Sua S/o Bhura vs The State of Rajasthan

Appellant - Sua has died during pendency of this

appeal, as such, the appeal to his extent stands abated.

The appeal has arisen out of judgment dated

21.3.1985 rendered by learned Sessions Judge, Tonk in

Sessions Case No.31/1984, whereby the appellant Kailash for

offence u/s 302 IPC and appellant Sua for the offence u/s

302/34 IPC were convicted and each was sentenced to undergo

life imprisonment and to deposit Rs.500/- as fine, in default of

payment thereof, to further undergo six months'' rigorous

imprisonment.

Brief facts of the case are that Ram Sahay (PW-5)

submitted a written report (Ex.P-1) to SHO, Police Station

Uniara on 27.9.1984 at about 8.30 PM to the effect that on the

very day, his father - Bajranga Jat (deceased) went forest to

graze cattle. At about 3.00 PM, Badri (PW-2), Ram Phool (PW-

3) and Bhairu Lal (PW-4) brought his father in unconscious

condition on a bullock cart. Ram Sahai (PW-5) was also with

them. Badri told him that on entering the cattle in agricultural

field of Sua, at about 2.00 PM, Sua and Kailash gave his father

- Bajaranga a severe beating with sticks. Kailash also

strangulated neck of the deceased with his two hands. At the

very moment, they reached there. Accused left his father,

assuming him to be dead, saying that he was damaging our

crop by cattle, we have finished him today. Bajranga was

brought to Uniara on camel cart but he died on the way. On this

information, formal FIR No.91/1984 (Ex.P-2) was registered.

Site was inspected by police. Postmortem was conducted.

Accused were arrested. On information, lathis (sticks) were

recovered by police. After due investigation, chargesheet for

the offence u/s 302 and 302/34 IPC was filed against Kailash

and Sua before learned Chief Judicial Magistrate, Tonk. On

commitment, learned trial court framed charges for offence u/s

302 IPC against accused Kailash and u/s 302/34 IPC against

accused Sua. Both the accused denied the charges and sought

trial. Prosecution examined 10 witnesses and exhibited 22

documents. Accused were examined u/s 313 Cr.P.C . They

denied the evidence adduced by prosecution. Accused Sua

stated that he was not at the place of occurrence at the time of

incident and he is innocent, whereas accused Kailash stated

that he was just 17 years old at that time. When he was

ousting cattle of Bajranga, the latter threw stones, which hurt

him. He has submitted transfer certificate (Ex.D-5) issued by

Government School, Kakod, District Tonk. No witness was

examined on behalf of defence. But, five documents were

exhibited. After hearing arguments, learned trial court passed

the judgment impugned and convicted and sentenced the

appellants, as stated hereinabove.

Learned counsel for the appellant submitted that all

the eye witnesses Badri (PW-2), Ram Phool (PW-3) and Bhairu

Lal (PW-4) are close relatives of the deceased. Their evidence

is doubtful and is not in consonance with medical evidence.

The conviction based on testimony of such witnesses, cannot

be upheld. Prosecution has failed to prove the motive or any

previous enmity. All the injuries mentioned in Ex.P-7

postmortem report, found on the dead body of Bajranga, were

simple in nature. As per opinion of Dr. Subhash Chand Jain

(PW-6), such injuries may occur due to fall. None of them are

on any vital part of the body.

Learned counsel further submitted that as per

prosecution, the occurrence took place at spur of the moment.

Appellant Kailash was aged about 17 years and it is alleged that

he only caught hold neck of the deceased. Absence of motive or

prior enmity and looking to the age of the accused, it will be

too much to attribute the intention to commit murder towards

this accused. The young accused could not have even

knowledge that his act was going to cause death. At the most,

he could be punished u/s 325 IPC or 304 Part II, IPC .

