Sabal Singh and ors. Vs. State of Rajasthan - Court Judgment

Shyam Sunder Byas, J.

1. Since these two appeals one by the State and the other by the convicted persons are directed against one and the same judgment of the learned Sessions Judge, Balotra dated December 20, 1979, they were heard together and are decided by the single judgment. By the judgment aforesaid, the learned Sessions Judge acquitted the accused Sawai Singh and convicted and sentenced the four appellants as under:

S. No. Name of accused Under Sections Sentence imposed

(1) Sabal Singh 302, 302/149 IPC Imprisonment for life

with a fine of Rs.500/-

in default of payment

of fine to further

undergo four months

rigorous imprisonment

148 IPC Two years rigorous

imprisionment and a

fine of Rs. 1000/-,

in default of the

payment of fine to

further under go

six months like

imprisonment

(2) Sagat Singh 302/149 IPC Imprisonment for life

and a fine of Rs.

3000/-, in defult

of the payment of

fine to further

undergo two years'

rigorous imprisonment

147 IPC Rigorous imprisonment

for one year and

a fine of Rs. 500/-,

in default of the

payment of fine to

further undergo four

months rigorous

imprisonment

(3) Chandan Singh 302/149, IPC Imprisonment for life

and a fine of Rs.

3000/- in default

of the payment of

fine to further

undergo two years

rigorous imprisonment

147, IPC Rigorous imprisonment

for one year and

a fine of Rs. 500/-,

in default of the

payment of fine to

further undergo

four months like

imprisonment

(4) Koop Singh 302/149,IPC Imprisonment for life

and a fine of Rs. 300/-

in default of the

payment of fine to

further undergo

two months rigorous

imprisonment

147, IPC Rigorous imprisonment

for one year and a

fine of Rs. 500/-,

in default of the

payment of fine to

further undergo

four months like

imprisonment.

2. The State has come-up in appeal against the acquittal of accused Sawai Singh while the accused persons have taken the appeal to challenge their convictions and sentence.

3. At about 2.45 A.M. on August 22, 1977, PW 6 Padamsingh appeared at Police Station, Chauhtan (district Barmer) and presented written report Ex. P. 11. It was stated therein that at the dinner time on the preceding day (August 2), 1977), PW 2 Suratsingh came to him at his house and informed him that his brother Bhanwar Singh had been assaulted and belaboured by the accused Sabalsingh, Bhanwarsingh, Sawaisingh, Balawant-singh, Koopsingh and Chandansingh in his field situate nearly a mile away from village Doodwa. Accused Sabalsingh had a Kassi while the others had lathies. The beating resulted in some severe injuries to Bhanwarsingh and he was lying in injured condition on the spot. It was further stated therein that on receiving this information from Suratsingh (PW 2) he (Padamsingh) went with some persons to the spot and found his brother Bhanwarsingh lying in an injured condition. There were multiple injuries on his body from which blood was oozing. His clothes were drenched with blood Bhanwarsingh had not died till then and was able to talk. On being asked he told that he was assaulted and belaboured by the above six culprits. After sometime, Bhanwarsingh passed away on the spot. The police registered a case under Sections 302, 147, 148 and 149 of the Penal Code. The usual investigation ensued. The Investigating Officer Uttamsingh (PW 17) arrived on the spot at about 9.16 A.M. on August 22,1977. He inspected the site and prepared the inquest report of the victim's dead body. Blood found on the spot was lifted and sealed. The autopsy of the victim's dead-body was conducted at about 1.00 P.M. on August 22, 1977 by PW 10 Dr, Jugal Kishore, the then Medical Officer Incharge, Primary Health Centre, Chauhtan. He noticed the following injuries on the victim's dead body

External

(1) Incised wound 3/4' x 1/2' x 1/2' lateral aspect of left arm

(2) Incised wound 3/4' x 1/2' x 1/2' leit-post auricular region

(3) Incised wound 2-3/4' x 3/4' x 1/2' occipital region

(4) Abrasion 1' x 1/4' left shoulder posterior aspect

(5) Bruise 1' x 5' postero-lateral aspect of arm

(6) Bruise 4' x 4-1/2' lateral aspect of left thigh

(7) Bruise 4' x 2' lateral aspect of chest left side

(8) Multiple abrasion 1/2' to 1' x 1/2' left lower limb.

Internal-

(1) Fissured fracture of occipital bone

(2) Fracture of 10th rib.

