Ajit Singh, J.
1. Appellant Kishan, the sole accused person in this case, has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life by IInd Additional Sessions Judge to the Court of Sessions Judge, Chhindwara, vide impugned judgment dated 23-2-89 for causing the murder of Patiram, the deceased in the case. He has also been convicted under Section307 of the Indian Penal Code and sentenced to undergo seven years rigorous imprisonment for attempting to commit the murder of Sukhchand (P.W. 4). Both the sentences are to run concurrently. Appellant has been found guilty of causing fatal injuries on the person of deceased Patiram and causing grievous injuries to Sukhchand (P.W. 4) by means of a 'lathi' at about 9.00 a.m. on 21-4-87 at Dewardha Nala.
2. Briefly stated the facts giving rise to this appeal are as under :--
The appellant used to sell illicit liquor from his house. On 21-4-87 Sukhchand (P.W. 4) and Patiram, while returning after attending weekly market, went to the house of appellant and consumed liquor. Therefore, while both of them were proceeding towards their hutment, the appellant on way at Dewardha Nala mercilessly assaulted them by means of a 'lathi' on the pretext that they had not paid him the full price of the liquor consumed. Patiram succumbed to his injuries on the spot whereas Sukhchand (P.W. 4) became unconscious. The incident was witnessed by Seram (P.W. 2) and Ram Prasad (P.W. 11) to whom the appellant had threatened with dire consequences if they dared to disclose about the incident. He, however, on their asking, disclosed that he had assaulted Patiram and Sukhchand (P.W. 4) as they had not paid him the price of liquor. The appellant also made an extra-judicial confession about assault on them before Mchtar (P.W. 7). On the information given by Madhukar (P.W. 12) at the Police Chowki, Umra Nala, of Mohkedh Police Station, District Chhindwara, Head Constable, Lakhanlal (P.W. 16) recorded Marg intimation, Ex. P-19, on 22-4-87. Head Constable, Lakhanlal (P.W. 16) prepared a Dehati Nalishi, Ex. P-22, and thereafter recorded the First Information Report, Ex. P-26, against the appellant.
3. During investigation, Head Constable, Lakhanlal (P.W. 16), prepared a Panchayatnama, Ex. P-21, of the body of Patiram and thereafter sent the body for post mortem vide Ex. P-23, He, vide Ex. P-9, also requested for the medical examination and preparation of injury report of Sukhchand (P.W. 4). Head Constable, Lakhanlal (P.W. 16) recorded the discovery statement, Ex. P-1, of the appellant on 22-4-87 and allegedly seized a 'lathi' vide Ex. P-2 at his instance which was hidden in his house. Head Constable, Lakhanlal (P.W. 16) also seized a blood stained 'Chaddi' from the appellant vide Ex. P-5 on 22-4-87 which he was wearing. The aforesaid seized 'lathi' and 'Chaddi' were sent to Forensic Science Laboratory, Sagar, The report of the Assistant Chemical Examiner, Ex. P-21, confirms the presence of blood on the same.
4. Dr. P.K. Shrivastava (P.W. 17) conducted the post mortem on the body of deceased Patiram. He, in his report, Ex. P-28, found the following injuries:--
(i) Lacerated wound on left fronto parietal region size 8 cm x 2 cm x bone deep.
(ii) Lacerated wound on the left parietal region size 5 cm x 2 cm x bone deep.
(iii) Contusion with abrasion on the left side of cheek lateral to the ext. angle of left eye (5 cm x 2 cm).
(iv) Contusion on the left side of forehead (4 cm x 2 cm), (v) Black eye on both sides.
(vi) Multiple (3 in no.) transverse contusions front on the outer aspect of left upper arm.
(vii) Contusion with abrasion on the ulnar bone of left forearm (5 cm x 1 cm).
(viii) Haematoma with contusions on the right side of forehead (5 cm x 3 cm).
(ix) Contusion with abrasion on the postero lateral aspect of right elbows (2 cm x 2 cm).
(x) Multiple contusions (4-5 in no.) on the left side of back (6 cm x 2 cm) scapular region.
(xi) Multiple abrasions (1/2 cm x 1/2 cm) each on the outer aspect of the hip joint in an area of about 10 cm diameter.
