GANGA SINGH Vs. STATE

JUDGEMENT

(1.) Ganga Singh, aged 45 years, Ramker Singh, aged 35 years and Ram Sagar Singh, aged 50 years, appellants, real brothers inter-se, sons of Ram Sunder Singh aged about 90 years, residents of Shahpur, police station Nizamabad, District Azamgarh, have preferred this appeal against the order dated 31-3-1979 passed by the Sessions Judge Azamgarh in S. T. No. 426 of 1977, convicting and sentencing them under Sections 302/34 and 307/34 I. P. C. to suffer imprisonment for life and R. I. for 5 years. The two sentences have been made to run concurrently. The occurrence took place on 10-7-1977 at about 9 A. M. in the field of the appellants. In this occurrence Salik Ram, Ramdhan and Balram, residents of the village of the appellants received injuries as the hands of the appellants. In the occurrence Ganga Ram had at ballam, Ramker Singh, a gandasi (small gandasa) and Ram Sagar Singh, a lathi. On account of the injuries sustained Salik Ram aged about 22 years lost his life. First information report of the occurrence was lodged by Ram Kishan, uncle of the deceased at the police station 3 miles away at 11. 30 A. M. on the very date of occurrence. Mohan Lal Gupta, S. I. , attached to the police station, P. W. 7, entered upon investigation. He held inquest on the dead body and sent it for post mortem examination, He sent Ram Dhan and Balram, injured for the examination of their injuries. Dr. G. C. Upadhya (P. W. 8), Medical Officer, District Hospital, Azamgarh examined Ram Dhan and Balram on the date of occurrence between 6 and 6. 20 p. m. On the person of Ramdhan, aged about 60 years, 4 injuries detailed below were found :- (1) Incised wound 7 cm. x. 5cm. x muscle deep longitudimal on the skull 4. 8 cm above the right eyebrow, bleeding present. (2) Traumatic swelling of left eye lids in an area of 5 cm, x 5 cm. unable to open the eyelids. (3) Traumatic swelling 4. 5 cm x 2 cm just below the right eyelid, able to open the eyelids. (4) Traumatic swelling 7 cm x 6 cm over the back (upper part) of left thigh just below the gluteal muscle. On the person of Balram, P. W. 5, 5 injuries detailed below were found :- (1) Incised wound 5. 5 cm x 1/2cm x muscle deep on the left parietal region, 6 cm above the left ear, transverse, bleeding present. (2) Traumatic s welling on back of neck 9 cm x 5 cm restricted movement of neck (3) Traumatic swelling 7 cm x 7 cm on the left back 8 cm below the angle of left scapula. (4) Abrasion 1 cm x 3/10 C. M. on the front of left leg 9. 5 cm below the left knee joint. (5) Traumatic swelling 5 cm. x 2 cm. on the lateral aspect of left foot. On 11-7-1977 at about 4 P. M. Dr. G. S. Chaturvedi (P. W. 6), Medical Officer, District Hospital, Azamgarh conducted post-mortem examination on the dead body of Salik Ram, following ante-mortetn injuries were found :- (1) Oblique incised wound over top of head 6. 5 cm x 0. 75 cm x skull bone with a small cut, 0. 5 cm linear (in hind part of wound) of upper table of bone below with oblique line of fissured fracture extending the right frontal bone orbital fossa, thick blood clot around the fractured line. (2) Stab wound 1 cm x 0. 5 cm x bone deep over left side face over the angle of lower jaw with fracture of mandible left at angle. Blood clotted under and around. All the tissues below the injury were cut and lacerated. (3) Contusion 8 cm. x 1. 5 oblique at front of the right thigh middle. (4) Contusion in an area of 18 cm x cm 6 over outer side of left thigh middle and upwards. Internal examination indicated that membranes were congested, that there was a thick blood clot below the skull as well as below the fractured skull bones, that the blood has effused in the brain, frontal lobes and right temporal and parietal lobes, that brain was liquefying and that the pericardium was congested. In the opinion of Dr. Chaturvedi, Salik Ram died due to syncope as a result of the above antemortem injuries. The story of the prosecution runs in this manner. Abadi of village Shahpur is at a short distance from the filed of the appellants. To the north-west of the field of the appellants, Salik, Balram, Bishun, Ram Kishan and Ramdhan have constructed their thatched house sometimes before the occurrence. House of Salik, Balram and Bishun as to the west of the house of Ram Kishan and Ramdhan. Both the houses are east faced. To the east of the house of Ramdhan and Ram Kishan there is open parti land and then there is Rasta. The western half field of the appellants is just to the south of this parti land. This parti land constitutes the Sahan land of the house of Ram