Jamuna Chaudhur and Others vs State of Bihar

S. Wasiuddin, J.—There are three appel. lants in this oase and appellant No. 1 is the father of appellant Nos. 2 and 3. All these appellants have been convicted u/s 301/34, Indian Penal Code and sentenced to undergo rigorous imprisonment for six years. Appellant No. 3, Kanhai Chaudhur, has r also been convicted of the offence u/s 523, Indian Penal Code, and sentenced to undergo rigorous imprisonment for six months. Thia latter sejitenoe is to run con-ourrently.

The oase of the proseoution briefly stated is as follows. Gunjeshwar Chaudbur is the informant in this case and he is P.W. 6. The deceased, Bikarma Chaudhur, waa his full brother. The occurrence ia said to have taken place in village Bajpur within Mirgani Police station in the district of Saran. Now, accord. ing to the proseoution, there are lands of both the parties situated near about the same plaoe and the appellants are said to be the Patiidars of the familvof the informant. There had been Borne dispute between the parties in respeot of the jhura on the respective lands and it is said that on the 29th of May, 1965, that is to BJy, just a day previous to the oaourrenoe, the informant''s elder brother, Bikarma Chaudhur, that is, the deceased, had gone to the field to - see his 9 kathas of land and far having the same ploughed up and on reaching there he saw that 19 kathas land of the aocuaed persona had been ploughed up and he alao found that a substantial : portion of the hedge from the southern side bad been uprooted. Bikarma Chaudbur reported the matter to his brother, that i3, the informant, in the afternoon, On that very day, in the evening, the informant and his brother, Bikarma Chaudhur, had gone to the residence of the accused persons to ''-i lodge protest as to why they had uprooted some portion of the hedge (Jhur) in their absence when this waa as the common dividing line between their lands. On aooount of the protest so made, it was agreed that the matter should be settled up and, accordingly, on the next day, that is on the day of occurrence, that is, 30.5.65, at about 10 to 11 A. M., the deceased Bikarma and bisbrother, the informant of this oase, had left their house at 10 or 11 A. M. for their field and while going to their field they had taken :two persona, namely, Baghunandan Chauihur (P.W. 1) and Sukat Chamar (P. \\V. 3) in their company and another person, named Mahendra Bberihar whom they met on the way. These persons had gone there to aofc as Punohaa for the settlement of the dispute and the controversy, which had arieen. On arrival on the land in question, the informant found that all the three accused persons, that is, present appellants, were present in their southern land near the dividing hedge, but they had not brought any Punch with them as was agreed between the parties. The informant and others went near the hedge and pointed out to those persons there about the highhandedness of the accused persona in wrongfully uprooting a portion of the hedge from the southern side of the ridge. The further oase of the prosecution was that there was exchange of words and altercation between the aoaused persons on the one hand and the informant and his brother Bikarma Ohaudhur, on the other, and, in:the meantime, the accused Kanhai Ohaudhur is said to have oaught hold of the informant by hand and began beating him with fists and slaps and the other two accused, namely, Jamuna Chaudhur and Jagarnath Chaudhur fell upon Bikarma Chaudhur and are said to have caught hold of him by hand and started beating him with kicks, fists and slaps, whereupon the victim Bikarma Chaudhur is alleged to have fallen down on the ground in the khet (field) of Mukhi Koieri. But, even thereafter the two aoauaed persons, namely, Jamuna Chaudhur and Jagarnath Chaudhur are alleged to have gone on assaulting Bikaima Chaudhur wi ih fists, kicks and slaps on his face, neok and abdomen. The further case of the proseoution was that after Bikarma Chaudbur, deceased, had fallen down on the ground, the acoused, Kanhai left beating the informant and rushed upto the plaoa where Bikarma Chaudhur was lying and dealt a heavy kick to him in his abdomen. The Informant rushed to the place where his brother Bikarma was lying on the ground and on reaching near him, he found him unconscious and he also found slight bleeding from bis mouth and noatrila.