All the above injuries are ante-mortem and seems to be caused by some hard and blunt object.
There is a huge haematoma on the left temporal parietal region (6 cm diameter) underlying fracture of left temporal, parietal and frontal crack fracture. Subdural haematoma on both region. Haematoma on the ant. sides chest wall at the level of 6th, 7th and 8th ribs. Right side congested. Haematoma of the 6th, 7th, 8th, 9th and 10th ribs on left side at the posterior aspect. Blood fresh in both the cavities. Both the lungs congested, Heart empty.
Fracture of left radius and ulna found in mid shaft.
According to Dr. P.K. Shrivastava (P.W. 17) the deceased died due to cumulative effect of haemorrhage, shock and head injury. He further opined in his report that the injuries were ante-mortem in nature and were caused by hard and blunt object.
5. Dr. R. Sthapak (P.W. 5) had examined Sukhchand (P.W. 4). He, in his report, Ex. P-10, found the following injuries on the persons of Sukhchand :--
(i) One lacerated wound of 4 cm x skin deep over right side of scalp, 4 cm above the right eye-brow. Swelling of right eye-lid present.
(ii) One lacerated wound of 5 cm in length on right ear, the ear lobule had divided into two parts.
(iii) Contusion two in number, 10 cm in length 2 cm apart over right side of chest, extending from right nipple to 3 cm above the epigastrium.
(iv) Contusion two in number over right side of mid line 10 cm in length, 2 cm apart, caused by hard and blunt object.
Head injury of Sukhchand (P.W. 4) was advised for X-ray. Dr. S.K. Dubey (P. W. 14) after examining the X-ray plate, Ex. P-18, found a fracture of right fronto parietal region of the skull of Sukhchand (P.W. 4). The report of Dr. S.K. Dubey (P.W. 14) is Ex. P-17.
6. The appellant in his defence pleaded that he is innocent and has been falsely implicated.
7. The Trial Court relying upon the evidence of eye-witnesses Sukhchand (P.W. 4), Seram (P.W. 2) and Ram Prasad (P.W. 11) convicted the appellant under Section 302 of the Indian Penal Code for committing the murder of deceased Patiram and also under Section 307 of the Indian Penal Code for attempting to commit the murder of Sukhchand (P.W. 4).
8. Shri S.C. Datt, learned Senior Counsel for the appellant, challenged the conviction of the appellant on the ground that the Trial Court ought to have disbelieved the evidence of Sukhchand (P.W. 4) as he had become unconscious immediately after the assault on him. It was further urged that the Trial Court ought not to have believed the evidence of eye-witnesses Seram (P.W. 2) and Ram Prasad (P.W. 11) as their conduct of not reporting the incident was unnatural and the same creates a doubt. Shri S.C. Datt, learned Senior Counsel, in the alternative also argued that even if the prosecution story is accepted, the appellant could not have been convicted of an offence under Section 302 of the Indian Penal Code as only offence under Section 304, Part II of the Indian Penal Code is made out against him.
9. After hearing the arguments of Shri S.C. Datt, learned Senior Counsel for the appellant, and Shri A.K. Mishra, Deputy Advocate General for the State, we are of the opinion that the appeal has no merit and deserves to be dismissed.
10. Sukhchand (P.W. 4) is an injured witness and his presence cannot be doubted at the scene of occurrence. He has deposed in his evidence that on 21-4-87 he and deceased Patiram, while returning after attending theweekly market, consumed liquor in the house of appellant and thereafter both of them left for their house. He has further deposed that as they reached near Dewardha Nala, the appellant suddenly assaulted him and deceased Patiram mercilessly with a 'lathi'. According to him, Patiram died on the spot whereas he became unconscious and regained his senses only in the hospital, Sukhchand (P.W. 4) has very categorically stated that the appellant while assaulting was insisting for the payment of price of liquor. In the cross-examination, Sukhchand (P.W. 4) has deposed that at the time of assault he and Patiram were unarmed and since both of them were under intoxication of liquor, they were totally helpless. He has also deposed that the ferocity of the assault was such that his right ear was divided into two parts. Nothing has come in his cross-examination to disbelieve his allegation against the appellant about the merciless assault on him and Patiram with a 'lathi'. His testimony has been fully corroborated by the medical evidence.
