JUDGMENT
Khem Chand Sharma, J.
1. These two criminal appeals, one by appellant Shyam Bihari @ Deena and another by appellants Babulal and others arise out of the judgment and order dated 2.2.99 passed by the Additional Sessions Judge, Chhabra, district Baran, thereby convicting and sentencing the accused appellants in the following manner:
Appellants Shyam Bihari @ Deena :
Under Section 302 IPC: to undergo life imprisonment and to pay a fine of Rs.
1000/-. In default of payment of fine to further
undergo six months simple imprisonment.
Under Section 324 IPC: to undergo simple imprisonment for one year and to
pay a fine of Rs. 500/-. In default of payment of fine
to further undergo three months’ imprisonment.
Appellant Rajendra
Under Section 324 IPC: to undergo simple imprisonment for one year and to
pay fine of Rs. 500A. In default of payment of fine to
further undergo simple imprisonment for three
months.
Under Section 323 IPC: to undergo simple imprisonment for six months and
to pay a fine of Rs. 200/-. In default of payment of fine
to further undergo simple imprisonment for 15 days.
Appellant Babu Lal
Under Section 323 IPC: to undergo simple imprisonment for one year and to
pay a fine of Rs. 200/-. In default of payment of fine
to further undergo simple imprisonment for 15 days.
Appellant Santosh Bai @ Shanti
Under Section 325 IPC: to undergo simple imprisonment for two years
and to pay a fine of Rs. 500/-. In default of payment of fine
to further undergo simple imprisonment for six
months.
2. Substantive sentences have been ordered to run concurrently.
3. Since both the appeals arise out of one and the same judgment in Sessions Case No. 89/96, they are being disposed of by a common judgment.
4. The relevant facts leading to these criminal appeals are summarised as follows:
5. On 3.7.96 at 3.30 PM, one Jagannath (PW5) lodged a report, Ex.P14 at Police Station, Atru (Baran), alleging therein that there was enmity between the complainant party and accused Shyam Bihari and others in regard to some house. At about 1.30 PM on the day of incident, the complainant and his brother Ram Bharose were going to their father at another house. Ram Bharose was ahead the complainant. Soon Bharose reached in front of the house, the accused Shyam Bihari, Kanhaiyalal, Babu Lal, Rajendra Kumar, Mst. Gulab Bai and Mst. Shanti encircled him. Appellant Shyam Bihari with an intention to kill Ram Bharose, inflicted sword blow, which hit on his head and as a result thereof, he fell down. After Ram Bharose fell down, accused Shyam Bihari struck two more blows by sword on his head. Babulal and Rajendra started giving blows by sticks while other accused gave fists and leg blows. The complainant alleged that when he rushed to save his brother, accused Shyam Bihari inflicted a sword blow on his head, while Babu Lal inflicted stick blow on his head and Rajendra inflicted stick blow on his left shoulder. Accused Shanti hit stone on his back. Other accused also belaboured him after he fell down. According to the complainant, his wife Ramkanya, Bhabhi Ramnathi, niece Sumitra, Bhabhi Kailash Bai and niece Chandrakala came there to their rescue but the accused did not spare them and beat them with their respective weapons. The complainant alleged that accused also belaboured his parents.
6. On the above written report, police registered a criminal case vide FIR, Ex.P.15 for offence under Sections 147, 148, 307, 324, 323 and 149 IPC and proceeded with the investigation. In the course of investigation, police visited the site and prepared site plan, Ex.P.16 and seized blood smeared and controlled soil from the place of incident vide memo Ex.P.22.