The aoouaed persons are said to have run away: from that place and then Bikarma Ohaudhur, who waa already unoonscioua was lifted from the place where he was lying on the ground and waa placed on a bullock.cart and then waa taken towards the Gopalganj Sadar Hospital. But, while he was being carried on the bullock cart, he died on the way. The bullock cart waa taken to the Gopalganj Police station where a Fardbeyan was recorded by the Sub.Inapector of Polioe, Gopalganj on the statement of the informant (P.W. 6) and thereafter the informant was examined for his injuries by the police and (sic) both were re-ferred to the Medical Officer, Gopalganj Sadar Hospital where the injuries on the person of the informant as also on the person of deoeased Bikarma Ohaudhur were examined, and on the next day, there was a post mortem exami. nation on the dead body of Bikarma Chaudhur. I have already stated above that the village where the occurrence took place is within the Mirganj Police-station, but this Fardbeyan had been reoorded at Gopalganj Police-station, so this was forwarded to the Mirganj Police. station, which was reoeived on 30-5-1965 on the basis of which a formal First Information Report was drawn up. Thereafter, the Mirganj Police took up the investigation of this oase. The Police Officer went to the place of occur rence and examined witnesses and then after completing investigation, he submitted charge, sheet u/s 304/34, Penal Code, against all the accused persons. The offence waB triable by a Court of Sessions and, therefore, the pro-oedure of enquiry before commitment was adopted by Shri R. P. Srivastava.Munsif Magia-trate, Gopalganj. But, after the examination of the witnesses, the learned Magistrate waa of the opinion that no charge u/s 304, Penal Code, waa made out, and, accordingly, he ordered for framing of a charge u/s 323, Penal Code, against all the aooused persons. A revision was preferred against this order of the learned Magistrate, which was numbered as Criminal Revision No. 160 of 1965 and the learned Sessions Judge, who heard this revision, set aside the order of the learned Magistrate and directed the commitment of the accused persons for trial in the Court of Sessions. The accused persons were then tried in the Court of the Assistant Sessions Judge, Ohapra, in Sessions Trial No. 101 of 1969 and they have been convicted and sentences have been imposed on them, aa already stated above.

The defenoe of all the acoused persons waa that they had not committed any offence and that they were not guilty of any of the oharges.

Learned oounsel, appearing for the appellants in this appeal, has submitted firstly that as far as Jamuna Chaudbur, appellant No. 1, is concerned, no case whatsoever has been made out against him inasmuch as there waa no allegation of any overt act having been committed by Jamuna Ohaudhur in the First Information Report and that the proseoution only developed this oase and made allegatioos subsequently against Jamuna Chaudhur. It Jamuna Ohaudhur v. State of Bihar (Wasiuddin J.) 1971 Cri. L. J. was also contended that on the materials on record, the learned Assistant Sessions Judge was not justified in holding that the oharge u/s 304/34, Penal Code, had been made out, because the medical evidence and the other ciroumstinces of the case do not show that there could have been any offence as contemplated u/s 304, Penal Code. It was also submitted that the Doctor made sur. mises in giving his opinion that the death was on account of shock caused by injury to the solar plexus (pit of the stomach) of Bikarma Chaudhur although no internal or external injury was found by the Doctor when he held post-mortem examination and the evidence of the Doctor clearly shows that the external injuries, which he found on different parts of the body other than the abdomen, were only in the nature of: abrasion and could not be either directly or indirectly responsible for the death of Bikarma Chaudhur. It was also submitted that in mpect of the other matters also, there have been subsequent developments in the prosecution version.

After having stated in brief the intro. duotory facts, I will proceed now to examine the evidence and the circumstances of the case to see if the prosecution has been able to prove the charges beyond all reasonable doubts. The first question, which arises for consideration, ia whether any offence u/s 301, Penal Code, had been made out, and, in this connection, it is necessary, first of all, to examine the medical evidence. The Doctor, who held post-mortem examination on the dead body of Bikarma Chaudhur is Doctor Chandra She. khar Sharma and he is P.W. 11. The Doctor stated that he performed the post-mortem examination on the 31st May 1965, at 11 a.m. and he found following ante-mortem injuries on the dead body of the deceased, Bikarma Chaudhur:�

(1) Abrasion 3/4"x 1/2" x just below left lower elbow.

(2) Abrasion 3/4"x 1/2" ala of left nose.

(3) Abrasion ll"x 3/4" just below the neck.

(4) 2 Abrasions 2"x 1" each on the fore-arm near the right elbow joint.