11. Seram (P.W. 2), has deposed in his evidence that while going towards the house of appellant alongwith Ram Prasad (P.W. 11), he saw the appellant in the company of Sukhchand (P.W. 4) and deceased Patiram near Dewardha Nala. At that time appellant was carrying a 'lathi' whereas Sukhchand (P.W. 4) and deceased Patiram were unarmed. Immediately, thereafter he saw the appellant assaulting Patiram with a 'lathi' whereas Sukhchand (P.W. 4) was lying on the ground. He has also deposed that after assaulting Sukhchand (P.W. 4) and deceased Patiram, the appellant had threatened him that he was boiling with anger and hence he would kill him also if he would dare to give evidence against him. Seram (P.W. 2), fearing the threat given by the appellant, went to his house. According to him, at that time appellant was wearing a 'Chaddi'. Seram (P.W. 2) has also deposed that after assaulting Sukhchand (P.W. 4) and deceased Patiram, the appellant had exulted before some labourers at the crusher machine that he had flattened two persons and as such he had acted like a tiger. Similar is the evidence of Ram Prasad (P.W. 11). He has fully corroborated the testimony of Seram (P.W. 2). Ram Prasad (P.W. 11) has deposed that after leaving the appellant in his house, he went to Chowkidar Ramdev Pandey (P.W. 8) of the Dewardha Agro Pipe Factory and informed him about the incident. Ramdev Pandey (P.W. 8) unfortunately, because of his pre-occupation, ignored the information given to him by Ram Prasad (P.W. 11). Nothing has come on record to disbelieve the evidence of eye-witnesses, Seram (P.W. 2) and Ram Prasad (P.W. 11). We are, thus, of the firm conclusion that the Trial Court did not commit any illegality in accepting the evidence of Seram (P.W. 2) and Ram Prasad (P.W. 11) as eye-witnesses. Both of them have stood firm in their evidence in the Court as eye-witnesses. Even in their cross-examination nothing has come on record to disbelieve their evidence about the murderous assault on the deceased Patiram and Sukhchand (P.W. 4) with a 'lathi'.
12. There is yet another evidence in the form of extra-judicial confession of the appellant before Mehtar (P.W. 7). He has deposed in his evidence that on the date of incident at about 9:00 p.m. the appellant visited his 'dera' and disclosed in front of 7/8 persons that he had assaulted two persons at Dewardha Nala. According to him, at that time appellant was wearing a 'Chaddi' and was carrying a 'lathi' with him. There is nothing on record to disbelieve the evidence of Mehtar (P.W. 7).
13. Shri S.C. Datt. learned Senior Counsel for the appellant, has argued that recovery of 'lathi' as weapon of offence and 'Chaddi' from the possession of appellant is of no consequence as there is nothing on record to suggest that the said articles had human blood stains on them. Ram Charan (P.W. 10) has deposed in the Court that Lakhanlal (P.W. 16) had seized a 'lathi' vide Ex. P-2 and a 'Chaddi' vide Ex. P-5 from the possession of appellant. Dr. P.K. Shrivastava (P.W. 17) too has supported that from the 'lathi' seized, the injuries found on the deceased Patiram was possible. Under the facts and circumstances of the present case, merely in the absence of any report about the presence of human blood on the weapon of offence and 'Chaddi' or appellant, the prosecution story against the appellant cannot be disbelieved.
14. The next and rather the main submission of Shri S.C. Datt, learned Senior Counsel, is that offence committed by the appellant would only amount to culpable homicide in as much as the Doctor has not opined in his post-mortem report that the injuries found on the body of deceased Patiram were not sufficient in the ordinary course of nature to cause death. In this regard we may refer to a decision of the Honourable Supreme Court in State of Bengal v. Mir Mohammad Omar, AIR 2000 SC 2992, wherein it has been held as under :--
'The Trial Court made a fallacious conclusion regarding the death of the deceased on the premise that the public prosecutor did not elicit from the doctor as to whether the injuries were sufficient in the ordinary course of nature to cause death. The Sessions Judge concluded thus on the said issue :
'There being no evidence on record to show that the injuries were sufficient in the ordinary course of nature to cause death, it cannot be said that the injuries noticed by the Autopsy Surgeon (P.W. 30) were responsible for causing the death of the deceased Mahesh.' No doubt it would have been of advantage to the Court if thepublic prosecutor had put the said question to the doctor when he was examined. But mere omission to put that question is not enough for the Court to reach a wrong conclusion. Though not an expert as P.W. 30, the Sessions Judge himself would have been an experienced judicial officer. Looking to the injuries he himself could have deduced whether those injuries were sufficient in the ordinary course of nature to cause death. No sensible man with some idea regarding the features of homicidal cases would come to a different conclusion from the injuries indicated above, the details of which have been stated by the doctor (P.W. 30) in his evidence.'
