Chander Pal vs State

M.M. Lal, J.—Both these appeals arise from the same judgment and order dated 9-3-1981 passed by Sri V.K. Jain, Sessions Judge, Unnao whereby he has convicted Chandra Pal Appellant under Sections 302/34 IPC and 323 IPC and has sentenced him to undergo imprisonment for life and six months R.I. respectively, thereunder and has convicted Bhagwandin Appellant u/s 302 IPC and has sentenced him to undergo imprisonment for life.

Dori and Kusehar were two real brothers. Dori had a son named Ori Bhagwandin and Chandra Pal Appellants are the sons of said Ori. Kusehar on the other hand had two sons named PW 1 Dayal injured and Khilari who has been murdered in this incident. Smt. Lachhiminia injured is the widow of said Khilari. They have a son named Chhedi. Smt. Rajola is the wife of said Chhedi. The parties are the residents of village Bhadin, P.S. Purwa, district Unnao.

The wife of Ori had died in the month of Asarh, prior to this incident. Ori had, however not performed her last rites. The marriage of aforesaid Chhedi, son of Khilari deceased was about to take place and according to the custom the said marriage could not be performed till the last rites of the wife of Ori had been performed. Therefore, Khilari and Dayal asked Ori to perform the said rites but he declined to do so. Thereupon the marriage of Chhedi was solemnized without the said rites having been performed. On the same the relations between the two families were broken.

According to the case of the prosecution on 28-11-1979 at about 4 p.m. aforesaid Rajola had gone towards the east of the village, where the house of Bhagwandin was situate, to answer the call of nature. At that time the Appellants had abused Smt. Rajola and told her not to come to their side for answerirg the call of nature. When she returned to her house Smt. Rajola made a complaint of same to her in-laws. At about the same time Bhagwandin Appellant carrying Kulhari and Chandra Pal Appellant carrying Lathi passed by that side. Khilari deceased made a protest to them and asked them that they should not have abused his daughter-in-law and that if they had any complaint to make, then they should have made the same to him. The same led to an altercation. At that time Chandra Pal Appellant exhorted Bhagwandin Appellant to kill Khilari so tbat quarrel may be over. Both the Appellants then attacked Khilari as a result of which he sustained Kulhari blows. Smt. Lachhminia and Dayal bad tried to intervene but they too were inflicted injuries. Some witnesses had come at the place of occurrence and incident was seen by them. Both the Appellants had gone away from the place of occurrence Dayal injured made an arrangement for a bullock cart and on the same took Khilari and Smt. Lachhminia to the police station Purwa. In the way Khilari had expired. The report of the incident was lodged on the same day at 9.30 p.m. at P.S. Purwa, situate at a distance of 6 miles.

In support of its case the prosecution examined PW 1 Dayal informant and PW 2 Smt. Lachhminia injured. PW 3 is Dr. S.M. Tripathi who was Medical Officer, District Hospital Unnao. He had conducted the post mortem examination of the dead body of Khilari on 29-11-1981 at 2 p.m. He had found the following ante mortem injuries on the dead body of Khilari:

Incised wound 2 1/2" x 1/2" bone cut on front of head 3" above the bridge of nose.

2 Incised wound 2 1/2" x 3/4" x bone cut on right shoulder top. Acromin process of scapula was fractured.

Incised wound 3/4" x 1/4" x muscles deep on right arm back 3" above the elbow.

Incised wound 3/4" x 1/4" x 1" deep on the right thigh front and middle.

Incised wound 1 1/2" x 1/2" x bone deep on left side back of neck middle part.

On internal examination the doctor had found left parietal bone of Khilari having been fractured. The membrance were lacerated under injury No. 1. The brain was congested. According to the doctor the death of Khilari had taken place due to shock and haemorrhage as a result of the aforesaid injuries. PW 4 is Doctor S.N. Chaudhari. On 28-11-1979 he had examined injuries of Dayal and Lachhminia at II and 11 p.m. respectively and had found the following injuries on their persons:

Injuries of Dayal

A lacerated wound 4 cm x ''3 cm x bone deep on left half of scalp 12 cm above the left ear. Blood was discharging from the wound. The doctor had found the said injury as fresh and according to him the same was caused by blunt object. Injuries of Smt. Lachhminia

A lacerated wound 2 cm x ''5 cm x scalp deep on left half of scalp 11 cm above the left ear. Blood was discharging from the wound.