The nature of the above injuries are suffi. ciently indicative of the faot that none of these injuries, which are of such a superficial nature, could have been the cause of death. The Doctor was also very clear in his opinion in this respect, beoause he has stated that all the above four injuries were simple and could have been caused by hard and blunt substance as also by fists and slaps. He further stated in his cross-examination that none of the above four external injuries could either directly or indirectly be connected with the cause of the deceased''s death. The Doctor also stated that he could not find out any direot cause of the deceased''s death except shook. He also did not find any external injury on the skin of the abdomen as could be directly connected with the deceased''s death.

It may be mentioned here that the Doctor, in his examination.in chief, has also stated that on dissection, he did not find any internal injury to the internal organs and then he stated that death might have been due to shock caused by injury to the solar plexus due to blow on the pit of the stomach. The Doctor also stated that the injury on the solar plexus (that is on the pit of the stomach) could be caused without causing any corresponding superficial injury on the skin. It has been submitted by learned Counsel for the appellants that the Doctor made only a conjecture or a surmise about the cause of the m death and there was nothing, as found by him, which could be indicative in any way that the death was caused by any injury on the pit of the stomach. Eelianoe has also been placed by learned Counsel appearing for the State on this faot that a blow on the pit of the stomach may cause death and still there may not be any sign of internal injury and, in this connection, reference has also been made to Modi''s Medical Jurisprudence 1967 Edition p. 288. It will be better, if I quote the relevant passage in this connection, which is as fallows:

Contusions and abrasions of the abdominal pai''ieles are, as a rule, simple unless accompanied by lesaions of the visceral organs, when they prove fatal from shock, haemorrhage, oc from peritonitis. In some cases peritonitis may occur without evident injury to any of the abdominal organs. Besides, it has already been mentioned that a blow on the epigastric region (pit of the stomach) may cause death by its inhibitory action on the heart through the reflex action on the solar plexus PoBt. mortem examination would reveal nothing, except the signs of shock to account for such a sudden death.

Now, according to the view as propounded by Modi; it can, therefore, be said that a blow on the pit of the stomach may oause death and still there may not be any sign of any internal injury. But, as already quoted above, the post-mortem examination would reveal nothing except sign of shook on ac ''--oount of sudden death. In my opinion, it obviously means.that the death will be immediate and instantaneous in such a cate. The word ''sudden'' is sufficiently indicative of this faot. I may also refer, in this connection, to Morli''s Medioal Jurisprudence at p. 249 under the heading Shock'' where also he has stated that death may occur from shook without visible injury in a cage where there is a blow on the pit of the stomach in the upper part of the abdomen, but ''shook'' usually appears immediately after receiving the injury. There may be circumstances in which doatb may not be immediate but there ig nothing to show that there Iwas any such supervening factor. Now, taking the evidenoe ad. duced on behalf of the prosecution, the deceased is said to have become unconscious and then after he was placed on a bullack cart and then carried to Gopalganj Hospital he died on (he way. This aeans that tho death was certainly not immediate or instantaneous. It can, therefore, be argued with force that it cannot be a case of sudden death due to shock. Now, besides this, there is some conflicting evidenoe on the point as to whether the deceased had booomo unconscious or not. PW. 2 _. Although not a witness of the occurrence, but he is an important witness inasmuch as he arrived immediately after the occurrence and he found Bikarma Ohaudhur lying fallen on the ground, so he was in a competent position to state as to what was the condition of Bi karma Ohaudhur at that time. He has stated that Bikarma was lying on the ground, but he was not unconscious and he was Bpeaking. P.W. 9 also arrived after the occurrence and he has stated that he found Bikarma lying in a semi, conscious state. These are some of the impor-tant facts, which have to be considered in the " light of the medioal evidenoe and the opinion of the Dootor stated above.

Now, turning again to the evidence o'' the Dootor, I have already pointed above that as far as the deceased Bikarma is concerned, he found injuries only in the nature of abra. Bion. None of these injuries are either on the abdomen or on the lo arer part of the body and it has been urged by learned oourel appearing for the appellants that the location of the injuries and the nature of the injuries show that rather these may have been caused on a person falling with hia faoe downward. It has also been submitted that the consistent evi. denoe on behalf of the prosecution was that the injuries had been caused by fists and slaps, but injuries by fists and slaps could not have resulted in abrasion. It may also be mentioned that the informant had also been examined by the Dootor "and the Dootor found four injuries on the person of the informant, which are as follows:�

(1) Swelling 2" x 1" on the upper part of left forearm;

(2) Swelling 14" x 1" on the left side of baok;

(3) Abrasion with swelling1/2" x 1/2" on the middle finger of the left leg;

(4) Swelling 2" x1/2" on the dorsum of the left foot.