7. All the injured were subjected to medical examination. As per injury report Ex.P.3, 5 injuries were found on the person of Ram Bharose, which are stated below:
1. Incised wound (bony deep) 3″ x 1/2″ x 1/2″ obliquely present on the Rt. fronto parietal region of scalp;
2. Incised wound (bony deep) 2″ x 1/2″ x 1/2″. obliquely present on the left parietal region near left ear Pinna;
3. Incised wound (bony deep) 2-1/2″ x 1/2″ x 1/2″ vertically present on the left occipital region of scalp;
4. Incised wound 1″ x 1/4″ x 1/4″ present on the central aspect of left elbow joint and
5. Black eye difrigmentation, as a whole eye, present on right eye as a whole.
8. Injuries No. 1 to 4 were caused by sharp weapon, while injury No. 5 was caused by blunt object.
9. As per injury report, Ex.P4, injured Ganeshi Bai had no visible injury except pain on left arm and right arm. Injured Chandrakaia sustained two bruises by blunt object and both were simple in nature. Mst. Kailash Bai sustained one bruise by blunt and this injury as per report Ex.P.6 was simple in nature. As per injury report Ex.P.7, there were three injuries on the person of Mst. Ramkanya. All were caused by blunt object and were simple in nature.
10. Complainant Jagannath sustained five injuries, two by sharp weapon and rest by blunt object and all the five injuries, as per injury report Ex.P.8 were found to be simple in nature. As per injury report Ex.P.9 Injured Mst. Sumitra had two injuries on her person, one was by sharp and another by object. Both injuries were simple in nature. As per injury report Ex.P.10, Mst. Ramnathi sustained two simple injuries. Injured Devlal sustained two injuries by blunt object. X-ray was advised for injury No. 1 and as per X-ray report (Ex.P12) fracture of left femur was found present.
11. On the next day of incident, injured Ram Bharose scummbed to the injuries and accordingly, the police added Section 302 IPC. PW 23 Dr. G.S. Visnar conducted autopsy on the dead body. On examination, the doctor found following injuries:
1. Incised wound 3-1/2″ x 1/2″ x bone deep longitudinally on right parietal scalp.
2. Lacerated wound 3/4″ x 1/4″ x bone deep on occipital.
3. Abrasion 1/4″ x 1/6″ forehead right side with black eye right.
4. Abrasion 1/2″ x 1/2″ in front of right ear.
5. Abrasion 3/4″ x 1/8″ just below right knee enteriorly.
12. Fracture of right parietal scalp was noticed, fn the opinion of doctor, the cause of death was coma brought about as a result of ante mortem head injury as mentioned above, sufficient in the ordinary course of nature to cause death.
13. The investigating agency arrested accused Kanhaiya Lal, Shyam Bihari, Shanti Bai W/O Babulal, Babulal, Rajendra, Gulab Bai vide arrest memos Exs.P33 to P38 respectively. All the accused furnished informations (Exs.P39 to P.44) under Section 27 of the Evidence Act regarding recovery of respective weapons which they used in the commission of crime. Pursuant to their informations, the investigating agency recovered/seized one Kharla (Moondia) at the instance of accused Santosh @ Shanti vide memo Ex.P. 18. The Sword was recovered at the instance of accused Shyam Bihari vide memo Ex.P19, while one Kuntiya, stick and stick were recovered at the instances of accused Kanhaiyalal, Rajendra and Babu Lal vide memos Exs.P20, 21 and 17, respectively. The investigating agency also seized the blood stained clothes of the deceased and the injured. Inquest memo, Ex.P1 was prepared. The recovered and seized articles were sent for examination. The FSL report, Ex.P46 indicates presence of human blood on the clothes of deceased and injured persons.
14. After completion of investigation, the police submitted a charge sheet against the accused in the court of Judicial Magistrate, Atru. The learned Magistrate, having found the offence exclusively triable by the court of Sessions, committed the case to the court of Sessions.
15. The learned trial Court, on the basis of evidence and material collected during investigation and produced before it and after hearing counsel for the parties, framed charges against the accused persons. The accused denied the charges and claimed trial.
16. The prosecution, in order to prove its case examined as many as 28 witnesses and got exhibited some documents. The accused were then examined under Section 313 Cr.P.C. Accused Shyam Bihari and Babulal examined themselves as DW1 and DW2 respectively.