Kishan and Ram Dhan. There took place demarcation of the field of the appellants about 10-12 years ago. Consequently there was a mend between the field of the appellants and the above mentioned parti land. To the north of the eastern half field of the appellants there is Rasta. Just to the north of the Rasta. there is house of one Roop Chand. To the east of the field of the appellants there is field of Lakhan and Lochan, P, Ws, 4 and 3. To the west of the field of the appellants there is field of Ram Kishan. To the west and a little south of the field of the appellants, there is their house. These facts clearly appear from the site plan, Ext, Ka. 11 prepared by the Investigating Officer. On the date of occurrence since early morning Ganga bingh, appellant, was ploughing his field. He commenced ploughing it from the eastern side. Ramker Singh, Ram Sagar Singh and Jagdish Singh son of Ramker Singh were cutting the mend. Then they were doing so to the south of the sahan land of Ram Kishan and Ramdhan. Ramdhan and Ram Kishan who were sitting in front of their house objected because they felt that by cutting the mend the appellants would encroach upon their sahan land. While raising objection Ramdhan, old man happened to go into the field of the appellants. Ram Kishan remained there. ' Ganga Singh and other appellants began to give abuses. It is said that on hearing exchange of words Sunder Singh, father of the appellants rushed from his house exhorting that they be assaulted. Thereupon Ganga Singh, Ramker Singh, Ram Sagar Singh and Jagdish Singh picked up ballam, gandasi and lathis lying in the field and rushed to attack Ramdhan. Salik Ram who was screping grass to the south of the field of the appellants and Balram rushed to the rescue of Ramdhan, Ganga Singh, Ramker Singh, Ram Sagar Singh and Jagdish Singh assaulted Salik Ram with their weapons. Ramker Singh, Ram Sagar Singh and Jagdish Singh assaulted Ramdhan with their weapons. Salik Ram breathed his last immediately after receiving the injuries. Defence of the accused persons including the appellants was total denial of the occurrence. It was suggested by the appellants in cross-examination of Balram that the injured persons were assaulted by some thieves. The prosecution examined 4 persons as eye-witnesses of the occurrence. Ram Kishan, Lochan, Lakhan and Balram, P. Ws. 1 and 3 to 5. No witness was examined in defence. Learned Sessions Judge found all the 4 witnesses reliable and as such held the prosecution story proved. The Sessions Judge, however, gave benefit of doubt to Sunder Singh and Jagdish Singh. He observed :- " On a careful perusal of the entire record of the case I am however satisfied that the accused Sunder Singh and Jagdish Singh are entitled to the benefit of doubt. Accused Sunder Singh is aged more than ninety years and is very old and even P. W. 1, Ram Kishun had stated that Sunder Singh had become Sadhu. Even according to him he was more than 85 years of age. The only allegation made against him is that he came out of his house and made exhortation. The house of the accused is at a considerable distance from the place of the occurrence. It is therefore, doubtful that accused Sunder Singh who is very old and weak and has become Sadhu, came out and exhorted his sons to cause injuries to the complainants etc. So far as accused Jagdish bingh is concerned, I noticed that he was about 16 years of age on the" date on which his statement was recorded. On the date of the incident namely 10-7-1977 he would have been about 13-14 years of age para 16 P. W. 1, Ram Kishun admitted that at present Jagdish was a student of class IX. In 1977 he would have been student of class VII. It is difficult to believe that such a small boy would have taken part in the marpit. It is the case of the prosecution that Jagdish was armed with a lathi. However, the lathi injuries found on the body of the injtwed and the deceased could have been caused by Ram Sagar Singh alone because he too was armed with Lathi. It is possible that in order to take revenge the name of these persons was falsely included in the F. I. R. It is also possible that they actually did what is stated in the F. I. R. and what the witnesses tell about this. However, since for the reasons detailed above, doubt has been created about their complicity in the offence, both of them are entitled to the benefit of doubt. " We have heard the learned counsel for the appellants, Smt. R. D. Gupta and Sri T. N. Hukku, State counsel and the complainant's counsel Sri T. Rathore. Smt. R. D. Gupta has read over the statements of all