Lal Babu Jha vs The State of Bihar

S.N. Pathak, J.—The sole appellant Lal Babu Jha was convicted u/s 304 Part, 2 I.P.C. as also u/s 323 and was sentenced to undergo rigorous imprisonment for seven years u/s 304 Part 2, I.P.C. and was further sentenced to undergo rigorous imprisonment for one year u/s 323 I.P.C. Both the sentences were directed to run concurrently. The case of the prosecution, as disclosed by the fardbeyan of the informant, was that on 27.6.1981 at 6 P.M., the deceased accused Subodh Jha and the appallant Lal Babu Jha both came to her house and asked her husband and herself as to why they were not going to work in the land of the accused. Thereafter they started domolishing the wall of her house. When there was protest from the informant and her husband, the deceased accused Subodh Jha hit the informant''s husband Sakhichand Das with the pas of spade (kudali). Subsequently, the appellant Lal Babu Jha hit the deceased Sakhichand Das with bhala. Thereafter the informant was also assaulted with lathi by the accused appellant Lal Babu Jha. Subodh Jha took away Rs. 125/- from the pocket of the deceased. The informant and her husband had refused to work for the accused persons because they were not being paid proper wages. The deceased was carried to the hospital where he succumbed to his injuries after eleven days.

Subodh Jha and accused appellant Lal Babu Jha were together charged u/s 304 part, 2, I.P.C. The deceased accused Subodh Jha was charged u/s 379 I.P.C. separately. The appellant Lal Babu Jha was further charged u/s 323 and 325 I.P.C. for assaulting the informant Nunubati Devi.

Learned Sessions Judge after holding the trial and on the basis of seven witnesses held the accused appellant guilty and convicted and sentenced him, as stated above.

I find that P.W.7 was a formal witness who brought on the record ext. 3 the F.I.R. P.W.6 was the Doctor who held autopsy on the dead body of Sakhichand Das. P.W.5 was Nunubati Devi, the informant. P.W. 4 was Bindeshwar Das. He said that when he went to the house of the informant he found the deceased accused Subodh Jha had Kudali in his hand, appellant Lal Babu Jha had bhala in his hand. Thereafter two accused persons started demolishing the wall of the informant''s house on the ground that the wall of the informant was on the land of the accused. Then the deceased protested. Then Subodh Jha assaulted the deceased with pas of the kudali on his head and Lal Babu Jha also assaulted the informant with handle portion of bhala. Lal Babu Jha had also assaulted the deceased with bhala of its handle portion. P.W. 3 was declared hostile by the prosecution. However, this witness at least admits that he went to the house of the informant on hearing alarm at 6 P.M. He found some persons there and saw nothing else. However, he further admits in chief itself that he had made his statement before the police and he had told the latter that the deceased accused Subodh Jha had assaulted Sakhichand Das, the informant''s husband, with kudali. P.Ws.2 and 1 were other witnesses who claimed to be eye-witnesses of the occurrence when they went to the house of the informant on hearing noise. The evidence of eye-witnesses as I have enumerated above is in substance, to the effect that when they went to the house of the informant they saw the accused Subodh Jha and appellant Lal Babu Jha demolishing the wall of the informant''s house and on protest Subodh Jha dealt spade blow on the deceased, husband of the informant, with kudaf by its handle portion (pas) and Lai Babu Jha had also assaulted the deceased with bhala by its lathi portion. The informant was also subjected to assault by Subodh Jha with lathi portion of the bhala. The suggestions given by the P.Ws. is to the effect that the informant and her husband wanted to grab the land of the accused by the side of the informant''s house. So, there was false implication. Some other suggestions were also given to the P.Ws. that they formed a group in the village against Brahmins and so the accused appellant and his deceased father were falsely dragged into this case. However, the suggestions do not appear to be convincing and they are shifting ones. No evidence was led on behalf of the accused to substantiate the defence version. There is no plausible cause disclosed by the evidence on record as to why the witnesses of the prosecution will depose falsely. So, the evidence on the record disclosed that there was some sort of an occurrence on the alleged date and time in which the informant''s husband was subjected to assault by the deceased accused Subodh Jha and the appellant Lal Babu Jha. Now, the only question that remains to be considered is as to what was the nature of the offence committed by the accused appellant and as to for what offence he is liable to be punished.

