Bira vs The State

A.D. Koshal, J.—This is an appeal by Bira, aged 25 years, a labourer by profession and a resident of village Jagdev Kalan in Police Station Majitha, against the judgment dated the 4th July, 1969, of the Sessions Judge, Amritsar, convicting him of an offence u/s 302 of the Indian Penal Code for causing the death of Rattan Singh, aged 40 years, another resident of the same village, and sentencing him to imprisonment for life.

The prosecution case may be stated thus. Two or three months prior to the occurrence with took place on the 3rd of December, 1968, Rattan Singh deceased slapped--Shrimati Dato, the mother of the appellant, while intervening in a quarrel between her and his own wife Bachan Kaur. The incident, however, ended in a compromise brought about by members of the brotherhood.

On the 3rd of December, 1968, at 6 or 7 P.M., Rattan Singh deceased, his son Chhinda (P. W. 4) and the former''s brother Gurmej Singh (P. W. 3) were at their house when Chhinda P. W. 4) left the same for the purpose of visiting a shop in another part of the village, and had just emerged from his house when he saw the appellant come from the side of his own house armed with a takwa. On seeing Chhinda (P. W. 4) the appellant raised a changar and Chhinda (P. W. 4) asked him as to why he had done so. There was an exchange of abuses between the two and they grappled with each other. The resultant noise attracted the deceased and Gurmej Singh (P. W. 3) to the spot. The deceased intervened but just as the two contenders were separated, the appellant aimed a takwa blow on the head of Chhinda (P. W. 4) who, however, got aside with the result that the blow struck the deceased in the head and made him fall to the ground unconscious. The appellant made good his escape.

Amar Singh (P. W. 8) who works as a dispenser at the village Dispensary was brought to the spot and rendered first aid to Rattan Singh whose condition, however, was precarious and who was, therefore, removed under the advice of Amar Singh (P. W. 8) to the V.J. Hospital, Amritsar, in a taxi which reached there just before 10.00 P.M. The deceased was examined by Dr. R.K. Verma (P. W. 1) who found on the right parietal eminence of the deceased an oblique scalp-deep lacerated wound having the dimension 1� "x �" in the opinion of the doctor, the injury had been caused within six hours of the examination by a blunt weapon.

Gurmej Singh (P. W. 3) reached Police Station Majitha on the same night at 1.00 A.M. when first information report Exhibit P.C., which gives substantially the same version of the occurrence as has been set out above, was registered at his instance by Assistant Sub-Inspector Kasturi Lal (P. W. 12) who despatched a copy thereof to Assistant Sub-Inspector Jai Dev (P. W. 13) who was then in village Kukewali.

Rattan Singh succumbed 10 the injury sustained by him on the same night at 4.00 A.M. Information of the fact was received by Assistant Sub-Inspector Jai Dev (P. W. 13) at the spot of occurrence whereat he had already arrived and which lie found to be situated at a distance of 4� Karams from the house of the deceased and Gurmej Singh (P. W.3).

The autopsy was conducted by Dr. Narinder Mohan (P. W. 5) on the 4th of December, 1969, from 5.00 P.M on wards. The doctor found that the head injury sustained by the deceased had fractured the right parietal bone and the middle cranial fossa. In the opinion of the doctor, the injury was sufficient in the ordinary course of nature to cause death and had been inflicted about 10 hours before the deceased breathed his last.

The appellant Was not traceable till the 5th of December, 1968, when he contacted Sarpanch Opar Singh of village Jagdev Kalan (P. W. 7), confessed his guilt to him and was produced by him before Assistant Sub-Inspector Jai Devi (P.W 13) to whom he made a disclosure in pursuance of which takwa. Exhibit P.1 was recovered from a khola situated in the vicinity of hit (the appellant''s) house.

Fifteen witnesses were examined at the trial in support of the prosecution case. They included three eye-witnesses, namely, Gurmej Singh (PW.3, Chhinda (P.W 4) and Teja Singh (P.W.6) according to all of whom the occurrence took place as narrated above. Teja Singh (P.W.6), who is a first cousin of the deceased, claimed that he had seen the occurrence on the way to his house from the village gurdwara which lies at a distance of 20 or 25 Karams from the house of Rattan Singh deceased. Sarpanch Opar Singh (P.W.7) testified to the correctness of the extra-judicial confession said to have been made to him by the appellant, and to have produced the appellant before Assistant Sub-Inspector Jai Devi (P.W. 13). The incident in which the deceased is said to have slapped Shrimati Dato, the mother of the appellant, was related in the witness box-by Gurmej Singh (P.W. 1).

