Ujjagar Singh vs The State

Gopal Singh, J.—This is an appeal by Ujagar Singh. It is directed against the judgment of the Additional Sessions Judge, Amritsar dated October 4, 1968 convicting the appellant u/s 304 (Part II), Indian Penal Code and sentencing him to rigorous imprisonment for five years.

It is a case of unfortunate death of a deaf and dumb destitute Gunga Singh by name. Being dumb, he was known as Gunga Singh. He was working as a servant in the house of Gurbachan Singh proprietor of International Plastic Engineering Factory situate in East Mohan Nagar, Amritsar. He served him for 40 years. Inter-alia, he used to graze his buffalo. On the fateful day of March 16, 1968. Gunga Singh was grazing his buffalo at a distance of 100 feet from the factory on a patch of grass close to a foot-path with cemented edge. At that time, Gurbachan Singh was standing near the main gate of the factory. His employee Parkash Singh was also standing close to him.

Ujagar Singh appellant, who has his dairy farm and a few shops near the place where Gunga Singh was grazing the buffalo, turned up at 2.00 p.m. on a bicycle near the place where Gunga Singh was standing. Keeping his cycle aside, the appellant challenged Gunga Singh as to why he was grazing buffalo there. Gunga Singh being deaf and dumb did not respond to the challenge. The appellant caught hold of Gunga Singh and thrsw him on the ground twice of thrice. The body of Gunga Singh when struck against the cemented edge of the foot-path received injuries. As a consequence thereof, his skull was broken and other injuries were suffered by him.

Gurbachan Singh and Parkash Singh, who saw the occurrence ran towards the place of occurrence and carried Gunga Singh to the factory. There he was given first aid. After some time, the appellant visited the factory and sought apology for what he had done. As the condition of Ganga Singh was precarious, he was removed from the factory and taken by Krishan Lal, Manager of the factory in a rickshaw to the V.J. Hospital at Amritsar. Gunga Singh succumbed to the skull injury soon after his admission in the Hospital. On being informed about the death of Gunga Singh, Gurbachan Singh reached the Hospital.

On receiving information about the admission in the Hospital of Gunga Singh in an injured condition followed by his death, Narsingh Datt, Assistant Sub-Inspector of Police Station "B" Division, Amritsar reached the Hospital. He recorded the statement of Gurbachan Singh. It is Exhibit P. A. It constitutes first information report He prepared the inquest report of the deceased, Exhibit P.L. He also recorded the statement of Krishan Lal. From there, he proceeded to the spot of occurrence. He recovered blood-stained earth from the place where the deceased sustained injuries consequent on his being thrown down by the appellant. Memo pertaining to its recovery is Exhibit P.B. It is attested by Gurbachan Singh and Parkash Singh. He arrested the appellant on March 17, 1968.

Dr. A. Phillips performed post-mortem examination of the body of Gunga Singh at 1.00 p.m. on March 17, 1968. He found the following six injuries on his person:

Contused wound 11/2" X 1/4" on the left side of the head bone deep 21/2" above and behind the left ear. On de-section a hematoma formation and a leniar fracture 23/4" in length was seen running from above downwards towards the ear and extended down to the base of the skull through and through the bone. On opening the skull, a massive haemorrhage was seen in the left parietal region. There was haemorrhage in the right side of the brain with 100 cc of blood present.

An abrasion 1" X 1/2" over the literal surface of the left shoulder.

An abrasion 1/2" X 1/4" over the right side of the forehead 1/2" above the right eye brow.

An abrasion 11/2" X 1/2" on the inner aspect of the left elbow.

An abrasion 3/4" X 1/4" over the outer aspect of the light elbow.

An abrasion 11/4" X 1/4" on the lower one-third of the exterior surface of the right leg.

He gave the opinion that all the injuries had been caused by blunt weapon and death was due to shock and haemorrhage as a result of injury No. 1 on the head of the deceased and that that injury was sufficient to cause death in the ordinary course of nature. He further gave the opinion that injury No. 1 could be the result of a fall it the head of the injured hit against hard surface as a result of push forcibly given. Injuries Nos. 2 to 6 were declared to be simple.

The Chemical Examiner, by his report dated April 1, 1968, Exhibit P.Q. found that the earth was stained with blood. The Serologist, by his report dated April 26, 1968 Exhibit P.R., found that the blood with which the recovered earth was smeared was of human origin.