4. In the opinion of Dr. Jugal Kishore, the cause of death of Bhanwarsingh was shock which was due to the injuries over head and chest, resulting in facture of skull bone and rib. The post mortem examination report issued by him is Ex. P. 14. The accused persons were arrested and in consequence of the disclosure statements made by them, Kassi and Lathies were recovered. The blood-stained clothes of the deceased were also seized and sealed. On the completion of investigation, the police submitted a challan in the court of Munsif and Judicial Magistrate, Barmer, who in his turn committed the case for trial to the Court of Sessions Judge, Balotra. The learned Sessions Judge framed charges under Sections 302, 302/149, 147, 148, IPC against them, to which they pleaded not guilty and demanded the trial. In support of its case, the prosecution examined 17 witnesses and filed some documents. In defence, the accused examined one witness. During trial, the accused Balwantsingh expired. On the conclusion of trial, the Sessions Judge found no incriminating material against accused Sawai Singh to connect him with the commission of the offence. He was consequently acquitted. The charges against the remaining four accused persons were taken as duly proved. They were consequently convicted and sentenced as mentioned at the very out-set.

5. We have heard Mr. S.R. Singhi, learned counsel for the accused-appellants and the acquitted accused Sawaisingh and Mr. Niyazuddin Khan, learned Public Prosecutor for the State.

6. Mr. Singhi-learned counsel for the accused persons did not challenge the incident nor the part played by each of the convicted persons in belabouring the deceased. The learned counsel has confined his contentions only to the nature of offence made out. It was contended by him that no offence under Section 302, IPC is made out. The deceased received eight injuries, out of which as many as six were minor and insignificant and were on the non-vital parts of the body. Only one incised wound was found on the occipital region and one bruise on the left side of the chest. It was argued that Dr. Jugalkishore did not state that injuries No. 3 and 7 or any of these two were sufficient in the ordinary course of nature to cause the death. According to Dr. Jugal Kishore, death could be caused by any of these two injuries. The other injuries were not even collectively sufficient to cause death. It was further contended that the case is not covered by any of the four clauses of Section 300, IPC. The facts and circumstances show that the accused persons had no intention to cause the death of the deceased. The gneiss of the occurrence has not been disclosed by either of the two eye witnesses: PW 2 Suratsingh and PW 7 Sukhsingh. Accused Sabalsingh was medically examined by Dr. Jugal Kishore on August 23, 1977 and five injuries were found on his person, as mentioned in injury-report Ex. P. 15. The contention of Mr. Singhi is that in view of all these circumstances, it can be easily inferred that the accused persons went only to chastise the deceased and never intended to kill him. The offence made out, therefore, is that tinder Section 325, IPC.

7. Countering these contentions, the learned Public Prosecutor submitted that the culprits were six in number, One of them had a Kassi while the others had lathies. They made a joint assult on the deceased and belaboured him. Two of the injuries were inflicted on the vital parts of the body of the deceased. The case is, therefore, covered by Clause Secondly of Section 300, IPC because the act was done with the intention of causing such bodily injury as the offenders knew to be likely to cause the death of the deceased. We have bestowed our thoughtful consideration to the respective submissions made at the bar.

8. The prosecution has examined two eye witnesses PW 2 Suratsingh and PW 7 Sukhsingh. PW 7 Sukhsingh did not support the prosecution and adopted and hostile attitude. According to him he went to the spot on hearing the cries. When be arrived on the spot, he found the deceased Bhanwarsingh lying in the field with injuries on his body. He did not see the assailants who had inflicted the injuries on the deceased. PW 2 Suratsingh stated that on hearing the out-cries, he rushed to the spot. On reaching there, he found the accused persons beating the deceased Bhanwar Singh. Accused Sabalsingh had a Kassi while the others had lathies. He did not state as to how the occurrence started. There is thus, no evidence as to the genesis of the occurrence.

9. PW 10 Dr. Jugalkishore, who conducted the post-mortem examination of the dead body of Bhanwar Singh simply deposed that injuries No. 3 and 7 were dangerous and could cause death. He further stated that each of these two injuries could cause death. No specific question was put to him in his examination-in-chief that injuries No. 3 and 7 collectively or individually were sufficient in the ordinary course of nature to cause death. It is the duty of the prosecution to seek a definite opinion from the doctor as to whether the injuries were sufficient in the ordinary course of nature to cause the death, in order to bring the case within Clause 3rdly of Section 300, IPC. It cannot be left to imagination or conjecture that because the death has resulted from some injuries, the injuries should be taken to be sufficient in the ordinary course of nature to cause death. In Kachawaha v. State of Rajasthan 1985 Cr.L.R 121 decided by us on November 20, 1984, we expressed the view that simply because the death is the result of a particular injury, it cannot be said that the particular injury was sufficient in the ordinary course of nature to cause death. The case, therefore, does not fall within the ambit of Clause 3rdly of Section 300, IPC.

10. The contention of the learned Public Prosecutor is that the case is covered by clause Secondly of Section 330, IPC. It was argued that the injuries were caused with the intention which the accused persons knew to be likely to cause the death of the victim. The essential element to press into service Clause Secondly is that the offender caused injury with the knowledge that it was likely to cause the death of the person to whom it is inflicted. 'Knoweledge' imports an idea of certainty and not a mere probability. 'Knowing' imports something more than 'having reason to believe'. In other words, knowledge is an awareness of the consequence of an act.

