Jagat Singh And Another vs The State
1984 Latest Caselaw 149 Del

JUDGMENT

R.N. Aggarwal, J.

1. Kehri along with his three sons, namely, Jagat Singh, Subh Ram and Suresh were sent up for trial on the charge of murdering Chand Ram and further causing grievous and simple injuries, respectively, to Lal Chand and Sundho Devi wife of Chand Ram. Lal Chand is the brother of Chand Ram. The learned Additional Sessions Judge who tried the case found Jagat Singh and Subh Ram guilty of the offence of murdering Chand Ram and sentenced each of them to imprisonment for life. Kehri and Suresh were given benefit of doubt and acquitted of the charge of murder. Suresh, however, was found guilty of the offence of causing grievous injury to Lal Chand and sentenced to rigorous imprisonment for one and a quarter years and a fine of Rs. 250/- and in default of payment of fine to undergo rigorous imprisonment for a period of three months. The remaining accused were acquitted of the charges under Sections 326 and 323 of the Penal Code. Two separate appeals have been preferred one by Jagat Singh and Subh Ram (Cri Appeal No. 177 of 1983) and the second by Suresh (Criminal Appeal No. 175 of 1983). This judgment shall dispose of both the appeals.

2. The accused party with their families, the deceased Chand Ram with his wife and four children and Lal Chand resided in the same locality in village Shahpur Garhi. The house of Lal Chand adjoined the house of his brother Chand Ram. The house of the accused is the third house from the house of Chand Ram. Adjoining the house of the accused is the house of Kewal (brother of Kehri).

3. Kewal Singh has a television set at his house. On 20th June 1981 at about 8 p.m. Sundho, her children, Jagat Singh accused and some others were watching the television. According to P.W. 7 Sundho Devi, her children laughed on a comical scene and this was not liked by Jagat Singh, and he rebuked the children of Sundho in filthy language. Sundho objected to Jagat Singh abusing her children. According to Jagat Singh accused on a dirty scene (probably meaning sexy scene) the children of Sundho laughed and Jagbir Singh son of Lal Chand shouted and that he rebuked Jagbir Singh and told him that it was family place and he should not shout in that manner and he turned out Jagbir from there and on that Sundho Devi started talking loudly in favor of Jagbir and that Sundho also was turned out of the house by the other women who were watching the television. The said small incident flared up and attracted to the spot Lal Chand and the other accused and there was grappling between the accused and Lal Chand. The prosecution case is that in the said grappling Suresh bit the right ear of Lal Chand, P.Ws. Ram Mehar and Baldev Singh intervened and separated the two parties. Lal Chand and Sundho Devi went to their home.

4. On next day in the morning at about 8.30 a.m. according to Sundho Devi all the accused armed with lathis came to their home shouting that they would take revenge for the last evening's incident. Sundho bolted the door of her house from inside. All the accused went away. At about 10 a.m. Sundho Devi, her husband Chand Ram and Lal Chand left their house for the police station Narela to lodge a report. When they reached the bus-stop of the village, it is alleged, all the accused armed with lathis came and attacked Chand Ram, Lal Chand and Sundho Devi. Kehri gave two lathi blows, one on the head and the other at the back of Chand Ram. Suresh gave lathi blows on the hand and the right shoulder of Sundho Devi. Kehri also gave two lathi blows - one on the head and the other on the back of Lal Chand. The prosecution case further is that Subh Ram and Suresh caught Chand Ram and fell him on the ground. Jagat Singh sat on the chest and both Jagat Singh and Subh Ram twisted the neck of Chand Ram. Jagdish P.W. also happened to reach the spot and he raised alarm, on that it is said that the accused ran away. Lal Chand, Sundho and Jagdish took Chand Ram in a DTC bus to the Civil Dispensary at Narela. P.W. 18 Dr. Nigam, in charge Primary Health Centre, Narela examined Chand Ram and he found him in a very poor condition and he advised that he should be taken to Hindu Rao Hospital for examination and treatment. Lal Chand arranged for a private car and was taking Chand Ram to the hospital but Chand Ram died in the way. Lal Chand brought Chand Ram in the car to the house. Jagdish informed the police of the occurrence on telephone. Ex. PX/Y is the translation of the report recorded in the daily diary. The report Ex. PX/Y was recorded at 11.55 a.m. The report does not mention the name of the informant but it is stated in the report that Kehri and his sons Suresh, Subh Ram and Jagat had beaten Chand Ram and his wife at the bus stand of Shahpur Garhi as a result of which the condition of Chand Ram is critical. The investigation of the report was entrusted to Sub-Inspector Sube Singh who reached the house of Chand Ram. Chand Ram was found lying dead in the back seat of the car.

