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2015 DIGILAW 618 (JHR)

Purna @ Puna Bauri v. State of Jharkhand

2015-05-12

PRAMATH PATNAIK, R.R.PRASAD

body2015
JUDGMENT : This appeal is directed against the judgment of conviction and order of sentence dated 29.11.2003 passed by the then Additional Sessions Judge, F.T.C.-II, Bokaro in S.T. No. 137 of 2003/ Suppl. S.T. No. 37 of 2003 whereby and whereunder, the court having found the appellant guilty for committing murder of his 9 months' old daughter-Sunita @ Yasoda convicted him for the offence punishable under Section 302 of Indian Penal Code and sentenced him to undergo rigorous imprisonment for life. 2. The case of the prosecution, as has been projected, is that the informant-Satto Devi (P.W. 7), having 9 months' old daughter on her lap came to her parent's house along with her husband-Purna @ Puna Bauri (appellant) on the occasion of marriage of her cousin which got solemnized on 7.6.2001. After three days i.e. on 10.6.2001, when the appellant asked his wife to return back to her in-laws' place, the informant told that they will be leaving home at 10 O'clock after taking bath and meal and will be catching train at 3:00pm. As soon as the informant conveyed this, her husband (appellant) snatched her daughter from her lap and smashed her over the rock lying outside of the house as a result of which she died instantaneously. Subsequently, at 2 O'clock Mr. Ram Pravesh Choudhary, who was in the charge of Officer In-charge of Bangaria Sub Police Station, when received information that one man has killed his daughter, he made entry of the same in the station diary and proceeded to the place of occurrence at Village Murrabad. On reaching there, he recorded the fardbeyan (Ext.1) of the informant-Sattu Devi (PW.7) who stated in the same manner as has been stated above. On the basis of which a formal FIR (Ext. 2) was drawn against the appellant. He himself took up the investigation during which he held inquest on the dead-body of the deceased and prepared an inquest report and sent the dead-body for postmortem examination which was conducted by Dr. Kaushalendra Kumar (not examined) who upon holding autopsy on the dead-body of the deceased found the following injuries :- Lacerated wound 1” x ½” x bone deep with blood clot over right side of frontal region with fracture of skull bone in fronto perital region with laceration of brain and meninges with intracranial blood clot. 3. Kaushalendra Kumar (not examined) who upon holding autopsy on the dead-body of the deceased found the following injuries :- Lacerated wound 1” x ½” x bone deep with blood clot over right side of frontal region with fracture of skull bone in fronto perital region with laceration of brain and meninges with intracranial blood clot. 3. The postmortem examination report has been proved by another doctor namely, Dr. Ratnesh Prasad Verma who on going through the postmortem examination report (Ext. 4) did depose that the injury which was caused on the person of the deceased was sufficient enough to cause death in ordinary course of nature. Meanwhile, the Investigating Officer inspected the place of occurrence and found the blood spots at the rock over which the appellant is said to have smashed his daughter. He also recorded the statement of the witnesses. 4. After completion of the investigation, when the Investigating Officer submitted charge-sheet against the appellant, cognizance of the offence, as aforesaid, was taken and the case was committed to the Court of Sessions where the appellant was put on trial. 5. During trial, the prosecution in order to prove its case examined altogether 9 witnesses. Of them, P.W. 1-Belo Manijhiyaien @ Belani Manjhiyain and P.W. 3-Jaleshwari Manjhiyain are the independent eye witnesses who saw the appellant killing his daughter by smashing her head against a rock. P.W. 2-Basudev Bauri and P.W. 8-Dushashan Bauri are the brother and father of the informant who have also testified that when the informant-P.W. 7 told her husband that she will be leaving home at 10 O'clock for catching train at 3pm, the appellant snatched the daughter from her lap and smashed her head against the rock. P.W. 7-informant has testified in the same manner as she had made statement in her ferdbeyan (Ext.1). P.Ws. 4 and 5 namely, Maheshwar Kisku and Shashi Hansda, are the witnesses to the inquest. 6. After closure of the prosecution case, the appellant was questioned under Section 313 of Cr.P.C. about the incriminating evidences appearing against him to which he denied. At the same time, he also stated that on the day of occurrence, he was not present in the house rather he came to his in laws' place when he came to know that his daughter has died. 7. The trial court having placed implicit reliance on the testimonies of P.Ws. At the same time, he also stated that on the day of occurrence, he was not present in the house rather he came to his in laws' place when he came to know that his daughter has died. 7. The trial court having placed implicit reliance on the testimonies of P.Ws. 1, 2, 3, 7 and 8, whose testimonies got corroboration from the medical evidences, and also from the objective finding of the Investigating Officer, did find the appellant guilty for the offence punishable under Section 302 of Indian Penal Code and accordingly recorded the judgment of conviction and order of sentence against the appellant, which is under challenge. 8.Ms. Amrita Banerjee, appointed as Amicus Curiae, submits that accepting the testimonies of the eye witnesses to be true, no offence is made out under Section 302 of Indian Penal Code as in the facts and circumstances, the appellant could not have had any intention to kill his daughter and there was no reason or motive on the part of the appellant to cause death to his daughter and under the circumstances, it can easily be said that whatever happened, that was quite unfortunate as there was no premeditation on the part of the appellant nor there was any intention to kill his daughter and thereby the case would fall under Section 304 Part-II, as the appellant cannot be said to have had knowledge that by the act of the appellant his daughter would be killed and, therefore, the trial court committed illegality in recording the judgment of conviction and order of sentence. 