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2015 DIGILAW 999 (JHR)

Dhaneshwar Bhuiya v. State of Jharkhand

2015-08-20

PRAMATH PATNAIK, R.R.PRASAD

body2015
Judgment Appellant-Dhaneshwar Bhuiya was put on trial on the charge of committing murder of Ramesh Bhuiya. The court having found the appellant guilty for the said charge convicted him under Section 302 of Indian Penal Code vide judgment dated 5.10.2004 and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs. 5000/- and in default of payment of fine to undergo simple imprisonment for six months. Out of which Rs. 4000/- was directed to be paid to the family members of the deceased-Ramesh Bhuiya. 2. The case of the prosecution is that on 6.8.2001 at 10pm there was verbal altercation in between the appellant-Dhaneshwar Bhuiya and his brother-Munarik Bhuiya, during which both were abusing to each other. Meanwhile, the deceased-Ramesh Bhuiya when saw both the brothers indulging themselves in verbal altercation, he intervened by saying to stop fighting as it is night. Upon it, the appellant told the deceased that he is favouring his brother and then he inflicted 'chhura' blow upon Ramesh Bhuiya as a result of which he sustained grievous injury. He was taken to hospital but in the way he died and then the informant-Jatan Bhuiya (P.W.8) took the dead body to Pratappur Police Station and gave fardbeyan which was recorded by Ramjanak Pathak (P.W. 11)- Officer Incharge of Pratappur Police Station, wherein the informant-Jatan Bhuiya (P.W.8) narrated about the incident, as has been stated above. On the basis of such fardbeyan, a FIR (Ext.2) was registered and the case was taken up for investigation during which the Investigating Officer held inquest on the dead-body of the deceased and prepared an inquest report (Ext. P1) and sent the dead-body for postmortem examination which was conducted by Dr. Shyam Nandan Singh-P.W.12 who upon holding autopsy on the dead-body of the deceased found the following injuries :- i. Oval incised wound 2”x1” over left Hypo-chondrium was seen with long excess oblique and wound was seen communicating to peritoneal cavity. Margins were red brown and through would intestine was seen protruding. ii. On exploration there was blood in peritoneal cavity about 200 M.L. Spleen was found ruptured 4” x 1” in measurement. iii. Stomach-incised wound of left anterior lateral wall was seen 3” x 2”. 3. The doctor issued postmortem examination report (Ext. Margins were red brown and through would intestine was seen protruding. ii. On exploration there was blood in peritoneal cavity about 200 M.L. Spleen was found ruptured 4” x 1” in measurement. iii. Stomach-incised wound of left anterior lateral wall was seen 3” x 2”. 3. The doctor issued postmortem examination report (Ext. P3) with an opinion that the death was caused due to shock and hemorrhage on account of the aforesaid injury caused by sharp object. Meanwhile, the Investigating Officer also recorded the statements of the witnesses. 4. On completion of the investigation, when the Investigating Officer submitted charge-sheet against the appellant, cognizance of the offence 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 12 witnesses. Of them, P.W. 1-Jhangri Devi, P.W. 2-Lakhan Bhuiya, P.W. 4-Suresh Bhuiya, P.W. 5-Etwar Bhuiya, P.W.7-Prayag Bhuiya and P.W. 8-Jatan Bhuiya-informant claimed themselves to be the eye witnesses, wherein they did testify that while the appellant- Dhaneshwar Bhuiya and Munarik Bhuiya, both brothers, were fighting with each other, the deceased-Ramesh Bhuiya residing in the neighbourhood of the appellant came there and asked the appellant to stop fighting as it is night. Upon it, the appellant stopped fighting with his brother-Munarik Bhuiya but inflicted 'chhura' injury on the abdomen of the deceased-Ramesh Bhuiya who was taken to hospital but in the way he died. P.W. 3-Baleshwar Bhuiya and and P.W. 6-Karu Bhuiya are the witnesses to the inquest whereas P.W.10-Rampati Bhuiya has been declared hostile. 6. After closure of the prosecution case, when the appellant was questioned under Section 313 of Cr.P.C. about the incriminating evidences appearing against him, he denied. 7. The trial court having placed its implicit reliance on the testimonies of the eye witnesses 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. Mr. Yogesh Modi, learned counsel, appointed as Amicus Curiae, submits that though P.Ws. 1, 2, 4, 5, 7 and 8 have claimed themselves to be the eye witnesses but none of them appears to be the eye witness. 8. Mr. Yogesh Modi, learned counsel, appointed as Amicus Curiae, submits that though P.Ws. 1, 2, 4, 5, 7 and 8 have claimed themselves to be the eye witnesses but none of them appears to be the eye witness. In this regard, it was pointed out that from perusal of the testimony of P.W.8-informant, it would appear that he had reached at the place of occurrence after the deceased was inflicted with injury and that if the P.W.8 would have been present at the place of occurrence, other witnesses must have said about his presence at the place of occurrence. Similar is the case with the other eye witnesses i.e. P.Ws. 1, 2, 4, 5 and 7. Admittedly, the name of none of the aforesaid witnesses does find figure in the fardbeyan of the informant and that no one says about the presence of each other rather from the evidences it would appear that each of the witnesses, who have claimed to be the eye witnesses, was present alone at the place of occurrence and thereby the trial court should not have relied upon the testimonies of any of the witnesses. Further, it was submitted that the shape of the injury has been found by the doctor as 'oval' which cannot be caused by the weapon like 'chhura' rather it may have been caused by pointed peg meant for tying the cattle and even, suggestion to that effect has been given to the witnesses and that P.W. 10 has gone to testify like that though he has been declared hostile but the circumstances do appear that the injury may be possible on account of the deceased being fallen on the said peg but the trial court did not consider this aspect of the matter in right perspective and hence it committed illegality in recording the judgment of conviction and order of sentence. Further submission, which was advanced on behalf of the appellant, is that accepting the testimonies of all the witnesses to be true, the appellant cannot be said to have committed offence of culpable homicide as the facts and circumstances do suggest that he had had no intention to commit murder and there was no premeditated plan to commit murder of the deceased and under the circumstances, the court should not have convicted the appellant for the offence of culpable homicide and thereby the judgment of conviction and order of sentence passed against the appellant is fit to be set aside. 