5. Sube Singh (P.W. 21) recorded the statement Ex. P.W. 7/A of Sundho Devi. P.W. 21 sent the rukka Ex. P.W. 7/A with his endorsement Ex. P.W. 21/A to the police station for formal registration of the case. On the basis of the rukka Ex. P.W. 7/A formal report Ex. P.W. 6/A was recorded at the police station at 2.15 p.m. The rukka was dispatched for registration of the case at 1.30 p.m. P.W. 21 after inspecting the scene of the occurrence prepared the inquest report Ex. P.W. 21/B and recorded statements of Lal Chand and Jagdish. P.W. 21 sent the dead body along with the inquest papers for post-mortem to the mortuary.

6. P.W. 17 Dr. L. T. Ramani performed post-mortem on the dead body of Chand Ram and found the following injuries on the body :

"1. Haematoma in the scalp 2" x 2" on occipital region.

2. Multiple bruises with abrasion scattered on the left side of back side of the chest and left scapular area. 6" x 4" and 2 1/2" x 1 1/2" bruises were reddish in colour.

3. Small abrasion scattered on the outer aspect of left elbow and front of left knee joint.

4. Old partly heeled abrasion 1/2" x 1/4" in size on the left toe."

On an internal examination the doctor found the following :

"Scalp tissues showed blood clot in the occipital region. Skull bones were intact. Brain was normal. There was presence of Black clots in the soft tissues of the neck in front of cervical vertebra. Body of 5th cervical vertebra was dislocated. There was blood clot around the spinal cord around the seat of the injury. Spinal cord was however intact."

7. The doctor gave the opinion that all the injuries were ante mortem and caused by blunt force and that the death was due to shock resulting from spinal injury. The doctor gave evidence that the injury to the spinal vertebra was likely to cause death. Smt. Sundho Devi, Lal Chand and Suresh accused had sustained injuries in the occurrence and they were examined by Dr. S. K. Bajaj (P.W. 10) on 21st June 1981. On the examination of Smt. Sundho aged 30 years the doctor found the following injuries on her person :

"1. Complains of pain in the head. No clinical evidence of any bony injury.

2. An abrasion 1/2" x 3/4" on the outer aspect of the right shoulder joint.

"1. Complains of pain in the head. No clinical evidence of any bony injury.

2. An abrasion 1/2" x 3/4" on the outer aspect of the right shoulder joint.

3. Complains of pain in the left forearm. No clinical evidence of any bony injury."

The doctor found that the injury was simple and caused by blunt object. The doctor gave the duration of the injury as 18 to 24 hours.

8. On the examination of Lal Chand the following injuries were found on his body :

"1. Outer margin of the right ear 1 1/4" long cut. Width of the cut portion 1/3" at the maximum point lacerated margins. Four teeth marks seen on the edge on back of ear - red. No fresh bleeding observed.

2. Two abrasions measuring 1" x 1/3" and 1" x 1/2" on the back of left shoulder bluish black."

The doctor found that the duration of injury No. 1 was 24 to 48 hours and that of injury No. 2 more than 72 hours. The doctor opined injury No. 1 as to be grievous injury caused by teeth bite. Injury No. 2 was described as a simple injury caused by blunt object.

9. On examination of accused Suresh Chand aged 20 the doctor found the following injuries on his person :

"1. Bruise mark 1 1/2" x 1" present on the left side of face just below the left eye. Reddish blue.

2. Bruise mark 2" x 2 1/2" present on the front of right shoulder joint. Reddish blue.

3. Complains of pain in the left side of back over lower ribs. No clinical evidence of external injury or bony injury with regard to item No. 3."