An abrasion 6 cm x 1 cm on left half and middle part of the back, red in colour.

An abrasion 2.5 cm. x 1 cm. on middle part and left half back 1 cm. below injury No. 2, red in colour.

An abrasion 3 cm. x 1 cm. on lower part of left half of back red in colour.

An abrasion 1 cm. x ''5 cm. on posterior aspect of left index finger, red in colour.

The said injuries were also found to be fresh and according to this doctor the same were caused by a blunt object.

PW 5 Ahibaran Singh was head Moharrir at Police Station Purwa. He had deposed that on 28-11-1979 at 9.30 p.m. Dayal had come to police station to lodge a report on which he had registered a case.

The investigation of this case was conducted by PW 6 Sri. Gulab Chandra Arya, S.I. He had recorded the statements of Dayal and Smt. Lachhminia in the Hospital, on 29-11-1979 he had prepared Panchayatnama of the dead body which had been brought to the police station. On the same date he interrogated other witnesses and prepared the site plan. He had taken samples of stained earth and unstained earth from the place of occurrence.

The Appellants in their statements denied the case of the prosecution. Bhagwandin Appellant further stated that Khilari deceased had sustained injuries at 8-8.30 O'clock in the night. The Appellants did not produce any evidence in their defence.

Learned lower Court having believed the case set up and the evidence produced by the prosecution had convicted and sentenced the Appellants as aforesaid. Aggrieved by the same the Appellants have filed this appeal. We have heard the learned Counsel for the Appellants and the State and has perused the record carefully.

Learned Counsel for the Appellants has vehemently urged before us that in this case the incident was alleged to have been seen by independent witnesses named Nankau, Kandhai and Mahavir and that because none of them has been examined in this case, hence the lower Court committed a mistake by believing and placing reliance upon the aforesaid two interested witnesses. In our opinion the said argument is devoid of force. The said witnesses had sent their affidavits stating therein that they had not seen the incident. In our opinion when the said witnesses did not want to involve themselves in this case between the two families and, therefore, when they were not prepared to give evidence it was useless for the prosecution to have compelled the said witnesses to come to the Court. In our view when the said witnesses had given affidavits in favour of the Appellants, there was no question for the prosecution to have examined the said witnesses. The prosecution in this case did examine PW 1 Dayal and PW 2 Smt. Lachhminia. Both of them were injured at the time of the incident. As already observed these two witnesses had sustained serious injuries inasmuch as Smt. Lachhminia had suffered five injuries, including lacerated wound 2 cm. x .5 cm. scalp deep on left half of scalp. Dayal had also sustained a lacerated wound 4 cm. x -3 cm. x bone deep on left half of scalp. On account of the said injuries it could not be said that the said two witnesses were not present at the place of occurrence. Merely because the said witnesses were injured and were related to the deceased, could be no ground to discard their evidence. We find no force in the contention of the learned Counsel for the Appellants that has both these witnesses were interested witnesses they should not have been believed by the learned lower Court because the near and dear ones of the deceased could not be expected to spare the real culprits and to falsely implicate innocent persons.

Learned Counsel for the Appellants has urged before us that either aforesaid two injured witnesses had not sustained any injuries or their injuries were exaggerated by the doctor. In our opinion the said argument has got no merit because in view of the serious injuries on vital part of their body, we are not prepared to believe that the said injuries were not caused to the said witnesses in the aforesaid incident but were caused by the friendly hand. We are also of the opinion that when real brother of Dayal had been murdered and when both Dayal himself and his sister-in-law Smt. Lachhminia had been injured, he would not have been in a position to approach the doctor and make a deal with him within a few hours to prepare false injury report.

We have gone through the evidence given by PW 1 Dayal and PW 2 Smt. Lachhminia. Both of them have deposed that on the date of the incident at about 4 pm. Smt Lachhminia had gone out to ease herself and that when she returned, she told that both the Appellants had badly abused her and told her not to come to their side for answering the call of nature. They further deposed that at about the same time Bhagwandin Appellant carrying a Kulhari and Chandra Pal carrying a Lathi came to that side upon which Khilari told them as to why they had abused the lady and if they were to say anything they would have talked to him. The same led to an altercation. Both these witnesses, further, stated that both the Appellants had then attacked Khilari deceased and that when Smt. Lachhminia came to his rescue they were also attacked and caused injuries. Both these witnesses had given consistent evidence. Learned Counsel for the Appellants was not able to point out any discrepency in their evidence with regard to any material detail of the incident. Their evidence inspires confidence and in our view learned lower Court has rightly believed them.