the witnesses of the prosecution. The entire material available on the record has been carefully examined with the assistance of the parties counsel. The first question that arises in the case is whether Ramdhan, Salik Ram and Balram received injuries at the hands of the appellants in the manner alleged by the prosecution. We may at the outset observe that the learned Sessions Judge has rightly given benefit of doubt to Sunder Singh had Jagdish Singh for the reasons detailed in the judgment which have been reproduced above. We would like to observe that there was enmity between the parties from before the date of occurrence and that there had taken place no quarrel between the parties since the demarcation of the field of the appellants. On the date of occurrence one of the appellants was ploughing the field from the eastern side in the 2nd week of the month of Julye The appellants were well within their, rights to plough the field. It, however, appears that they wanted to cut the mend in order to increase the area of the field a little. Perhaps they anticipated that Ramdhan and Ram Kishan might object. Therefore, they brought a ballam, a gandasa and a lathi and placed them in the field with a view to assault the objectors. It is, however, evident that the intention of the appellants was not to take the lives of the objectors. In fact they did not take the lives of Ramdhan and Ram Kishan who had objected. Ram Kishan remained in his sehan land and did not enter into the field of the appellants. In these circumstances he was not given a single scratch by the appellants. Ramdhan, a man in the sixties happened to cross the mend and reached the field of the appellants, proceeded to attack him. Worthy of notice is that Ramker Singh gave only one gandasi below to him. Ganga Singh did not give a single ballam blow to him. Ram Sagar Singh, however, gave 3 lathi blows on account of which Ramdhan had 3 swellings. All the injuries were simple. It is thus evident that it was not the intention of the appellants to have caused death of the objectors. The intention was merely to give a small beating to the objector who had crossed the mend and came up in the field of the appellants. It is also evident that the appellants had not in all probability decided as to what weapon should be picked up and by which of the appellants. The appellants at randum picked up the weapons lying there and proceeded to attack Ramdhan. By this we mean to say that it is not a case of pre-planned assault. Therefore, there was hardly any occasion for Sunder Singh to have come up and exhort his sons to assault. For this very reason it can be said that there was hardly any occasion for a boy aged about 13 years to wield lathi. We have observed that in criminal cases there is tendency amongst the complainants to imp lead the close relations of the appellants although they may not have taken part in the occurrence. The position is that we are of the opinion that Sunder Singh and Jag-dish Singh have been rightly given benefit of doubt by the Sessions Judge. With regard to the veracity of the 4 witnesses examined by the prosecution, en a careful consideration of the statements we are of the opinion that reliance can be placed on the testimony of Balram and Ram Kishan and that reliance cannot be placed on the statements of Lochan and Lakhan. Every witness has to stand the test of truthfulness. We may now indicate our reasons for not believing the testimony of Lochan and Lakhan. These 2 witnesses are real brothers. Both of them are said to have left their house in the early morning of the date of occurrence for fishing in a Nadi (river ). Unluckily they could not net a single fish. Therefore, they were leaving the river. Just at that time they heard hue and cry and proceeded towards the scene of occurrence. They came into their field which is to the east of the field of occurrence and then saw the occurrence. This is in nut shell the case of the prosecution in respect of their presence at the time of occurrence. We first of all notice that none of these witnesses told the Investigating Officer that they had gone to the river to catch fishes. We next notice that Lakhan clearly stated that he was not interrogated by the Investigating Officer. Lakhan further stated that for the first time he gave statement before the Sessions Court. Statement of Mohan Lal Gupta. Investigation Officer indicates that he interrogated Lakhan on the 3rd day of the occurrence. He interrogated Lokhan also on the 3rd day of the occurrence. Mohan Lal reached the scene of occurrence on the date of occurrence