The Hon'ble Supreme Court in another decision in Brij Bhukhan v. State of Uttar Pradesh, AIR 1957 SC 477, held as under :--
'Mr. Sethi made three further submissions which we now proceed to consider. He urged that in view of the medical evidence the offence committed by the assailants of Ram Prasad was not murder because none of them have been proved to be sufficient in the ordinary course of nature to cause death and the 3rd clause of Section 300, Indian Penal Code, was not applicable. It is true that the doctor has not said that any one of the injuries was sufficient to cause death in the ordinary course of nature. We have, however, looked into the nature of the injuries found on the body of Ram Prasad and can only infer from them that the assailants intended to cause Ram Prasad's death. It is significant that Ram Prasad died within a very short time of the assault on him. It is difficult to imagine how any human being could have survived the ferocity of the assault and injury No. 5, which was a contused area 7' x 8' over the left buttock and upper left thigh (upper forth back) with five contusions varying in length from 3' x 2' and breadth 3/4' x 1' with abrasion rupee size near scrotum, must have largely contributed to the death of Ram Prasad. Major portion of the injuries are of a kind indicating that they had been inflicted upon a man who had fallen down. Both the chambers of the heart were found empty which clearly indicated haemorrhage. If the numerous injuries found on the body of Ram Prasad had been inflicted in the manner deposed to by the prosecution witnesses, there can be little doubt that the assailants intended to cause his death. Furthermore, even if none of the injuries by themselves was sufficient in the ordinary course of nature to cause Ram Prasad's death cumulatively they were certainly sufficient in the ordinary course of nature to causehis death, which in fact took place soon after the assault. In our opinion, if the prosecution evidence in this respect is accepted, the offence was clearly one of murder.'
15. We have examined the facts in the present case and also the nature of injuries on the body of deceased Patiram and on the person of Sukhchand (P.W, 4). The appellant had mercilessly assaulted both Sukhchand (P.W. 4) and deceased Patiram by means of a 'lathi' and left the place only after believing that both of them had died. Sukhchand (P.W. 4) miraculously survived the injuries caused by the appellant but deceased Patiram died on the spot. It has come in the evidence of Sukhchand (P.W. 4) that he and deceased Patiram were unarmed and helpless as they were under intoxication of liquor at the time of murderous assault on them. Not only this, the appellant had even exulted after assaulting deceased Patiram and Sukhchand (P.W. 4) before the witnesses Seram (P.W. 2) and Ram Prasad (P.W. 11) about his behaving like a tiger. Although it is true that Dr. P.K. Shrivastava (P.W. 17) has not deposed that any of the injuries found on the body of deceased Patiram was sufficient to cause death in the ordinary course of nature but looking to the nature of injuries found on his body we are left with no option but to infer from them that the appellant intended to cause Patiram's death. Not only this, from the nature of injuries caused on the person of Sukhchand (P.W. 4) it can also be inferred that the appellant had also attempted to cause his death. It is significant to appreciate that deceased Patiram died on the spot. It is also difficult to imagine as to how deceased Patiram could have survived the ferocity of assault on him by the appellant. It cannot be said that the fatal injuries were inflicted without pre-meditation. It also cannot be said that the appellant has not taken undue advantage or not acted in a cruel or unusual manner. All the above circumstances would show that the offence committed by the appellant was clearly one of murder of deceased Patiram. The evidence on record further establishes that the appellant also attempted to commit the murder of Sukhchand (P.W. 4).
16. For the above reasons, the Trial Court did not commit any illegality in convicting the appellant for offences under Sections 302 and 307 of the Indian Penal Code. We find no merit in this appeal and the same is accordingly dismissed.