In this connection, it was pointed out by the appellant''s lawyer that in the fardbeyan, the informant said that her husband was assaulted with bhala by the appellant. However, the witnesses during the course of evidence developed a story that the deceased was assaulted with lathi portion of bhala by the appellant. The Doctor, P.W.6, did not find any bhala injury by its penetrating portion or sharp edged portion on the deceased. So, the allegation of assault by the appellant on the deceased is not to be believed. In this connection, the statements in the fardbeyan are very much relevant. I find that the fardbeyan bears L.T.I, of the informant. So, it is apparent that she is illiterate. It has been mentioned in the fardbeyan that the appellant had assaulted the deceased Sakhichand Das with bhala. There is the next statement that Lal Babu Jha, the appellant, had also assaulted the informant with lathi on her head and hand. It is not understandable why Lal Babu Jha will carry bhala and also lathi in his hands. It is also surprising that Lal Babu Jha would be wielding bhala in one hand and lathi in the other hand. So, all the witnesses said in their evidence before the court that Lal Babu Jha had assaulted the informant and the deceased with lathi portion of the bhala. It appears that there has been some faux pas committed by the Police Officer in recording the fardbeyan of the informant and I am of the opinion that the police is past master in making or marring the particular case by making certain manipulations and it is also a matter of common knowledge that the L.T.I, or signatures are taken by the police on a plain piece of paper and they then make statement according to their whimp, which may make a small and petty case look like a graver case and some times it may also spoil the particular case by making contradictory statement in the fardbeyan. This fardbeyan of the present case appears to be of the above nature because it is not to be easily explained as to why the accused appellant would be carrying both lathi and bhala in his hand. In the above circumstances, therefore, it is apparent that, perhaps, the appellant was carrying lathi in his hand with which he had assaulted the deceased as also the informant and that is the reason why the witnesses in the court were made to develop the story that the appellant had assaulted the deceased and the informant with lathi portion of bhala. However, in spite of the above discrepancy in the evidence of P.Ws. as compared to the statements in the fardbeyan, there is no escape from the case that the accused appellant had indulged in assault on the deceased and the informant on the alleged date and time. The evidence on this point is almost consistent and undemolished.

Now, I am to find out as to for what offence the accused appellant is liable to be convicted. In this connection, the evidence of Doctor is important. The Doctor said that there were three injuries on the body of the deceased. Injury no. I was caping wound 2" x 1/2" bone deep on the front part of head of the deceased. The 2nd injury was healed stitched wound on the right shoulder 2" long. The 3rd injury was fracture of right clavicle. The Doctor said further that all the three injuries were caused by hard and blunt substance. The injury no. I might have been caused by halve of the spade. The death of the deceased was due to old age and lung disease complicated by the aforesaid injuries. The Doctor further said that injury no.1 might have accelerated the death of the deceased who was suffering from tuberculosis. So, in substance, the Doctor said that the deceased died of tuberculosis and his death was accelerated by injury no.1 and his disease was complicated by the above injuries. So, it is apparent that the death of the informant''s husband did not occur simply on account of head injury because the third injury which was on right clavicle was also a fracture. Of course, there was the allegation that the appellant had given one lathi blow or lathi portion of bhala upon the deceased on his shoulder, but the clavicle is just contiguous to the shoulder and the injury on the right shoulder was 2" long. So, this injury might have caused fracture of clavicle even by one blow. So, the injury nos. 2 and 3 were possible by one blow of lathi or lathi portion of bhala. Collarbone which is called clavicle may also complicate the disease of tuberculosis and the Doctor has already said that the disease of tuberculosis being suffered by the deceased was further complicated by all the three injuries. So, I do not think that the death of the informant''s husband was caused or hastened or accelerated only by injury no.1. I am, rather, of the opinion that the deceased died of shock on account of all the three injuries caused upon his body by the appellant and his father who died during the course of trial. The appellant had also assaulted the informant and he was charged u/s 325 I.P.C. as well for causing grievous injury upon the informant. Since the Doctor could not be examined nor injury report regarding the informant was filed the trial court convicted the appellant only u/s 323 I.P.C. However, so far the allegation and the evidence that the appellant had assaulted the deceased on his shoulder, I think that the allegation is well supported by the evidence of P.W.6. The discussions which I have had on the Doctor''s evidence regarding the injury upon clavicle and shoulder of the deceased indicate that the death of the deceased was the result of a cumulative effect of all the injuries caused upon him. As a result of the aforesaid discussions, I do not think that the appellant shall escape from the liability of causing the death of the informant''s husband. I am, therefore, of the opinion that he was rightly convicted u/s 304 part, 2, I.P.C. He was sentenced to undergo rigorous imprisonment for seven years u/s 304 part 2 I.P.C. The sentence was also, perhaps, not as to invite any interference by this Court. Hence, this appeal is dismissed. The order of conviction and sentence is confirmed. The appellant shall surrender in the lower court to serve the remaining part of his imprisonment.