State of Haryana vs Bahadur and ors.

A.L. Bahri, J.

Vide this order on Criminal Appeal No. 548 DBA of 1986, filed by State of Haryana against Bahadur and others and Crl Appeal No. 257 SB of 1986, filed by Bahadur and Gopi Ram accused, and Crl Revision No. 1221 of 1986, filed by the complainant Bahadur Singh and others are being disposed of.

Sessions Judge, Hissar, on April 4, 1986, acquitted the three accused; Bahadur, Gopi Ram and Ram Karan of the charge framed under section 302 read with Section 34, Indian Penal Code. However, he convicted Bahadur and Gopi under section 304, read with Section 34, Indian Penal Code. Two accused Bahadur and Gopi were further convicted under section 324 with section 34, Indian Penal Code. The third accused Ram Karan was, however, acquitted of all the charges. Bahadur and Gopi accused were sentenced to undergo rigorous imprisonment for 10 years under sec. 304 (1) read with section 34, Indian Penal Code and one year''s rigorous imprisonment under section 324 read with section 34, Indian Penal Code. Both the sentences were ordered to run concurrently. State of Haryana and Vijay Singh complainant challenged the aforesaid order on the ground that offence committed was made out under section 30. Indian Penal Code, and that acquittal of Ram Karan accused was uncalled for. In the appeal filed by Bahadur and Gopi accused conviction and sentence, as awarded by the Sessions Judge, are under challenge.

In the concurrence which took place on June 20, 1985, in the area of village Gangua, Bhup Singh and Vijay Singh suffered injuries at the hands of the three accused, namely Bahadur, Gopi Ram and Ram Karan. Ultimately Bhup Singh as a result of the injuries suffered died on July, 13, 1985. The prosecution story, as divulged by Vijay Singh PW in the First Information Report is briefly as under.

Bahadur and Gopi Ram accused who are sons of Ram Karan accused, worked as Liquor Contractors in village Gangua. They are Kumhar by caste. They used to sell liquor to their customers, at their house and the customers, after consuming liquor, used to pass in front of the house of Vijay Singh making noises and hurling filthy abuses. A day before the occurrence, at about 9.00 p.m. being fed up with the situation as above. Vijay Singh lodged a protest with Bahadur accused who, on that, became furious and threatened him. On the day of occurrence at about 5.00 p.m. when Vijay Singh came out of his house in the street, he found Ram Karam accused armed with a stick, Bahadur with a Kulhari and Gopi with Kasaula, standing in front of his house. Gopi accused opened the attack hitting Kulhari on the right arm of Vijay Singh. On alarm being raised, Bhup Singh son of Vijay Singh came out of the house and in order to rescue Vijay Singh laid himself on his person, Bahadur accused inflicted two injuries with the kulhari hitting on the head of Bhup Singh. In the mean`time Hamir Singh and Indra Singh, another son of Vijay Singh, came to the spot. When they tried to intervene, Ram Karan accused give a stick blow hitting Bhup Singh on his right arm and another blow on the right temple of Vijay Singh. After the attack the accused persons went away with their respective weapons stating that a lesson was taught for preventing them from selling and serving liquor to the people. Bhup Singh was taken to Civil Hospital, Hissar, on a threewheeler, where Vijay Singh made a report to the police.

Initially a case was registered under sections 326, 324, 323 read with section 34 of the Indian Penal Code, however, after the death of Bhup Singh the offence was converted to 302 of the Indian Penal Code.

In order to establish different charges framed against the accused, the prosecution produced medical evidence, ocular evidence and the evidence of recovery of weapons which were found to be stained with human blood as well as evidence of recovery of blood stained earth from the spot. The three accused pleaded innocence, taking up the stand that some unidentified assailants caused injuries to Bhup Singh and Vijay Singh. An opportunity to produce evidence in defence was afforded to the accused but no evidence was produced.