17. At the conclusion of trial, the learned trial court, vide its impugned judgment, while acquitting accused Mst. Gulab Bai and Kanhaiyalal convicted and sentenced the accused appellants in the manner stated hereinabove. Hence, these two appeals against conviction.
18. We have heard learned counsel for the parties and carefully gone through the impugned judgment and the evidence on record.
19. In assailing the conviction, Mr. Sirohi, learned counsel appearing for the appellants has vehemently contended that the learned trial court has seriously erred in holding the appellants guilty without there being any evidence. Learned counsel argued that three persons namely Nelson, Chaturbhuj and Chotu have been named in the FIR, as independent witnesses of the occurrence. But the prosecution has not examined Chaturbhuj and rest of the witnesses have not supported the prosecution case. Learned counsel further argued that other eye witnesses of the incident are highly interested witnesses being relative and family members of the deceased. Thus, according to him, conviction based, on the evidence of such interested witnesses is not legally sustainable.
20. We have considered the above argument. The names of PW13 Chotu, PW18 Nelson and one Chaturbhuj have been mentioned in the FIR as independent eye witnesses of the incident. It is true that Chaturbhuj named as an eye witness of the incident in the FIR has not been examined. But PW13 Chotu though has been declared hostile, yet he admitted the incident, his presence at the time and place of incident, the death of Rambharose in the incident and the injuries sustained by Devlal, Sumitra, Jagannath and others in the course of incident. According to PW13 Chotu, he could not see the beating due to presence of large number of persons at the time and place of incident. Similarly, PW18 Nelson in his statement though could not specify the exact role of the appellants, but categorically stated that the incident occurred in front of the house of Kanhaiyalal, where family members of Kanhaiyalal viz., his sons and their wives were stationed prior to the incident, duly armed with weapons. Undoubtedly, PW18 Nelson could not name the appellants, but he identified the appellants in the court as assailants. He categorically stated that the appellants encircled Ram Bharose and belaboured him. He further deposed that appellants also gave beating to Jagannath, brother of deceased as also father of the deceased and the family members of complainant side. In these circumstances, the argument of the learned counsel that independent witnesses have not supported the case, is devoid of merit.
21. No doubt true that other eye witnesses of the incident are family members of the deceased, but this fact alone is not sufficient to discard their testimony. Undisputedly, the other eye witnesses of the incident who are family members of the deceased have sustained injuries at the hands of appellants in the course of incident and the injuries sustained by them stand fully proved by their injury reports and the evidence of doctor. Therefore, their presence at the time and place of incident cannot be doubted. Normally, close relatives of the deceased are not likely to falsely implicate a person in the incident leading to death of a relative, unless there are very strong and cogent reasons to accept such criticism. Having scanned the entire evidence available on record we have not been able to find concrete or substantial to castigate their version or condemn their evidence. Injured eye witness Jagannath lodged the report of the incident just after two hours of the incident and that too after covering a distance of about 9 Kms so as to reach the Police Station. In our considered View prompt lodging of FIR completely expels the opportunity for any possible concoction of a false version of the incident. A glance of the statements of PW5 Jagannath, PW12 Dev Lal, PW15 Ramnathi, PW19 Kailash Bai, PW20 Chandrakala and PW16 Sumitra depicts that appellant Shyam Bihari inflicted sword blows on the head of Ram Bharose deceased and on the head of Jagannath. Mst. Shanti Bai inflicted blow on the left buttock of Devilal by blunt weapon which resulted in grevious injury. Rajendra inflicted blow on the head of Sumitra by Sharp edged weapon. Appellants Rajendra and Babulal also inflicted simple injuries by blunt weapon on the person of Jagannath. In these circumstances, the testimony of the above eye witnesses appears to be convincing and consistent. The totality of the evidence creates a confidence of acceptability. That apart, the testimony of these eye witnesses, who are said to be interested as being close relatives of the deceased, further finds corroboration by the evidence of independent eye witnesses Chotu and Nelson as also the medical evidence.
