In Re : Varada Kounder

K.N. Mudaliyar, J.—Varada Gounder (A.2) appeals against his conviction for offences under Sections 341 and 302 (Part II) I.P.C. Guruswaml (deceased) was a young man of 22 years. He had sold some paddy without his mother's knowledge about two months prior to the occurrence. On Monday the 9th September 1968, Guruswami had sold paddy at Tindivanam for Rs. 18-30, P.W. 5 had accompanied him then. P.W. 1 demanded the four marakkals of paddy, kept by P.W 1''s brother, from Garuswami (deceased). But Guruswami left the place and he was followed by P.W. 1. P.W. 5 happened to be there sod he followed Garuswami (deceased) for the purpose of making a demand for Re. 0-8-0 from Garuswami. A-1, brother of A-2 fallowed Guruswami. When P.W. 1 was rear the Mariamman temple, Garuswami west away saying he had only disposed of his own paddy. P.W.1 and the first accused therefore followed Guruswami who had proceeded to the culvert situated near the Mariamman temple. P.W. 2 Subbarayan and P.W. 3, Ezhumalal, were working in their respective fields nearby. The first accused asked P.W. 2 to catch hold of Guruswami (deceased) saying that he was going away after stealing paddy. P.W. 2 accosted Guruswami. He told the witness that he had only taken his own paddy. P.W. 2 therefore suggested to the first accused that be might go away; but the first accused insisted that P.W. 2 should catch hold of Guruswami since P.W. 2 did not know the real story. P.Ws. 1 and 2 caught hold of the deceased. Varada Rounder (A-2), the Appellant herein, who was working nearby in his filed case with a spade, M.O. 1. Accused 1 and 2 caught hold of Guruswami (deceased) and tore his shirt, M.O. 2 which he was wearing and tied both his hands behind him with M.O. 2. The first accused slapped the deceased on his neck. A-1 and A-2 also beat him with their hands. The second accused (the Appellant herein) bit Guruswami on the left side of his head with the handle of a spade. The deceased became unconscious after receiving these blows and fee was dragged and taken to the Bajanai Madam nearby. P.W. 5 speaks to third accused coming at the end of the incident. According to P.Ws. 1 and 2. A-3 also gave two blows on the rape of Guruswami (deceased) and joined the first accused in dragging him to the village.

P.W. 7, Rajappan lived in the village Beedheri where the occurrence took place. The place of occurrence is nearly a mile away from Tindivanam. P.W. 7 is a Councillor of the Tindivenam Municipality. A-1 went to him at 9 a.m. and wanted him to enquire into the matter of Garuswami (deceased) having committed theft of paddy. P.W. 7 went to the Bajanal Madam and saw Garuswami standing there with his hands tied. But Garuswami was speechless. When P.W. 7 untied his hands he fell down. P.W. 7 was treated as hostile by the prosecution for he had not only given a written complaint, Ex. P. 2 to P.W. 11, Head constable attached to Tindivanam Police Station but had also produced the injured before him. The injured Guruswami was sent to the hospital by P.W. 11. P.W. 6, the Civil Assistant Surgeon, examined the injured and he did not notice any external injury on the deceased. But the injured Guruswami was not conscious. Guruswami died at about 5-45 a.m. the next day without recovering consciousness. P.W. 5 missed notieing the contagion on the left temporal region of the injured Guruswami on account of the thick growth of hair.

P.W. 9 Civil Assistant Surgeon, conducted the autopay at 11-30 a.m. on 10th Sptember 1968, He noticed the eontusron on the left temporal region and on dissection found (1) collection of blood clots ever the left temporal bone; (2) an irregular linear fracture 2 inches long on left temporal bone; and (3) Haemorrhage over the dura mater of left temporal region and also on the left side of the brain. He was opinion that death was the result of shock and haemorrhage due to the external injury and its corresponding internal injuries. In his opinion, the said injury was sufficient in the ordinary course of nature to cause death.