The doctor gave the duration of the injuries as 12 to 48 hours. The doctor opined that the injuries were simple and caused by blunt object. The doctor stated that injury No. 1 to Suresh could be caused by a fist blow or by a butt end of a lathi. The doctor stated that injury No. 2 could be the result of a lathi blow.

10. All the accused were arrested and lathis were recovered at their instance. Kehri and Subh Ram have denied the prosecution case and stated that they have been falsely involved in the case at the instance of Mahinder Singh Khatri. They stated that in an election between Dr. Des Raj Mann and Mahinder Singh Khatri they had worked for Dr. Des Raj and, therefore, have been falsely involved in the case at the instance of Khatri who is an influential person. Jagat Singh accused admitted that on 20th June 1981 at about 8 p.m. he was watching the television and that Sundho and her children were also watching the television. Regarding the occurrence on 20th June Jagat Singh stated as follows :

"The children had laughed on a dirty scene. The son of Lal Chand named Jagbir had shouted. I told him that it was family place and he should not shout in that manner. We then turned out Jagbir from there. Sundho Devi, P.W. was also present there at that time. She started talking loudly in support of Jagbir. On that our womenfolk turned her also out catching her hair (Choti)."

11. Jagat Singh denied that Suresh had bit the right ear of Lal Chand. As regards the occurrence on 21st June, 1981 he made a statement similar to his father. Suresh accused denied to have bit the right ear of Lal Chand on 20th June, 1981. He gave the following version regarding the occurrence on 21st June, 1981.

"It is a false case. In the morning of 21-6-81 at about 8 a.m. I was coming from the farm to my village. When I reached the tubewell of Tara Chand, Chand Ram met me there. He was coming to take his bath and was wearing Dhoti. He questioned me as to why I abused his son Jagbir and his wife Sundho Devi when they had come to see the T.V. An alteration took place and he hit me with his leg on my chest and felled me on the ground and came upon me. I got myself released from below and coming upon him to save myself overturned him by applying Dhobi Patra i.e. placing my one arm on the neck and the other between the buttocks and turned him over. People reached there and separated. He was sent home and I went to my house. Later on I came to know that he had started feeling some pain and was taken to the hospital at about 11.30 a.m. He was not assaulted by anyone at any time."

12. The accused in support of their defense examined Ramesh (D.W. 1) and Dr. Des Raj Mann (D.W. 2). Ramesh deposed regarding the occurrence at his house on 20th June, 1981. Ramesh stated that on 20th June 1981 a South Indian film was being shown on the television and that during a scene meant for adults Jagbir son of Lal Chand started laughing and in spite of being told to stop laughing he continued to laugh, on that Jagat Singh who was also watching the television turned out Jagbir which was not liked by Smt. Sundho, and that Jagat Singh had also asked Sundho to go away and Sundho Devi went away abusing Jagat Singh. Ramesh further stated that no quarrel took place at that time. In cross-examination by the public prosecutor the witness admitted that Kehri Singh accused is the real brother of his father. The witness further stated that the houses of Lal Chand and Chand Ram are at a short distance from his house. D.W. 2 testified that his son Raj Singh and Mahinder Singh Khatri had contested the election for the presidentship of the Union of the College and that his son had lost the election and that since then his relations with Mahinder Singh Khatri had become strained. The witness further deposed that the accused always opposed Mahinder Singh in the election.

13. Sarvshri Bawa Gurcharan Singh and D. R. Sethi, learned advocates for the appellants, contended that the occurrence on 21st June did not take place as alleged to by the prosecution and that the defense version of Suresh accused was true and the deceased Chand Ram had sustained the injuries in the manner deposed to by Suresh. We do not agree in this contention. The medical evidence completely belies the defense version of Suresh accused. Dr. Ramani in cross-examination stated that there were numerous bruises and abrasions and the bruises and abrasions given in injury No. 2 could not be caused by the deceased falling upon a hard surface. The relevant part of the statement of Dr. Ramani reads as under :

"The possibility of injury No. 1 being caused by a fall on a hard surface cannot be ruled out. Bruises as given in injury No. 2 could not be caused if the deceased was to fall upon a hard surface. The abrasions as given in injury No. 2 also could not be caused by a fall on a hard surface because they were scattered along with bruises. I have not given the numbers of bruises and abrasions. They were not countable and were numerous."