22. It is next contended by the learned counsel for the appellants that there is serious discrepency between the injury report and the post mortem report of deceased. He argued that the post mortem report reveals only one incised wound on the head of deceased, while the injury report reveals 3 incised wounds on the head of deceased. Thus in the light of there being conflict in the opinion of doctors as regards injuries on the person of deceased, appellant Shyam Bihari cannot be held responsible for causing death of deceased and his conviction under Section 302 IPC simplicitor is liable to be set aside.
23. We have given our thoughtful consideration to the above argument. Dr. R.C. Meena, who examined the injured has categorically deposed that he noticed incised wound bone deep 3″ x 1/2″ x 1/2″ obliquely present on the right fronto parietal region of scalp. Dr. Visnar who conducted autopsy also noticed incised wound 3-1/2″x 1/2″ x bone deep longitudinally on right parietal scalp. Therefore, there cannot be said to be any conflict in the opinion of two doctors as regards the incised wound found on the right parietal region of deceased. Thus, in the facts and circumstances of the case, conflict in the opinion of two doctors as regards number of incised wounds is of no consequence, specially when eye witnesses of the incident have categorically deposed that appellant Shyam Bihari inflicted sword blow on the head of deceased Ram Bharose.
24. The third argument advanced by the learned counsel for the appellant is that the prosecution has failed to offer any explanation as regards the injuries sustained by the members of accused party. According to the learned counsel, the complainant party was aggressor and the members of the complainant party gave beating to the members of the accused party, of which FIR No. 198/96 was lodged. The injuries, if any caused to the members of the complainant party at the hands of accused, were caused in exercise of their right of private defence,
25. It appears from the statement of Dr. R.C. Meena that on examination, he found lacerated wound on occipital region, abrasion on left ear and bruise on right arm of appellant Shyam Bihari, which were simple in nature. He also noticed lacerated wounds on left side of skull of Kanhaiya Lal, one bruise on back of shoulder of Shanti Bai, one lacerated wound and swelling on head, left hand and finger of Gulab Bai and swelling on right hand of Rajendra. Doctor opined that injuries sustained by the above injured persons were simple in nature and caused by blunt weapon. DW1 Shyam Bihari has deposed that Devlal came at the Chabutra of his house and started quarelling with his father. Thereafter, Ramnathi, Ramkanya etc. came there. Devlal directed Ramkanya to call his sons. Then Jagannath came armed with lathi and inflicted lathi blow on his right arm. Jagannath, Rambharose and female members threw stones on him. Thereafter members of both the sides threw stones. He saw Rambharose lying on stones smeared with blood. He lodged the report. DW2 Babulal has deposed that at the time of incident he was not present. On the strength of above evidence, learned counsel for the appellants has contended that the complainant party was agressor and the members of accused party sustained injuries in the incident and the prosecution has utterly failed to explain the injuries sustained by the accused persons. Therefore, injuries, if any were caused to the members of the complainant party by the appellants in exercise of their right of private defence. In our considered view, it cannot be laid down as an invariable proposition of law of universal application that whenever the injuries are found on the body of accused persons, a presumption must necessarily be drawn that accused persons had caused injuries in exercise of the right of private defence. The defence has to establish that the injuries so caused on the accused probabilised the version of the right of private defence. The consistent case of the prosecution proved by the evidence is that when Rambharose was on way to the house of his father, the accused appellant intercepted, waylaid and encircled him and appellant Shyam Bihari inflicted sword blow on his head. Undisputedly, Ram Bharose was empty handed and was in a helpless condition. Therefore, in our considered view, the appellants were agressors and have no right of private defence. Viciousness and extent of injuries inflicted on the victims compared with the injuries suffered by the accused belies the plea of self defence.