9. As against this, Mr. Hardeo Pd. Singh, learned counsel for the State, submits that the prosecution by examining the eye witnesses i.e. P.Ws. 1, 2, 4, 5, 7 and 8 has been able to establish its case that it was the appellant who inflicted injury on the person of the deceased as a result of which, the deceased died. The testimonies of the witnesses do find corroboration from the medical evidence and thereby the trial court was absolutely justified in recording the judgment of conviction and order of sentence against the appellant which never warrants to be interfered with by this Court. 10. Having heard learned counsel for the parties and on perusal of the records, we do find that it is the case of the prosecution as has been testified by the informant-P.W.8-Jatan Bhuiya that in the night of the occurrence appellant-Dhaneshwar Bhuiya and Munarik Bhuiya, both brothers, were having verbal altercation during which both were abusing to each other. In that course, Munarik Bhuiya called the deceased-Ramesh Bhuiya to mediate the matter. Upon it, the deceased came there and asked the appellant not to fight with his brother and this enraged the appellant and he by saying that he is favouring his brother inflicted 'chhura' injury upon the deceased. The presence of P.W.8 at the place of occurrence has been doubted by the defence but on perusal of his testimony, we do find that the situation was as such that P.W.8, father of the deceased, must have gone at the place of occurrence when verbal altercation was going on in between the appellant and his brother. So far as the other eye witnesses i.e. P.Ws. So far as the other eye witnesses i.e. P.Ws. 1, 2, 4, 5 and 7 are concerned, all of them, though have claimed to have seen the occurrence, but they in view of the statement made by P.W.8 in his fardbeyan appear to have reached at the place of occurrence only when the deceased was inflicted with 'chhura' injury and thereby their testimonies to the effect that they saw the appellant giving 'chhura' blow to the deceased is not worth acceptable. However, we do find that the informant-P.W.8 appears to be fully trustworthy whose evidence gets corroboration from the medical evidence, as the doctor has testified that the injury, which was there in the abdomen of the deceased, was caused by sharp object. Since the shape of the injury has been described by the doctor as 'oval', submission was advanced that that kind of injury can never be caused by sharp object like 'chhura'. This submission appears to have been advanced without there being any foundational facts. The doctor has never been cross-examined on the point as to whether the injury, which was noted by him, could have been caused by sharp cutting weapon like 'chhura' or not. If the answer would have in negative, the matter would have been different. In that view of the matter, the submission made in that regard is not acceptable. 11. Thus, we do find that the prosecution has been able to establish that it was the appellant who caused injury to the deceased resulting into his death but the question does arise as to whether the appellant is guilty for the offence of culpable homicide or for the offence of culpable homicide not amounting to murder. 12. 11. Thus, we do find that the prosecution has been able to establish that it was the appellant who caused injury to the deceased resulting into his death but the question does arise as to whether the appellant is guilty for the offence of culpable homicide or for the offence of culpable homicide not amounting to murder. 12. 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. 13. What should be the necessary ingredients for attracting the provision as contained in Section 300 of Indian Penal Code has been laid down by the Hon'ble Supreme Court 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. 14. Their Lordships explained it further in the manner which is being given hereinunder:- "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) 15. Coming to the fact of the case, we may reiterate that as per the evidence of P.W. 8-informant, a verbal altercation was going on in between the appellant and his brother-Munarik Bhuiya. During that course, Munarik Bhuiya sought help of the deceased who went there and asked the appellant as to why he is fighting with his brother and this as per the evidence of P.W. 8 enraged the appellant and then he inflicted 'chhura' injury and as such it is evidently clear that the appellant could not have any intention or premeditated plan to kill the deceased. Under the circumstances, we do find that the case never falls within the parameter of culpable homicide rather under the purview of Section 299 of Indian Penal Code culpable homicide not amounting to murder. 16. Accordingly, this appeal is dismissed with modification to the extent that instead of Section 302 of the Indian Penal Code, the appellant-Dhaneshwar Bhuiya is convicted for the offence under Section 304 Part II of the Indian Penal Code and is sentenced to the period already undergone by him. However, the sentence of fine, as has been ordered by the trial court, shall remain intact. Let the appellant-Dhaneshwar Bhuiya be released forthwith if not wanted in any other case, provided the fine amount, as ordered by the trial court, is deposited and if not deposited then in default of paying the fine amount, the appellant-Dhaneshwar Bhuiya will be serving sentence as has been ordered by the trial court.