It has been submitted that rather con. gpiouously enough both the informant and the deceased, Bikarma Ohaudhur are said to have been beaten by lists and slaps, but the injuries found on the person of the deceased show that there was no swelling on the person of the deceased. It has also been urged that ''abrasion'' could not have been caused by fists and slaps. The Doctor had alBo been questioned about it and he had also stated that ''abrasion'' can be oaused by scratching of the nails and that the fist blows are generally expected to cause swelling, A fist blow may or may not cause abrasion. I may, in this connection, refer to Modi''s Medioal Jurisprudence under the heading ''"Abrasion" at p. 217, He is of opinion that abrasions are produced by a blow, a fall on a rough surface or being dragged in a vehicular accident, by scratching with the finger nails, by teeth-bites, or by friction and pressure of strings or ropes tied round neck or other parts of the body. In my opinion, it cannot be definitely said that the injuries in the nature of abrasion cannot be caused by fist and slap, but naturally it will depend upon the manner and the circume-tances of the assault. Now, it is necessary to examine the evidence and the circumstances of the case. The prosecution examined 11 witnesses in all out of whom P. \\V. 11 is the Dootor, I have discussed his evidenoe. P.W. 10 is the Investigating Officer. P.W. 6 is the informant himself and undoubtedly he is a very important witness, because he was not only the informant but he must have been present at the time of the occurrence, because undoubtedly the injuiies were found on his person. The informant in the Pardbeyan, on the basis of which the First Information Re-port was drawn up, did not attribute any injury to have been caused by Jamuna Ohaudhur. A perusal of the First Information Report which is very dear on the point that accord, ing to the informant at first there was bata. bati that is altercation and thereafter Kanbai Ohaudhur, that is, appellant No. 3, assaulted the informant with fist and Blap and Jagarnath and Eanbai caught hold of the deceased, Bikarma Ohaudhur, and assaulted him with kicks and Sets and that when he fell down on the ground then they gave blows on his st naach and mouth and Bikarma Ohaudhur, deceased, became unconscious.

There was, therefore, allegation in the First Information Report only to the effect that the assailants were appellants 2 and 3 only and there was no mention" of the appellant No. 1 Jamuna Ohaudhur being one of the assailants. It has been urged that it was most unlikely that Jamuna Chaudhur appellant No. 1, who was aged about 65 years, would have parti-oipated in giving fiat and slap blows, because of hia advanced age and this is a circumstance which supports this fact that there was, therefore, no mention about him in the First In-formation Report.

It has been further urged that it was only at a subsequent stage of the oase that the developments were made in the prosecution case and the name of appellant No. 1 was in. oluded. learned Counsel appearing for the State has also submitted that the First Infor. mation Beport is not a substantive piece of evidence and secondly that the name of Jamuna Chaudhur also, as accused, finds place in the First Information Beport and that there was only an inadvertant mistake or slip and that is why the name of Jamuna Chaudhur was left out. The learned Assistant Sessions Judge has also, in his judgment, considered this aspect of the matter and he was of opinion that there was an inadvertant omission and mistake in the Fardbeyan. He seems to have been of the opinion that the case of the prosecution was that Kanhai first started assaulting the informant and he was engaged in assaulting the informant and so the re. maining two must have assaulted the deceased. In this connection, the evidence of P.W. 5 baa to be seen. He was the Officer, in.oharge, Gopalganj Police Station and he had recorded the Fardbeyan. He has proved the Fardbeyan and he has also stated that Gunjeshwar Ohaudhur, informant, had put his signature in his presence in token of the correctness of the contents of the Fardbeyan marked Ext. 2, In his cross-examination, he has stated that the informant was speaking and be was recording his statement except for improving upon the language. Now, in this connection, the evidence of P.W. 6 may be seen in which he admitted that he had also been examined by the Mirganj Police, and this statement of his has to be read along with the evidence of the Investigating Officer, who is P W. 10. Hia evidence Bhows that Gunje-Bhwar, the informant, did not make any state. ment before him other than what he had made in the Fardbeyan.

