Parbhu Dusadh and Others vs Emperor

Foster, J.—The appellants are three dusadhs of a part of Gaya town which goes by the name of Ghughri Tanr. They and one Anant, another dusadh, have been accused of having made an attack upon four Mahomedans of the same part of the town, Kalil, Nanhak, Hanif and Kare Khan.

The story commences with a quarrel between the appellants and the boy Kare Khan whose age is about 16 or 17 and who found the accused''s pigs damaging the potato field belonging to the prosecution party, who are of one family. He drove the pigs to the house of the appellant Karu and there remonstrated with him. Then Karu and Mahang who is also an appellant came out and ill-treated the boy whereupon he ran off to his uncle Nanhak and told him what had happened. Shortly after this, at about 5 O'' clock in the afternoon, these four Mahomedans Khalil, Hanif, Nanhak, and Kare went down towards the house of these dusadhs. When they got near the house of Anant Dusadh they met the other dusadhs. Nanhak thereupon began to reproach the dusadhs and very soon there came about an exchange of abuse. Anant had some lathis in his house one of which he gave to Parbhu. It is said that Karu and Mahang had lathis from before.

Thereupon the dusadhs set upon Mahomedans who with the exception of Hanif were unarmed. It is admitted by Hanif that on the way to the place of occurrence he picked up a bamboo and that he, in the course of the fight, struck Karu. I Shall return to that later on.

The result of this encounter was that Khalil was fatally wounded When the authorities came to examine his person it was found that he had a superficial punctured wound on the elbow, three bruises on the shoulder blades and two lacerated wounds on the scalp which had caused a depressed fracture of the skull, Death was caused by shock following the fracture of the skull. This man Khalil died almost immediately after the assault, and it has been found in the trial Court that the assault was committed by all the accused jointly (including Anant who is absconding and therefore has not been put on his trial). The other persons who were assaulted were Nanhak who had several bruises and wounds the most serious of which was a fracture of both bones of his left arm just above the wrist. Hanif had a lacerated wound on his head, a superficial one on his finger and a contusion of the arm. His injuries were all slight.

The learned Sessions Judge has made each of the three appellants liable u/s 325, I.P.C. for voluntarily causing grievous hurt on the person of Khalil the deceased man along with Anant who, as I have said, is not before us. This part of the charge will have to be considered by itself because it admittedly rests upon the principle to be found in Section 24, I.P.C.

The only evidence as regards Khalil is that Anant struck him down with a blow on the head and that the three accused now here in appeal, Parbhu, Karu and Mahang beat him as he lay on the ground. This evidence is, I find, acceptable. There is no doubt from the evidence before us that Khalil died of shock caused by physical injury. A finding of that nature cannot determine) how far the shock was attributable to one or other of his injuries, but it is noticeable in this case that one of the injuries, the fracture of the skull, was excessively severe. But when a man has been struck on the head, land a fracture caused, to surround him and beat him with lathis is, in my opinion, to cause hurt which endangers life. That is the justification, so far as I can see, for the conviction u/s 325, having regard to the definition of grievous hurt to be found in Section 320. So it has come about that each of the accused has been made responsible for the injuries upon the person of Khalil and each of them has been sentenced to two years'' rigorous imprisonment u/s 325, I.P.C. The other sentences are those passed upon Parbhu and Mahan. Parbhu has a sentence of one year''s rigorous imprisonment in respect of an attack upon Nanhak. There is evidence, including the evidence, of the injured man himself, that Parbhu hit Nanhak on the left wrist with a lathi and we know that the left wrist had a double fracture. Nanhak avers that Anant and Parbhu each struck him on the left wrist and again on the back as he ran away. The appellant Mahang has been sentenced to three months'' rigorous imprisonment u/s 323 because of an assault upon Hanif in the course of this conflict. Hanif''s statement is that on going to the spot he picked up a small bamboo and he met the four dusadhs on the road. There was an exchange of abuse between the two parties and Anant went and fetched two lathis. Then the four dusadhs at upon Khalil and Anant struck him on the head. He fell down, and the other three continued the assault. Then Hanif himself came forward and remonstrated and struck Karu on the head with a bamboo. Then Mahang turned and struck Hanif on the head and he fell down. It is because of this assault that Mahang has been sentenced to three months'' rigorous imprisonment.

It will be remembered in connexion with this incident that Karu had a mark on the head when he was arrested. The occurrence was a small one in point of duration and in respect of the numbers involved but it was undoubtedly serious. As soon as Khalil fell down and was further assaulted his death became imminent. Before Khalil died Nanhak had already started on his way to the police station where he lodged the first information. The first information as recorded is not entirely in accord with what we have in Court. The assault upon Nanhak himself and upon Khalil is in fact slightly different in detail from what we have in Court but so far as the main facts are concerned I find no discrepancies that can be made to help the appellants. All three of the present appellants are named, Parbhu, Karu and Mahang. The assault of Mahang upon Hanif is a minor offence and is not described in detail. It is stated, However, that the four dusadhs had assaulted Hanif, and Khalil and Hanif were senseless and were lying gasping on the place of occurrence.

