JUDGMENT
1. This appeal is directed against judgment and order dated 27th January, 1988 passed by 10th Additional Sessions Judge, Munger in [CASE NUMBER] arising out of [CASE NUMBER]By the said judgment, appellant No. 1-[ENTITY] has been convicted under [SECTION] of the [ACT] and sentenced to rigorous imprisonment for life besides conviction under [SECTION] with sentence of one year rigorous imprisonment. Appellant Nos. 2, 3, 5, 7, 9 and 12, [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY], respectively, have been convicted for the offences under [SECTION] and [SECTION] of the [ACT] and sentenced to one year R.I. under each of the heads. Appellants Nos. 4, 6, 8, 11, 13, 14 and 15, [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY], respectively, have been convicted for the offence under [SECTION] of the [ACT] and sentenced to R.I. for one year. Appellant No. 10-[ENTITY] has been convicted under [SECTION] of the [ACT] and sentenced to one year R.I. The charge against the appellants under [SECTION] and [SECTION] of the [ACT] has not been found established and (hey have been acquitted of both the charges.
2. [ENTITY] (P.W. 7), who is the son of [ENTITY], the deceased, is the informant in this case. This case was lodged by recording of his fardbayan at the police station on 3 5-1986 at 15.30 hours. According to the informant, on that date in the mid noon, the informant was sitting in his Bungla where his father was also sitting to have his lunch. At that time his brother [ENTITY] (P.W. 6) was operating a pumping set in the nearby to irrigate an onion field. A neighbour [ENTITY] came and asked for water for some agricultural work. [ENTITY] declined to provide him with water at that moment with assurance that water would be made available later. Near the Bungla some co-villagers of Dusadh caste were taking toddy. At about 14.00 hours appellant No. 12-[ENTITY] came near [ENTITY] and enquired why he had not provided water to [ENTITY]. While [ENTITY] was in the process of replying. [ENTITY] threw him down. The informant went to intervene and separated them. Soon thereafter appellant-[ENTITY] with [ENTITY] fitted lathi and other appellants also with various arms mostly lathi, except appellant No. 10-[ENTITY], who had a farsa, came there. Immediately, oncoming [ENTITY] gave blow to the informant with end of the lathi and all the accused persons started assaulting [ENTITY] and the deceased. The deceased ran towards back side of Bungla but he was chased by [ENTITY] and assaulted on head with [ENTITY] fitted lathi and as a result, the father of the informant fell down. The lady members of his house and other co-villagers such as P.W. 1, P.W. 2 and P.W. 3 came running and saved the informant and others from further assault. The informant went near his father and found him dead. It was further alleged in the fardbeyan that 5 to 7 years earlier appellant No. 1-[ENTITY], on the occasion of marriage of his sister, had taken on loan one mound of paddy and one mound of rice with assurance to return but even on demand made till two days back he did not return the grains and in fact, had refused to return the same and had also abused the informant when he asked for the same. According to the informant, on the petty excuse of not providing water for irrigation, the accused persons had assaulted the informant and his family members and his father had been intentionally killed. The informant further disclosed that he could somehow manage to come to the police station whereas his other family members had been prevented from leaving the village. In the assault his sister [ENTITY] (P.W. 4), brother [ENTITY] (P.W. 6), [ENTITY] (P.W. 3) and [ENTITY] (P.W. 1) had also received injuries.
3. After recording the police case its investigation was taken up by P.W. 10 [ENTITY]. He prepared the inquest re port, seized bloodstained [ENTITY] and some other clothes as well as blood-soaked earth for which he prepared a seizure list. He sent the dead body for post-mortem examination and obtained post-mortem report. He also prepared injury reports in respect of the injured and sent them to the Government Hospital at Barbigha and obtained injury reports from the doctor. He recorded the evidence of witnesses in course of investigation and submitted charge-sheet. After cognizance and commitment of the case to the Court of Session, charges were framed against the appellants to which they pleaded not guilty and have been convicted by the Judgment and order under appeal, as already noticed.
4. From the trend of cross-examination and arguments it appears that the appellants have denied their involvement in the occurrence and it has further been suggested that the deceased might have sustained injuries on account of accidental fall.
5. The prosecution in order to prove its case has examined altogether 11 witnesses and has also brought several documents such as the F.I.R., post-mortem report, seizure list, injury reports etc. on record as exhibits. The defence has not examined any witness nor has brought on record any documentary evidence.