11. Here in the instant case, the accused persons are cultivators. Kassi is a common implement which is kept by an agriculturist for agricultural purposes. Likewise, a lathi is generally kept by a cultivator when he goes to the field. There was, therefore, nothing unusual and unnatural that one of the accused had a Kassi and the others had Lathies. We cannot impute the guilty knowledge only because one of them had a kassi and the others had lathies. Five injuries were found on the person of accused Sabalsingh, as mentioned in injury report Ex. P. 15, when he was arrested. It appears that when he received injuries, he inflicted a blow of his Kassi on the victim's head. The presence of injuries on the person of accused Sabalsingh may not be sufficient to make out a case of self-defence. It, however, shows that the requisite knowledge required by Clause Secondly cannot be attributed to him. The use of word'likely' in Clause Secondly has its own significance. 'Likely' requires a certain degree of certainty. It cannot he equated with 'possibly'. The accused must know that death would be the likely consequence of his act of inflicting the blow to the deceased. The fact and circumstances, as discussed above, do not permit us to impute the necessary knowledge to the accused person so as to bring the case within Clause Secondly of Section 300 IPC. The offence made out is, therefore, not of culpable homicide amounting to murder.

12. However, since the death has been caused, the matter must still come atleast within the meaning of culpable homicide not amounting to murder. The matter; in our opinion, falls within the 3rd part of Section 299 and the offence made out is punishable under the Second Part of Section 304, [PC as culpable homicide not amounting to murder.

13. As regards the appeal of the State against the acquittal of Sawaisingh, we find no force in it. The evidence has been critically examined by the learned Sessions Judge. He has not been named by the deceased in his dying declaration. He was an immature lad of 18 years in age at the time of the incident. No over-act was attributed to him. He was taken as a mere by-stander on the spot of occurrence. We have gone through the evidence of PW 2 Suratsingh who is the only star witness of the prosecution against the culprits. He has assigned no part to accused Sawaisingh. The learned Public Prosecutor could not point out any convincing evidence except the ominibus statement of PW 2 Suratsingh Having gone through the evidence, we are unable to take a view different from that taken by the trial court. An accused is presumed to be innocent and this presumption of innocence gets strengthened and reinforced by his acquittal in the trial court. The acquittal of accused Sawaisingh was proper and calls for no interference.

14. Accused Sagatsingh and Chandansingh, as per their arrest memos Ex. P. 24 and Ex. P. 25, were of 20 years in age at the time of the occurrence. Accused Chandansingh has been shown to be of the same age in his statement recorded under Section 313, Cr.P.C. No previous conviction stands at their discredit. No special reasons appear why their case should not be dealt with under Section 360, Cr.P.C. and the benefit of probation of goods conduct be not extended to them. It would be not improper if they are released on probation of good conduct.

15. Accused Koopsingh has been shown of 25 years of age in his arrest memo Ex. P.27. He is said to be a teacher in some government school. The part played by him is very insignificant. The fatal injuries have not been attributed to him. The occurrence took place in August, 1977. It would be not proper to re-send him to jail nearly after eight years of the occurrence. It would, therefore, be not improper if the benefit of probation of good conduct is, also, extended to him.

16. In the result:

(1) the appeal of the State against the acquittal of accused Sawaisingh is dismissed ;

(2) the appeal of accused Sabalsingh, Sagat Singh, Koopsingh and Chandansingh is partly allowed. Their conviction and sentence under Section 302 or 302/149. IPC are set aside and instead each is convicted under the Second part of Section 304 read with Section 149, IPC. Accused Sabalsingh is sentenced to seven years' rigorous imprisonment and a fine of Rs. 500/- in default of the payment of fine to further undergo six months like imprisonment. His conviction and sentence of two year rigorous imprisonment under Section 148, IPC are maintained, but the sentence of fine is set aside. His substantive sentences shall run concurrently. The period of detention, if any, undergone by him during investigation, enquiry or trial shall be set-off against the term of imprisonment imposed upon him ;

(3) the conviction of accused Sagatsingh, Koopsingh and Chandansingh under Section 147, IPC is maintained, but the sentence awarded to them are set-aside. Instead of sentencing them atonce to any punishment for offence under the Second Part of Section 304/149 and Section 147, IPC, we hereby direct that they will be released on their entering into a bond in a sum of Rs. 3000/- with one surety in the like amount to the satisfaction of the learned Sessions Judge Balotra to appear and receive sentence when called upon during a period of two years and in the meantime to keep the peace and be of good behaviour. They are allowed one month's time to furnish the aforesaid bonds. They are already on bail and need not surrender. Their bail bonds shall stand cancelled.