9. As against this, learned counsel for the State submits that though the submission was advanced that the appellant had had no intention to commit murder of his daughter but the facts and circumstances would go to indicate that the appellant had had intention to commit murder, as the injury caused to his daughter was sufficient to cause death and thereby in absence of any other material showing absence of intention, the trial court has rightly convicted the appellant for the offence punishable under Section 302 of Indian Penal Code and hence, the judgment of conviction and order of sentence never warrants to be interfered with by this Court. 10. 10. Having heard learned counsel for the parties and on perusal of the records, we do find that the informant-P.W. 7 has testified that after three days of the marriage i.e. on 10.6.2001 when her husband asked her to go to her in-laws' place, she told that they should leave at 10 O'clock after taking bath and meal and will be catching train at 3pm. Upon it, the appellant suddenly snatched her daughter from the lap of the informant-P.W. 7 and went outside of the house where he smashed her head against a rock as a result of which she died. The testimony of the informant-P.W. 7 not only gets corporation from the evidence of P.W. 2-Basudev Bauri, brother of the informant, but also from the evidence of P.W. 8-Dushashan Bauri, father of the informant-P.W. 7. Nothing seems to have been elicited from the witnesses so as to create any doubt over the veracity of their testimonies. Further, testimonies of all those witnesses get corroboration from the independent witnesses-P.Ws. 1 and 3 who have testified in the same manner, as the other witnesses have testified. 11. Further, we do find that the ocular evidence gets corroboration from the medical evidence, as the doctor did find injury over fronto perital region which, according to the doctor, was sufficient enough to cause death in ordinary course of nature. That apart, testimonies of the witnesses also get corroboration from the objective finding of the Investigating Officer-P.W. 6 noticing blood spots over that rock where the head of the deceased was smashed against the rock. 12. Thus, we do find that the prosecution has been able to establish its case that the appellant did kill his daughter but the question does arise as to whether the appellant is guilty for the offence under Section 302 or 302 Part-II of Indian Penal Code? 13. 12. Thus, we do find that the prosecution has been able to establish its case that the appellant did kill his daughter but the question does arise as to whether the appellant is guilty for the offence under Section 302 or 302 Part-II of Indian Penal Code? 13. In this respect, we may refer to the provisions as contained in Section 299 and 300 of Indian Penal Code, which reads as under:- Section 299 Section 300 A person commits culpable homicide if the act by which the death is caused is done-- Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done--- INTENTION (a) with the intention of causing death; or (b) with the intention of causing such bodily injury as is likely to cause death; or (1) with the intention of causing death; or (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; or (3) with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or KNOWLEDGE (c) with the knowledge that the act is likely to cause death (4) with the knowledge that the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the intention to cause death is not an essential requirement of clause (2). It is noteworthy that the intention to cause death is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by illustration (b} appended to Section 300. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which causal the death, was intentionally given. In clause (3) of Section 300, instead of the words likely to cause death occurring in the corresponding clause (b) of Section 299, the words "sufficient in the ordinary course of nature" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. In other word, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word likely in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words 'bodily injury ......... sufficient in the ordinary course of nature to cause death' mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature. The word likely in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words 'bodily injury ......... sufficient in the ordinary course of nature to cause death' mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. 14. Here at this stage, we will be referring to a decision rendered in a case of Virsa Singh Vs. State of Punjab ( AIR 1958 SC 465 ), wherein it has been observed that the prosecution must prove the following facts before it can bring a case under Section 300, "thirdly". First, it must establish quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. 15. Their Lordships explained it further in the manner which is being given here-in-under:- "The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness or intended serious consequences, is neither here or there. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness or intended serious consequences, is neither here or there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness but whether he intended to inflict the injury in question and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion." (Emphasis supplied) 16. Coming to the fact of the case, we may reiterate that as per the evidences of the witnesses, the appellant having snatched his daughter from the lap of the informant-P.W. 7 dashed her head against a rock as a result of which, she received injury on account of which, she died. The injury, according to the doctor who held autopsy, was sufficient to cause death in the ordinary course of nature. 17. Under the circumstances, nothing seems to be there to find out that the appellant never intended to kill his daughter and thereby the case never falls within the parameter of Section 304 Part-II of Indian Penal Code rather it happened to be a case of culpable homicide. 18. Thus, we do find that the prosecution has been able to establish its case and thereby the trial court is absolutely justified in recording the judgment of conviction and order of sentence against the appellant. 19. Accordingly, the judgment of conviction and order of sentence passed against the appellant is hereby affirmed. 20. Consequently, this appeal stands dismissed.