Buddhu and Others vs State

This appeal has been preferred by Buddhu, Hridai Ram and Ram Sumer against the judgment and order dated 27.3.1981 passed by the Vth Additional Sessions Judge, Faizabad in Sessions Trial No. 349 of 1980, whereby they have been convicted and sentenced in the manner stated hereinafter:

(i) u/s 302/34, I.P.C. to imprisonment for life ; and

(ii) u/s 203, I.P.C. to three months'' R.I.

The sentences on both the counts have been directed to run concurrently.

Shortly stated, the prosecution case runs as under:

The informant Thekedar P.W. 1 is the son of the deceased Raja Ram and the injured Smt. Bachchi Devi P.W. 3. At the time of the incident, the informant, Raja Ram, Smt. Bachchi Devi, Babu Lal alias Babu Ram P.W. 2, Chhingu P.W. 4 and the three Appellants, namely, Buddhu, Hridai Ram and Ram Sumer, were living in Kalupurwa, hamelt of Achraura, within the limits of police station Inayat Nagar, District Faizabad.

On 27.7.1980, at about 6.00 a.m., when the bullock of Appellant Buddhu started eating the fodder in the trough of the informant Thekedar, the informant''s father Raja Ram removed it. Raja Ram protested to Buddhu that his bullock used to eat his (Raja Ram''s) fodder and he should keep the same tied. Buddhu took exception to it. On the said date, at 8.00 a.m., when Raja Ram and his wife Smt. Bachchi Devi, along with their bullock, were going to plough their field and had reached near Itehwa Mango tree, Appellants Buddhu Hridai Ram and Ram Sumer, armed with lathis, came and said that today we have got him, kill him (Aaj mila hai mar lo). Thereafter, the three Appellants assaulted Raja Ram with lathis and when Smt. Bachchi Devi rushed to Raja Ram''s rescue, they also assaulted her with lathis. Hearing the cries of Raja Ram and Smt. Bachchi Devi, the informant, Babu Lal alias Babu Ram P.W. 2, Chhingu P.W. 4 and some others came and on their intervention the Appellants ran away. As a consequence of the assault, Raja Ram was precariously injured. Thereafter on a cot, the informant took Raja Ram, along with Smt. Bachchi Devi (on a cycle) to police station Inayat Nagar where he lodged his F.I.R.

The evidence of Chandra Deep Jaiswal P.W. 6 shows thus:

On 27.7.1980, he was posted as Station Officer at police station Inayat Nagar and in his presence Constable Moharrir Ramdhiraj Pandey registered a case on the basis of the written F.I.R. lodged by Thekedar P.W. 1, vide General Diary entry (Ka-5). (A perusal of chik F.I.R. shows that the case was registered on 27.7.1980 at 11.10 a.m. u/s 308/323, I.P.C. at police station Inayat Nagar, District Faizabad, which was situated at the distance of three miles). Thereafter, he sent Smt. Bachchi Devi and Raja Ram to Primary Health Centre, Milkipur for medical examination.

3A. It is significant to mention that on the death of Raja Ram the case was converted to Section 302, I.P.C.

The evidence of Dr. P. N. Singh (P.W. 5) shows that on 27.7.1980, he was posted as Medical Officer, Primary Health Centre, Milkipur and at 11.35 a.m. Constable Satyendra Singh produced Raja Ram, before him and at that time Raja Ram was dead. His evidence also shows that the same day at 11.45 a.m. he medically examined Smt. Bachchi Devi and found on her person the following injuries:

(i) Red contusion 8 cm. - 1.5 cm. oblique on the back of right shoulder ;

(ii) Contused swelling red in colour in area of 8 cm. - 6 cm. with non (sick) abrasion 1 cm. - 0.5 cm. on the back of left hand 1 cm. below left wrist joint ;

(iii) Red contusion 10 cm. - 2 cm. oblique on the right thigh upper 1/3rd part outer side ;

(iv) Red contusion 8 cm. - 2 cm. oblique on the right leg middle 1/3rd part outer side ;

(v) Red contusion on 5 cm. - 2 cm. oblique on the back of right leg 4 cm. below injury No. 4 ;

(vi) Red contused swelling in an area of 4 cm. - 3 cm. on the left knee joint (sick) ;

(vii) Red contusion 6 cm. - 2 cm. on the back right side middle 1/3rd part 6 cm. outer from mid. line back c/o pain on right ankle but no mark of external injury seen.