In the present case the prosecution has produced two of the eye witnesses PW 8 Vijay Singh and PW 9 Indra Singh. Out of them Vijay Singh PW suffered injuries in the occurrence. No doubt Vijay Singh and Indraj Pws are closely related to the deceased Bhup Singh but their presence at the time of the occurrence just outside their own house was most natural. On perusal of their statement coupled with other circumstantial evidence, to be discussed later, we are of the firm view that these two witnesses are straight forward and truthful witnesses and have stood the test of crossexamination. Nothing was brought on the record to discredit their testimony. Vijay Singh PW 8 his deposed about the prosecution version as briefly stated above. He has categorically stated that a day before the occurrence he had lodged a protest with Bahadur and Ram Karan accused that they were selling liquor at their house and the behaviour of the persons, taking liquor there became rude and noisy in front of the house, which was intolerable. Bahadur accused had threatened to see them on the following day. This version is supported by Indraj PW 9. The evidence of this witness is also consistent with respect to the manner of occurrence as already described above. The recovery of blood stained earth origin of which was found to be of human, further fixes the spot of occurrence. The nature of the injuries found corroborate the prosecution version. These witnesses who are closely related to the deceased would not allow real culprits to escape and rope in the accused in their places. However, possibility of implicating more persons than actually had participated cannot be ruled out. The prosecution has proved the aforesaid motive for the crime. Otherwise nothing was brought out from the evidence of these two witnesses or from other evidence as to why the accused would be falsely involved in the case by these prosecution witnesses. Another corroborative piece of evidence is the statement of the deceased Bhup Singh Exhibit PX recorded by PW 11 Kashmiri Lal S.I. after getting fitness certificate Exhibit PU/5 from PW 10 M.R. Sapra. Though Exhibit PX was not signed by Bhup Singh, yet the same was rightly admitted into evidence and relied by the Sessions Judge in view of Section 2 of the Evidence Act. Version therein is inconsistent with the prosecution story.

The important question for consideration is about the cause of death of Bhup Singh. As already noticed above, the occurrence took place on June 20, 1985, whereas Bhup Singh died on July, 13, 1985 i.e. after about 22 days. PW 1 K.N. Mittal had simply advised X ray after examination of Bhup Singh on June 21, 1985. Exhibit PA is the bed head ticket of Bhup Singh. PW 4 Dr. Abha Kulshresta medico legally examined Bhup Singh on June 20, 1985 at 6.10 p.m. and found the following three injuries :

1) Linear incised wound about 6 cms. over the right side of the head on the top extending 8" from left eye brow medial side. Skin had sharpedged and bone below the skin was also cut. Brain matter could be seen along the lining of the bone. Bleeding was present from the wound.

2) Linear incised wound, about 61/2" long, 1" towards the first injury. Bleeding was present from the wound. Edges were red and inverted. Advised Xray of skull.

3) Swelling on the right elbow joint. Advised Xray in continuation of injury No. 1, movement of the left hand was not present.

Injury No. 1 was grievous. The other two injuries were kept under observation. Probable duration of the injuries was opined to be within 6 hours. Injuries Nos. 1 and 2 were caused by sharp edged weapon an injury No. 3 by blunt weapon copy of the medico legal report is Ext. PE. According to the opinion of the doctor Exhibit PF injuries Nos. 1 and 2 were dangerous to life. These injuries could be caused with KulhariExt. P.1. During cross examination an effort was made to bring on the record that the word `incised'' against injuries Nos. 1 and 2 of Bhup Singh was added later on. However, the effort is not successful. Injuries No. 1 and 2 were described as `linear incised wounds". Injury No. 1 was further described that its skin had sharp edges and bone below the skin was also cut. No doubt is left after going through the medical evidence aforesaid that injuries Nos. 1 and 2 on Bhup Singh could be caused with the blade of the kulkari. PW 5 Dr. Surinder Singh conducted post mortem on the dead body of Bhup Singh on July 13, 1985. By that time the injuries inflicted mostly had been healed apparently. After describing the damage caused beneath the injuries the doctor opined that the cause of death was brain abscess as a result of brain laceration caused by injury No. 1 mentioned in the post mortem report which was sufficient to cause death in the ordinary course of nature. Exhibit PL is the copy of the post mortem report. According to the doctor injury No. 1 was possible with the axe Exhibit P1 (kulhari). He further gave the opinion that the injury could be of 23 days duration. During the cross examination he further stated that the brain access which was the cause the death was due to infection of the brain which could be possible due to inadequate treatment. The brain matter which was coming out was already infected. His further opinion was that if proper neuro surgery had been done the patient''s life could have been saved. He clarified that the brain abscess had been caused as a result of brain laceration which was due to compound fracture found in injury No. 1. From the perusal of the medical evidence aforesaid no manner of doubt is left that cause of death of Bhup Singh was injury No. 1. No doubt the doctor gave the opinion that if better treatment had been provided by neuro surgery, the life of the patient could have been saved. From this it can to be inferred that the death was not due to the injury inflicted. Explanation 2 to Section 299, I.P.C. read as under :