i. e. 10-7-1977. On that day he held inquest on the dead body, sent the dead body for post-mortem examination. Then he sent the injured for medical examination. He took blood stained and plain earth from the place of occurrence. He prepared site-plan. He interrogated Ram Kishan. Then he arrested Sunder Singh from his house and took search of the house of the appellants. On that date he did not take the statements of Lokhan and Lakhan and returned to the police station. He did not interrogate Lokhan and Lakhan on the next day i. e. 11-7-1977. On that day he simply received the result of the post-mortem. Then he interrogated these 2 witnesses on 12-7-1977. Thereafter he went to the District Hospital where he interrogated Balram and Ramdhan. It is not understood as to why Lokhan and Lakhan were not interrogated on the very date of the occurrence. We further find that Lakhan has tried to conceal his relationship with the family of the injured persons. Defence suggestion is that wife of Salik Ram deceeased is real sister of the daughter-in-law of Lokhan. Lokhan has admitted that Shiv Ram is his son, that Magru of village Chakwa is the father-in-law of Shiv Ram, that Smt. Chunia is wife of Shiv Ram (Shri Ram), that Smt. Chunia is sister of Champa, that the name of the wife of Salik Ram is Champa, that this Champa is different from Champa, sister of Smt. Chunia Later on he had to admit that there is only one Champa. It is thus evident that Smt. Chunia and Smt. Champa, sisters inter se were married to Salik Ram, deceased and Shiv Ram son of Lokhan. Lafkhan has admitted that Smt. Champa is wife of Salik Ram. He has then stated that he does not know if Mangru is father in law of Salik Ram, that he does not know Magru, that he does not know even village Chakwa, that ha does not know Mangru of village Chakwa, that he does not know any woman of the name of Smt. Chunia, that Shri Ram is married to Smt. Chunia, daughter of Mangru, that he does not know if Mangru has 2 daughters. Smt. Chunia and Smt. Champa, that he does not know if Suit. Chunia and married to his nephew, Shri Ram. It is patent that he is intentionally concealing his relationship with the deceased Salik Ram. It is highly strange that he does not know the name of his nephew's father-in-law. Reliance can hardly be placed on the testimony of such a witness. In cross-examination Lokhan stated that he remained at the scene of occurrence till the afternoon that the Sub-Inspector (Investigating Officer) came up at about 12 O'clock in the day, that Bishun and Kishan also remained at the scene of occurrence upto the time he remained there. This statement is belied by the statement of Kishan i. e. Ram Kishan, P. W. 1 Ram Kishan left the field and went to his house and wrote the report. He handed the report to Bishun who carried it to the police station. Therefore, Bishun did not remain at the scene of occurrence from the time of the occurrence upto the time of the arrival of the Investigating Officer. In these circumstances Lakhan had to admit that Bishun had gone to police station before the arrival of the Investigating Officer. In this way he contradicted his own statement. We further notice that Lokhan has clearly stated that he made no mention of this occurrence to anybody prior to his meeting the Investigating Officer. He clearly stated in cross-examination that Ganga assaulted Balram with gandasa. According to the prosecution Ganga Singh had a Ballam and not a gandasa. Taking into consideration all what has been discussed above, we are of the opinion that Lochan and Lakhan had not seen the occurrence and such no reliance can be placed on their testi mony. There renained 2 witnesses, Ram Kishan and Balram received injuries in the occurrence. His injuries have not been assailed by the appellants' counsel in any way. He has faithfully given the version of the prosecution. It is evident from his statement that the occurrence took place in broad day 1'ght. The learned counsel for the appellants have not been able to make any comment in respect of the actual assault made by the appellants upon the victims. In these circumstances there is absolutely no reason not to accept the statement of Balram in respect of actual assault on the victims. Ram Kishan is a natural witness of the occurrence. He and Ramdhan live in the same house quite close to the place of occurrence. Suggestion was given that on the date of occurrence he was in village Mahul where Bishun had inherited property from his maternal grand-father. Ram Kishan denied the suggestion. There is no evidence worth the name that in fact