In the opinion of Dr. P. N. Singh, excepting injury No. 2, which was kept under observation and for which he advised x-ray of left hand, the remaining injuries were simple in nature ; caused by a blunt object ; and the duration of the injuries was fresh.

The autopsy on the corpse of the deceased Raja Ram was conducted on 28.7.1980 at 3.20 p.m. by Dr. Gulab Chand Upadhya, P.W. 9, who found on it the following ante-mortem injuries:

(i) Lacerated wound 3 cm. - 1 cm. - bone deep on left side of head, 11 cm. above the right left ear ;

(ii) Abraded contusion 15 cm. - 2 cm. on the front of right elbow and upper part of right fore arm obliquely present, margins are parallel to each other ;

(iii) Lacerated wound 1 cm. - 1 cm. - bone deep on the palmer aspect of right middle (paper torn) of middle digits ;

(iv) Contusion 9 cm. - 1 cm. on the outer aspect of right knee and right leg upper part, obliquely present, margins are parallel to each other ;

(v) Multiple contusions in area of 25 cm. - 30 cm. on the upper and middle part of back, some injuries are obliquely present and other are (sick) present and few are overlapping to each other.

(vi) Multiple contusions in area of 18 cm. - 24 cms. on the lower part of back, 5 cm. below the injury No. 5. Most of injuries are (sick) present, some are obliquely present.

On internal examination, Dr. Upadhaya found fracture of 5th rib on the left side, which ruptured the left pleura.

The cause of death spelt out in the post-mortem report is shock and haemorrhage as a result of ante-mortem injury No. 5.

In his statement in the trial court Dr. Upadhya stated that the deceased died on account of ante-mortem injuries Nos. 1 and 5.

The case was investigated in the usual manner by Chandra Deep Jaiswal, P.W. 6, Station Officer of police station Inayat Nagar District Faizabad. After sending the victims for medical examination, he proceeded to the place of the incident from where he recovered plain and blood stained earth in separate containers under recovery memos. He prepared the site plan (Exhibit Ka-8).

On completion of the investigation, the Appellants were charge-sheeted.

The case was committed to the Court of Sessions in the usual manner. These Appellants were charged for offences punishable under Sections 302/34, I.P.C. and 323, I.P.C. They pleaded not guilty to the charges and claimed to be tried.

During trial, in all the prosecution examined nine witnesses. Four of them, namely, Thekedar, Babu Lal alias Babu Ram, Smt. Bachchi Devi and Chhingu, P. Ws. 1, 2, 3 and 4 respectively were examined as eye-witnesses. The suggestion given to them during cross-examination, was that the incident took place in the early hours of morning ; the real assailants could not be recognised ; and the Appellants were falsely implicated. The said suggestion was denied by them.

The learned trial Judge believed the evidence of the eye-witnesses and convicted and sentenced the Appellants in the manner stated in paragraph 1.

Hence, this appeal.

We have heard learned Counsel for the parties and gone through the entire record. After the utmost circumspection, we are of the judgment that this appeal deserves to be partly allowed. In our view, the learned trial Judge erred in convicting the Appellants for the offence punishable u/s 302/34, I.P.C. and instead should have convicted them for that punishable u/s 304(ii)/34, I.P.C. We, however, feel that he was justified in convicting them for the offence punishable u/s 323, I.P.C.