This naturally leads to a reasonable infer, enoe that the informant even at that stage when he was examined by the Mirganj Police, he did not say anything besides what had been stated by him in the First Information Beport. The proseoution has also led evidence on the point that there was assault still continuing after the deoeased had fallen down and that Eanhai, at that time, after leaving the informant had given a kick blow on the abdomen of the deoeased. The First Information Be. port is again silent about this allegation in respect of Kanhai. P.W. 1, who was a witness of the ocourrenoe and be has been named '' also in the First Information Report, stated that there was an altercation and then Eanhai assaulted the informant, that is, P.W. 6 with fists and slaps and the remaining two persons Jamuna and Jagarnath started beating Bikarma Obaudhur with fists and slaps. Then Bikatma fell down on the ground. This witness does not say about Eanhai having assaulted the deceased Bikarma. It also appears from the evidence of the Investigating Officer, P.W. 10, that this witness when examined by him did not state that the assaults continued even after the deceased fell down. It also strikes me that had the assault oontinued in such a merciless manner that even after Bikarma had ... fallen down he had been assaulted with kicks, fists and elaps and then many more and some serioua injuries would have been found on his person. P.W. 2 was not a witness of the occurrence, but he had arrived after the occurrence. He has stated in his evidenoe that Bikarma waa not unconscious and was speaking. P.W. 3 is Sukath Chamar (Bukhi). He has also stated that there was an altercation and then assault on the informant.

This witness also has stated that the assault continued even after Bikarma had fallen down and then he had further stated that Bikarma had stated that these two persons Jamuna and Jagarnath bad first assaulted and that Eanhai left the informant and dealt a kick blow on his abdomen when he was lying down. But, it appears from the evidence of this witness that both in the Court of the Magistrate and before the Police Officer he had not stated that the assault continued even after Bikarma had fallen down. P.W. 4 had also stated that there was an altercation and then Eanhai fell on Gunjeshwar and then Jamuna and Jagar -nath caught hold of Bikarma Chaudhur, deoeased, by hand and dealt fist and slap blows even after he fell down and then Eanhai gave heavy kiok on the abdomen of the deoeased. This witness has used the expression ''heavy'' which has not been used by the other witnesses. Now, according to him, there was only one aided assault, but it appears that when he was examined before the Magistrate, he had clearly stated that there was a marpit going on on both sides. This witness when exa. mined before the Police also did not state that Jamuna and Jagarnath continued to assault the deoeased when he fell down. P.W. 7, no doubt, stated about the assault even after be had fallen down and then also about the assault by the kick by Eanhai on the abdomen. But, the witness was examined by the Police after 4 or 5 days of the occurrenoe. P. "W. 8 was tendered. P, W. 9 came after the ooour. renoe and stated that Bikarma was semi-oonscious.

On an examination of all the evidence and the ciroumstances, it is dear that there was an altercation between the parties and this was on account of a controversy and dispute with regard to the removal of the hedge. Parties had, no doubt, gone there, but undoubtedly the accused persons had not gone with the intent to commit assault inasmuch as there was no evidence to show that there was any kind of arm with them and there was no assault with arms. There oould not have been obviously any intent at that time to commit or to cause any suoh injury as to oause death, The injuries found on the person of Bikarma Chaudhur, deceased, have to be examined in the light of all these facts and circumstances particularly the developments of the case, which I have pointed above, and on a consideration of all these facts and circumstances I feel that there are good grounds for reasonable doubts with regard to the oharge u/s 304/34. The oharge u/s 304/34 cannot be sustained and conviction and sentence have to be set aside.

Now with regard to the charge u/s 323, Penal Code, as far as Eanbai is con. oerned, there is a consistent evidence right from the time of the recording of the Fard. beyan that Kanhai assaulted Gunjeshwar, the informant, and there is alao consistent evidenoe to support it that there were injuries caused on him with fists and slaps. In my opinion, there cannot be any doubt that this part of the prosecution version is aorreot that Eanhai assaulted Gunjeshwar, informant. It also appears that the injuries were not of a very serious nature and the occurrence arose out of an alteroation about the dispute regarding the ridge and considering all these aspects of the matter, I think it is a fit case in which instead of sentence of imprisonment, a sentenoe of fine is imposed, which will meet the ends of justice. The conviction of Kanhai u/s 323 is upheld but the sentence is altered to one of fine only of Ra. 200/. or in default to undergo rigorous imprisonment of six months. In the event of realization of fine, Rs. 100/-will be paid to the informant by way of com. pensation.

The appeal is partly allowed and partly dismissed on the lines indicated above.