Mema vs State

Chet Ram Thakur, J.—This is an appeal through the jail by Mema accused, who has been convicated u/s 302 I.P.C. and has been sentenced to life imprisonment by the Sessions Judge, Mahasu, vide order dated 30-6-1970, for the murder of one Kesing alias Jatlu, son of Tsering Finjo, a Tibetan residing at Anti in Tehsil Jubbal, where he was running a general merchant''s shop.

The accused was also living at Anti. About three months before the date of occurrence, the deceased got Smt. Chhunjame (P.W. 12), younger sister of his wife married to the accused. The accused suspected the fidelity of his wife. According to him she was having an intimacy with Kesing and on that account his relations got strained with his wife. He, therefore, left Anti and returned only on the night previous to the occurrence.

On the 26th of January, 1970, the deceased asked the accused to accompany him to go out to the jungle to fetch fuel wood. It is stated that it was snowing outside and the accused and the deceased left with a rope.

At a place known as Dangri near Anti, the accused was seen by Shiv Singh (P.W. 5), a lad of 12 years hurling kassi blows on the person of the deceased, who was just lying down on the ground. It was about 2.30 P.M. that Shiv Singh came out, from his house in the verandah to urinate and he saw the accused hurling the blows on the deceased and that place from the house is stated to be 28 feet away. He went in and informed his grand-father, Sunder Singh (P.W. 4). He also came out. On seeing the accused giving kassi blows to Kesing, he called out to the accused as to what he was doing. Thereupon, the accused made good his escape and threw the kassi in a bush while running.

The accused reached the dera at Anti, where he is stated to have informed Phoma Doma (P.W. 11) widow of Kesing, in the presence of his wife (P.W. 12), that he had finished Kesing. He was ready to go with his bedding that in the meanwhile Sunder Singh came there and he caught hold of him. The accused is stated to have made an extra-judicial confession in the presence of the witnesses that he had killed Kesing because Kesing gave a knife blow on his right hand thumb. The wife of Kesing went with some Gurkhas and brought her husband, who, at that time, was alive and on reaching the dera Kesing breathed his last. Report was sent to the police station. The police sent the dead body for post-mortem and on autopsy, the doctor found the following injuries:

Bone deep lacerated wound occipital region of scalp. No underneath wound size 2" X 1" X 1".

Compound fracture left humerous bone at its middle. The lacerated wound over the fracture size is 3"x1"x11/2".

Ecchymosis over the back at three places: 8"x3", 6"x21/2", 4"x2" in size.

Blood was found in peritoneal cavity, spleen was ruptured and its anterior surface: size of wound 1"x1"x1/2".

It was opined by the doctor that Kesing died of haemorrhage and shock following external and internal injuries. Probable time that elapsed between injuries and death was approximately half an hour, and that between death and postmortem 68 hours.

The accused was, therefore, challaned in the Court of Magistrate 1st Class, who committed him to the Sessions Court for trial u/s 302 I.P.C. The accused denied having killed Kesing. He, however, stated that the deceased had taken him to the jungle to collect faggot and that he had no kassi with him. There was a quarrel between him and the deceased. Kesing gave knife blow on his right hand thumb and he pushed him. He fell down and thereafter he did not know what happened to Kesing.

The learned Sessions Judge after appraisal of the evidence came to the following conclusion:

The offence against the accused is proved by the eye witnesses account given by P. Ws. 4 and 6, extra-judicial confession made by him before P. Ws. 2, 4, 8, 11 and 12, his own conduct after the occurrence, the statement which he made in the committing court admitting the guilt. All these facts and circumstances leave us in no doubt that he intentionally caused the death of the deceased and the injuries caused with a heavy weapon like Ex. P.I., the kassi, were sufficient in an ordinary course of nature to cause death to hold him guilty of the offence of culpable homicide amounting to murder u/s 300 of the Indian Penal Code and punishable u/s 302 of the Indian Penal Code.

In appeal it is contended that the offence did not amount to murder, rather it was an offence u/s 325, or, at the most, an offence u/s 304 Part-II I.P.C. To support this contention, the learned Counsel for the Appellant took us through the evidence as also referred us to several authorities.