Learned Counsel for the Appellants has, however, tried to point out that both the aforesaid injured witnesses had stated that Chandrapal Appellant had attacked Khilari deceased with Lathi but Khilari deceased had not sustained any injuries caused by Lathi. In our opinion when the incident took place for a short while it may not have been possible for the witnesses to clearly see as to whether Khilari the deceased sustained any blow by the Lathi which was aimed at him. Any way, this discrepancy is too minor to be attached any weight On the other hand the said discrepancy shows that the evidence given by the aforesaid two witnesses was not tutored.

Learned Counsel for the Appellants has also pointed out a lacuna to us that the blood stained clothes of the aforesaid two witnesses were not taken into custody. In our view the mere fact that the bood stained clothes were not taken into custody, cannot go so far as to draw an inference that the said two witnesses had not sustained any injuries. It may be noted from the injury report of Dayal that even at the time of his medical examination blood was coming out from his wound. The injuries sustained by both these injured witnesses show that blood must have come out from their wounds and, therefore, in normal course their clothes would have been stained with blood. Therefore, if the blood stained clothes were not taken into custody the same does not show that they were not present at the time of the incident or bad not sustained injuries.

Learned Counsel for the Appellants has also referred to the statements of the said two witnesses who have stated that the Investigating Officer had taken their thumb impressions on the statements u/s 161 Code of Criminal Procedure. In our view when these two eye witnesses are illiterate, simple villager and if any mistake they have made such a statement (sic) cannot be attached much importance.

Learned Counsel for the Appellants has urged before us that this incident had not taken place at about 4 p.m. as alleged by the prosecution and that in fact this incident had taken place at about 8-8.30 p.m. when in the darkness the assailants could not be recognized. In our opinion the said argument had got no force. Had the incident taken place at 8-8.30 p.m. in the night then PW 1 Dayal would not have been in a position to lodge report of the incident at about 9-30 p.m. at P.S. Purwa, situate at a distance of 6 miles. It may be observed that after the incident informant would have certainly taken some time to gather the wits and to arrange for a bullock cart. Bullock cart is a slow moving vehicle and when the injured persons, who had sustained serious injuries, were taken in the same, it is obvious that the said vehicle would have covered the requisite distance very slowly. The fact that the FIR was lodged on the same day at 9.30 p.m. shows that the incident had not taken place at 8-8.30 p.m. but had taken place in the evening as suggested by the prosecution. The Post Mortem Examination report of the dead body of Khilari deceased shows that there was digested food in the intestines. This incident had taken place in the winter season, i.e. 28-11-1979, in village. In our view in the villages, specially in the winter season, the villagers take dinner quite early. Therefore, had this incident taken place at 8-8.30 p.m. then digested food would not have been found in the intestiness of the deceased. The fact that the digested food was found in the intestines of the deceased on the other hand lead corroboration to the prosecution case that this incident took place in the evening, i.e. after few hours of lunch time. We are thus convinced that this incident took place in the evening time when there was sufficient light for the aforesaid two injured persons to recognize the assailants. Both the aforesaid injured persons, i.e. PW 1 Dayal and PW 2 Lachhminia, had come face to face with the assailants and there would have been no difficulty for them to recognise them.

Learned Counsel for the Appellants has also urged before us that the FIR was ante-time and infact the FIR was lodged much later. We find no force in the said argument as well. In our view had the FIR been lodged much later then Dr. S.N. Chaudhary PW 4 would not have been in a position to examine the injuries of Dayal on the same date at 11 p. m. We are thus satisfied that the FIR was not ante-time but was recorded on 28-11-1979 at 9.30 p.m., as alleged by the prosecution.

Learned Counsel for the Appellants has also tried to point out some other discrepencies in this case. He has urged that when the dead body of Khilari had been brought to the police station in the night there was no reason for its having been taken from the police station to the hospital and then back to police station, as deposed by PW 1 Dayal. In this respect it may be observed that both Police Station and Primary Health Centre Purwa where PW 1 Dayal and PW 2 Smt. Lachhminia were examined were adjoining to each other and that therefore it did not make any difference if the bullock cart in which the said two injured witnesses were also brought was moved from the police station to the hospital and then back, specially when the Panchayatnama of the dead body of Khilari was prepared on the next day.

