JEEWAN Vs. STATE

JUDGEMENT

(1.) THE four appellants, namely, (1) Jeewan, (2) Rekha, (3) Risal and (4) Smt. Chandra, are members of the same family. THE appellant No. 2 Rekha is nephew of the appellant No. 1 Jeewan. THE appellant No. 3 Risal is his son and Smt. Chanda is his wife. THEy have all been convicted of an offence under sec. 304 read with sec. 34, Indian Penal Code, for causing death of Bhura, a real brother of the appellant No. 1 Jeewan. THE three appellants, Jeewan, Rekha and Rasal have been sentenced to five years rigorous imprisonment while the appellant No. 4 Mst. Chanda has been awarded a sentence of two years simple imprisonment. All the four appellants have also been convicted for causing simple injuries to Mst. Jeevani widow of Bhuraram. THE first three appellants have been sentenced to one month's rigorous imprisonment while the fourth appellant Mst. Chanda has been awarded a sentence of fine of Rs. 100/- and in default, one month's simple imprisonment. THEy have filed this joint appeal.

(2.) THE prosecution case briefly stated is as follows : THE deceased Bhuraram was resident of village Samaspur and the appellants are also residents of that village. During the relevant period they lived in the same "gowari", their residential portions having been demarcated by a partition wall. THE relations between the parties were not cordial and the prosecution case is that the accused had instituted civil and criminal cases in various courts against the deceased and his sons. On 22nd December, 1962, a day before the incident which has given rise to the prosecution of the appellants, Gokul son of Bhuraram deceased cut a 'janti' tree which was standing on the boundary between the fields of the accused and the deceased. THE appellants Jeewan and Mst. Chanda are alleged to have abused Bhuraram on that very day while standing in their house. It may be mentioned that the deceased Bhuraram brought the log of the 'janti' tree on the day of the incident. THE prosecution case is that on 23rd December, 1962 at about 7-30 A. M. when Bhuraram was standing in his Gowari the four appellants armed with lathies entered the house of Bhuraram by crossing over the wall standing in between their houses and the house of Bhuraram. THEy assaulted Bhuraram and inflicted a number of injuries. Mst. Jeevani wife of Bhuraram and Bhuraram's son Rameshwar raised cries which attracted Bhuraram to the place of occurrence. Mst. Jeevani also intervened to save Bhuraram but she too was given a lathi blow on her right hand by the accused Jeewan. Mst. Jeevani was also given two lathi blows by Rekha and Mst. Chanda also gave a lathi blow on the left jaw of Mst. Jeevani. When Dhurarm tried to rescue Bhuraram the accused Risal caught his hand and put him aside. Vidhyadhar son of Begraj of the same village who was standing on the roof of his house and witnessing the incident forbade the accused from beating Bhuraram lest he might die. THE accused, however, continued beating Bhuraram and thereafter they crossed over the wall and went away to their houses. Rameshwar son of Bhuraram who was then aged 12 or 13 years, was sent by Mst. Jeevani to the field to call her son Gokul. Gokul having been informed of the incident returned from the field to his house, and saw his father Bhuraram lying dead in the Gowari with injuries on his body. Gokul after getting information from his mother set out for police station, Jhunjhunu and lodged information in writing in the Police Station Jhunjhunu at about 11. 30 A. M. In this report he named all the four accused persons as the assailants of Bhuraram. He also mentioned in the report that there was previous litigation between his father and the accused regarding the land. Manak Chand, Station House Officer, Police Station, Jhunjhunu, registered a case under Sec. 302, Indian Penal Code, against all the four appellants, and proceeded to the scene of occurrence. On the site, he recovered one Angocha, one lathi piece and some pieces of lakh bangles. He took them into his possession vide recovery memo Ex. P. 9. He also prepared a Panchayatnama Ex. P. 8 of the dead body of Bhuraram and despatched the dead body for post mortem examination to the hospital at Jhunjhunu. Doctor, J. C. Jain, Medical Officer Incharge of the Government Hospital, Jhunjhunu, conducted the post mortem examination of the dead body of Bhuraram. He noticed the following ten external injuries on the person of Bhuraram : (1) Bruise 4"xl" on back of chest left side lower part. (2) Bruise 2"xl" on back of chest left side lower part. (3) Bruise 3"xl" back of chest right side upper part. (4) Bruise 2"xl" back of chest right side lower half. (5) Bruise l"xl" over right shoulder blade. (6) Lacerated wound l"x 1/4" x 1/4" right parietal region. (7) Lacerated wound 1/2" x 1/4"x 1/8" mid parietal region. (8) Bruise 2-1/2" x l" back of right forearm middle i". (9) Bruise 2"x l" back of left forearm upper 1/3". (10) Abrasion 1/2" x 1/2" front of left leg upper 1/3". On opening the dead body he detected the following internal injuries : (1) Comminuted fractures of the 10th and 11th left ribs about 2" from their posterior ends. (2) Left pleura was torn over the fracture side about 30 oz. of fluid blood was present in the left pleural cavity. (3) THE left lung was collapsed. THE posterior surface of the lower lobe was bruised all over. THEre was a laceration 1/2" x 1/4" corresponding to the fracture side. In the opinion of the Doctor, the internal injuries were the result of the external injuries Nos. 1, 2 and 3. THE injuries were all ante-mortem. According to the Doctor, the cause of death was - shock and haemorrhage due to multiple injuries mainly due to the injuries to the left side of the chest. As to the question whether these injuries were sufficient in the ordinary course of nature to cause death, the Doctor's statement is not consistent. In examination in chief the Doctor generally stated that the injuries were sufficient to cause death to a human being in the ordinary course of nature but when in re-examination he was specifically questioned as to whether the injuries were likely to cause death, he gave the following reply : "if likely means possibility of causing death, then I say that those injuries could possibly cause death. " He added that there was also the possibility of Bhuraram's surviving after receiving those injuries. In answer to a question by the Court the Doctor further added that as Bhuraram did not receive prompt medical aid he died. If Bhuraram could have received medical aid within an hour he could have survived.

(3.) THIS brings me to the main controversial question as to what is the liability of each of the appellants for the criminal act committed in furtherance of the common intention which resulted in the death of Bhuraram.