So far as the involvement of Appellants in the incident is concerned, the same, in our view, has been squarely established through the ocular account furnished by Thekedar, Babu Lal alias Babu Ram, Smt. Bachchi Devi and Chhingu, P. Ws. 1, 2, 3 and 4 respectively.

In our judgment, even if the testimony of Chhingu P.W. 4 is excluded, because in his statement u/s 161, Cr. P.C. there is no mention of the fact that he was weeding rice plants in the field of Ganga and instead what he has stated therein, is that he was going to his field and when confronted with the relevant portion of his statement u/s 161, Cr. P.C., he could give no answer, there remains the credible ocular account furnished by other three witnesses to fix the involvement of the Appellants in the incident.

We now propose furnishing our reasons as to why we find their evidence credible.

We would like to begin with the ocular account furnished by star witness of the prosecution, Smt. Bachchi Devi P.W. 4, an injured eye-witness of the incident. Her evidence shows thus:

On the date of the incident at about 8.00 a.m., while she along with her husband Raja Ram was going to plough the field and when they had reached near Itehwa Mango tree, the three Appellants namely, Buddhu, Hridai Ram and Ram Sumer armed with lathis met them and launched assault on Raja Ram and when she intervened, she was also assaulted by them with lathis. As a consequence of the assault, Raja Ram fell down. She and Raja Ram raised cries, hearing which, Thekedar P.W. 1, Babu Lal alias Babu Ram P.W. 2 and Chhingu P.W. 4 and some others came. On their intervention, the Appellants ran away.

We have gone through the evidence of Smt. Bachchi Devi and make no bones in observing that we find it implicitly credible. In the first place, she has explained her presence on the place of the incident. She has stated that when she along with Raja Ram was going to plough field, on the way, the incident took place.

Secondly, the manner of assault as furnished by her, both in relation to her husband Raja Ram and her, is corroborated by medical evidence. She stated that Raja Ram was assaulted by the Appellants with lathis and when she ran to his rescue they also assaulted her with lathis. It is significant to mention that the autopsy surgeon Dr. Gulab Chandra Upadhya, P.W. 9 found six blunt weapon injuries (which we have extracted in entirety in paragraph 5) on the person of Raja Ram and Dr. P. N. Singh, P.W. 5 found seven blunt weapon injuries (which we have extracted in paragraph 4) on her person. It is significant to mention that the evidence of autopsy surgeon Dr. Upadhaya, P.W. 9 and that of Dr. P. N. Singh P.W. 5, shows that the injuries of the deceased and her injuries could have been caused on 27.7.1980 at 8.00 a.m. (the date and time of the incident).

It is significant to mention that the duration of her injuries given out in injury report by Dr. P. N. Singh was fresh. It is pertinent to mention that Dr. P. N. Singh examined her on the date of the incident itself at 11.35 a.m., i.e., within three and a half hours of the incident taking place and has candidly admitted in his cross-examination that her injuries were caused within six hours.

It is also significant to mention that a perusal of her injuries shows that they could not be manufactured and neither any suggestion was given to Dr. P. N. Singh that they could be manufactured.

It should be borne in mind that Smt. Bachchi Devi was subjected to a most sketchy cross-examination and nothing could be extracted therefrom, which could impair her credibility. We wish to point out that the suggestion given to her during cross-examination was that she and Raja Ram were assaulted in darkness and she categorically denied it. We may also mention that there is no circumstantial evidence or other evidence to back up the probability of such a suggestion being true.

It should be borne in mind that Smt. Bachchi Devi is an injured eye-witness and this Court gives the greatest weightage to the evidence of an injured witness because injuries ensure the presence of such a witness on the place of the incident and the limited question which remains is that pertaining to the credibility of the witness. It is for this reason that the testimony of an injured witness is superior to that of a witness, which is not injured. In the case of latter, his presence on the place of the incident has also to be established.

