Gahbar Pande vs Emperor

Kulwant Sahay, J.—The appellant Gahbar Paade was tried along with his brother Nathu Pande on a charge u/s 302/34 of the Indian Penal Code for the murder of a girl named Gujari aged about 15 years, the daughter of one Mewak Dusadh. Nathu Pande wag acquitted, but the appellant Gahbar Pande was convicted u/s 302 of the Indian Penal Code and sentenced to transportation for life.

The prosecution case shortly stated is that Mewak Dusadh has a field which bears survey plot No. 813 in village Lauria in which gram was growing. On the 27th of March last about two gharis before sunset a little girl named Reshmi aged about 8 or 9 years, the daughter of Nathu Pande, pulled out some gram from the field. Gujari snatched it from Reshmi and there was a struggle between the two for the possession of the gram. Gujari is said to have hit Reshmi with a stick which was in her hand. Gahbar Pande, the uncle of the girl Reshmi, came running from the north with a lathi in his hand followed by his brother Nathu who had also a lathi, and being incited by Nathu to kill the girl for having the audacity to hit a Bhabni girl, Gahbar struck Gujari on the head with his lathi and she fell down. Then both Gahbar and Nathu struck her with a lathi and Gujari died instantaneously. Gajadhar, who is a nephew of Mewak, came running and then Vakil Pande and Babu Lal Pande assaulted him with lathis and ha also fell. Mewak who was irrigating his onion field at a short distance from the gram field came running and found hh daughter dead. He then went to his nephew Gajadhar, who was lying unconscious, and revived him. He then left, the corpse of his daughter in charge of Gajadhar and himself went to the Police Station, where his first information was recorded at 7-30 P.M. The Junior Sub-Inspector who was in charge of the Thana and had recorded the first information, left for the place of occurrence and reached there at 8 30 p.M. He found the corpse, not in the gram field but in another field, bearing survey No. 860 which belonged to one Dhani Pande at a distance of about 30 yards to the north-west of the gram field. He held the inquest and examined certain witnesses and ultimately both Nathu Pande and Gahbar Pande were sent up for trial.

The defence of the accused was that they did not assault the girl Gujari and had committed no offence; that there was no quarrel at all in the gram field between Reshmi and Gujari, nor did Reshmi uproot gram from the field of Mewak; that Gujari Dusadhan, who was a young unmarried girl, aged more than 15 years, generally grazed buffaloes on the chaur and parti lands along with Gahbar Pande who is aged 19 or 20; that there was a suspicion of undue intimacy between the two and the castesmen of Mewak held a Panchait and Gujari was forbidden to graze buffaloes with Gahbar Pande; that on the day of occurrence Gahbar Pande was grazing buffaloes in the chaur along with Gujari and that Reshmi was also grazing her goat near about. Gajadbar Dusadh noticed Gahbar Pande and Gujari grazing the buffaloes together and chased Gahbar, whereupon Gahbar ran away. Reshmi abused Gajadhar for this, whereupon Gajadhar struck her with a stick. Gajadhar then took Gujari to her father Mewak who was irrigating his onion field near the field of Dhani Pande and told him about it, whereupon Mewak Dusadh became angry and struck his daughter Gujari with the wooden shovel with which he was irrigating his field on account of which Gujari died, and that in order to save his own life Mewak had brought the false case against the accused persons on wrong allegations.

It might at once be said that there is no evidence on the side of the defence to prove the defence story. Reshmi was examined as a Court witness and she to a certain extent supported the defence version of the occurrence. But having regard to all the circumstances and the evidence on the record, I agree with the learned Sessions Judge in holding that this defence version of the occurrence has not been established. No blood was found in the field where Mewak Dusadh is said to have struck the girl. The nature of the injuries on the girl makes it improbable that Mewak Dusadh inflicted all those injuries. Even if the blow on the head which fractured the skull be assumed to have been caused by the sehovel with which Mewak was irrigating his field, the other injuries on the person of the girl were not likely to be caused by the shovel, and it is hard to believe that Mewak went on striking the girl after she had fallen. The defence version does not account for the injuries on the person of Gajadhar. For the reasons given by the learned Sessions Judge, I must hold that the defence version has not been established.

