Sawami vs State

Gurnam Singh, J.—Sawami Appellant, a boy still in his teens, has been convicted for the murder of his mother Mst. Bhagwan Kaur and sentenced to transportation for life. He has appealed against his conviction and sentence.

The prosecution case is that the father of the Appellant had died and Mst. Bhagwan Kaur his mother contacted intimacy with one Mangal Singh of Bhaike-Pishaur and started living with him there. Lal Singh the nephew this Mangal Singh then contacted liaison with her and enticed her away to his own village. At that place she contracted Karewa marriage with Lal Singh. Consequently Lal Singh and Mst. Bhagwan Kaur lived in village Ageti as husband and wife. The present Appellant frequently visited his mother in that village. She had two sons from her first husband and the accused was the youngest.

On 25-12-51 the accused as usual visited his. Mother in village Agati. He stayed that night there. Next morning at about 10 A. M. he was sitting at the house of Bara Singh carpenter when his mother went there and asked him to take his meals. The mother and the son returned to the house. They were seen, sitting side by side where she was preparing the meals. Shortly afterwards, Hazara Singh. The father of Lal Singh heard a shout from her. He rushed to the place and saw the Appellant inflicting an injury on her person. The accused then went out of the house. Hazara Singh's hue and cry attracted Bara Singh and Sadhu Singh to the spot. Both these witnesses saw the accused running away from the house of Lal Singh. He was at that time in possession of a Kulhari. Karam Chand P. W. who was sitting in front of his house also saw the accused running away. All these three witnesses pursued the accused for a short distance but could not succeed in arresting him. Later, Kazara Singh wends to the fields and gave information about the incident to his son Lal Singh. Mst. Bhagwan Kaur died at the spot. On the same day Bara Singh Lambardar made a report of the incident at police station IV ache situate at a distance of 4 miles. M. Niranjan Prashad, Station House Officer, Nabha, alter recording the report immediately left for the spot. On reaching there he prepared, inquest report and injury statement of the deceased he took into possession some blood-stained earth from the spot. He also recorded the statements of the witnesses on the very first day. This officer almost completed the whole investigation on that very day. He went to the village of the Appellant where he arrested him on 30-12-51. The accused pointed out a place and from underneath a bush axe Ex. P1 was recovered at his instance. This was later found to be stained with human blood by the Imperial Serologist. As a result of the investigation, the Appellant was sent to stand his trial, with the result indicated above.

The Appellant was examined by the Committing Court as well as by the trial court. He denied his guilt and also denied the recovery of axe P1 at his instance. He produced two witnesses in defense belonging to his village Dhabi. They deposed that the accused Appellant was working as a carpenter in their own village at about the time of occurrence.

Dr. Amar Singh Civil Surgeon Nabha conducted post mortem examination on the dead body of Mst. Bhagwan Kaur on 27-12-51 at 10 A. M. He found an incised wound 31/2 x 1 bone cut on the right side of the head on mastoid region cutting the brain substance and pine of the ear. The cause of death in the opinion of the Doctor was the fracture of the right temporal bone and brain underneath it. The injury was caused with a sharp-edged weapon.

The solitary witness of the assault on Mst. Bhagwan Kaur is Hazara Singh, the father of Lal Singh. He gives the story of the assault as already mentioned. We have been taken through his evidence. The learned Counsel for the Appellant has been unable to point out any defect in his testimony which might induce has to disbelieve him. The only point urged against him is that he is an interested witness being father of Lal Singh the husband of Mst. Bhagwan Kaur. I cannot accept the contention of the learned Counsel that he can be disbelieved only on this account. On the other hand, there is no enmity between him and the Appellant. The witness has no motive or cause for falsely implicating the Appellant. The Appellant was frequently visiting his mother at his house. The relations between, the mother and the son, according to the prosecution were cordial. There was no trouble between the mother and the son up to the unfortunate inci-dent. As already mentioned I have no reason to doubt the testimony of Hazara Singh. His evidence is further corroborated by the testimony of Bara Singh, Sadhu Singh and Karam hand. They are absolutely disinterested witness.

I see no reason for their falsely implicating the Appellant for a serious crime like murder. I am, therefore, of the opinion that the learned Sessions Judge has rightly believed their testimony.

It is urged by the learned Counsel that in fact Mst. Bhagwan Kaur was murdered by. Mangal Singh, uncle of Lal Singh. The contention raised by the learned Counsel, in my opinion, is fantastic. There is not an iota of evidence on the record to support it. Even a suggestion regarding this was not made to the witnesses in their cross-examination.

