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2005 DIGILAW 818 (PAT)

Rajolal Sharma v. State of Bihar

2005-09-12

body2005
AFTAB ALAM, J.:–The appellant Rajolal Sharma is sentenced to rigorous imprisonment for life under section 302 of the Penal Code for causing the death of his full brother Prabhulal Sharma. 2. It is an unfortunate case. According to the prosecution an altercation took place between the deceased Prabhulal Sharma and his two younger siblings Rajolal Sharma, the appellant and Dharmdeo Lal Sharma on the question of partition of the family lands. After an exchange of heated words Rajolal Sharma and Dasrath Lal Sharma went to the house and came back with lathies. Prabhulal Sharma was given 2-3 lathi blows on his head as a result of which he fell down bleeding from the mouth and the wound on his head. He later died as a result of the injuries sustained by him. 3. The occurrence is said to have taken place on 3.7.1985 at about 9.10 P.M. It took place at village Paharpur which is at a distance of about one kilometer from Shahpur Patori (a sub-divisional head quarter in Samastipur district) where there is both a Government hospital and a police station. However, the matter was reported to the police only after Prabhulal Sharma died at Patna Medical College Hospital on 10.7.1985. It appears that from the hospital information was sent to the police on which a S.I. attached to Pirbahore P.S. went to the hospital and in the casualty ward there recorded the fard-e-bayan of one Ram Udgar Sharma, the cousin of the deceased. Pirbahore police took its own time in sending the fard-e-bayan to Shahpur Patori P.S. and the F.I.R. was finally recorded on 19.7.1985 at 3 P.M. Naturally, therefore, the statements of witnesses were recorded by the police long after the date of the occurrence. The delay in the matter getting reported to the police was not accidental or fortuitous. On the contrary it appears that not only the family members of the deceased but also other villagers were quite reluctant to report the matter to the police and were actually trying to hide the occurrence. Perhaps the victim Prabhulal Sharma did not get proper medical treatment because he was purposely not taken to any Government/public hospital immediately after receiving the injuries. He was initially treated at his home in the village by calling some private doctors from Patori. Perhaps the victim Prabhulal Sharma did not get proper medical treatment because he was purposely not taken to any Government/public hospital immediately after receiving the injuries. He was initially treated at his home in the village by calling some private doctors from Patori. Two days later he was taken to Patori where he was treated for two days by private doctors. He was then brought to Patna to a Private doctor and from there to another private doctor. It was only when the last doctor asked him to be taken to P.M.C.H. that he was brought there where he died within a few hours in course of treatment. In fact the informant (PW 5) in para 5 of his deposition admitted that the villagers advised him against getting Prabhulal Sharma treated at Patori as that would lead to institution of a case. He further stated that he did not inform the police as advised by the villagers. 4. Be that as it may the police after investigation submitted charge-sheet against the appellant and the other brother Dharmdeolal Sharma who was shown as abnsconder in the charge-sheet. Apparently the arrest of Dharmdeolal Sharma could not be secured and the appellant alone was put on trial at the end of which he was found guilty of the charge and sentenced to a life term under section 302 of the Penal Code. 5. In support of its case the prosecution examined eight witnesses. PW 8 is the doctor who held the post mortem on the body of Prabhulal Sharma. PW 7 is the I.O. and the remaining six witnesses are the eye witnesses of the occurrence. Among them Dasrathlal Sharma (PW 3) is the father of both the appellants and the deceased. Smt. Radha Devi (PW 5) is the widowed wife of Prabhulal Sharma, the deceased. Ram Udgar Sharma (informant-P/W 6) is the cousin of the deceased. The other witnesses, PWs 1, 2 and 4 were the neighbours who on hulla came to the spot and witnessed the occurrence. 6. The doctor (PW 8) proved the post mortem report (Ext. 5) and stated before the court that he found the following ante mortem injuries on the person of Prabhulal Sharma. “(i) Left eye was contused. (ii) Abrasion 1/4" in diameter was found on the left side of the face just below the left eye. 6. The doctor (PW 8) proved the post mortem report (Ext. 5) and stated before the court that he found the following ante mortem injuries on the person of Prabhulal Sharma. “(i) Left eye was contused. (ii) Abrasion 1/4" in diameter was found on the left side of the face just below the left eye. (iii) Lacerated wound 3" x 1/2" x bone deep in antero-posterior direction on the middle of the frontal region of the scalp." The doctor noted the following findings on dissection : “(i) Massive haematoma underneath the scalp was found on the frontal and right temporo-parietal region. (ii) Linear fracture 6" in length involving the right temporal and frontal bones. (iii) Massive extra-dural and subdural haematoma was found on the frontal and right temporal parietal region on the brain surface. (iv) The brain was congested." The doctor gave his opinion that death was caused due to head injuries caused by hard and blunt substance like lathi. He further stated that injuries were sufficient in the ordinary course of nature to cause death. 