The medical evidence in our view, completely rules out the possibility of the occurrence having taken place in the manner told by Suresh accused.

14. Smt. Sundho Devi in her statement to the police made within about 3 hours of the occurrence gave a detailed account of both the occurrences, that is, of 20th June 1981 and 21st June 1981. She in Court substantially corroborated what she had stated before the police. It is a common case that on 20th June 1981 an occurrence took place at the house of D.W. 1 Ramesh while watching the television. Smt. Sundho gave evidence that during the quarrel Suresh had bit the right ear of Lal Chand. This part of the prosecution case was denied by Jagat Singh as well as Suresh. There are two witnesses to the occurrence dated 20th June 1981 - P.W. 13 Ram Mehar and P.W. 14 Baldev Singh. P.W. 13 gave evidence that there was a quarrel between the families of the accused and the family of Zile Singh and that he had intervened and separated the quarrelling parties and that Suresh had bit the ear of Lal Chand P.W. 1. In cross-examination P.W. 13 admitted that Lal Chand is the son of his father's real brother. P.W. 14 Baldev Singh supported the prosecution case to the extent that there was a quarrel between the two families but stated that after separating the two quarrelling parties he had gone home and no one was hurt in his presence. The witness was declared hostile and was cross-examined by the public prosecutor. The witness denied to have stated before the police that Suresh had bitten the ear of Lal Chand. Lal Chand was examined by Dr. Bajaj on 21st June and he found 1 1/4" long cut on the outer margin of the right ear. The width of the cut portion found was 1/3". The doctor also found four teeth marks on the edge on back of ear. The medical evidence proves that the right ear of Lal Chand was bit and this wholly corroborates the statements of P.W. 1 Lal Chand and P.W. 7 Sundho Devi regarding the incident on 20th June 1981.

15. The statement Ex. P.W. 7/A was made by Smt. Sundho Devi before P.W. 21 Sub-Inspector Sube Singh on 21st June 1981 at 1.30 p.m. She has in the said statement described the occurrence on 21st June, in detail. The formal report on the basis of the rukka Ex. P.W. 7/A was recorded at the police station at 2.15 p.m. P.W. 2 constable Om Singh gave evidence that he had accompanied Sub-Inspector Sube Singh to village Shahpur Garhi and that he had taken the rukka Ex. P.W. 7/A to the police station on the basis of which A.S.I. Nafe Singh had recorded the formal report and given a copy of it to him which he had brought and delivered to Sub-Inspector Sube Singh. The witness has further deposed that he took the dead body to the mortuary at Subzi Mandi at 4 or 4.30 p.m. and he reached the mortuary at 5 p.m. and delivered the inquest papers to the Compounder at the mortuary and also deposited the dead body at the mortuary. In cross-examination the witness denied the suggestion that he had brought the dead body to the mortuary at 9.30 p.m. on 21st June 1981. He also denied that he delivered the inquest papers at the mortuary at 8 a.m. on 22nd June 1981.

16. P.W. 6 Nafe Singh gave evidence that he had recorded the report Ex. P.W. 6/A at 2.15 p.m. and given a copy of the first information report to constable Om Singh for being delivered to Sub-Inspector Sube Singh. The witness was not cross-examined regarding his above testimony. P.W. 20 constable Bhola Ram gave evidence that on 21st June 1981 he was given four copies of the special reports and he delivered one copy to the illaka Magistrate at Rani Bagh at 6.45 or 7 p.m. The witness denied the suggestion in the cross-examination that he had delivered the copy to the Magistrate at his residence at 11.40 p.m. on 21st June.

17. Sub-Inspector Sube Singh gave evidence that he recorded the statement Ex. P.W. 7/A of Sundho Devi and sent the same with his endorsement Ex. PW. 21/A through constable Om Singh for formal registration to the police station. P.W. 7 Smt. Sundho Devi gave evidence that she made the statement Ex. P.W. 7/A before the Sub-Inspector Sube Singh. The evidence discussed above leaves no doubt that the statement Ex. 7/A of Smt. Sundho was recorded at the time and place it purports to have been recorded. There is clear and reliable evidence on the record that on the basis of the rukka Ex. P.W. 7/A the formal report Ex. P.W. 6/A was recorded at the police station on 21st June 1981 at 2.15 p.m. There is further reliable evidence that a copy of the first report was delivered to the Magistrate on 21st June at about 6 or 7 p.m. The dead body along with the inquest papers was sent to the mortuary on 21st June at about 5 p.m. A copy of the FIR was also sent along with the inquest papers and it is signed by the doctor.