Learned Counsel half-heartedly referred to the evidence of the defense witnesses. Nathu D. W. 1 states that the Appellant was arrested in his village and about a week before his arrest he had not gone anywhere out of the village. He did not make any statement to the police regarding the innocence of the Appellant when he was arrested. Similar is the statement of the other witness Arjan Singh. This evidence is indefinite in nature and can be easily procured. Even the learned Counsel for the Appellant did not rely on it. I am convinced from the prosecution evidence that the Appellant inflicted the injury on the person of his mother Mst. Bhagwan Kaur and this injury caused her death.

It is lastly urged by the learned Counsel for the Appellant that his offence does not fall u/s 302 I. P. C. The counsel argues that the offence of the Appellant falls u/s 304 part II, I. P. C. He contends that there was no motive for the Appellant to kill his own mother. According to the prosecution story, the relations between the mother and the son were very cordial. The offence was committed without premeditation and was altogether a sudden affair. Shortly before the incident, the deceased and the Appellant were sitting together and there was no trouble between them. Even on the previous evening there was no quarrel between the two. The contention of the counsel, therefore, is that the unfortunate woman somehow or other provoked the young boy who re-acted suddenly and inflicted the solitary injury on her person with a weapon lying close-by. He never intended to kill her. In support of this contention he has cited several authorities. In - Kunda Singh v. Emperor'' AIR 1914 Lah 151 (A), it was observed by the learned Judges:

Though a chhavi was used'', only one blow was inflicted. Kunda Singh on the spur of the moment in the heat of passion seems to have seized the first weapon which came to hand. There was no premeditation, and in view of the inadequate motive for causing death we do not think that Kunda Singh intended to cause death, or to cause such bodily injury as was likely to cause death. Kunda Singh, however, undoubtedly knew that a blow on the head with a chhavi was likely of cause death, and we find that his offence falls within the second part and not the first part of Section 304, Indian Penal Code.

In Ghulam Hyder Imam Baksh v. Emperor AIR 1938 Send 63 (B), it was observed by the learned Judges:

In other words, he should remember that the burden lies on the prosecution to prove the guilt of the accused, and if the prosecution fail to prove the intention which is necessary in order that an accused should be convicted of murder, then they fail to prove the accused is guilty of murder, and the accused should not be convicted of murder even in the alternative. If the prosecution can prove the knowledge which is necessary for the conviction of an offence under section. 304, Part 2, Penal Code, the proper course is to convict the accused of an offence u/s 304, part 2, and not in the alternative............. In this particular case, however, we are of the opinion, upon the evidence, that there is a reasonable doubt as to the intention of the accused.

Only one blow was struck, and suddenly in circumstances, which are in doubt. There was not probably in the mind of the accused an intention either to kill or to cause a fatal injury. The act was sudden; and it appears to us it is more proper under the circumstances to impute to him knowledge rather than intention The offence, therefore, would fall more probably u/s 304, Part 2, I. P. C.

In - "Emperor v. Naga Kyauk Sein" AIR 1937 Ran 443 (C), it was held: Where the injury caused by the accused has resulted in the death of the other and the case is on the border hue between an intention to cause injury likely to cause death and an intention to cause injury such as is sufficient in the ordinary course of nature to cause death and it is not free from doubt that the accused had the latter of these two intentions in attacking the other party, he must be given the benefit of doubt and must be held to have, intended merely to cause injury likely to cause death. The offence committed by him is, therefore, culpable homicide not amounting to murder. In this case the accused killed his wife by squeezing her throat with considerable force and violence. The accused was convicted u/s 304, part J., I. P. C. The case was considered to be on the border line between an intention to cause injury likely to cause death and an intention to cause injury such as was sufficient in the ordinary course of nature to cause death. As the matter was not free from doubt and it could not be said that the accused had the latter of these two intentions in attacking his wife, he was, therefore, given the benefit of doubt and was held to have intended merely to cause injury likely to cause death. In - "Hans Raj Singh v. Emperor" AIR 1946 Lah 41 (D): "A" was charged with murder of "B". "A" and "B" exchanged abusive language of .ordinary type. "A" thrust a knife of ordinary size which was lying by his side and which was used by him in the ordinary course of business, in the abdomen of "B" who was empty handed, resulting in ''B's'' death. There was no previous enmity between "A" and "B". Held that ''A's'' offence did not fall u/s 302 but u/s 304 part II. "Abdul Majid v. Emperor" AIR 1935 Lah 140, (E), is a case where benefit of Exception 4 to Section 300 I. P. C, was given to the Appellant as there was unpremeditated and sudden fight between the accused and the deceased. This case, therefore, has no application to the facts of the present case in which question of Exception 4 does not arise. In -Walli v. Emperor'' AIR 1933 Lah 664 (F), There was a quarrel between the father and the son, and that the latter suddenly got) enraged, struck the former in the heat of passion and caused 3 or 4 injuries, one of which was fatal.

Held: that the offence was committed not u/s 302 but u/s 304 (II).