A-1 and A-2 were arrested by P.W. 12 on 10th September 1968 at 11-30 a.m. P.W. 12 recorded a statement from the second accused, the admissible portion of which has been marked as Ex. P-3. P.W. 12 and P.W. 8 were taken to the culvert from underneath which A-2 took out and produced M.O. 1 which was seized under a mahazar Ex. P-4. In the Committing Court and in the court of Session, the Appellant asserted that he bad nothing to do with the death of Gurnswami. He stated that at about 7-30 or 8 a.m. the mother of the deceased had caught bold of his ''deceased's) hands and questioned him as to where he sold the paddy. At that time she had an iron ladle in her hand. The deceased extricated himself from her hold and ran. At that time the first accused was standing near the Bajanal Madam. The mother of the deceased shouted to the first accused to catch the deceased and he did Section The Appellant who was prices ding on the cycle got down from the same and also held the deceased. Bat the deceased object of to the second accused questioning the deceased about anything. Then the second accused asked the third accused to bring P.W. 7. After P.W. 7 came there he asked the third accused to get P.W. 5. P.W. 7 asked the first accused not to catch held of the deceased and that he would look into everything. The second accused went away to his firewood shop at Tindivanam. The Appellant did not state in his plea that the mother of the deceased bit him with an iron ladle, although such a suggestion mas made to P.W. 1 who refuted the same.

It is not strictly necessary to set down the statements of A-1 and A-3 recorded u/s 342, Code of Criminal Procedure. These statements have been elaborately set down in paragraphs 6 and 8 of the judgment of the Sessions Judge.

The evidence of D.W. 1 has been summarised in paragraph 9 of said judgment. Shri Narayanamurthi, the leaned counsel for the Appellant, argued that in view of the finding of the learned Sessions Judge recorded In paragraph 17 of the judgment, the offence committed by the Appellant is nothing more than one punishable u/s 323 I.P.C. Further in support of his argument, the learned Counsel canvassed the following circumstances, viz, (1) that P.W. 6 was unable to find the external Injury because it was so inconspicuous; (2) that the Appellant bad no personal motive or ill-feeling to inflict the injury on the left temporal region; (3) that the Appellant use4 only the spade's handle, but not the sharp portion of the iron blade; and (4) that the learned Sessions Judge found that the Appellant became excited and used the handle portion of the spade to push the deceased with it. P.W. 9 states that the deceased had thick growth of hair covering the site of injury. His further argument is that the finding of the learned Sessions Judge is vitiated by an infirmity when be failed to find "that the Appellant had knowledge that he is likely, by such an act, to cause death of Guruswami". The learned Counsel made the above argument on the basis of the testimony of the prosecution witnesses net merely being unchallenged but also on the basis of accepting the prosecution evidence in tote. The learned Counsel does not dispute the complicity of the Appellant in the crime; his contention is that the offence is one u/s 323 I.P.C.

P.W. 1 states that the Appellant came running carrying his spade, M.O. 1. A-1 and the Appellant caught bold of the deceased and tore his shirt and tied both the hands of the deceased with the torn shirt. The Appellant gave a hit with the spade handle near the left ear of the deceased. According to P.W. 2, A-2 poked on the left side of the bead of the deceased with the spade handle. P.W. 3 says that the Appellant hit on the left temporal of the deceased with the spade handle. P.W. 4 states that A-2 hit on the left side of the head of the deceased with a spade handle. P.W. 5 also states that the Appellant hit on the left side of the head of the deceased with the spade handle. I am afraid, the learned Sessions Judge ought to have carefully examined the evidence of P.Ws. 1 to 5, although P.W. 2 says that the Appellant poked on the left side of the head of the deceased with the spade handle. In view of this consistent evidence about the fact of A-2 hitting the deceased with the spade handle on his left temporal region, I do not think that the learned Sessions Judge was justified in using the word "push" in his finding recorded in paragraph 17 of the judgment. I accept the evidence of P.Ws. 1, 2, 3, 4 and 5 when they state that the Appellant gave a hit sear the left ear of the deceased. I consider, P.W. 2 using the word "poked" regarding the act of A-2 as merely one way of expressing that the Appellant hit en the left side of the head of the deceased within the spade handle.

