and

Swelling of right ankle. No external injury.

According to the doctor, these injuries were caused by blunt weapon and were caused within 12 hours from the time of the examination. These injuries turned out to be simple in nature.

In so far as it relates to the injuries of the deceased Rajwant Singh, on examination by the doctor, he noticed the following injuries :

Laceration left ear 3 mm on the superior border 2 mm deep;

Left mastoid acchymosis was present. Left ear bleeding was present ; and

A bruise middle of left tibia 1.5 cm x 1.5 cm.

(The injuries as noted in the evidence of the doctor) Rajwant Singh was found to be unfit for giving statement. He was shifted to P.G.I. Hospital, at Chandigarh for intensive treatment. There, he succumbed to his injuries on 17.1.1988 at about 5.35 a.m. Rajwant Singh thus died without making any statement, though repeated efforts were made by the Investigating Officer by contacting the doctor to ascertain whether Rajwant Singh was in a position to make any statement.

The accused came to be arrested on 11.1.1988. In consequence of interrogation, accusedappellant Bhambar volunteered to produce a chain, which was concealed by him. Pursuant to that a chain came to be recovered under Section 27 of the Evidence Act.

After the investigation, chargesheet against the accused was sent. Accused pleaded not guilty of the charge. On completion of evidence, the accused were questioned under Section 313, Code of Criminal Procedure. In so far as it pertains to the present accusedappellant Bhambar, he denied the prosecution case in toto. His defence was that since he belongs to a Scheduled Caste Balmiki, he came to be falsely involved because of the election rivalry.

The Additional Sessions Judge, Ropar, was of the view that the injuries which were allegedly caused by the acquitted accused Phambi on the person of Rajwant Singh were not proved and that, according to him, gave room for giving benefit of reasonable doubt in respect of participation of the accused Phambi. Acquitted accused Roda and Mukhtiar Singh were given benefit of doubt. The Additional Sessions Judge, however, accepted the evidence of the prosecution in respect of the assault by the present appellant, because according to the Additional Sessions Judge there was possibility of these accused being falsely involved due to their relation with accused Phambi. The Additional Sessions Judge, however, accepted the evidence of the prosecution in respect of the present appellant.

In so far as it pertains to the appellant, it was submitted in this Court that the first information report in this case was late and that gives room for doubt. On examination of the papers, I find that the incident, in this case had taken place at about 8.30 p.m. on 2.1.1988. Thereafter, some time must have been lost in securing the tractor and trolley for taking the injured to the hospital. The incident took place at village Kailon, which is about 3 miles away from the police station Kharar. The evidence of SubInspector Kuldip Singh indicates that while he was on patrol duty, he happened to meet the complainant and others near the busstand. He then recorded the complaint of the complainant Paramjit. It was then about 2 a.m. during night. Thus, on taking into consideration the distance and the sequence of evidence in this case, it cannot be said that the first information report was delayed.

It was further contended that the ocular evidence regarding the assault did not find support from the medical evidence and that as per the doctor''s evidence, the injuries to the deceased could have been caused by fall. In so far as it pertains to the oral evidence, we find that the testimony of these eyewitnesses P.W.5 Paramjit and P.W.6 Mohinder Singh has stood the test of crossexamination and their testimony is quite consistent. P.W.5 Paramjit was accompanying the deceased. Initially, Paramjit was attacked. The medical certificate of Paramjit shows that he sustained injuries during the incident. These injuries have already been referred to by us in the earlier part of the judgment. The deceased Rajwant Singh was assaulted when he came to the rescue of Paramjit. In view of the medical evidence showing that Paramjit was one of the injured in the incident, his presence at the time of the incident is sufficiently established. His testimony shows that the appellant Bhambar gave a chain blow to the deceased and caused injuries on his left ear and on the wrist. He was not at all shaken the crossexamination. Statement of Paramjit was recorded by SubInspector Kuldip Singh at about 2.00 a.m. and the contents of the first information report also render corroboration to the testimony of Paramjit, after recording the first information report, the SubInspector Kuldip Singh then recorded the action taken by him, and in it also, he has noted that Rajwant Singh (deceased) had bleeding injury on the left ear, his lips had sustained swelling and there was swelling on the left wrist also. The evidence of the doctor shows that the deceased had lacerated injury at the left ear and ecchymosis at left mastoid was present and in left ear bleeding was present. The details of the injuries are referred above in the earlier part of the judgment. P.W.6 Mohinder Singh had also rushed to the spot on hearing the commotion. He also noticed the assault. It may be mentioned that he had carried a torch while rushing towards the scene of the occurrence. In the crossexamination, it is also brought that an electric bulb was burning at the nearby Gurdwara at the time of the incident. He, however, was confronted with the omission in the police statement in respect of carrying the torch with him while rushing towards the scene of the offence. All the same, the incident had taken place just near the school. The parties were known to each other since prior to the incident and it can be safely said that sufficient light was available because even the assailant would require light in order to ascertain who was the subject of the assault. In view of all the circumstances, the possibility of sufficient light at the scene of the offence cannot be totally ruled out. Moreover, no argument was advanced regarding the possibility of mistake in identity.