Section 299 I.P.C. defines as to what culpable homicide is. Section 300 states as to in which cases culpable homicide amounts to murder. The offence will amount to murder if the conditions laid down in Section 300 are satisfied. If the offence comes u/s 299 or under one or other of the exceptions to Section 300, it will be culpable homicide not amounting to murder. The offence is culpable homicide if it 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. Therefore, it follows that culpable homicide is murder where the person inflicting the injury does it either with the intention that it should cause death or with the knowledge that it may do so, and that it will not be a murder if the case falls within any of the exceptions. The onus is on the prosecution to establish the guilt to the hilt and if the prosecution succeeds in proving the guilt then it is for the accused to bring the case within the exceptions u/s 300. Now keeping in view these facts, we have to see the circumstances of the case, the nature of the injuries and the weapon of offence used, in order to determine the intention or knowledge on the part of the accused to cause death by inflicting such bodily injuries on the person of the deceased.

The accused, it is admitted by the prosecution, went with the deceased to the jungle to fetch wood quite reluctantly at the instance of the deceased and they had no weapon with them. It is not known how the quarrel started. When Shiv Singh saw the accused and the deceased, the latter was already lying on the ground and he saw the accused giving blows with the kassi and thereafter Sunder Singh, P.W. 4, also came out and he is also said to have seen the accused giving kassi blows. So, it is quite evident that despite the fact that the accused nursed a grudge against the deceased, because of his suspicion of intimacy of the deceased with his wife, he had not gone with that intention that he would finish the deceased in the jungle. The accused compelled him to go with him and they had no weapon with them. From the statement of the accused, it is however evident that on the way some word duel ensued between them and, according to the accused, the deceased gave him a knife blow. However, the evidence is to the effect that the deceased had no knife. But it is an admitted fact that it was snowing on that day and the foot-path must necessarily be slippery, as a result of which the deceased fell down. According to Sunder Singh, P.W. 4, the kassi belongs to him which was taken by his wife to clear the snow from the stack of grass and she had kept the same near the temple by the side of the footpath and it is from there that the accused lifted it. So, it was on the spur of the moment without any premeditation that he picked up the kassi and it was on provocation given by the deceased, as it appears from the circumstances and from the statement of the accused, because there is no other evidence as to how he fell down there, and how the quarrel started. However, it is in evidence that the kassi was kept there by the wife of Sunder Singh. Therefore, it can be easily inferred that the accused, when the wordy-duel started between them, got provoked and he suddenly found the kassi and inflicted blows on the deceased without any pre meditation. It is in the statements of P.W. 4 and P.W. 5 that the accused inflicted the kassi blows with the blunt side and not with the sharp side. If the accused really intended to cause the death of Kesing, then there was nothing to prevent him from hurling blows from the sharp side of the kassi and the deceased could be finished even with a single blow. The version given by the two eyewitnesses about the giving of the blows with the kassi on the part of the body is also not in accord with the observations of the doctor, P.W. 4 stated that about two or three blows were given in his presence--two blows were given on the left arm and a blow on the left side of the abdomen. Shiv Singh, P.W. 5, however, stated that he and his grand-father saw the accused giving kassi blows on various parts of the body of the deceased. But the statement of P.W. 3 is at variance with the statement of P.W. 4. The doctor has stated that there were wounds on the occipital region of scalp and there was no fracture underneath. If the kassi blows had been given from the blunt side it is beyond our comprehension how the skull underneath could escape being fractured. It is also not stated by the doctor in his report (Ex.P.W. 3/A) whether the spleen which he found ruptured was normal before the injury was given. It is not known whether the rupture of the spleen, which resulted in the death of Kesing, was really the result of the kassi blow or it was as a result of diseased spleen. Therefore, it cannot be said that the injury, if at all caused to the spleen and which ultimately resulted in the death, was such as the accused knew that it was likely to cause such bodily injury which in the ordinary course of nature was sufficient to result in death. The doctor had already stated that had there been no rupture of the spleen the deceased could survive, which means that it was this injury which proved fatal. Otherwise, the other injuries on the person of the deceased were not so fatal. The acchymosis on the back of the deceased, according to the opinion of P.W. 3 could not be caused by the kassi (Ex. P.I). These injuries could be caused by any impact. So, it is quite possible that the deceased fell down on the ground because of the slippery nature of the soil as it was snowing on that day and during the course of the quarrel he provoked the accused who found the kassi quite nearby and picked it and gave blows on the person of the deceased not with the intention to kill him. The blows, excepting the blow on the abdomen, if at all, given by the accused, were not fatal. Since the eye-witnesses say that the accused had used the kassi, therefore, it may be held that the blow was also caused with the kassi. But the blows were given because of the provocation given by the deceased as is evident from the statement of the accused. In Empress of India v. Randhir Singh ILR 3 All. 597the accused asked the deceased, whose pigs were grazing in the field, to drive them out immediately and when the deceased failed to drive them immediately, the accused took up a piece of brick and threw it on the deceased from a distance of five paces. It struck him over the spleen, which being in a diseased state was ruptured and death ensured. The Magistrate convicted the accused of an offence u/s 304A, I.P.C. and inflicted a fine of Rs. 15 which was paid. The Sessions'' Judge was of the opinion that the conviction u/s 304A of the Penal Code was coantrry to law, and the conviction should have been u/s 323 or 304. The High Court held that it was a case u/s 323 keeping in view the implement used and the moderate force with which the brick was thrown. The prisoner cannot be said to have had the intention to cause death or to cause such bodily injury as was likely to cause death or even the knowledge that he was likely by his act to cause death. Death would not have been a probable consequence of his act if the diseased spleen had been sound, and the accused was not aware that it was diseased. Nor the accused intended to cause grievous hurt, or that grievous hurt was a probable consequence of the act. In Empress of India v. Indu Beg ILR 3 All 776, a person struck another a blow which caused death without any intention of causing death, or of causing such bodily injury as was likely to cause death, or the knowledge that he was likely by such act to cause death, but with the intention of causing grievous hurt, and, therefore, it was in these circumstances that it was held that the offence of which such person was guilty was not the offence of causing death by a rash act, but the offence was of voluntarily causing grievous hurt.