6. P.W. 1 [ENTITY], P.W. 2 [ENTITY], P.W. 3 [ENTITY], P.W. 4 [ENTITY], P.W. 5 [ENTITY] and P.W. 6 [ENTITY] are witnesses whose presence at different stages of the occurrence is mentioned in the fardbeyan lodged by P.W. 7 [ENTITY], who is the informant of this case. P.W. 8 Dr. [ENTITY] conducted autopsy over the dead body of the deceased and has proved the postmortem report. P.W. 9 [ENTITY] is a formal witness who has signed on the inquest report and the seizure list. P.W. 10 [ENTITY] is the police official who investigated the case. P.W. 11 Dr. [ENTITY] is another doctor who examined the five injured in the alleged occurrence, namely, P.W. 1 [ENTITY], P.W. 3 [ENTITY], P.W. 4 [ENTITY], P.W. 6 [ENTITY] and P.W. 7 [ENTITY], informant of the case.
7. P.W. 4, P.W. 5 and P.W. 6 are daughter, grandson and son of the deceased, respectively, whereas the informant is another son of the deceased. The occurrence allegedly took place near the Bungla and water pumping set was being operated in the onion field situated near the Bungla, hence the presence of the family members and relations of the deceased at the place of occurrence at the relevant time appears to be natural and since death took place in the occurrence, there was bound to be noise in course of occurrence on which other co-villagers such as P.Ws. 1, 2 and 3 arrived. Since they tried to intervene and pacify, two of them, namely, P.Ws. 1 and 3 also received injuries as proved by the doctor. On going through the evidence of the eye-witnesses including the injured witnesses, particularly the evidence of P.Ws. 4 and 6 it is found that they have supported the prosecution case as given out by the informant (P.W. 7) in all material particulars and participation of the appellants in the occurrence cannot be doubted even after applying all caution required in case of relation witnesses.
8. Learned Counsel for the appellants drew attention of this Court towards evidence of the Investigating Officer (P.W. 10) to show alleged contradictions or developments in the deposition of some of the prosecution witnesses as compared to their statements before the I.O. in course of investigation. On carefully examining the evidence of P.W. 10 and for appreciation of which we were compelled to go through the relevant paragraphs of the case diary containing the statements of the witnesses under [SECTION] of the [ACT], we find that the omissions are generally in respect of non-vital materials and it is clear that before the Investigating Officer P.Ws. 1, 2 and 3 had claimed to have seen only the last part of the occurrence when they reached at the place of occurrence on nulla. Even if such developments or contradictions are omitted and not taken into consideration, the evidence of the close relations and injured witnesses like P.Ws. 4 and 6 as well as that of the informant (P.W. 7) does not leave any scope for doubting the correctness of the prosecution story regarding assault on the deceased by the appellant No. 1-[ENTITY] and the presence of other appellants who had also gone to the place of occurrence with different weapons such as lathi and in case of appellant No. 10, farsa. On going through the impugned judgment, we find that the learned trial Court has examined the evidence of the witnesses as well as the relevant circumstances very carefully to hold appellant Nos. 2 to 10 guilty only for their individual acts and exonerating them of the charge under [SECTION] and [SECTION] [SECTION] of the [ACT]. Thus, we find no good reason to interfere with the conviction of appellant Nos. 2 to 15, as recorded by the trial Court only for minor offence under [SECTION] and [SECTION] or [SECTION] of the [ACT] in respect of all of them except appellant No. 10 who has been convicted under [SECTION], [ACT]
9. The main issue falling for determination in this appeal is on account of a submission that conviction of appellant No. 1 [ENTITY] for the offence under [SECTION] is not sustainable because apparently he had no intention to cause death of [ENTITY], the father of the informant and even if it is accepted that he is one of the members of the mob and in course of the occurrence gave a blow with a lathi fitted with [ENTITY] which struck the head of the deceased and caused death, it cannot be inferred that this appellant No. 1 had intended to cause death or to cause any injury that may cause death.
10. Learned Counsel for the appellants has very fairly cited relevant judgment of the Supreme Court on this issue, including leading judgment of the Apex Court in the case of [PRECEDENT] . Since that judgment has been followed in [PRECEDENT] and several other judgments of the Supreme Court, it is not necessary to take note of the subsequent judgments because the relevant law as to what facts must be proved by the prosecution before it can bring a case under [SECTION] of the [ACT] has been stated in most lucid language in paragraph 12 of the judgment. It would be best to quote that paragraph which is as follows:
To put it shortly, the prosecution must prove the following facts before it can bring a case under [SECTION] "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 bodily 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 is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
11. In the succeeding paragraph 13 of the aforesaid judgment in the case of [PRECEDENT] (supra) it has been explained, again in most clear and lucid language that once these four elements are established by the prosecution, the offence is murder under [SECTION] "thirdly" and it does not matter that there was no intention to cause death or that there was no intention even to cause an injury of kind that is sufficient to cause death in the ordinary course of nature. According to the Apex Court, once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. The following lines are worth quoting:
No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional.