18. Sundho Devi in the statement Ex. P.W. 7/A as well in Court has stated that she, Lal Chand and Chand Ram were attacked by all the accused with lathis and the Kehri had given lathi blows on the head and at the back of the chest of Chand Ram and that Sub Ram and Suresh had felled Chand Ram on the ground and Subh Ram and Jagat Singh had twisted the neck of Chand Ram. The medical evidence shows that there was an injury to the fifth cervical vertebra and the death was due to shock resulting from spinal injury. If Sundho was not a witness to the occurrence she could not have known when she made the statement Ex. P.W. 7/A that the neck of Chand Ram was twisted by any of the accused. The medical evidence further proves that injuries 1 and 2 were the result of a blunt force. P.W. 17 Dr. Ramani has stated that there were number of bruises and abrasions on the back side of the chest and left scapular area. The said injuries are in an area of 6" x 4" and 2 1/2" x 1 1/2". Haematoma 2" x 2" was found on the scalp in the occipital region. The medical evidence, as already found, rules out that injury No. 2 could be the result by a fall on a hard surface. In this view, the prosecution case that the deceased received injuries 1 and 2 by lathi blows has to be accepted as true. The evidence of P.Ws. 1 and 7 is slightly discrepant regarding the number of lathi blows given to the deceased and the places where the lathi blows fell. But this would be no reason to throw out the prosecution case. The attack, it seems, was sudden. P.Ws. 1 and 7 themselves were victims of the assault and in a situation like that to expect from them to give the details of the blows and their location is an impossibility. The prosecution version that lathi blows were given by the accused to the deceased and later on he was felled on the ground and his neck was twisted finds corroboration from the medical evidence.

19. Some injuries were found on the body of Suresh accused. P.W. 7 explained those injuries. P.W. 7 gave evidence that when Chand Ram was fallen on the ground Suresh caught Chand Ram from his leg, Chand Ram pushed Suresh with his legs and Suresh fell on the ground. We have further evidence that on 20th June there was grappling between Lal Chand and the accused party and it is possible that Suresh had received some of the injuries found on his body in that occurrence.

20. Sarvshri Gurcharan Singh and Sethi contended that P.W. 7 gave evidence that a lathi blow was given on her head and she had bled from that injury but the medical evidence does not show any injury on her head. They also contended that although Lal Cand is alleged to have been given lathi blows but no lathi blow injury has been found an his body. P.W. 7 had an abrasion 1/2" x 3/4" on the outer side shoulder joint. She had also complained of pain in the head and in the left forearm. It may be that the statement of P.W. 7 regarding the lathi blow on her head is exaggerated but there is absolutely no doubt that she was present when the occurrence took place and the occurrence took place more of legs in the manner deposed to by her. Two abrasions ware found on the back of the left shoulder of Lal Chand but these injuries cannot be connected with the occurrence as according to the doctor the said injuries were of a duration of more than 72 hours. The name of Lal Chand is mentioned in the statement Ex. P.W. 7/A. We are of the view that the presence of Lal Chand at the time of the occurrence cannot be doubted.