By the citation of these authorities the learned Counsel for the Appellant wants us to hold that the case of the Appellant is one which is punishable under either of these two sections, that is to say, Section 325 or 323 I.P.C. and not Section 302. However, he has also argued that if his case is not covered by the aforesaid two sections, then, at the most it is a case u/s 304 Part-II of the Indian Penal Code.

Section 323 provides for punishment for voluntarily causing hurt. Therefore, this section is applicable only when there is a simple case of causing pain and the injury is not serious and there is no intention to cause death or grievous hurt nor the accused has knowledge that it was likely to cause grievous hurt or death. It is only in such circumstances that the case would fall in Section 323. In the instant case the injury was grievous and the weapon of offence was also a kassi and the injuries caused could not be said to be simple, but were quite grievous, and by the use of such a heavy weapon, the accused could be presumed to have the knowledge that a blow with the kassi was likely to cause grievous hurt or it was likely to result in death. Therefore, this act of the accused cannot be covered by Section 323 as is sought to be argued by the learned Counsel for the Appellant on the strength of the aforesaid authorities.

Section 322 states as to what is meant by the expression ''voluntarily causing grievous hurt''. The doctor has stated that the injuries on the person of the deceased were of a grievous nature and the use of weapon also is indicative of the fact that the accused did intend to cause grievous hurt. The further question is whether he caused those grievous injuries on the person of the deceased knowing that those grievous injuries caused by him were likely to be such which may result in death. If he had the knowledge then again this case is not covered by Section 325 and it would be taken out from the purview of Section 325. It is obvious that the accused gave kassi blows which is a heavy weapon and he caused injuries to the deceased with this kassi. It is manifest from the evidence on the record that the accused did not intend to cause such injuries whereby he intended or knew that death was a natural consequence thereof. But during the quarrel, it appears, he used the kassi which was readily available. He had no intention to kill the deceased when provoked during the course of wordy-duel. He gave kassi blows on the person of the deceased and those kassi blows did cause grievous injuries and which the accused knew were likely to result in death and, therefore, the case of the accused, in our view, would fall within the purview of Section 304 Part-II.