In view of the evidence of the eyewitnesses referred above, I find no substance in the argument that the injuries were caused to the deceased by accidental fall. A lacerated wound near the ear was treated in the hospital. The wound further aggravated and the deceased breathed his last on account of septicaemia. On autopsy, the doctor found that there was extravesited blood under the scalp in the left temproparietal region. The membranes of the brain was congested. The duramatter in the left temproparietal region was ruptured. Rupture was under the right temporal region also. The brain matter was oedamatous. From the evidence of the doctor, it is quite clear that injury inflicted near the left ear caused further internal damage as mentioned above and it further aggravated into septicaemia as the cause of death.

It was lastly submitted that the offence would not fall under Section 302, Indian Penal Code, but would come down to Section 304, Part II, Indian Penal Code. In support of that our attention was invited to AIR 1977 Supreme Court 45 (State of Andhra Pradesh v. Rayavaranu Pannayya and another). In that case, their Lordships analysed the provisions of sections 299 and 300, Indian Penal Code, and highlighted the distinguishing features. In para 21 their Lordships then laid down the guidelines for ascertaining as to whether the offence is murder or culpable homicide not amounting to murder, depending on the facts of the case. In this case, on assessment of facts, it can be said with certainty that the blow given by the appellant on the portion near the ear of the deceased ultimately proved to be fatal. The next question would be in which of the aforesaid sections 299 and 300 IPC, the act of the accused would fall. It depends on the intention and knowledge of the accused. That can be gathered from the circumstances, such as, the weapon used, the number of blows and the part of the body injured and the extent of the injuries. The additional factor would be the motive to commit the offence. In this case, it is quite clear that the allegation of theft by one of the accused, namely Roda (since acquitted) was the provocation for the incident. The deceased Rajwant Singh had casually come to accompany Paramjit and, as such, there was no cause of animosity between the deceased and the accused. The deceased sustained blows because he happened to be unfortunate person to intervene while Paramjit was being assaulted. The weapon used in this case is an iron chain. Only one blow was given on the vital part, namely portion near the ear. That injury was also of a small dimension as indicated above. In view of all the circumstances, it cannot be said that the accused formed an intention, either to cause death or to cause such bodily injury as is likely to cause death. We thus find that the case would not fall in any one of the first three clauses of Section 300, Indian Penal Code. In view of the weapon used and the nature of the injuries, it also cannot be said that the accused did the act with the knowledge that it was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death. Obviously, therefore, the act of the accused would not fall under clause 4 of section 300, Indian Penal Code. All the same, knowledge can be attributed to the accused regarding the likely result of the blow with the chain on the vital part. It can, therefore, be said that the accused had knowledge that his act was likely to cause death. The blow of the chain has also caused further internal damage as discussed above. Under these circumstances, we are of the view that offence would be covered under section 304, Part II, Indian Penal Code. The learned Additional Sessions Judge, however, had not analysed the provisions of these sections with reference to the facts on record and had not done the exercise to find out which of these clauses would be applicable in the present case.

The only question then pertains to the extent of sentence. The punishment for offence under Section 304, Part II, Indian Penal Code is to the extent of 10 years, or with fine or both. The accused in this case was about 20 years old at about the time of the incident. He belongs to the labour community. It clearly appears that the allegation regarding the theft of sugarcane and the dispute pertaining to that provoked the incident, All the same it cannot be forgotten that a young person met unfortunate death. The offence under section 304, Part II, Indian Penal Code, is punishable with imprisonment for a term which may extend to ten years or with fine or with both. In this case, the record shows that the accused was arrested on 11.1.1988. Subsequently by order dated 8.6.1991 passed by the High Court, bail was granted to the accused. The papers indicate that consequent upon bail order, the accused was released on bail on 18.6.1991. Thereafter, the accused was taken into custody on passing the judgment of conviction on 11.2.1992. Thus, it would appear that the total period thus spent by him in the jail would be around six years. In the set of circumstances, in our opinion the period thus spent by him in the jail would be just enough to meet the ends of justice while considering the quantum of sentence in this case. No useful purpose would be achieved by imposing fine in this case, because the accused belongs to a labour class and recovery of fine would be almost impossible. We, therefore, partly allow the appeal, and the conviction and sentence of the appellant under Section 302, Indian Penal Code, is set aside and hold the accused guilty for the offence under section 304 (PartII), Indian Penal Code, and sentence him to the period already undergone by him, as mentioned above.