Apart from medical evidence, assurance to the ocular account furnished by Smt. Bachchi Devi is forthcoming from the prompt F.I.R. of the incident, which was lodged by her son Thekedar, within three hours and ten minutes of the incident taking place (The incident took place on 27.7.1980 at 8.00 a.m. and the F.I.R. was lodged on the said date at 11.10 a.m.). It is significant to mention that in this F.I.R. the name of Smt. Bachchi Devi, the manner of assault both on her as also on Raja Ram and the factum of their suffering injuries has been mentioned.

For the aforesaid reasons, in our view, the evidence of Smt. Bachchi Devi itself is sufficient to hold the involvement of Appellants established in the crime.

Fortunately, in this case, prosecution has the luxury of plurality of ocular account, which is forthcoming in the form of evidence of Thekedar P.W. 1, and Babu Lal alias Babu Ram P.W. 2. It is true that since Thekedar is the own son of the deceased Raja Ram and Smt. Bachchi Devi and Babu Lal alias Babu Ram is an interested witness because in his cross-examination he admitted that in the murder of his uncle Chhedi, the deceased Raja Ram had deposed as a prosecution witness, but merely on that account their evidence cannot be rejected. Way back in the year 1965, in the oft-quoted case of Masalti Vs. State of U.P., , the Supreme Court has laid down that the circumstance that a witness is interested would only make the Court to evaluate his evidence with caution and not mechanically reject it. We have exercised the said caution and find that the evidence of Thekedar and Babu Lal alias Babu Ram inspires confidence.

The evidence of Thekedar P.W. 1 in short shows thus:

On the date of the incident at 8.00 a.m. his parents Raja Ram and Smt. Bachchi Devi had gone to plough their field and when they had reached Itehwa mango tree, the three Appellants namely, Buddhu, Hridai Ram and Ram Sumer assaulted them with lathis and on hearing their cries he reached the place of the incident along with Babu Lal alias Babu Ram P.W. 2 and some others and saw the incident. Thereafter, on their intervention the Appellants ran away.

It is significant to point out that like Smt. Bachchi Devi, the evidence of Thekedar is also corroborated by medical evidence. As we have seen his statement is that both the victims were assaulted with lathis and the medical evidence shows blunt weapon injuries, both on the person of Raja Ram and Smt. Bachchi Devi.

It is pertinent to mention that Thekedar''s claim of rushing to the place of the incident is acceptable to us. In his cross-examination, he stated that he was working in the field at a distance of 200 steps from the place of the incident, when he heard cries. Considering the circumstance that injuries of the deceased and injured added together were 13 in number and it was a broad day-light incident, we have no difficulty in accepting his claim that he could reach in time to see the incident.

It should be borne in mind that his cross-examination shows that he is a relation of Appellant Buddhu and, in our view, on account of the said circumstance he would neither have falsely implicated Buddhu nor Ram Sumer, who was the real brother of Buddhu, nor Hridai Ram, who was the son of Buddhu.

For the said reasons, we accept the evidence of Thekedar vis-a-vis involvement of the Appellants in the crime.

We also find the evidence of Babu Lal alias Babu Ram credible. His evidence shows: On the date of the incident at about 8.00 a.m., when he was on way from his house to the Chak and had reached near the house of deceased Raja Ram, he heard cries and thereafter saw Appellants Buddhu, Hridai Ram and Ram Sumer assaulting Raja Ram and Smt. Bachchi Devi with lathis.

Not only has he explained his presence on the place of the incident but the manner of assault furnished by him, is corroborated by medical evidence.

It is true, as mentioned by us earlier, that he is an interested witness, but, in our view, that would only make us evaluate his evidence with caution. To repeat, having done so we find his evidence to be credible.