On the contrary Shri Inder Singh, learned Counsel for the State contends that it was a clear case of murder. Firstly, the motive on the part of the accused stands proved that he felt aggrieved against the deceased because of an intrigue with his wife. Secondly the accused used a lethal weapon and caused such injuries which is in the ordinary course of nature were sufficient to cause the death, and therefore, he was presumed to have intended to cause the death. The accused was a youngman of 34 years and the deceased was 65 years of age and the accused did cause the injuries with the kassi which is a very heavy weapon with the clear intention to finish him. The deceased was not physically capable of defending himself because of disparity in age. The accused gave a blow of the kassi on the abdomen with force, which resulted in the rupture of the spleen and this was sufficient to infer that the accused had the intention to cause the death of Kesing.

There is no doubt that the accused was aggrieved because of an intrigue by the deceased with his wife, but at the relevant time motive did not play any part or he was not actuated by the theory of motive to avenge himself upon the deceased because of his grievance. As already stated, he was reluctant to go to the jungle to collect fuel, but he was compelled by the deceased to accompany him. Again he did not go armed with any weapon so as to infer that he went with an intention or premeditated mind to kill Kesing rather, he went empty handed, only one rope was taken by Kesing and he accompanied him. Therefore, it cannot be said that he caused those injuries which resulted in his death because of the motive of revenge.

It is also manifest that it was snowing and it cannot be denied as the common experience goes that the land is slippery. There is no evidence as to how Kesing fell down.P. Ws. 4 and 5 saw the incident only at a time when Kesing was lying on the ground and the accused was giving blows. So, there is no evidence as to what happened previous to the time when the P. Ws. 4 and 5 witnessed the occurrence for the first time. As already stated, the kassi belongs to P.W. 4 and his wife had kept it near the temple by the side of the foot-path, where the accused was seen giving the blows to the deceased. Hence it is also evident that this kassi came in the hand of the accused by chance and there is nothing to disbelieve the version of the accused that a wordy-duel between them started, which ultimately culminated in the beating of the deceased by the accused with the kassi. Hence there was no intention of finishing him. The injuries were inflicted just at the spur of the moment immediately after the wordy-duel between them started. The question of disparity in age is of no consequence. It is amply borne out from the record that there was no motive nor any intention on the part of the accused to kill Kesing.

The learned Counsel for the State has cited Basdev Vs. The State of Pepsu, to show as to what is the distinction between motive, intention and knowledge. In our opinion this authority has got no bearing as motive did not play any part, as already stated above, in the case. In the view of the matter that the accused was not impelled by any motive because the quarrel, it appears, ensued on the way about which there is no evidence and the accused gave the kassi blows. Therefore, it is difficult to say that the accused intended to cause such a bodily injury which he knew was sufficient in the ordinary course of nature to cause death.

It has also been very strenuously urged by the learned Counsel for the State that the accused in his statement recorded before the Committing Court had admitted all the incriminating circumstances appearing in evidence against him and that conclusively established that he had intentionally killed Kesing. But this submission of the learned Counsel also does not carry weight inasmuch as the explanation tendered by the accused in the Session''s Court is that he did not know Hindi and he had not been provided with any interpreter. It is not denied by the counsel for the State that the Appellant is a Tibetan national and he is not conversant with Hindustani. Therefore, it can be presumed that he could not properly understand the import of the questions put to him. No doubt he has signed his statement in Hindi but that by itself would not show that he has got good knowledge of Hindi and we are of the view that the Petitioner had definitely been prejudiced and the questions and answers recorded in Hindi, when he was not assisted by an interpreter, could not be said to be quite intelligible to him because he was not well conversant with the language and the admissions made by him cannot, therefore, be held to be such which must be accepted as the true and the correct answer of the accused, who is a foreign national and who was not aided by any interpreter at that stage. Hence in our view this argument advanced by the learned Counsel for the State that he had admitted all the incriminating circumstances appearing against him in his answers to the questions before the Committing Court cannot be accepted as correct.