P.W. 6 states that he did not notice the contusion on the left temporal region on account of the thick growth of hair is that region. P.W. 9 states that the deceased had thick growth of hair covering the site of Injury. The unintentional oversight of this external injury by P.W. 6 does not erase the existence of such an injury on the left temporal region of the deceased. To state that the Appellant bad NO personal motive to inflict injury on the left temporal region of the deceased is neither here nor there, particularly when the five eye witnesses speak to the Appellant hitting the deceased. In fact, the learned Judge thinks that the Appellant (A-2) said to be the Nattanmai of the village became excited. It is true that is Nattanmai A-2, might have strange notions of his exaggerated importance and authority, but I find no evidence that the deceased offered any provocation for the Appellant to become excited. The learned Judge observed that "it was probably on account of the accessed employing vile language, or more probably the attitude of the deceased in even behaving defiantly towards the second accused when he was being rightly accused of there," I am afraid, the learned Judge has merely indulged in speculation. I find no material in the recorded evidence to support of such a sweeping finding of the learned Judge Again, the Appellant's failure to use the sharp portion of the iron blade is of really no material importune. The stubborn fact of the Appellant hitting the deceased on his temporal region with the spade hand is established beyond any doubt whatever.

In the light of the foregoing discussion I now consider the nature of the offence that the Appellant committed.

It emerges from the evidence on record that the Appellant and A-1 caught hold of the deceased ana tore his shirt sad tied both the hands of the deceased with that torn shirt. A-2 gave a hit with the space handle near the left(sic) of the deceased. A-1 dragged the deceased for some distance and fisted the deceased on his back. Later A-1 and A-3 dragged the deceased by his hand and brought him to the village. After receiving the hit from A-2, the Appellant, he was rendered speechless. There is no evidence that the deceased was in a position to speak a word afterwards. When the deceased Guruswami was brought to the hospital on 9th September 1968 at about 6-10 p.m. he was unconscious then. He did not regain consciousness till he died. It was not suggested to any one of the five eye witness, P.Ws. 1 to 5, that the deceased was in a position to talk soon after the receipt of the injury caused by the Appellant.

On the contrary,, the Appellant suggested to P.W. 1 that at 8-30 a.m. there was a quarrel between the deceased and his mother and that his mother bit the deceased with an iron ladle. The deceased was the only son of his mother. On behalf of the Appellant it was suggested in the course of the cross-examination of P.W. 1 that there was a scandal in the village that the deceased was physically Intimate with his own mother. It may be remembered that these P.Ws. 1 to 5 are in no way interested in the deceased, not arc they motivated against the Appellant. In the light of this evidence on record the learned Counsel for the Appellant relied on the ruling in Sheik Madar Sahib v. Emperor 1935 M.W.N. 198 and argued that the offence is one u/s 323 I.P.C. In this case, the accused-Appellant a forest guard his the deceased on the temple and beat him on the head with a stick for having allowed sheep to graze near a reserves forest. The deceased walked to his village. He was seen some hours later to be hanging dead from a tree, reediest evidence showing that death was caused by the two blows on the head. The learned Judge held (King, J. that even if the acts of the Appellant land should fall within the category of hurt which endangers life, the actual force which mast have been employed as such as to render this danger to life a pure matter for speculation and that the Appellant must be convicted only for causing hurt. But a closer examination of the facts in that case would reveal some doubt entertained by the leaned Judge whether the injuries to the head were not-caused by the unknown person who was also responsible for suspending the body from the tree.

Their Lordships of the Supreme Court (S.J. Imam, P.B. Gajendragaokar and Vivian Bose, JJ.) in Virsa Singh v. State of Punjab 1958 (21) S.C.J. 772 observed as follows:

To put It shortly, the prosecution must prove the following facts before it can bring a cam u/s 300 thirdly.