The arguments that have been advanced consist of points which deal with the merits of the various witnesses and their statements. It is remarked that Nanhak has not mentioned that Hanif Game armed to the spot. It is to be remembered that Nanhak at the time must have been in great physical distress and it must not be expected that he would be able to give a very ample statement. There are other omissions in the first information (for instance of the fact that Anant went into the house and fetched lathis) which may also be considered to be unimportant, and in fact quite likely to occur in such circumstances as those described to us by the prosecution. It is urged that the witnesses are interested and connected with the prosecution party. This is no doubt true in some cases, but the learned Sessions Judge has not lost sight of the fact when weighing the evidence. Stress is laid upon the absence of Parmeshwar Teli from the witness-box, he being mentioned in the charge sheet, but the learned advocate for the appellants is unable to inform us what Parmeshwar Teli would have deposed had he come to Court. A more important matter is the omission of Mathura Prasad who, the police officer admits, was an eyewitness to the occurrence. But the politic officer states:

I did not think it necessary to send him up as an eyewitness as there were so many witnesses already.

That appears to us quite a sound reason, unless and until it is shown to be not justified by the facts. As a matter of fact t he sub-inspector himself was the 14th witness to be examined on the side of the prosecution and it is not at all a rule of law that the prosecution party must summon everybody who has seen the occurrence. Ghughri Tanr is, judging by the map, a somewhat populous village and it is highly likely that a large number of persons were eyewitnesses.

It is urged that Dasrath Singh who admittedly was in a shop could not have seen the occurrence, but he states that he came out of the shop to see it. Sukhlal, who is a witness, admits that he was using a toddy tree which belongs to the brother of Nanhak. This, it is suggested, indicates that Sukhlal is a dependant upon Nanhak, but this is not an argument of much substance. He lives only fifty paces from the place of occurrence and it is highly likely that he saw it. There is no reason for discarding his evidence which is corroborated by so many other people of the locality.

Then it is urged that Kare Khan was not able to give any precise statement as to the ownership of the pigs. That may well be expected but it is a fact which will not have much bearing on the present case. Nanhak is the next witness to be attacked. It is pointed out that he admitted in cross-examination a previous conviction for an act of violence. That occurred some 18 years ago and is hardly a reason for discrediting a witness.

It is urged that the Mahomedans must have been armed, and must have attacked the dusadhs; but there is no good evidence on the record to show that any of them but Hanif carried any weapon.

The written statement on behalf of the accused was that these four men came armed with lathis to assault Anant, and when they began to assault him he also assaulted them in self defence. That story, as the learned Sessions Judge points out, is one we can hardly receive, it being found on the evidence that only one of the Mahomedans was armed. Moreover, if the four Mahomedans had been armed and had come to beat Anant, it would be extraordinary to find that Anant would be able to kill Khalil and disable Nanhak and beat Hanif. It seems to me, therefore, that this statement, if used, besides having no evidence to support it is not in accordance with the probabilities. Incidentally it may be mentioned here that the plea of defence of person was raised, but from the finding as to what actually happened, namely, that the Mahomedans except Hanif did not carry arms, it would appear that there was no room for a plea of defence of person. As to defence of property, the suggestion is that the party was approaching the house of Anant but that does not at all amount to a sufficient basis for a plea of defence of property. Section 105, I.P.C., is sufficient indication of the inadequacy of this argument.

The learned advocate has also questioned the correctness from the legal point of view of the judgment of the Sessions Judge where he has found all the accused guilty of the assault upon Khalil after coming to the conclusion that they had a common intention to beat the Mahomedans. But the appellants must be judged to have the intention that is indicated by their proved acts. They took their lathis and they surrounded Khalil and killed him and in such circumstances it is impossible not to arrive at the conclusion that they assaulted Khalil with the common intention of beating him at the time and in. circumstances when it was dangerous to Khalil''s life to beat him.

The last point taken is in regard to the sentences. It is suggested that the principal assault upon Khalil having been that of the absent Anant it is hard that the present appellants should be made to bear so large a burden in respect of that offence. It seems to me that the appellants must be deemed to be guilty of a serious assault. The injuries on the person of Khalil were due to their assault and it appears to me that the sentences are not severe in the circumstances and that the appellants were rightly convicted. I would dismiss this appeal.

Dawson-Miller, C.J.

I agree.