12. Applying the aforesaid principle of law to the facts of the present case, we find that the prosecution has successfully established that - (i) bodily injury was present on the deceased and (ii) the nature of the injury as proved by the doctor was sufficient to cause death in the ordinary course of nature and the injury was apparently on vital part, such as head. The evidence of the doctor (P.W. 8) shows that the deceased had two ante mortem injuries:
(1) laceration 3" x 1" x bone deep on the right temporal regions with fracture of skull bones and haemorrhage inside brain tissues.
(2) Three bruises of approximately 6" x 1" size on the right shoulder, right scapular region and right side of back. There were multiple bruises on the chest wall also.
In the opinion of the doctor, the death was caused due to injury No. 1 which caused haemorrhage inside the brain substances and the weapon used was hard and blunt. There is no dispute that the deceased met with instantaneous death at the time of occurrence itself and the I.O. prepared the inquest report and arranged to send the dead body for post-mortem examination. The medical evidence in this case clearly supports the prosecution case.
13. Thus, it is found that even if the submission that the appellant No. 1 had no intention to cause death or to cause any injury of a kind that is sufficient to cause death to the deceased is accepted, he has to be convicted for the offence under [SECTION], [ACT] if the prosecution can establish all the four elements as succinctly laid down by the Apex Court in the aforesaid judgment. In this case there can be some scope of discussion and debate only in respect of the third element pointed out by the Apex Court which requires that the prosecution must prove that there was an intention to inflict or to cause that bodily injury which was actually caused or in other words, the injury caused was not accidental or unintentional. On this issue, the fact that the appellant gave only one lathi blow on the head of the deceased loses any significance. We are required to find out whether according to the prosecution case proved in Court, the appellant No. 1 had an intention to inflict injury on head or whether it was some other injury which he wanted to inflict and the injury caused was accidental or unintentional. According to the prosecution case, the deceased saw the accused persons assaulting his sons and he intervened to save them and thereupon he was also assaulted. Then he ran towards the back of the Bungla to save himself but at that juncture, appellant No. 1 chased him and gave the fatal blow on the head with a [ENTITY] fitted lathi. The submission advanced on behalf of the appellant No. 1 is that since assault was taking place by a number of persons against so many persons, this appellant could have been provoked by such circumstances into chasing the deceased and inflicting a blow but it was not possible for the appellant No. 1 to be sure as to on what portion of the body of the deceased, his lathi would land and hence the fact that the lathi actually landed on the head and caused the fatal injury should be taken as a result of an accident without any intention of causing such injury on the part of the appellant No. 1.
14. Having given our anxious consideration to all the facts and circumstances relevant to the aforesaid issue as borne out by the record, we have no hesitation in rejecting the aforesaid submission. There was no provocation from the side of prosecution. The assault by a lathi fitted with [ENTITY] after chasing the deceased, an old man resulting into injury on vital part like the head cannot be said to be as a result of accidental or unintentional injury caused by appellant No. 1. The facts and circumstances proved by the prosecution in this case clearly show that there was an intention on the part of the appellant No. 1 to inflict that particular bodily injury although he may not be having any intention to cause death. Moreover, the doctor has proved the fourth necessary element through his deposition in Court that injury No. 1 attributed to appellant No. 1 was sufficient to cause death in the ordinary course of nature. Thus, on consideration of the relevant facts, it is found that all the necessary elements to bring the act of appellant No. 1 under [SECTION] of the [ACT] have been proved by the prosecution and, therefore, the trial Court has rightly convicted him for the offence under [SECTION], [ACT].
15. In view of the aforesaid discussions, the appeal of appellant No. 1 [ENTITY] stands dismissed. His bail bond shall also stand cancelled and he should be taken into custody so that he may serve the remaining period of sentence in accordance with law. So far as conviction of other appellants is concerned, it is also found to be proper requiring no interference and hence, the same is also confirmed. The only question which now remains to be considered is whether it would be proper to affirm the sentence awarded to appellant Nos. 2 to 15 or they deserve leniency in the matter of sentence.
16. The occurrence took place in the year, 1985 i.e. 21 years earlier. These appellants have faced the ordeal of trial in the appeal for such a long years and their conviction is only for minor offences i.e. [SECTION] or [SECTION] or [SECTION], [ACT]. It is found that they have remained in custody for various periods ranging from one month to two months. Considering their village background and the aforesaid circumstances, it is not deemed desirable to send the appellant Nos. 2 to 15 to custody for the simple offences committed by them 21 years earlier. The ends of justice, in the facts of the case, would stand satisfied by reducing their sentences to the period of custody already undergone by them.
17. As a result, they shall stand discharged from the liability of their bail bonds. With this modification in the sentence awarded to appellant Nos. 2 to 15, their appeals also stand dismissed.