The learned Counsel for the Appellant had also contended that the recovery of the kassi was faked because police had already the knowledge that the kassi was the weapon of offence as it was mentioned in the F.I.R. Secondly, there was no concealment of the kassi, rather, the accused had thrown it while running, as stated by P. Ws. 4 and 5 and that the disclosure statement is inadmissible. The learned Counsel for the State contends that the witnesses did not state anything to the S.H.O. about the kassi. But we find that this is not correct. It was within the knowledge of the S.H.O., and the P. Ws. 4 and 5 had seen the kassi being thrown away by the accused and the S.H.O. had known it the day he reached at the spot where the kassi had been thrown as he examined P. Ws. 4 and 5 on the very day he reached the spot. Hence it has rightly been argued by the learned Counsel for the Appellant that this recovery is nothing but faked. Moreover, this recovery is not very material inasmuch as it was already known that the kassi was the weapon of offence and that it was not at all concealed. The witnesses had seen where it was thrown.

The learned Counsel for the State has also relied on Hardev Singh and Ors. v. The State of Punjab (1971 P.L.R. 280)to point out that it was a clear case of murder. In this case the injury was given with a kirpan blow and it was nobody''s case that the accused intended to hit any part of the victim''s body other than the head, and the force with which the kirpan blow was given was apparent from the depth to which the weapon penetrated, it cut the parietal bone involved through and through and lacerated the brain. So from the type of the weapon used, the force with which the blow was given and the part of the victim''s body which was hit, it was held that the injury actually found was the injury intended and it was fully covered by Clause 3 of Section 300 of the Indian Penal Code and the offence brought home must be held to be murder. The other authority cited is Public Prosecutor v. Bandi Pedda Venkata Nari (A.I.R. 1937 Mad 634 ).In this case the weapon used was the rice pounder and the injury was inflicted on the head while the deceased intervened in struggle between the accused and another person. The rice pounder was used with both the hands and that showed the force with which it was used and hence it was held that even though the death resulted only due to a single blow the accused could be convicted of murder as he had the knowledge that such an injury caused on the vital part of the head would result in death. The other authority is Ghurey and Another Vs. Rex, In this case the attack on the deceased was with a spear and the injuries were held sufficient in the ordinary course of nature to cause death and it was in view of these circumstances that the accused was held guilty of murder. Another authority is Arjan Singh and Anr. v. Emperor ( AIR 1942 Lah 255).In this case the injuries were caused with the hatchets and the medical evidence in that case showed that the deceased had no less than 27 contused wounds on the head and other parts of the body, six bones being broken in his legs and arms on both sides. So it was in view of these facts that it was held that if a person knowingly causes injuries which are more likely to cause death than not in the ordinary way, his offence falls under either the second or third clause of Section 300. When a person dies as a result of what is usually called a "merciless beating" the offence is one of murder. The further authority is Raj want Singh and Kalarimadathil Unni v. State of Kerala (A.I.R. 1966 S.C. 1874). In this case the legs of the victim were tied with rope and the arms were tied behind his back. A large adhesive plaster was stuck over his mouth and completely sealed it. A handkerchief was then tied firmly over the adhesive plaster to secure it in position. The nostrils were plugged with cotton soaked in chloroform. So, it was in view of these circumstances that it was held that there was the intention on the part of the accused of causing the bodily injury which was sufficient to cause death in the ordinary course of nature. In Bachna Singh and Anr. v. Emperor (A.I.R. 1937 Lah 632)it was held that where people armed with spears refrain from using the sharp end but beat to pulp a man by beating him with lathi part of the spear on all parts of the body, the inevitable inference is that they intended to kill or knew that such a beating is likely to cause death. In Dilwar v. Emperor (A.I.R. 1936 Lah 233)it was held that if weapons like lathis or the blunt side of axes are used in order to break any limb of a man''s body and a man dies thereof, it is just as surely murder as if the head had been smashed. In On Shewe alias Kalaw v. The Crown (A.I.R. 1924 Ran 93) it was held that common knowledge and experience tells us that any cut into peritoneum and stomach is sufficient in the ordinary course of nature, to cause death, unless done by a skillful surgeon under safe-guards discovered during comparatively recent years. The fact that persons have under medical treatment, recovered from wounds in the stomach, affords no ground for holding that a stab in the stomach is not sufficient in the ordinary course of nature to cause death. If a person stabs another in the abdomen with sufficient force to penetrate the abdomen walls, and the internal viscera, he must undoubtedly be held to have intended to cause injury sufficient in the ordinary course of nature to cause death. The learned Counsel for the State on the strength of all these authorities and the combined facts taken together wants us to hold that guilt of the accused u/s 302 stands fully proved. But we are unable to agree to the contention of the learned Counsel for the State. All these authorities that have been cited above are distinguishable and have got no applicability to the facts of the present case. The evidence, as already narrated above, does not point to the fact that the accused had necessary intention to cause death of the deceased. The doctor has opined that the injuries, other than the one on the abdomen which resulted in the rupture of the spleen, were not fatal. He could survive if his spleen had not ruptured. The accused, as already stated, also did not use the weapon, which came in his hand abruptly and by chance, from the sharp side but he used it from the blunt side and he did not give the blows on the head and on his body also he was wearing clothes. The doctor failed to state whether the spleen was diseased or was normal. Therefore, it is doubtful if the spleen which got ruptured was a result of the impact of the blow with the kassi. The accused cannot be attributed with the knowledge or intention that the blow in the ordinary course of nature was to result in the death. It is quite possible that the spleen was diseased and as a result of the blow had got ruptured and which the accused did not know. However, he could be presumed to have the knowledge that it was likely to result in death. Therefore, these authorities, cited by the learned Counsel are not at all attracted to the facts of the present case and the case of the accused does fall within the ambit of Section 304 Part-II.