Learned Counsel for the Appellants has pointed out to us the Panchayatnama and has also tried to assert that in the same it was recorded that the injuries were caused by Kulhari and Kanta. In the first place it may be observed that the word "Kanta" is not very legible in he Panchayatnama. Secondly, it may be noted that the question regarding the details as to how the deceased was assaulted and what were the weapons with which he was assaulted are foreign to the scope of Inquest Report. In this respect reference may be made to Poddanarayana v. State of A.P. AIR 1975 SC 1252 in which it has been observed that a perusal of the provision would clearly show that the object of the proceedings u/s 174 is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted appears to us to be foreign to the ambit and scope of the proceedings u/s 174.

Learned Counsel for the Appellants has also urged before us that Smt. Rajola was an important witness in this case and had she been examined then she would have unfolded the story of the prosecution at least with respect to the motive. In this respect it may be observed that this is a case where eye witnesses were present to witness the incident. Any way, both PW 1 Dayal and PW 2 Smt. Lachhminia have given sufficient details of the motive. PW 1 Dayal had deposed that prior to this incident the wife of Ori had expired but her last rites had not been performed and that marriage of the son of Khilari was to take place. Ori was requested to perform the said last rites so that marriage may be performed but to the same he declined. This led to a friction between the two families. Both PW 1 Dayal and PW 2 Smt. Lachhminia have further deposed that shortly before this incident Smt. Rajola had gone out to ease herself towards the east of the village when both the Appellants not only abused her but told her not to come to their side to answer the calls of the nature. They further deposed that Smt. Rajola had narrated the said facts to her in laws and that when shortly thereafter both the Appellants passed by that side Khilari deceased protested to them and that thereafter the Appellants made the aforesaid assault in which Khilari lost his life and PW 1 Dayal and PW 2 Smt. Lachhminia were injured. We find no reason to disbelieve the aforesaid evidence given by the said two witnesses regarding the motive specially when both the Appellants themselves have admitted in their statements recorded u/s 313 Code of Criminal Procedure that they were implicated in this case due to enmity meaning thereby that there was enmity between the parties.

Learned Counsel for the Appellants has further urged before us that because there was no Lathi injury in this case hence the presence of Chandrapal Appellant at the place of occurrence was ruled out. In our opinion the said argument is misconceived. It may again be observed that Smt. Lachhminia had sustained two lacerated wounds one on her scalp and the other on middle part of her back. Dayal on his part has suffered one lacerated wound on left half of scalp. According to the doctor, who had examined both the injured persons, the said injuries were caused by blunt object. Therefore, it is clear that the injuries were caused by Lathi as well. Therefore, there were atleast two assailants who had caused the injuries to Khilari deceased and to aforesaid two injured persons. One of the assailants was armed with sharp edged weapon and the other was armed with blunt object like Lathi.

Learned Counsel for the Appellants has also urged before us that there could have been possibly no intention on the part of Bhagwandin Appellant to cause the death of Khilari. In our opinion when Bhagwandin Appellant had inflicted injuries to Khilari deceased on vital part of the body and also when he gave many blows to him it is clear that he had intended to cause the death of Khilari. In this respect it will be relevant to refer to the case Pedda Narayana and Others Vs. State of Andhra Pradesh, in which the assailant and given blows after blows with Kripan on the part of the body, where vital organs were situate, and ultimate result was achieved i.e. the deceased was dead (victim had suffered 4 wounds), it was observed that from the said repeated blows it could not be said that the Appellants bad committed an offence other than the offence u/s 302 IPC. We are satisfied that in this case as well where Bhagwandin Appellant had given repeated blows to Khilari deceased with Kulhari, intention on his part to cause the death of Khilari can clearly be inferred.