8 The appellant was brought to trial for offence u/s 304 (Part II), Indian Penal Code. The case of the prosecution was supported by the testimony of Gurbachan Singh P.W. 3 as an eye-witness of the occurrence and also by his evidence and that of Krishan Lal P.W. 4 regarding the confessional statement about the commission of crime made by the appellant to both of them, the recovery of blood-stained earth from the place where the occurrence took place and the medical evidence.

The appellant in his statement u/s 342, Criminal Procedure Code denied that he had anything to do with the occurrence nor did he admit that he had made any confessional statement and sought apology for the act of throwing the deceased on the ground and causing him injuries. He pleaded that Gurbachan Singh P.W. was inimically disposed towards him, that he had sold him a buffalo, that the buffalo turned out to be defective, that on that score there took place altercation between him and Gurbachan Singh P.W. and that it is on account of that grudge that he has been falsely implicated by Gurbachan Singh P.W. No evidence in defence was led on behalf of the appellant. The trial Court relied upon the prosecution evidence and sentenced the appellant as referred to above.

The appellant was having his dairy farm in the neighbourhood of the factory of Gurbachan Singh P.W. The deceased had been in the employ of Gurbachan Singh for a period of 40 years. It is very likely that the appellant would have known that the deceased was a servant of Gurbachan Singh and was deaf and dumb. Bachan Singh P.W. 6 has given evidence that he had purchased grass from the Improvement Trust authorities on which the buffalo was being grazed by the deceased at the time of occurrence. Surjan Singh P.W. 7 has also testified the fact that the piece of land on which the animal was grazing at the time of occurrence belonged to the Improvement Trust. From the evidence of these two witnesses, it follows that the appellant had nothing to do with the land and had no business either to challenge the deceased as to why he was grazing the buffalo there or to catch hold of him and violently throw him against the surface of the cemented edge of the loot-path.

Gurbachan Singh P.W. is a respectable and responsible witness. He saw the occurrence while standing near the main gate of his factory at a distance of 100 feet from the spot of occurrence and saw with his own eyes that the appellant two or three times caught hold of the helpless creature Gunga Singh deaf and dumb as he was and forcibly struck him against the cemented edge of the foot-path. It is in course of one of the violent acts of throwing of the deceased that his skull struck against hard surface of the cemented edge of the foot-path and got fractured. This fact was witnessed by Gurbachan Singh P.W. along with Parkash. Singh P.W. an employee of the former. They saw the appellant so causing the injuries and also saw him escape from there soon thereafter. The deceased was brought from the spot of occurrence to the factory and given first aid. There is nothing to doubt the trustworthiness of Gurbachan Singh P.W. about his having seen the injuries being caused by the appellant to the deceased. There is no doubt that Parkash Singh lias not appeared as a witness. I, however do not think that his non-appearance as a witness has in any way adversely affected or caused any kind of doubt upon the truthfulness of the testimony given by Gurbachan Singh P.W. The opinion given ay Dr. A. Phillips P.W. 1 as to the effect that injury No. 1 was a fracture of the skull and could be the result of a fall if the head of the deceased had hit hard against surface as a result of push forcibly given. He also opined that that injury was sufficient in the ordinary course of nature to cause death of the deceased. Thus, the medical evidence is conformable to the manner in which the injury had been caused to the skull of the deceased. That manner of causing of the injury has been described by the ocular account of the occurrence given by Gurbachan Singh P.W. to be the act of the appellant catching hold of the deceased and throwing him down on the foot-path and the skull of the deceased striking against its cemented edge. Thus, the medical evidence amply corroborates the evidence of the solitary eye-witness Gurbachan Singh P.W., whose evidence I have no doubt.

The fact of the occurrence having taken place by striking of the body of the deceased by the appellant against the cemented edge of the foot-path is reinforced by the fact that the recovery of bloodstained earth was made from the place where the appellant threw down the deceased. Bloodstained earth was recovered by Narsingh Datt, Assistant Sub Inspector P.W. 11 soon after the occurrence on March 16, 1968 when he visited the spot after having recorded the statement Exhibit P.A. made by Gurbachan Singh P.W. Memo pertaining to its recovery is Exhibit P.B. It is attested by Gurbachan Singh P.W. and Prakash Singh. The recovery of blood-stained earth has been proved by the evidence of Gurbachan Singh P.W. There is nothing to doubt the genuineness of the recovery of blood stained earth from the spot of occurrence. The Chemical Examiner, by his report Exhibt P.Q., gave the opinion that the earth sent to him for chemical examination was found to be stained with blood. By his report, Exhibit P.R., the Serologist gave the opinion that the blood on the particles of earth sent to him for examination was of human origin. Thus, the evidence pertaining to the recovery of earth stained with blood of human origan further corroborates the fact of the occurrence laving taken place at the place where it is stated on behalf of the prosecution to have taken place.