"Explanation 2 : Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although be resorting to proper remedies and skillful treatment the death might have been prevented."

In fact the injury caused to the skull was so severe that after cutting the skull it had damaged the brain. It was brain laceration which had caused abscess which ultimately resulted in causing the death. Even if no treatment had been given, the death would have occurred because of the nature of the injury inflicted on the skull. The doctor had rightly opined that such an injury was sufficient in the ordinary course of nature to cause death. Thus, it is a case where the accused duly armed with deadly weapons like kulkhari had come in front of the house of the deceased and opened the attack on appearance of Vijay Singh and when Bhup Singh tried to rescue him by lying over him, attacking him also and the injury caused to him ultimately proved to be fatal. Not only one but two injuries with the kulhari were caused in a successive repetition, from which intention of the assailant was apparent that he intended to kill. Otherwise also in view of the circumstances discussed above the assailant intended to cause such bodily injury, which he knew was likely to cause death. The accused thus committed culpable homicide which amounted to murder. The case is not covered by any of the Exceptions provided to Section 300 of the Indian Penal Code. Sessions Judge has not given any reasons, much less cogent, to take out the case from the purview of Section 299 of the Indian Penal Code, while recording conviction under section 304 Part I, Indian Penal Code. If the case had fallen in any of the Exceptions of Section 300 of the Indian Penal Code, the offence made out would have been under section 304 Part I or II of the Indian Penal Code. Otherwise, if the cause of death was the injury or injuries, the offence made out would be of culpable homicide amounting to murder. The provision of Section 304 Part I of the Indian Penal Code would, thus, be not applicable to the case in hand and the offence made out would be culpable homicide amounting to murder.

The case of the accused in their appeal that offence made out would only be grievous hurt covered by section 326, Indian Penal Code, and not under section 302 or 304 Part I, Indian Penal Code, can not be accepted, for the simple reason that cause of death having been established to be injury inflicted on the head of Bhup Singh, which was sufficient to cause death.

On the person of Vijay Singh, on medicolegal examination, PW 4 Abha Kulshresta found the following two injuries :

1) Incised wound of 2" x 1.5" on right forearm elbow joint on its lateral aspect. Subcutaneous tissues were present. Swelling and tenderness was also present. Advised Eray.

2) Reddish diffused swelling was present 21/2" X 2" on the right temple just in front of the right ear. The patient was fully conscious. B P. 160/80. Pulse 88 per minute. Pupils were normal.

Injury No. 1 was caused by sharpedged weapon and injury No. 2 by blunt weapon, as opined. Exhibit PG is the copy of the mediclegal report. PW 2 Dr. R P. Singla conducted Xray on the elbow and skull of Vijay Singh. However, no bone injury was noticed. Xray report is Exhibit PB. That being the position the injuries found on Vijay Singh would be treated as simple. Since they were caused by sharpedged weapon, the offence made out would be under Section 324, Indian Penal Code. Sessions Judge also rightly held so.