26. Now coming to the question of affect of non-explanation of injuries of accused, suffice it to say that failure to explain the injuries on the person of accused ipso facto cannot be said to be fatal to the prosecution if the evidence led by the prosecution is otherwise clear, cogent and trustworthy. In other words, non-explanation of injuries on the person of accused lose its importance where evidence is clear, cogent and creditworthy and where the court can distinguish the truth from falsehood. In the case at hand, the prosecution by adducing clear, cogent and creditworthy evidence has been able to prove beyond doubt that appellants were aggressors and appellant Shyam Bihari struck a sword blow on the head of Ram Bharose and other appellants belaboured the injured. Therefore, reasonable inference which could be drawn in the facts and circumstances of the case is that accused received injuries during the course of occurrence and that some members of the complainant side counter attacked the assailants and caused injuries to the appellants. It may be reiterated that the argument of the learned counsel that the appellants caused injuries to the deceased and injured in exercise of right of their private defence being devoid of merit, stands rejected. Even otherwise, a glance at the injury report of appellant indicates that injuries were superficial and could be caused even by fall. In this view of the matter I do not find any evidence on record to probabilise such defence.
27. Having concluded that Shyam Bihari inflicted solitary blow on the head of deceased by sword, the question which now emerges for our consideration is as to what offence is made out against him. Learned counsel for the appellant contended that offence, if any made out against appellant Shyam Bihari, does not travel beyond Section 304 Part II IPC, as he alleged to have inflicted single sword blow on the head of deceased and did not repeat the same and, therefore, he had no intention to cause death of the deceased.
28. We have given our anxious consideration to the above argument. While dealing with a case of single injury, the Hon’ble Supreme Court in Jagrup Singh v. State of Haryana (1), observed that there is no justification for the assertion that the giving of a solitary blow on a vital part of the body resulting in death must always necessarily reduce the offence to culpable homicide not amounting to murder punishable under Section 304, Part II of the Code. If a man deliberately strikes another on the head with a heavy log of wood or an iron rod or even a lathi so as to cause a fracture of skull, he must to the absence of any circumstances negativing the presumption, be deemed to have intended to cause death of the victim or such bodily injury as is sufficient to cause death. The whole thing depends upon the intention to cause death, and the case may be covered by either Clause Firstly or Clause Thirdly. The nature of intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon the death.
29. The Apex Court again had an opportunity to examine the issue in the case of State of Karnataka v. Vedanayagam (2), and observed that it is fallacious to contend that wherever there is a single injury only a case of culpable homicide is made out irrespective of other circumstances.
30. The scope of Clause Thirdly of Section 300 IPC had been the subject matter of decision of the Apex Court in Virsa Singh v. State of Punjab (3), and on analysing clause thirdly, it was held in the case as under:
“Firstly, it must establish, quite objectively, that a bodily injury is present,
Secondly, the nature of the injury must be proved; these are purely objective investigations,
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended,
Once these three elements are proved to be present, the enquiry proceeds further and,
Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender”.
31. As to how the intention is to be inferred even in a case of single injury, it was further held by their Lordships:
“The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or, it inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of the fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question”.