In - "Khan Mir v. Emperor" AIR 1925 Lah. 143. (G), the facts were as follows:

A dispute having arisen between the accused and Anr. person for about drawing water from a tap, they abused each other and the accused drew out his knife and stabbed the latter with it. The knife pierced the chest and cut the heart causing death. The knife had a blade of 3 or 4 inches, and the counsel for the accused contended that it was not a dangerous weapon.

Held: (1) that a knife which actually caused the fatal injury was undoubtedly a dangerous weapon;

(2) that the accused did not intend to cause the death or to cause such injury as was likely to cause death;

(3) that, however, he must have I known that he was likely to cause death and was, therefore, guilty of an offence u/s 304, part II of the Penal Code.

(4) The learned Counsel for the State contends that The offence of the Appellant falls u/s 302, I. P. C. His argument is that every person must be presumed to intend the result that his action normally procures. According to him if a person hits Anr. on the vulnerable part of the body and death occurs as a result of the blow, the intention of the accused is no other than to take the life of his victim and the offence committed by him amounts to murder. In support of this contention, the learned Counsel has cited number of authorities. In - "Gulab Singh v. The State" 2 PLR 639 (H), the facts of the case were quite different. In this case the deceased was irrigating his fields. The accused went to him and asked for loan of water from him. The deceased refused. On this the accused went to the outlet of the water-course and blocked it. The deceased then went to the outlet and removed the obstruction. The accused plunged a spear in his abdomen and killed him. The facts of the case, therefore, clearly indicate that the in tension of the accused in this case was clearly to murder him. During the arguments in that case it was contended that Exception 4 to Section 300 was applicable, but the contention was rejected and the accused was held guilty of murder.

The counsel for the State also cited two unreported rulings of this Court. The first one is - "Kandu v. The State", Criminal Appeal No. 54 of 1951 Pepsu (I).

The accuse was tried for murder, but was convicted u/s 304, part II I. P. C. He appealed against his conviction. The State also filed an appeal against his acquittal for murder. The Bench deciding the case came to a conclusion that the death of the deceased was caused intentionally and also there was a motive, to commit the murder.

The facts of the case were that Mst. Santi, Kandu accuser's mother was abducted by Jangir Singh deceased and both of them started living as husband and wife. Sometime later, Kandu took service with one Santa Singh. Santa Singh's wife was the sister of Jangir Singh deceased. Jangir Singh deceased and Mst. Santi were invited to the house of, Santa Singh, the employer of the accused on account of marriage of Santa Singh's son. Jangir Singh took liquor on that occasion. He also offered liquor to Mst. Santi the mother of Kandu accused. During the course of judgment my Lord the Chief Justice who wrote the leading judgment observed as follows:

On the other hand I believe that the accused came to the spot armed with a knife because he could not tolerate the presence of the deceased and his mother and he deliberately attacked the former as an act of revenge. From what I have said above it will be clear that the abduction of the accuser's mother by the deceased was not such an old act as not to be a motive for the crime. Moreover it must be remembered that the accuser's wrath was excited not merely because the deceased had abducted his mother but because he had the audacity to bring her openly to a marriage party where the accused himself was present. Now if we take into consideration this fact together with the fact that there was a motive for the offence, it will have to be admitted that the intention of the accused was no other than to cause death or at least to cause an injury sufficient to cause death in the ordinary course of nature.

It is clear from the finding of the learned Judges that the accused had a motive to cause death and intentionally caused the death of Jangir Singh. The other unreported case is - Criminal Appeal No. 226 of 1951 (Pepsu) (J)''. The leading judgment was written by my learned brother Passey J. Again the facts of this case were quite different and are distinguishable. The accused used a spear and inflicted 4 injuries on the person of the deceased. One of the injuries was in the abdomen and the other injury was inflicted at the back. The reason for attack on the person of the deceased was established. During the course of judgment my learned brother observed as follows:

The accused gave the victim four blows out of which one and the first was in the abdomen. He continued to attack even when, as the back injury would indicate, Sarwan Singh had tried to leave the place. The intention of the accused as disclosed by the circumstances and particularly in the selection of vital and vulnerable part of the body like the abdomen and the force with which the blows wore given, was no other than to cause the death of Sarwan Singh.

In deciding this case my learned brother rolled upon - ''Criminal Appeal No. 54 of 1951 (Pepsu) (I)'', referred to above. It is clear from the judgment that number of injuries with a spear was inflicted on the person of the deceased. My learned brother's finding is that there was an intention to kill and an in-jury on the back was inflicted at the time even when the deceased wanted to get away from the place of his assault. The facts of his case, therefore, are clearly distinguishable from the one before me.