Per contra, learned Public Prosecutor submitted that

when there was no prior enmity, there was no occasion to

impute false allegations by the eye witnesses against the

appellants. Eye witnesses are quite distant in relations with the

deceased. Their presence at the time of occurrence has in no

way found doubtful and even close scrutiny of their testimony

has not yielded any doubt to disbelieve the story of the

prosecution. Thus, learned trial court has rightly relied upon

them.

Learned Public Prosecutor has further submitted that

as per statement of Dr. Subhash Chand Jain (PW-6), the cause

of death was asphyxia due to pressure on neck resulting in

shock and leading to death. As per postmortem report (Ex.P-7),

two bruises have been found on both the sides of neck and

hyoid bone was found fractured. All these injuries found on the

dead body were ante mortem. By relying on the medical

evidence, learned trial court has not committed any error in

holding the appellant Kailash convicted.

Learned Public Prosecutor also submitted that at the

time of occurrence, the appellant Kailash was major. There is no

proof on the record about his being 17 years age.

We have given thoughtful consideration to the rival

submissions and gone through the whole material available on

record.

Badri (PW-2) has admitted in his cross examination

that Bajranga (deceased) was his uncle in third generation.

Ram Phool (PW-3) has admitted in his cross examination that

deceased Bajranga was brother of his father Gopal. Bhairu Lal

(PW-4) has also admitted that Bajranga was his brother. Only

due to relations, evidence rendered by these witnesses, cannot

be disbelieved. It is well settled law that the evidence rendered

by relative witness is to be closely scrutinized, analyzed and

only thereafter should be believed.

In the instant matter, all three eye witnesses - Badri

(PW-2), Ram Phool (PW-3) and Bhairu Lal (PW-4) have

narrated the story in similar manner before the trial court.

Some minor and insignificant contradictions are there.

Omissions of certain facts in deposition before trial court from

their statements recorded by police u/s 161 Cr.P.C . have been

contradicted. But the omissions are of very trivial nature. The

evidence rendered by these witnesses is further corroborated

by the medical evidence, such as postmortem report (Ex.P-7)

and opinion of Dr. Subash Chand Jain (PW-6).

The incident is said to have occurred at 2.00 PM and

information was lodged at about 8.30 PM on the same day.

There is no delay in lodging First Information Report. There is

no major discrepancy in the First Information Report and the

evidence rendered by the eye witnesses.

Dr. Subhash Chand Jain (PW-6) has proved the

postmortem report (Ex.P-7). He has stated that he found

following injuries on the dead body :

Abrasion-1/3" x 1/3" on back of right pinna. 2. Abrasion - 1" x 1/8" on lateral side of left elbow joint. 3. Abrasion - 1/2"x1/3" on medial side of left elbow joint. 4. Bruise - 1"x1/2" on left upper eye lid, inner side. 5. Bruise - 1/2"x1/2" on left lower eye lid, inner side. 6. Abrasion - 1"x1" at lower right left post side, 2" above ankle joint. 7. There is extraction of blood in the subcutaneous tissue of neck, both the sides with Bruise - size 1"x1/2" on right side of neck Bruise - size 1? "x2" on left side of neck. 8. The cornua of hyoid bone is fractured. 14. Dr. Subhash Chand Jain (PW-6) has further stated

that all these injuries were ante mortem. In his opinion, the

cause of death was due to asphyxia due to pressure on neck

resulting in shock and leading to death. He has opined in his

cross examination that neck should have been pressurized with

a single hand but when eye witnesses are saying that Kailash

took hold of the neck of the deceased by both his hands,

learned trial court has rightly not given any importance to this

opinion of the doctor.

As per postmortem report (Ex.P-7), in larynx and

tracheae blood stained froth was seen. The cornua of hyoid

bone was found fractured. Right and left lungs were found

congested showing haemorrhage patches. Right side of the

heart was found fill of dark fluid blood whereas left side of the

heart was empty. Large vessels were full of blood.

