JUDGMENT
1. The Accused appeals.
2. The learned trial judge, finding the appellant guilty, as charged under Section 302 of the Indian Penal Code, sentenced him to undergo imprisonment for life.
3. The appellant, Gunja Oraon and deceased Budhuwa Lohra were the residents of village Lawga within the police station limits of Bishunpur, district Gumla. On 29.2.1988 the deceased, Budhuwa Lohara, his wife, Sundar Lohrain, PW-1 and her daughter, Balmani Kumari, PW-2 were in the house. The appellant entered the house with a lathi in his hand and beat the deceased. He later left the house. On the next date i.e. 1.3.1988, PW-1 laid Ext. 3, the Fardbayan, at the police station, which was registered as a crime and investigation was taken up.
4. After the investigation was taken up, Ext. 5, the inquest report, was prepared, during which witnesses were examined and the body was sent to the hospital by the Investigating Officer with a requisition, requesting the doctor to conduct the autopsy.
5. On receipt of the requisition, PW-5, Dr. R.K. Beck, conducted autopsy on the dead body of the deceased, Budhuwa Lohra and he found the following injuries:
I. Abraision 4½ “x 3/4 the right side of the back with fracture of ribs no. 7 to 9 and on dissection right side of the plural cavity was found raptured and the right side of the lung has also been found raptured. Chest cavity was found filled with blood.
II. Lacerated wound 3 × ½”× 3/4 ” below the left elbow with fracture of radius ulna.
III. Lacerated wound 2½” × ½” × ½” above the left elbow.
IV. Lacerated wound 2″× ½ “over the right elbow.
The doctor issued Ext. 1, the Post Mortem Certificate, with his opinion that the injuries 1 and 2 are grievous in nature and that they are sufficient in the ordinary course of nature to cause death.
6. After the completion of investigation, the final report was filed against the appellants, who, on being questioned under Section 313 Cr.P.C., denied all the incriminating circumstances, appearing against them.
7. The learned Counsel appearing for the appellant submits that since PW-1, the wife and PW-2, the daughter of the deceased, admitted in their evidence that the person who beat the deceased entered the house after covering himself with a Chadar, it would have been impossible for those witness to have identified the appellant and, therefore, their evidence is liable to be rejected.
8. We have heard Mr. Banani Verma, learned A.P.P. appearing for the State, on the above contention.
9. The doctor, PW-5, who conducted autopsy and who issued Ext. 1, in his evidence, stated that when he conducted autopsy on the dead body of Budhuwa Lohra, he found injuries on the dead body, which he noted in the post mortem certificate. According to the doctor, two injuries are grievous and they are also sufficient in the ordinary course of nature to cause death. We, therefore, on the medical evidence, hold that the deceased died on account of homicidal violence.
10. PW-1, the wife of the deceased and PW-2, the daughter of the deceased, were examined to prove that the appellant inflicted injury. The contention of counsel is that the occurrence having taken place at 8.00 P.M. and the person who entered house, having covered his head with Chadar, it could not have been possible for the two witnesses to have identified the appellant. Though, argument on the face of it looks attractive, we find it difficult to accept the same. It is an admitted fact that the appellant is a neighbour and inside the house a light was burning. Merely because the person, who entered the house, was covering his head with a Chadar, it will not mean that his face was totally covered so as to make the identification impossible. We, therefore, hold that it was the appellant, who entered the house and caused injuries to the deceased, which ultimately proved fatal.
11. We will now have to consider the nature of the offence committed by the appellant.
12. The prosecution did not let in any evidence to show as to the reason for the appellant entering the house and attacking the deceased. It is no doubt true that the motive need not be proved for a person to be found guilty, but the fact remains that the appellant, who entered the house, beat the deceased with lathi on non vital part of the body, since three of the injuries were found on the elbow and only the first injury, which was found on the backside of the back, caused fracture of the ribs. It is, therefore, clear that when the appellant beat the deceased, he could not have an intention to cause death, but must have knowledge that by beating such a person with lathi, it is likely to cause death.
13. We, therefore, set aside the conviction and sentence imposed upon the appellant under Section 302 of the Indian Penal Code, but find him guilty under Section 304 Part-II of the Indian Penal Code, for which he is sentenced to five years rigorous imprisonment.
14. With the above modification in the order of conviction and sentence, the appeal is disposed of. As the appellant is on bail, his bail bonds is cancelled and he is directed to surrender before the court below for serving the sentence. The court below is also directed to take all coercive steps for his arrest.