Ram Karan accused was acquitted by the Sessions Judge. He was alleged to have been armed with a stick and caused injuries to the deceased. No doubt, one Bhup Singh deceased swelling on the right elbowjoint was noticed which was under injury No. 1 and described as injury No. 3, as found by PW 4 Dr. Abha Kulshreshta Sessions Judge rightly came to the conclusion that the injury of the type mentioned as injury No. 3 could be caused by a fall and Bhup Singh as per prosecution case did have a fall. Likewise on the person of Vijay Singh, injury No. 2 was a reddish diffused swelling which could also be caused by having a fall and as per prosecution case Vijay Singh had fallen on the ground to cover Bhup Singh. The case projected in the grounds of appeal filed by the State as well as in the revision petition filed by the complainant is that the entire prosecution story as put forth could have been accepted and Ram Karan accused could also be held guilty as ocular evidence of the eye witnesses finds corroboration from the medical evidence and the evidence of recovery of stick form the possession of Ram Karan accused. While dealing with the appeal against the order of acquittal merely on the ground that the appellate Court could come to a different conclusion on appreciation of the evidence is not enough to reverse order of acquittal. The question for consideration is as to whether the opinion formed by the Sessions Judge on consideration of the evidence produced is plausible. If the answer is in the affirmative, such a view is not to be reversed on appeal. If the view expressed by the trial court is preverse and could not be formed on appraisal of the evidence, the appellate Court could interfere therewith. After reading the evidence produced in this case and the reasoning adopted by the Sessions Judge in acquitting Ram Karan accused, we do not find any cogent ground to interfere with the opinion expressed by the Sessions Judge in this respect. The acquittal of Ram Karan accused is, therefore, maintained.

Since Bahadur and Gopi Ram had come together duly armed with weapons like kulkhari and kasaula, after there was an altercation earlier and a threat had been issued to Vijay Singh and they attacked Vijay Singh as well as Bhup Singh, the provisions of Section 34 of the Indian Penal Code were attracted to the case. The Sessions Judge rightly held so.

This case was taken up for hearing after the case was posted for hearing in the list published indicating names of the lawyers of the accused representing them. Since they have not come to argue the appeal presumably on account of a call given by the Bar Association to abstain from the Courts, we have ourselves gone through the records and decided to dispose of the appeals on merit in view of Ss. 385 & 386 of the Code of Criminal Procedure, for the detailed reasons recorded in Cri. Appeal No. 139DBA of 1986, State of Haryana Versus Rai Sahib and others, dealing with the right of lawyers to appear in the cases in which they are engaged and consequences for their non appearance that the appeal could be taken up for hearing as issuing of the list showing the case in hand with names of the advocates will not debar the Court from deciding the appeal, the present appeal was taken up for hearing and is being disposed of as such. If the Public Prosecutor had appeared and addressed the Court, his contentions could have been noticed. Likewise, if counsel for the accused had appeared and addressed the Court, such contentions could have been taken up for consideration. That was what was required to be done under section 386 of the Code of Criminal Procedure. Since the Government Advocate and counsel for the accused have not put in appearance, we have gone through the entire record and dispose of the appeal without their assistance.

For the reasons recorded above, Crl Appeal No. 548DBA of 1986 and Crl. Revision No. 1221 of 1986 are allowed whereas Crl. Appeal No. 257SB of 1986 filed by Bahadur and Gopi Ram accused is dismissed. The net result would be that Bahadur accused stands convicted under section 302 of the Indian Penal Code for committing murder of Bhup Singh and Gopi Ram accused stands convicted under section 302 read with section 34, Indian Penal Code, on this count. Gopi Ram accused is convicted under section 324 of the Indian Penal Code for causing hurt to Vijay Singh and Bahadur accused under section 324 read with section 34, Indian Penal Code, on this count. Both these accused are sentenced to undergo life imprisonment under section 3o2 and 302 read with section 34, Indian Penal Code, for committing murder of Bhup Singh and to pay a fine of Rs. 10,000/, or in default of payment of fine each of the defaulters shall undergo rigorous imprisonment for two years. Out of the fine, if recovered, a sum of Rs. 10,000/ would be paid to the legal heirs of Bhup Singh deceased. The sentence awarded by the Sessions Judge under section 324 read with Section 34 of the Indian Penal Code of rigorous imprisonment of one year to each of the accused is maintained. Both the sentences would run concurrently.

JUDGMENT accordingly.