It is contended on behalf of the appellant that in the light of the prosecution evidence, the appellant could not be charged with the knowledge that the act of his throwing down the deceased was likely to cause death or to cause such bodily injury as was likely to cause death and that in any case it is a case in which the sentence of rigorous imprisonment of five years is rather excessive.

In order that a case may fall under Part II of Section 304, Indian Penal Code, the prosecution have to show that the act, which resulted in the offence of culpable homicide not amounting to murder was done by the offender with the knowledge that that act was likely to cause death or to cause such bodily injury as was likely to cause death. In other words, the offender must be aware or conscious of the fact that the act being committed by him is of such a nature that it would in all probability cause death or would cause such bodily injury as was likely lead to the consequence of death.

The knowledge of the act on the part of the offender will depend not only upon what he himself is going to do but also upon the attendant circumstances of that act. It is from the conduct of the offender and other relevant circumstances that the knowledge of the act committed by the offender can also be inferred. In the present case, as deposed to by Gurbachan Singh P.W., the appellant caught hold of the deceased, threw him on the ground with force twice or thrice, the cemented edge of the foot-path caused injuries to the deceased and as a consequence thereof the skull of the deceased was broken. The appellant was aware of the fact when he caught hold of the deceased and threw him against the hard cemented edge of the foot-path that he was so throwing him. He had also the knowledge that the deceased was being thrown by him against hard cemented edge of the foot-path. If the evidence of Gurbachan Singh P.W. is believed about the act of throwing down by the appellant of the deceased against the hard cemented edge of the foot-path, the appellant would have himself known all about his act as the on-looker and the eye-witness Gurbachan Singh P.W. knew about it. It is the appellant, who is the doer of the act of throwing the deceased against the hard cemented edge of the foot-path. He cannot plead ignorance about what he was doing. He must be presumed to know the consequence of his act. He should be aware of the fact that if he was so throwing the body of the appellant and in particular headwise the skull of the deceased was likely to fracture and the consequence of death was likely to follow. It is not a case, in which it can be legitimately contended on behalf of the appellant that he had no knowledge that the act of striking forcefully two or three times the body of the deceased against the cemented edge of the foot path would in all probability result in fracture of the skull as in fact it did. Thus, I find that the act of throwing down the body of the deceased was done by him with the knowledge that that act was likely to cause death or to cause such bodily injury as was likely to cause death. The case of the appellant falls within the scope of Part II of Section 304, Indian Penal Code and the contention raised that the case of the appellant does not fall within the ambit of Part II of that Section deserves to be repelled and is of no avail to the appellant.

Now I come to the question of sentence. There are no mitigating circumstances to call for lenient view regarding sentence being taken and its reduction being affected. According to the evidence of Gurbachan Singh P.W., the appellant having caught hold of the deceased threw him down against the hard surface of the footpath not once but twice or thrice. This shows the extent to which he proceeded in committing the offence of culpable homicide. The serious injury, which resulted in fracture of the skull of the deceased and cost him his life is on a vital part like head. The appellant threw the deceased headwise on that surface. That is why the seat of the principle injury was on the head and the result was the death. The appellant had no business to unjustifiably lodge protest by challenging the deceased against grazing on the patch of grass in the land belonging to the Improvement Trust. The deceased had been living in his neighbourhood for about 40 years. He must have known that he was deaf and dumb. The deceased could not and did not hear the challenge nor he had been gifted by nature with the tongue to respond with the word of mouth if he could read the expression of resentment and challenge on the face of the appellant when he so challenged him. The appellant has acted in a highhanded manner in committing culpable homicide of a helpless, indigent and harmless person like the deceased. I do not find any mitigating circumstances to persuade me to effect any reduction in the sentence of imprisonment, awarded.

In the result, the appeal fails and is dismissed.