Assurance to the involvement of the Appellants in the incident is also lent by the circumstance that the F.I.R. of the incident was lodged within 3 hours and 10 minutes of the incident taking place. It is significant to point out that the incident took place on 27.7.1980, at 8.00 a.m. and the F.I.R. was lodged the same day at 11.10 a.m., by Thekedar at police station Inayat Nagar, which was situated at a distance of three miles from the place of the incident. It is significant to point out that in the said F.I.R. the essential features of the prosecution case including:

(a) the motive for the incident ;

(b) the names of the Appellants ;

(c) the weapons in the hands of the Appellants ; i.e., lathis ;

(d) the names of the victims, i.e., Raja Ram and Smt. Bachchi Devi ;

(e) the names of eye-witnesses ;

(f) the manner of assault ;

(g) the time of the incident ; and (h) the place of the incident.

have been mentioned.

Criminal Courts attach great importance to the prompt lodging of F.I.R. because the same substantially reduces the chances of embellishments and concoction creeping in the prosecution case.

In our judgment, the prompt F.I.R. of the incident lends a seal of assurance to the involvement of the Appellants in the incident.

We are also of the judgment that not only the involvement of the Appellants in the incident has been established beyond the pale of all doubt but the learned trial court acted correctly in convicting them for the offence u/s 323, I.P.C. We have seen that the three Appellants assaulted Smt. Bachchi Devi with lathis and inflicted on her blunt weapon injuries. We have also seen that excepting of injury No. 2, which was kept under observation by Dr. P. N. Singh P.W. 5, the remaining injuries were simple in nature. In our view, inasmuch as the prosecution has failed to lead the evidence that injury No. 2 was ultimately found to be grievous, only an offence u/s 323, I.P.C. is made out against the Appellants.

We however make no bones in observing that the learned trial Judge erred in convicting the Appellants for the offence punishable u/s 302/34, I.P.C. In our judgment, the evidence on record does not establish that the Appellants had the common intention to commit the murder of Raja Ram. We say this for the following reasons:

(a) motive for the incident was very trivial. According to the prosecution, since in the morning at 6.00 a.m., the bullock of Appellant Buddhu was eating in the trough of the deceased Raja Ram and Raja Ram removed it and told him to ensure that this did not happen in future, the incident took place two hours later i.e., at 8.00 a.m. ;

In our judgment, on the basis of this paltry motive it would be hazardous to infer that the Appellants had the common intention to commit murder of Raja Ram.

It should be borne in mind that to construe the quantum/ extent of common intention, motive is a very relevant circumstance.

(b) although the three Appellants inflicted six injuries on the person of the deceased Raja Ram but five of them namely, injury Nos. 1, 2, 3, 4 and 6 were simple in nature. Only one of them, namely, injury No. 5 was grievous, inasmuch as it resulted in fracture of the 5th rib on the left side, which in turn ruptured the left pleura and led to death of Raja Ram.

We make no bones in observing that although Dr. Upadhya, P.W. 9, stated that injury No. 1 was also responsible for the death of the deceased but we are not prepared to accept his statement for two reasons, namely:

(i) in the post-mortem report, the cause of death is mentioned as injury No. 5 ; and (ii) the doctor did not find any internal damage beneath injury No. 1.

In our judgment, had the common intention of the Appellants been to commit the murder of Raja Ram more grievous injuries would have been inflicted on his person.

(c) although ante-mortem injury No. 1 was inflicted on the head of Raja Ram but the said injury was simple in nature, inasmuch as a perusal of the autopsy report shows that the doctor did not find any underlying bones fractured ;

(d) prosecution has not been able to specify as to which of the three Appellants was responsible for the solitary grievous injury (ante-mortem injury No. 5) sustained by deceased Raja Ram, which proved to be fatal ; and (e) there is nothing in the evidence of the eye-witnesses to show that they were armed and, therefore, hindered the Appellants from continuing belabouring the deceased. If in such a factual matrix, the Appellants, having no obstruction, did not kill the deceased on the spot it is manifest that their common intention was not to commit his murder.

It is a trite that the question of common intention is a question of fact and not one of law.

In our view, on the basis of the above circumstances it can be safely concluded that the Appellants did not have the common intention to commit the murder of the deceased and their act would not fall under any of the four clauses of Section 300, I.P.C., the breach of which is punishable u/s 302, I.P.C.