First, 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 Intentional, or that some other kind of injury was intended.

Ones 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 tares 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. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder u/s 300 thirdly. it does not mater that there was no intention to cause death. It does not matter that these was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is say real disfunction between the two). It does net even matter that there is no knowledge, that an act of that kind will be likely to case death. Once the mention to cause the bodily injury actually f(sic) to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a mater of purely objective inference the injury is sufficient in the ordinary course of nature to came death No one has a licence to run around Inflicting injuries that (sic) sufficient to cause death in the ordinary (sic) of nature and claim that they are not go any of murder. If they inflict injuries of that, kind, they must face the consequences and they can only escape if it can be shown or reasonably deduced, that the injury was accidental or otherwise unintentional.

Even the rustic villagers know the loft temporal region of skull is a vital pan in human body. The handle of a spade, M.O. 1 is a formidable weapon. This was produced before this Court. M.O. 1 space handle, when used AS A weapon, as it WAS Done in this case, is likely to cause depth. P.W. 9 spates that externality there was only one disused contusion on the left temporal region of scalp. On dissection be found collection of blood clots over the left temporal bone and an irregular linear fracture 2" long on the left temporal bone. There was haemorrhage ever the dura mater of left temporal region and also on the left side of the brain. The internal injuries were the remit of the external injury which could have been caused by being bit with the handle of a spade like M.O. 1. The injury was sufficient in the ordinary course of nature to cause death. In the present case the prosecution has established quite objectively that a bodily injury as spoken to by P.W. 9 is present. Secondly, the nature of the injury also has been proved by P.W. 9. These are purely objective Investigations. Thirdly, it mast be proved that there was an Intention to inflict tout particular bodily injury. Let me examine whether that particular bodily injury was net accidental or unintentional or that some other kind of injury was intended. 1 a.m. unable to find any material in the course of the cross examination of P.Ws. 1,2,3,4,5,6, and 9 that it was accidental or unintentional or that some other kind of injury was intended. The evidence of P.Ws. 1 to 5 to the effect that the bands of the deceased were tied behind him with his own tors shirt remains unchallenged. It is very clear that the deceased was thoroughly immobilised before the Appellant hit him on his left temporal region with the spade handle. There is number any evidence nor any suggestion made on behalf of the Appellant that there were some physical movements or unexpected (sic)-position of the accused and the deceased which recanted in that particular bodily injury (sic)ing accidental or unintentional or that some other kind of injury was intended. In fact P.W. 1 says that the mother of the deceased pecked up in iron ladle nearby and beat the (sic) left (sic) of his head. On the (sic) of the evidence on record, I find that the injury found to be present on the deceased was the, injury that was intended to be inflicted by the Appellant. Fourthly, it has been 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 and the evidence of P.W. 9 proses that satisfactorily. The learned Judge (Vivian Bose J) says that this part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

Vivian Bose J. observes "the question is net 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. (sic) he can show that he did not. or if the totality of the (sic)ances jastify 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 if, 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 be intended to kill, or to inflict an injury of a particular degree or 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 intension is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how (sic)us, is a totally separate end distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question.."

These principles of law enunciated in Vira Singh v. State of Punjab have been considered and reaffirmed in a (sic) decisions of the Supping Court in Anda and Others Vs. The State of Rajasthan, , in Rajwant Singh v. State of ferula A.I.R., 1966 S.C. 1874, and in Harjinder Singh alias Jinda Vs. Delhi Administration, Since there is no appeal filed by the Sate against the acquittal of the Appellant for an offered u/s 302 I.P.C ., I am (sic)bled from reversing the Ceding given by the learned Judge to be one of under, although I told that all the four elements propounded in the ruling of the Supreme Court in Virsa Singh v. State of Punjab are (sic)ed by the prosecution.

The criminal appeal is devoid of any merit was (sic)cever. The (sic) and sentence of Appellant are confirmed. The criminal appeal is dismissed.