The learned Counsel for the State has also cited Lakhan v. King Emperor (A.I.R. 1924 All 511 ) and Arumugam Solathirayar Vs. Ponnalagu Pandarar and Others, to emphasise the fact that it was the duty of the Court to appreciate the evidence and that benefit of doubt should not be made a ground for acquittal or reducing the gravity of the offence. The Courts should not shirk the task of grappling with the facts and give definite conclusion of their own and that so long as there is a volume of acceptable evidence and which is sought to be rebutted it is the duty of the magistrate to apply his mind to those facts, analyse the evidence to find out whether the prosecution has affirmatively and satisfactorily proved its case, making use of the defence evidence for the purpose of testing whether the prosecution can be true. Then and then only if there is a reasonable doubt that the offence has not been brought home, beyond moral certainty, in accordance with the merciful jurisprudence which the Courts administer they are bound to give the benefit of the doubt to the accused. In our opinion there is hardly any need to discuss these authorities as they have got no applicability to the facts of the present case. The accused went with the deceased on his persuasion to the forest without any weapon. On the way a wordy-dual ensued between them and the accused was seen by the P. Ws. giving kassi blows to Kesing on the ground where he was seen fallen down and which was covered with snow. He received one injury on the abdomen, which resulted in the rupture of his spleen. The doctor did not make any clear and definite report about the spleen if it was diseased or it was normal. The other injuries were not fatal. The accused gave these blows with the kassi which he got by chance immdeiately after the wordy-duel had ensued and the quarrel was unpremeditated and sudden on a provocation. He did not intend to cause the death and the blows. However, he could be presumed to have the knowledge that death was likely to result by the blow on the abdomen. Hence his case is quite distinguishable from the authorities and does fall within the ambit of Section 304 Part-II.

For the above, the findings of the learned Sessions Judge are modified to the extent that instead of conviction u/s 302, the accused is convicted u/s 304 Part-II and instead of life imprisonment, he is sentenced to five years'' rigorous imprisonment. With this modification in the finding and sentence, the appeal is dismissed.

D.B. Lal, A.C.J.

I agree.