Ram Kishan was in village Mahul on the date of occurrence. Besides, it does not stand to reason as to why he should be in village Mahul on the date. In the circumstances as stated above, he is a natural witness of the occurrence. He fully supports the statement of Balram in respect of the assault. He wrote the first information report of the occurrence just after the occurrence. No doubt he is educated upto class IV, but his statement clearly shows that he can write a report. v The first information report goes to corroborate not only the testimony of Ram Kishan but also the testimony of Balram. For what has been stated above, we are clearly of the opinion that reliance can be placed on the testimony of Balram and Ram Kishan in respect of the actual assault made by the appellants upon the victims. There is nothing to show on the record that the victims were in any way aggressive or committed any offence even of a petty nature. The victims were wholly unarmed. Therefore, it cannot be said that the appellants had any justification to assault the victims. The only thing which can be said is that the appellants were digging or going to dig the mend. The mend was of the field of the appellants. The appellants had not actually encroached on any part of the sahan land of Ramdhan and Ram Kishan. In these circumstances it can of course be said that there was no justification for Ramdhan and Rani Kishan to raise any objection. But this does not entitle the appellants to assault them. Ramdhan inadvertently while raising objection verbally crossed the mend and reached the field of the appellants. He had obviously no intention to encroach upon or to trespass into the field of the appellants. Therefore, the appellants unnecessarily began to give abuses and resorted to attack Ramdhan, The mere fact that Ramdhan and Ram Kishan were not justified in raising objection does not give any benefit it to the appellants. The conclusion at which we arrive on the discussion of the material on record is that the appellants assaulted the 3 victims in the manner alleged by the prosecution and that they had no jurisdiction to assault them. The next point which arises for consideration is whether all the 3 appellants are guilty of the death of Salik Ram with the aid of Section 34. We have indicated above that it is not a case of preplanned assault. In our opinion the occurrence took place at the spur of the moment, At the most the intention of the appellants was to assault any person who objected to the cutting/digging of the mend. Their intention was not to kill any body. The appellants did not cause any fatal injury to Ramdhan who was assaulted first. Salik Ram simply came up to save Ramdhan. His position is that of an intervener He had not objected to the cutting of the mend of the appellants. As soon as he came up, one blow was given by Ganga Singh, another blow was given by Ramker Singh and a couple of blows were given by Ram Sagar Singh. In these circumstances it is but obvious that these 3 persons did not have a common intention to fatally assault Salik Ram. To attract the provisions of Section 34 I. P. C. it is necessary to find that the common intention existed prior to the incident/assault. Common intention can also arise during the assault. But in the instant case we cannot infer that common intention to fatally assault Salik Ram arose during the assault. Balram was also an intervener. He was given one blow by Ramker Singh and 3 blows by Ram Sagar Singh. No blow was given to him by Ganga Singh. Therefore, in his case also we cannot infer any common intention of the appellants. For the view which we have taken above, we are of the opinion that none of the appellants can be convicted for any offence with the help of Section 34 I. P. C. Each appellant has to be punished for his own act. Ramdhan and Balram received simple injuries. In the circumstances of the case and looking to the nature of their injuries it cannot be held that the appellants, particularly Ramker Singh and Ram Sagar Singh had intention to cause such injuries to them as were likely to cause death. Therefore, Ramker Singh and Ram Sagar Singh as well as Ganga Singh cannot be convicted under Section 307/34 I. P. C. We have indicated above that the 3 appellants did not have a common intention to fatally assault Salik Ram. Therefore all the 3 appellants cannot be convicted under Section 302/34 I. P, C. Each of them will be guilty of the injury caused by him. Essence of the offence of murder/homicide punishable under Section 302 I. P. C. is intentional/deliberate causing of death or causing