While considering the crucial question as to whether

the Medical Officer is reliable and acceptable, in Mulakh Raj &

Ors v/s Satish Kumar & Ors., reported in (1992) 3 SCC 43 Apex

Court observed as follows :

"14. In H.W.V. Cox''s Medical Jurisprudence and Toxicology by Dr Bernard Knight, 5th Edn. in Chapter 1 at p.207 it was stated that strangulation is again a term which is not exact in itself, as there are several types of strangulation, mainly manual strangulation and strangulation by a ligature. Though both these are similar, there are certain differences which are reflected in the pathological findings. Strangulation is not by any means the same thing as asphyxia in fact, a better name would be ''pressure on the neck'', which is used as an alternative description by some pathologists. Regarding manual strangulation and the length of time required to cause death at p.213 it is stated that the length of time for which pressure on the neck must be maintained to cause death is very variable, from Zero seconds to several minutes. In the statement regarding length of time he stated that no dogmatic statement of time of two minutes or three minutes can be made. It is of little practical value as unless a witness is present, there is never any way of determining such times. If, however, there is physical evidence of pressure on the neck from bruises and haemorrhage, but no congestion what soever, then it is certain that death was relatively rapid before these classical signs appeared, due to reflex cardiac arrest. Where death is due to cerebral anoxia from compression of carotid

vessels, then there is usually cyanosis and congestion due to simultaneous blockage of the jugular venous system, though ignorance of time factors make this statement of little practical value. In Taylor''s Medical Jurisprudence it was stated at p. 282 that the amount of pulmonary oedema can be used to estimate the time interval between injury and death. In practice it is seldom of value as it is common experience that the changes described can develop with great rapidity when a patient dies after choking. At p.285, asphyxia by violence, it is stated that if the breathing is interfered with for a sufficient period of time unconsciousness and death will supervene." Apex Court further observed in para No.15 :

"15.xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

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Above study of medical jurisprudence establishes that the symptoms found at postmortem are not uniform but variable depending upon the compression as employed on the neck and duration. It would be an inferential fact since direct evidence would rarely be available. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

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The duration of death also depends on the mode of pressure employed and the circumstances in which constriction was done.

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In the instant matter, eye witnesses are available

and as per their statements, the incident occurred so

instantaneously that they could not get time to intervene and

after giving a quick and sudden strangulation, the accused

Kailash along with other co-accused fled away from the scene

seeing the witnesses approaching and assuming that Bajranga

is dead. The eye witnesses have also stated that Bajranga

became unconscious and died only when he was brought in a

camel cart for medical aid to Uniara. It means Bajranga did

not die immediately. The incident took place at 2.00 PM. The

victim was brought by the witnesses in village at about 3.00

PM and after that when the victim was taken away in a

camel cart to the nearby town Uniara, he died on the way.

From evidence adduced by prosecution, no prior enmity

between the parties is reflected. Only reason of the scuffle

was grazing by cattle of Bajranga in the agricultural fields of

accused. It appears that there was no pre-planning or prior

meeting of the mind, rather the incident occurred at a spur of

the moment. The intention of the culprits cannot be construed

to be of committing murder of Bajranga, rather the intention

appears to be only of teaching a lesson to Bajranga by giving

him a severe beating. Catching hold of neck and putting

pressure over it with the help of hands may result into death

of a person. This fact can be gathered to be in the knowledge

of accused appellant Kailash. Therefore, the offence committed

by the accused appellant Kailash seems to be punishable u/s

304 Part-II and not that of section 302 IPC.

Though a school certificate (Ex.D-5) was exhibited

but the same has not been proved as per law by examining

relevant witnesses. Therefore, it could not be proved by the

defence that at the time of incident, the age of the appellant

Kailash was only 17 years.

Therefore, the appeal is partly allowed. Conviction

of the accused appellant Kailash for the offence u/s 302 IPC is

set aside and he is convicted for the offence u/s 304 Part-II

IPC . For this, the appellant is directed to undergo four years

Simple Imprisonment and fine of Rs.2,000/-. In default of

payment of fine, the accused appellant will further undergo a

sentence of two months'' Simple Imprisonment. The period

during which appellant remained in custody shall be set of

against substantive sentence passed herein.