The learned Sessions Judge has disbelieved the prosecution witnesses as regards the part alleged to have been taken by Nathu Pande, and having regard to the statement made by Mewak Dusadh to the Police Officers and to the deposition of Jotik Dusadh, the learned Sessions Judge was right in holding that Nathu came to the place of occurrence after the girl Gujari had been killed.

As regards Gahbar, it is to my mind clearly established that he struck Gujari the lathi blow on the head and after she fell, he gave her two more lathi blows on the right thigh. There are, no doubt, discrepancies in the evidence of the prosecution witnesses, and they have clearly given exaggerated accounts and in some respects false accounts as regards some of the particulars deposed to by them. All of them had stated that Nathu Pande incited Gahbar to kill the girl, because she had dared to strike a Bhabni girl. All of them also say that Nathu Pande struck her along with Gahbar Pande. There are certain discrepancies also as regards the place where Gujari fell. But there can be no doubt about the statement made by each of the witnesses that Gahbar Pande came running with a lathi either on seeing Reshmi assaulted by Gujari or by being told of it by Reshmi herself. There is no reason to doubt the evidence of Mewak, Uttim, Gajadhar and Jotik when they say that Gahbar struck her with a lathi. I, therefore, agree with the learned Sessions Judge in holding that Gahbar did strike Gujari with a lathi on the head and also on the thigh. The blow on the head caused a fraeture of the skull and was the cause of the death.

The question is as to what offence Gahbar has committed. All the four assessors were of opinion that the offence did not amount to murder, but to culpable homicide not amounting to murder. The learned Sessions Judge was of opinion that although the case did not fall under the first clause of Section 300, it came under the second clause of the section and also under the third clause, and was covered by the illustration (c) to Section 300. Now, Clause (2) of Section 300 makes culpable homicide, murder if the act by which death is caused is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; and under Clause (3) it is murder if the act is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. Illustration (c) runs thus: "A intentionally gives Z a sword-cat or club wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here A is guilty of murder, although he may not have intended to cause Z''a death." This illustration evidently covers the third clause of Section 300. The question for consideration is whether the appellant Gahbar Panda in giving the blow with the lathi on the head had the intention of causing such bodily injury as he knew to be likely to cause the death of Gujari, or whether he gave the blow with the intention of causing such bodily injury as was sufficient in the ordinary course of nature to cause her death. The essence of the crime of murder under Clause (2) of the section is that there must be the intention of causing such bodily injury as the offender knows is likely to cause death. In order to convict Gahbar Pande of the offence of murder under Clause (2) of the section, it has to be found that he had the intention of causing the fracture of the skull which was the injury inflicted upon the girl and also that he had the knowledge that such injury which he intended to inflict was likely to cause death. It is conceded that he had no intention of causing death. It is hard to Suppose that he intended to cause the injury which was, as a matter of fact caused by the blow on the head given by him. Two girls were struggling for the possession of a handful of gram; the elder girl had given a lathi blow (although with a thin lathi) to the younger girl; the uncle of the younger girl came running to the place where the two girls were struggling. Is it reasonable to suppose that on account of such a struggle the appellant intended to cause such bodily injury to the elder girl as he knew was likely to cause death? The evidence and circumstances lead me to suppose that he could have no such intention or knowledge. The learned Sessions Judge has disbelieved the statement of the prosecution witnesses as regards Nathu Pande having incited Gahbar to kill the girl. The evidence shows that only one blow was struck on the head and the girl fell and thereafter two more lathi blows were given on the leg. The medical evidence shows two more bruises, one on the right temple 2" � 1" and the other on the left side of the skull 3" � 1", and the Civil Surgeon was of opinion that altogether five blows were struck. The evidence of the witnesses, however, goes to show that Gahbar Pande struck one blow on the head and after the girl had fallen he gave two more blows on the thigh. The first information makes mention of a lathi blow on the head. Before the Committing Magistrate the witnesses had also stated that Gahbar gave a blow with a lathi on the head and she fell. In the Sessions Court also the evidence goes to show that Gahbar struck her only one blow on the head with the lathi. Now, if he had the intention of causing the fracture of the skull which was the injury caused and he knew that such fracture was likely to cause death, his intention was carried out by the first blow, and there was no reason why he should go on inflicting more blows thereafter. I am of opinion that he had not the intention of causing such bodily injury as he knew likely to cause death, but intended only to chastise her. The third clause of Section 300 also does not, in my opinion, apply. Here also it must be shown that the injury which Gahbar intended to cause was such as to be sufficient in the ordinary course of nature to cause death. A blow on the head with a lathi is certainly likely to cause death and the person who inflicts lathi blow on the head of another person must be presumed to have the intention of causing such bodily injury as is likely to cause death. But to my mind it does not necessarily follow that a lathi blow on the head is always sufficient in the ordinary course of nature to cause death, and I have already found that he had no intention of causing the bodily injury which was, as a matter of fact, caused, namely, the fracture of the skull which resulted in the death of the girl, Now, if a person, causes death by doing an act with the intention of causing such bodily injury as is-likely to cause death, his offence comes u/s 299, and it is only, if the intention was to cause bodily injury, which injury was sufficient in the ordinary course of nature to cause death, that the offence would come u/s 300, Clause (3). The difference between the two is, no doubt, fine, but there is certainly a difference and it is to my mind not clear upon the evidence that the offence comes u/s 300 of the Code. The difference between culpable homicide amounting to murder and culpable homicide not amounting to murder has been very ably brought out by Melvill, J., in Reg. v. Govinda 1 B. 342 : 1 Ind. Jur. 378 : 1 Ind. Dec. (N.S.). No doubt, a man is presumed to intend the natural and inevitable consequence of his own act, but the presumption of intention must depend upon the facts of each particular case, and ''knowledge '' as used in Clause (2) of the, section is a word which imports a certainty and not merely a probability. In the present case the evidence to my mind goes to show that the appellant had not the intention of causing such injury as he knew to be likely to cause death, or as was sufficient in the ordinary course of nature to cause death. The difference between culpable homicide and murder is merely a question of different degrees of probability that death would ensue.