The next authority quoted by the learned Counsel for the State is - "Pakhar Singh v. Emperor" AIR 1943 Lah 75 (K). The facts of this case are as follows:

The accused had broken a water spout in the house of one "M". Accused promised to the deceased, who was the relation of "M". And who went to the accused to obtain satisfaction, not to do it again. Some days later, when the accused was hearing music at a marriage celebration the deceased came and for no reason at all started a quarrel with the accused over the water-spout. The accused who was in a state of drink declared that he would break it once again when the deceased persisted with his accusation. The deceased then dared him to do it again if he had the strength. The accused thereupon picked up a lathi lying nearby and gave a single blow on the head of the deceased, immediately causing his death:

Held that even though the accused might not have intended to kill the deceased he Certainly intended to break his head and conviction u/s 302 was proper. There was nothing in nature of a fight, the deceased having offered no violence at all, though there was a quarrel and Section 300, Exception 4 could not apply.

During the course of judgment the learned Judge further observed:

Reading the ocular evidence of the prosecution as a whole which is quite unrequited, it seems to me clear from the conversation which passed before the blow was struck that Pakhar Singh even though he may not have intended to kill Jani, certainly intended to break his head. This inference follows from the fact that Jani had asked him immediately before to show him how he would break the waterspout if he was strong enough, and Pakhar Singh proceeded to do so by breaking his head for him. The facts of this case are again distinguishable from the one before me. Firstly, there was already a dispute in existence between the accused and the deceased. Secondly, the finding of the court is that the intention of the accused was to break the head of the deceased. It appears from the judgment that the contention raised before the learned Judges was about the application of Exception 4 to Section 300. I. P. C. Naturally this Exception had no application as there was no fight between the accused and the deceased. The case before ma is quite different. The relations between the deceased's mother and the son were very cordial and there was no dispute in existence between them. It may not be out of place to mention here that the learned Judges deciding the case made a recommendation to the Government to reduce the sentence of the accused from transportation for life to 5 years R. I.

The last authority cited by the learned Counsel for the State was - Sudhu Kumbhar Vs. The King, It is conceded by him that the facts of this case were quite different and distinguishable.

The facts established in the present case are that the relations between the Appellant and his mother Mst. Bhagwan Kaur deceased were very cordial. The Appellant frequently visited her. Even at the time of the present visit, there was no quarrel or trouble between the mother and the son. In fact shortly before the incident they were on very affectionate terms. She brought him from outside for the meals. They were sitting together when sudden-the present incident occurred. It is also established that the weapon of offence does -not belong to the, Appellant. When he accompanied his mother to her house for the purposes of taking meals ha was not armed. There was no motive for the Appellant to kill his mother. The whole affair was sudden and unpremeditated. The finding of the learned trial court is, "The catastrophe must as such be held to have been brought about in a sudden manner consequent upon some unknown quarrel", The weapon of offence must have been picked up by the Appellant from the place where he and his mother were sitting. In view of all these facts, I am of the opinion that the Appellant did not intend to cause the death of his mother. His intention could not be to kill her nor it could be to cause an injury which was sufficient in the ordinary course of nature to cause her death. In a case of murder, intention is one of the essential elements of the offence. The Appellant cannot be fastened with any such intention. It is no doubt true that the circumstances under which the injury was caused are not explained by the Appellant, but at the same time the prosecution also does not furnish any'' explanation leading to the sudden assault by the Appellant on his mother. It appears to me that the Appellant who is still in his teens v/as provoked by the deceased and he reacted suddenly to that provocation. The Kulhari which is commonly found with the villagers happened to lie close by. He picked it up and struck a blow which landed on her head. There is no evidence on the record to show that the blow was actually aimed at the head. In all probability, in my opinion, the accused was not possessed of an intention either to kill or to cause a fatal injury to his mother. At any rate it cannot be said without any reasonable possibility of doubt that he was possessed of this intention. The circumstances of the case, the close relationship between (he parties and their cordial relations point, to the conclusion that there was no such intention present in the mind of the Appellant. It is no doubt true that a person must normally be presumed to intend the result that his action produces; but this intention is to be judged by his acts in relation to the surrounding circumstances. The circumstances of the present case, as already mentioned in detail, do not warrant the suggestion that the act of the Appellant was intended to kill the deceased or cause her a fatal injury. The Appellant, however, knew that a blow on the head with a weapon like Kulhari was likely to cause death. After giving my anxious Hardevi's death the remaining half''share of consideration to the authorities cited by the parties and keeping in view the particular circumstances of this case I am of the opinion that the offence committed by the Appellant falls u/s 304, (II) I. P. C.

For the reasons stated above, I accept his appeal to this extent that I alter his conviction from Section 302 I. P. C, to that u/s 304 (II) I. P. C, and reduce his sentence from transportation for life to seven years' rigorous imprisonment.

Kesho Ram Passey, J.

I agree.