In his statement u/s 342 of the Code of Criminal Procedure, the appellant dented in toto the allegations made against him by the prosecution and asserted that he had been falsely implicated.

The learned Sessions Judge accepted the ocular testimony at its face value for which he found corroboration in the medical and other circumstantial evidence as well as the extra-judicial confession above mentioned. The motive part of the prosecution story, according to him, also stood established. He held that the fatal blow was aimed at the head of Chhinda (P.W.4) and that by reason of the provisions of section 301 of the Indian Penal Code the appellant was guilty of murder even though it was not the deceased against whom the attack was directed.

Gurmej Singh (P.W.3) and Chhinda (P.W.4) are no doubt close relations of the deceased and so in fact is Teja Singh (P.W.6) but then none of these three eye-witnesses is interested in falsely implicating the appellant of as serious a crime as murder in spite of the fact that a few months before the occurrence the deceased had occasion to slab Shrimati Dato while intervening in a quarrel between her and his own wife. According to Gurmej Singh (P.W.3), the incident had ended in a compromise and would normally not have left any rancour in the mind of the deceased who, to all intents and purposes, had the upper hand during the course thereof. The depositions of the eye-witnesses are consistent and are supported by a prompt first information report as well as the medical evidence, although no blood was found at the place of occurrence which fact stands fully explained by the circumstance that that place forms part of a thoroughfare so that the stains of blood which must have come into existence at the spot when the occurrence took place may well have been obliterated by passers by carrying the bloodstained earth with their feet. The absence of the blood at the place of the occurrence, therefore, does not detract from the strength of the prosecution case. The ocular account of the occurrence is convincing as is the motive part of the prosecution case which gives an indication of the reason for the appellant''s behaviour towards Chhinda (P W.4) just before latter was attacked. Admittedly the appellant had not forgotten the insult offered by the deceased to the former''s mother

The extra-judicial confession attributed to the appellant is no doubt of the usual type but we need hardly to go into its merits in the view we take of the ocular testimony which, in our opinion, establishes the truth of the prosecution case beyond any reasonable doubt when coupled with the medical evidence and the testimony of Gurmej Singh (P.W.3) with regard to the motive which actuated the crime we are unable to agree with the contention of the learned counsel for the appellant that the latter is entitled to acquittal, in support of which contention not a single material factor has been brought to our notice.

We are, however, of the opinion that the conviction of the appellant for an offence u/s 302 of the Indian Penal Code cannot be maintained. That conviction has been recorded by the learned Sessions Judge solely on the basis of an assertion made by Chhinda (P. W. 4) and Teja Singh (P. W. 6) to the effect that the appellant had aimed the solitary takwa blow attributed to him at the head of Chhinda (P. W. 4). That assertion has been clearly shown to be an improvement on the story propounded by the two eye-witnesses last mentioned before the trial, which story did not contain any such assertion and with which they were duly confronted. All that stands proved from the evidence, therefore, is that the appellant aimed a blow with the blunt side of his at Chhinda (P. W. 4), that Chhinda (P. W. 4) stepped aside and that the blow landed on the head of Rattan Singh resulting in a fracture of the latter''s skull and consequent death. Can it be said in these circumstances that the appellant is proved to have intended the death or that he intended to cause an injury sufficient in the ordinary course of nature to cause death? In our opinion, the answer must clearly be in the negative and the appellant held to have intended only a grievous injury with a blunt weapon so that be would be liable for an offence no more serious than one u/s 325 of the Indian Penal Code and we hold accordingly. Of course, the consequences of the culpable act of which the appellant is being found guilty, cannot be altogether lost sight of and would be relevant for the infliction of sentence in which connection he cannot be said to deserve any leniency.

For the reasons stated we convert the conviction of the appellant to one u/s 325 of the Indian Penal Code and for the sentence awarded to him by the learned Sessions Judge substitute one of rigorous imprisonment for five years. To that extent alone is his appeal accepted, it being otherwise dismissed.

Man Mohan Singh Gujral

I agree.