22A. We however, make no bones in observing that when the three Appellants launched an assault with lathis on the deceased and inflicted on his person six blunt weapon injuries, one of which, namely injury No. 5, was a multiple contusion on the back which caused fracture of fifth rib on the left side and in turn led to the rupture of left pleura, leading to the death of the deceased, they committed an act with the knowledge that they were likely to cause the death of the deceased in terms of Clause 3 of Section 299, I.P.C., the breach of which is punishable u/s 304 Part (ii), I.P.C. And since the said act was committed by these three Appellants in furtherance of their common intention, an offence u/s 304 Part (ii)/34, I.P.C. would be made out against them.

This leaves us with only one question, namely the quantum of sentence.

We have given our anxious consideration to the said question. So far as the question of Appellants'' sentence for the offence u/s 323, I.P.C. is concerned, we find that learned trial Judge has sentenced them to three months'' R.I. In our view the said sentence cannot be castigated as being excessive. Hence, it warrants no reduction.

So far as the sentence for the offence punishable u/s 304 Part (ii)/34, I.P.C. is concerned, we have no reservations in observing that we are not inclined to accept the submission of Mr. Mukul Rakesh, learned Counsel for the Appellants, that since the incident took place more than 22-1/2 years ago the substantive sentence of the Appellants on the said count deserves to be reduced to the period undergone by them and a substantial fine be imposed on them, which should be paid as compensation to the legal heirs of the deceased Raja Ram.

The concept of compensating the victim, in lieu of a substantive sentence, has certainly gained currency in the last two decades but in our view, in cases of homicide, letting off persons on their merely paying fine would mean that those who are rich can go scot-free, on the brute power of their money. This apart from being inequitable is certainly not in consonance with the socialist character of the democratic republic, envisaged in the preamble of our Constitution.

In our judgment, this concept should certainly be applied to lesser offences ; especially when there has been a sufficient time-efflux, but not in cases of homicide ; not only for the reason mentioned above, but also because it would cause emotional and psychological distress to the members of the family of the deceased and may result in retaliation in the form of violence from their side.

In applying the principle of compensation Courts should adopt a balanced approach. If they are swept away by it and start applying it in grave offences, the fear in the citizenry for the majesty of law would disappear and the result would be a spurt in violence and commission of crimes. To thwart this a substantive term of imprisonment is necessary in such offences. Imposition of heavy amount of fine, directed to be paid as compensation to the victim/his family members, is fine but a undue leaning on the part of courts towards accused would perpetrate injustice. It should always be remembered that justice to the accused should never be at the expense of justice to the victims. In our judgment, this litmus test should be applied by courts before deciding whether in a given case a sentence of heavy fine, directed to be paid as compensation to the victim/his family members, would meet the ends of justice or a term of substantive imprisonment to the accused.

In our judgment, if the aforesaid test is applied then the instant case necessitates that a substantive sentence be imposed on the Appellants.

What should be quantum of that sentence. In our view, considering the over all circumstances ; particularly the circumstance that the incident took place 22-1/2 years ago, a sentence of five years'' R.I. to each of the Appellants for the offence u/s 304 Part (ii)/34, I.P.C. would meet the ends of justice.

In the result, this appeal is partly allowed. Although we uphold the conviction of the there Appellants, namely Buddhu, Hridai Ram and Ram Sumer for the offence punishable u/s 323, I.P.C. and the sentence of three months'' R.I. imposed on each of them thereunder, but we acquit them for the offence punishable u/s 302/34, I.P.C. and set aside their conviction and sentence of imprisonment for life thereunder and instead find them guilty for the offence punishable u/s 304 Part (ii)/34, I.P.C. and sentenced each of them to undergo five years'' R.I. for the same. We direct that the substantive sentence of the Appellants on the above counts shall run concurrently. The Appellants are on bail and shall be taken into custody forthwith to serve out their sentence.