Upon the evidence I am of opinion that the injury inflicted upon the girl was inflicted by the appellant with the knowledge that it was likely to cause death but without any intention to cause death, and the case falls under the second paragraph of Section 304 of the Indian Penal Code. I would, therefore, alter the conviction from one u/s 302 to one under the second paragraph of Section 304 of the Indian Penal Code and sentence the appellant to seven years'' rigorous imprisonment.

Ross, J.

I agree with the opinion of Mr. Justice Kulwant Sahay that this case falls under the second paragraph of Section 301 of the Indian Penal Code, and that the conviction should be altered accordingly and that the sentence should be seven years'' rigorous imprisonment. It is not necessary for me to discuss the case at length as I am in full agreement with his reasoning. The appellant who is a young man of 19 struck a girl of 15 on the back of the scalp with a lathi and caused a compound fracture of the skull as the result of which she died. The evidence farther is that after this blow he struck the girl two blows on the thigh. The cause of the assault was of a trivial character. The deceased who was a Dusadh had snatched away some gram from a Babni girl of 8 or 9 years, who had taken the gram from a Dusadh''s field. Neither the circumstances of the assault nor the weapon used necessarily suggest an intention to kill or the only slightly different intentions defined in Clause (2) and (3) of Section 300. On the contrary the fact that two slight blows were given on the thigh after the blow on the head seems to indicate that there was no such intention present to the mind of the appellant when he struck the girl, on the head. At the same time, by striking the girl on the head with a lathi, he undoubtedly intended to cause such bodily injury as was likely to cause death and ha was, therefore, guilty of culpable homicide not amounting to murder. The facts of this case do not, in my opinion, warrant any stronger conclusion.