Learned Counsel for the Appellants has further urged before us that because in this case there was no pre-mediation and there was a sudden fight and the death of Khilari was caused in the heat of passion hence this case was covered by Exception 4 attached to Section 300 IPC. In our opinion the said argument is devoid of merit much because there was no fight in the sense that the prosecution side had caused no injury to the defence side. Learned Counsel for the Appellants has also urged that in any case this case was covered by Exception I attached to Section 300 IPC as well because the assailant was deprived of the power of self-control by grave and sudden provocation. In our opinion the said argument as well has no force because there is nothing on record to show, firstly, that there was any grave and sudden provocation and, secondly, that Bhagwandin Appellant was deprived of the power of self control specially in view of the fact that he had not merely given one blow but had given blows after blows with Kulhari to Khilari deceased.

Learned Counsel for the Appellants has urged before us that Cnandrapal Appellant had not inflicted any injury to Khilari deceased and that because this incident had taken place all of a sudden when there was no pre-mediation between the two Appellants, hence Chandrapal Appellant was not guilty under Sections 302/34 IPC. We find force in the said argument. It is an admitted case of the prosecution that this incident had taken place all of a sudden when both the Appellants were passing by the house of the deceased and when the deceased asked them as to why they had mis-behaved with Smt. Rajola. Therefore, there was obviously no pre-mediation between the two Appellants. That is why learned lower Court has also not found Bhagwandin Appellant guilty under Sections 323/34 IPC for the injuries inflicted by Chandrapal Appellant to the aforesaid injured witnesses by his Lathi. However, the prosecution has tried to lead evidence that at the time of incident Chandrapal Appellant had exhorted Bhagwandin Appellant to kill Khilari. It may be observed that the evidence about the exhortion is a weak type of evidence. Any way, in this case when independent witnesses have not been examined it shall not be safe to rely upon the aforesaid two interested eye witnesses on the point of exhortation. Therefore, we are of the opinion that Chandrapal Appellant is entitled to get benefit of doubt so far as the offence u/s 302/34 IPC is concerned.

Lastly, learned Counsel for the Appellants has urged before us that because this incident took place more then eight years ago all of a sudden, hence the interest of justice warrants that Chandrapal Appellant may not be sent to jail. We find merit in the said argument and, therefore, propose that instead of sending Chandrapal Appellant to jail it shall be proper to impose upon him a fine of Rs. 2000/- only.

To sum up Chandrapal Appellant is entitled to get benefit of doubt so far as offence u/s 302/34 IPC is concerned, firstly, because the evidence about exhortation is a weak type of evidence, secondly, because this incident took place all of a sudden without any pre-mediation; thirdly, because there is no independent witness to support the said case of exhortation and, fourthly, because the learned lower Court did not accept the case of common intention and therefore did not convict and sentence Bhagwandin Appellant u/s 323/34 IPC. Therefore, Chandrapal Appellant is liable to be acquitted u/s 302/34 IPC. As regards his offence u/s 323 IPC we are of the opinion that the interest of justice would be met if instead of sending him to Jail be is imposed a fine of Rs. 2000/- only.

With regard to Bhagwandin Appellant, we find a case made out against him u/s 302 IPC beyond reasonable doubt. This incident had taken place in the evening when there was no difficulty in recognising him. There was no undue delay in lodging the FIR. Both PW 1 Dayal and PW 2 Smt. Lachhminia were undoubtedly present at the place of occurrence because they had received injuries which were not superficial. They had sustained injuries on vital parts of their body. They had no reason whatsoever to save the real culprits and falsely implicate the Appellants. The motive set-up by the prosecution in this case was proved. We are thus convinced that the case u/s 302 IPC is fully proved against Bhagwandin Appellant. His appeal is, therefore, liable to be dismissed.

Criminal Appeal No. 280 of 1981 Bhagwandin v. State is dismissed. The conviction and sentence of Bhagwandin Appellant u/s 302 IPC is upheld. The Appellant is in jail and he will serve out the sentence of life imprisonment passsed against him

Criminal Appeal No. 185/1981 Chandrapal v. State is partly allowed. Whereas the conviction and sentence of Chandrapal Appellant under Sections 302/34 IPC are set aside, his conviction u/s 323 IPC is upheld. The sentence of 6 months R.I. imposed upon him u/s 323 IPC is reduced to the imprisonment already undergone by him and to pay a fine of Rs. 2000/- or in default thereof to undergo 6 months R.I. In case the said fine is realised from Chandrapal Appellant a sum of Rs. 500/- shall be paid to each of PW 1 Dayal and PW 2 Smt. Lachhminia. Chandrapal Appellant is on bail. He need not surrender to his bail bonds, which hereby stand discharged.