32. In the case at hand, undisputely, appellant Shyam Bihari inflicted only one injury by sharp weapon i.e. sword on the person of deceased. The part of the body selected for causing injury was the head of deceased. A glance at the post mortem report indicates that there was incised wound 3-1/2″ x 1/2″ x bone deep longitudinally on right parietal scalp and fracture of right parietal scalp was noticed. PW23 Dr. G.S. Visnar, who conducted autopsy on the dead body has categorically deposed that the cause of death was coma brought about as a result of ante- mortem head injury as mentioned in the post mortem report and this injury was sufficient in the ordinary course of nature to cause death. In view of the nature of injury whereby fracture of right parietal scalp was caused and when the doctor clearly opined that death was caused due to coma brought about as a result of antemortem head injury, undoubtedly it can be reasonably inferred therefrom that such a solitary injury inflicted upon the deceased was sufficient to cause death in the ordinary course of nature. This circumstance alone would show that appellant Shyam Bihari intentionally inflicted the injury and the infliction of such injury would indicate such a state of mind of appellant Shyam Bihari that he aimed and inflicted the injury with a deadly weapon viz., the sword. In the absence of evidence or reasonable explanation to show that appellant Shyam Bihari did not intend to inflict injury by sword on the head of deceased with that degree of force sufficient to cause fracture of right parietal scalp, it would be perverse to conclude that he did not intend to inflict the injury that he did. When once the ingredient “intention” is established then the offence would be murder as the intended injury was sufficient in the ordinary course of nature to cause death. In this view of the matter, the inevitable conclusion would be that Appellant Shyam Bihari committed the offence of murder and not culpable homicide not amounting to murder. The trial Judge was thus right in convicting appellant Shyam Bihari for offence under Section 302 IPC. We find support from a decision of the Apex Court in Abdul Waheed Khan v. State of A.P. (4). In this case their Lordships of the Supreme Court relying upon a decision of the Apex Court in Virsa Singh v. State of Punjab (supra), and other cases, observed:
“These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh case for the applicability of clause “thirdly” is now ingrained in our legal system and has become part of the rule of law. Under Clause thirdly of Section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied i.e. (a) that the act which causes death’ is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death viz., that the injury found to be present was the injury that was intended to be inflicted.
33. Their Lordships then observed:
“Thus according to the rule, laid down in Virsa Singh case even if the intention of the accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point.”
34. For the reasons aforesaid, it must be concluded that the trial court has rightly held appellant Shyam Bihari guilty of having committed offence under Sections 302 and 324 IPC.
35. As regards conviction of appellants Rajendra under Sections 324 and 323 IPC, appellant Babulal under Section 323 IPC and appellant Shanti devi under Section 325 IPC is concerned, suffice it to say that their conviction need no interference as we find it to be based on proper appreciation of evidence. The trial court, after critical analysis of evidence has correctly held appellants Rajendra. Babulal and Santosh @ Shanti guilty for their respective acts. Therefore, the conviction of appellant Rajendra under Section 324 and 323 IPC and that of appellants Babu Lal and Santosh Bai @ Shanti under Sections 323 and 325 respectively also deserves to be maintained.
36. In the result, the appeal of Shyam Bihari @ Deena is dismissed. His conviction under Section 302 and 324 IPC and the sentences awarded thereunder are maintained. The conviction of appellant Rajendra under Section 324 and 323 IPC and that of appellants Babu Lal and Santosh Bai @ Shanti under Sections 323 and 325 respectively is maintained.
37. As regards sentence to be awarded to appellants Rajendra Babulal and Shanti, it may be stated that these three appellants have been convicted for offence under Sections 323, 324 and 325 IPC. The offence under Section 325 IPC is punishable with imprisonment for seven years. It appears that the trial court has not considered the provisions of Sections 360 and 361 Cr.P.C. The provisions of Section 361 Cr.P.C. for recording the special reasons are mandatory and admit no exception. There is no allegation of previous conviction against any of these three appellants. The trial court has not recorded any reasons for non-compliance of Section 360 Cr.P.C. except observing that lenient view cannot be taken keeping in view their acts, which in our view hardly constitutes the special reasons within the meaning of Section 361 Cr.P.C.
38. Having regard to the fact that appellant Santosh @ Shanti being a lady of young age, appellant Rajendra being a young boy of less than 21 years of age at the time of incident and appellant Babulal has simply been convicted under Section 323 IPC and he is also a young lad and that no previous conviction has been proved against these appellants, and also keeping in view the circumstances in which the offence was committed by them, we feel it expedient that they should be released on probation of good conduct, instead sentencing them at once to any punishment, Accordingly, we partly allow the appeal of appellants Rajendra, Babulal and Santosh @ Shanti and they are directed to be released on their entering into a bond of Rs. 5000/- each and one surety of the like amount to appear and receive sentence whenever called upon during the period of one year and in the mean-time to keep the peace and be of good behaviour. They are directed to execute the bonds to the satisfaction of the trial court within a period of one month from the date of this judgment.