of such injury as the offender knows in all probability to be likely to cause the death of the victim or causing such injury as is sufficient in the ordinary course of nature to cause death or causing such injury as is imminently dangerous to life. Crux is the intentional causing of death or fatal injury. Essence of the offence of culpable homicide not amounting to murder punishable under Section 304 I. P. C. is intention 01 knowledge to cause such bodily injury as is likely to cause death. But if a blow with a weapon like a small gandasa or lathi is given without the intention or knowledge necessary to constitute homicide or culpable homicide not amounting to murder and it accidentally falls on a vital part and proves fatal, the assailant cannot be convicted under Section 302 or 304 I. P. C. and can only be convicted under Section 326 or Section 325 I. P. C. , as the case may be. Ganga Singh wielded his ballam once and its impact was on the jaw of Salik Ram. The mandible bone was fractured. It was grievous injury. But it was not likely to cause the death of Salik Ram. In these circumstances, Ganga Singh can be convicted under Section 326 I. P. C. This injury does not call for any severe or deterrent punishment. Ramker Singh wielded his gandasi once and it happened to fall on the head of Salik Ram and the skull bones were fractured. Had Ram Ker Singh and Ganga Singh who had deadly weapons intended to cause the death of Salik Ram an intervener, they would have easily wielded their weapons more than once. In fact they would have caused several incised wounds on the body of Salik Ram. Ganga Singh could easily thrust his spear into the chest or abdomen of Salik Ram. Ramker Singh caused one injury each to Ram Dhan main victim and Balram another intervener. Injuries caused to them were on their heads. But they were simple injuries. It means that he did not cause injury to them with force. Gandasi is a comparatively lighter weapon. Then Ram Sagar Singh caused 2 contusions on the thighs of Salik Ram. These injuries were simple. Ram Sagar Singh did not wield his lathi upon the head or any other vital part of the body of Salik Ram. Viewing all these facts together, the possibility of the gandasi of Ram Ker Singh falling on the head of Salik Ram, a young man aged about 22 years, with a little more force accidentally cannot be ruled out. Hence Ram Ker Singh can appropriately be convicted under Section 326 I. P. C. and not under Section 302 or Section 304 I. P. C. But he deserves comparatively severe sentence. Ram Sagar Singh caused 2 simple injuries to Salifc Ram. He can be convicted under Section 323 I. P. C. For the injuries caused to Ram Dhan and Balratn with gandasi Ram Ker Singh can further be convicted under Section 324 I. P. C. on two counts. Ram Sagar Singh al so caused 3 traumatic swellings to Ram Dhan and 3 traumatic swellings to Balram. He is thus guilty of an offence under Section 323 I. P. C. also on these 2 counts. The position that follows is that Ganga Singh is guilty of an offence under Section 326 I. P. C. Ram Ker Singh is guilty of an offence under Section 326 and of offence under Section 324 I. P. C. on two counts and Ram Sagar Singh is guilty of offences under Section 323 I. P. C. on 3 counts. There is no other point involved in this appeal. For the findings arrived at above, appeal is partly allowed and partly dismissed. Conviction and sentence of all the 3 appellants, Ganga Singh, Ram Ker Singh and Ram Sagar Singh under Section 302/34 and 307/34 I. P. C. recorded by the Sessions Judge, Azamgarhon 31-3-1979 in S. T. No. 426 of 197v are set aside. Ganga Singh, appellant is convicted and sentenced under Section 326 I. P. C. to undergo R. I. for 3 years. Ram Ker Singh, appellant is convicted and sentenced under Section 326 I. P. C. to undergo R. I. for 7 years. He is further convicted under Section 324 I. P. C on 2 counts and on each count he is sentenced to undergo R. I. for 6 months. The sentences of imprisonment awarded to him shall run concurrently. Ram Sagar Singh is convicted under Section 323 I. P. C. on 3 counts and on each count he is sentenced to pay fine of Rs. 250/ -. In default of payment of fine he will undergo R. I. for 3 months on each count. He is given 3 months time from this day to deposit the fine in the Court below. Ganga Singh and Ram Ker Singh are on bail to which they shall forthwith surrender and be taken into custody to serve out the sentences awarded to them by this Court. Ram Sagar Singh is also on bail. His bail bonds shall stand discharged after he has deposited the fine in the Court below. .