7. The examination-in-chief of the doctor is quite brief and unfortunately the cross examination is even briefer. To one of the questions in the cross examination the doctor replied that he could not say wether the deceased had been treated or not prior to his death, The doctor did not say as to the number of blows that had caused the injuries found by him but since on external examination he basically found two injuries, one being the contusion of the left eye and abrasion just below it and the other on the scalp, it may safely be presumed that the injuries were the result of two blows. 8. Nothing of any significance is to be found in the evidence of the I.O. for the simple reason that the investigation of the case started long after the occurrence due to the delay in the institution of the case. But the prosecution case is amply supported by ocular evidence. All the six eye witnesses fully supported the prosecution case before the court. But the prosecution case is amply supported by ocular evidence. All the six eye witnesses fully supported the prosecution case before the court. The only deviation is that the informant (PW 6) in his fard-e-bayan had said that both the accused, that is, the appellant and Dharmdeolal Sharma brought Lathies from the house and both of them gave lathi blows to the victim on his head as a result of which he received injuries on the middle of head. In the witnesses depositions in court the roles were slightly changed and it was stated that while Dharmdeolal Sharma held the victim by his waist from behind, the appellant gave lathi blows on his head. According to the witnesses, the appellant gave 23 lathi blows on the head of the victim as a result of which he fell down badly bleeding from the wound and also from his mouth. On a consideration of the medical evidence and the ocular evidence of the eye witnesses, there appears to be no doubt that the appellant gave at least two lathi blows on the head of his brother Prabhulal Sharma and the injuries, thus, led to his death, after ten days of the occurrence. I, thus, find and hold that the occurrence itself stands established by consistent, trustworthy and reliable evidence. 9. But the next question that arises is with regard to the offence committed by the appellant for which he may be legally punished. 10. Mr. Akhileshwar Pd. Singh, counsel for the appellant submitted that from the evidence on record it would appear that the appellant had neither any intention to cause the death or even to cause such bodily injury as was likely to cause the death of his brother Rajolal Sharma and hence, this case would fall under section 304 and not under section 302 of the Penal Code. I think that the submission of Mr. Singh is not without substance. 11. In the facts of this case I find the echo from an old Supreme Court decision in Inder Singh Bagga Vs. State of Pepsu, A.I.R. 1955 S.C. 439. In that case the accused had given six lathi blows to the deceased who died after three weeks of the occurrence. According to the doctor, one of the six blows, causing injury on the head, was the fatal blow. State of Pepsu, A.I.R. 1955 S.C. 439. In that case the accused had given six lathi blows to the deceased who died after three weeks of the occurrence. According to the doctor, one of the six blows, causing injury on the head, was the fatal blow. In that case the victim received proper medical treatment two days after the occurrence. Nevertheless, he died after three weeks as a result of the head injuries. The difference between the case in hand and the case of Inder Singh Bagga is that in the latter the victim though given proper and sustained medical treatment within two days of the occurrence died after three weeks. In this case the victim practically getting no medical treatment died after ten days. 12. In the facts of that case the Supreme Court in para 9 of the judgment observed as follows: "9. While agreeing with both the Courts below that it was the appellant who was responsible for inflicting the injuries which ultimately resulted in the death of the deceased we are, however, of the opinion that even though the blows were inflicted by the appellant on the head of the deceased with force, the lathi not being iron shod and the deceased being a young man and strongly built the appellant could not under the circumstances be held to have been actuated with the intention of causing the death of the deceased, nor do we think despite the medical evidence, that the injury was sufficient in the ordinary course of nature to cause death, seeing that he survived for three weeks and seeing on the doctor's admission that an injury of that kind is not incurable. But he no doubt knew that he would be causing such bodily injury as was likely to cause death and the offence committed by him would fall under S. 304 Part I and not under S. 302, Penal Code. (Emphasis added) 13. In those circumstances we think it would be prudent, legal and just to modify the conviction of the appellant too from one under section 302 to section 304 Part I of the Penal Code. The conviction of the appellant is accordingly modified and as a consequence he is sentenced to five years rigorous imprisonment. The judgment and order of the trial court is modified and the appeal is allowed only to the extent indicated above. 14. The conviction of the appellant is accordingly modified and as a consequence he is sentenced to five years rigorous imprisonment. The judgment and order of the trial court is modified and the appeal is allowed only to the extent indicated above. 14. The bail bonds of the appellant are cancelled and he is directed to immediately surrender for undergoing the rest of his sentence in accordance with this judgment. In case he fails to surrender within one month from today, the trial court shall take all steps, including coercive ones to secure his arrest so as to make him undergo the sentence. I agree.