21. Shri Gurcharan Singh referred to the statement of Dharam Pal and tried to contend that the occurrence did not take place at the bus stop as contended to by the prosecution. Dharam Pal is the driver of the private car which was arranged by Lal Chand for taking Chand Ram to the Hospital. Dharam Pal gave evidence that 7 or 8 months ago at about 11 or 11.30 a.m. he was going in the car from Delhi to Narela, that near the turning of Shahpur bus stand his car was stopped by one person who told him that a patient was to be taken to the hospital, that he took the car to village Shahpur where a patient in unconscious condition was put in the back seat of the car and one old man and one woman had also sat in the car, that he took the patient to Narela Dispensary and from there he was taking the patient to Hindu Rao Hospital but he died in the way and he took him to his home in village Shahpur. The evidence of P.Ws. 1 and 7 is that they had taken Chand Ram in the bus to the dispensary and there they were advised by the doctor to take him to the hospital and a private car was arranged but in the way Chand Ram died and he was taken to the home in the village. We are of the view that there is nothing to doubt the said statement of P.Ws. 1 and 7. Dharam Pal is probably making a mistake in stating that he was taken to village Shahpur from where he took the patient to Narela Dispensary. Even if it be accepted that Chand Ram was taken from the village it is of no consequence and does not in any way shake the truthfulness of the prosecution case. The first information regarding the occurrence was given on telephone at 11.55 a.m. The entry regarding the said report is Ex. PX/Y. The fact that the said report was recorded at 11.55 a.m. cannot be doubted. The said report mentions that the informant had on telephone informed that Kehri and his three sons had beaten Chand Ram and his wife at the bus stand of Shahpur Garhi as a result of which the condition of Chand Ram is critical and he has been removed to the hospital by his wife. The above report supports the prosecution case that the occurrence took place at the bus stop. The first report Ex. P.W. 7/A, the testimony of P.Ws. 1 and 7 and the medical evidence puts beyond any doubt that the prosecution case is substantially true.

22. The crucial point that arises for determination, on the proved facts, is what offence has been committed by the appellants. Chand Ram died as a result of injury to the spinal vertebra. The evidence is that the deceased was felled on the ground and Jagat Singh and Subh Ram twisted his neck. We are of the view that on the facts proved it may not be safe to held that the appellants Jagat Singh and Subh Ram intended to kill Chand Ram. It can be safely said that they had the knowledge that this act of theirs is likely to cause death. Injury No. 1 is in the occipital region. Injury No. 2 is on the back of the chest and in the left scapular area. The offence, in our view, would fall under Part II of S. 304 of the Penal Code.

23. For the reasons stated, we would convert the conviction of appellants Subh Ram and Jagat Singh from under S. 302 of the Penal Code to one under S. 304, Part II of the Penal Code and sentence each of them to rigorous imprisonment for four years and a fine of Rs. 2000/- and in default of payment of fine to undergo rigorous imprisonment for six months. The fine, if realised shall be paid to the legal heirs of Chand Ram. Criminal Appeal No. 177 of 1983 is accepted to the extent indicated above.

24. Suresh appellant has been found guilty of causing grievous injury to Lal Chand. The evidence is that Suresh had bit the ear of Lal Chand. The doctor found the outer margin of the right ear cut to a length of 1 1/4". The question is whether tooth is an instrument for cutting within the meaning of S. 324 of the Penal Code. There is a difference of opinion whether the tooth is a weapon of cutting. In Jamil Hasan v. The State, 1974 Cri LJ 867 the Allahabad High Court held that tooth is an instrument for cutting. In Chaurasi Manjhi v. State of Bihar, Mr. Justice Untwalia held : "Tooth is instrument for cutting and serves as weapon of offence and defense. Injury by tooth-bite is offence under S. 324 or 326 depending upon whether injury is simple or grievous". Contrary view has been expressed in Gopalbhai Chhaganlal Soni v. State of Gujarat (1972) 13 Guj LR 848. We are of the view that tooth is an instrument for cutting within the meaning of S. 324 of the Penal Code. P.W. 10 Dr. Bajaj has described the injury on the ear to be a grievous injury. The Doctor opined the injury to be grievous because it had caused disfiguration of the face of Lal Chand. We are of the view that the offence committed by Suresh would fall under S. 326 of the Indian Penal Code. Suresh is a young man aged about 22. We feel that it would serve no useful purpose to send Suresh appellant to jail. We, therefore, direct that in lieu of te unexpired period of the sentence of imprisonment imposed on him he shall pay a fine of Rs. 2000/-. This fine shall be in addition to the fine of Rs. 250/- imposed on him by the trial Judge. The appellant Suresh is allowed three weeks' time to deposit the fine failing which he shall be taken into custody to undergo the sentence of imprisonment awarded to him by the trial Judge. The fine of Rs. 2000/-, if realised, shall be paid to Lal Chand. Criminal Appeal No. 175 of 1983 is accepted to the extent indicated above.

25. Order accordingly.