Hari Yadav Vs. State of Bihar  Insc 1296 (14 December 2007)
Sinha & Harjit Singh Bedi
out of SLP (Crl.) No. 5256 of 2007] S.B. SINHA, J :
Appellant is before us aggrieved by and dissatisfied with a judgment dated 21st
January, 2004 passed by a Division Bench of the Patna High Court in Criminal
Appeal No. 341 of 1991 arising out of the judgment of conviction and sentence
dated 2nd September, 1991 passed by Additional District and Sessions Judge XIth,
Gaya, in Sessions Trial No. 12 of 1991.
land dispute arose between the accused and the prosecution witnesses in
relation to a piece of land bearing plot No. 1/555 of village Gamahariya. While
measurement of the said land was going on, both the parties, viz., Kameshwar Yadav
and Chander Dusadh, claimed their right thereupon, on the basis of purchases
made by them under their respective registered deeds of sale.
quarrel ensued between both the parties. Kameshwar Yadav exhorted others to
eliminate Chander Dusadh. It was followed by an assault on Kali Dusadh by a
hard and blunt object by him. Jaldhari Yadav assaulted Kali Dusadh on his right
arm. Parmeshwar Yadav assaulted him on his back. Appellant herein inflicted a farsa
blow on the head of Chander Dusadh, the deceased. Kameshwar Yadav gave another
blow on his hand by a hard and blunt object. As alarm was raised by Kali Dusadh,
whereupon assailants fled from the field. They allegedly resorted to firing
Thereafter, injured Chander Dusadh was taken to the Police Station in an
First Information Report in regard to the said incident was lodged at 10 pm on 11th
Appellant amongst others was named therein.
prosecution during trial examined a number of witnesses in support of its case.
PW 1, Bisu Bhuiya categorically stated about infliction of garassa blow by Hari
Yadav and lathi blow by Kameshwar Yadav on the deceased.
played by Kameshwar Yadav, Kishun Yadav, Hari Yadav, Parmeshwar Yadav, Bhuja Yadav,
Rohan Yadav and Gopal Yadav in inflicting injuries on Kali Dusadh were also
categorically stated by him in his deposition.
Similarly, Barat Dusadh (P.W 3) deposed about the role played by the Appellant
in inflicting a farsa blow on the head of Chander Dusadh, having been exhorted
to do so by his father. He not only stated in details in regard to the mode and
manner in which the incident took place but also the cause thereof. Similar is
the evidence of Aminullah Khan (PW 5) and Gazi Khijer Heyat (P.W 6).
P.W. 8 Dr. M.K. Sinha, who conducted the post mortem examination on the dead
body of the deceased, in his report noticed three ante mortem injuries which
are as under:
Recently healed liner wound of length 4 over top of head. On dissection
underlined tissues were found infiltrated with blackish blood clot. There was
fracture of both parietal bones.
removal of skull cap, there was presence of extradural and subdural haemotoma
over superior surface of both cerebral hemisphere. Brain and meninges were
found grossly congested.
Healed abrasion over front of lower on part of the right knee with presence of
dry, black scale over the area, size 1-1/4 x =.
Swelling over antero lateral aspect of right arm upper part size 2-1/2
analyzing the materials brought on records, the Learned Sessions Judge found
the appellant guilty of commission of offence under Section 302 of the Indian
Penal Code. The Learned Judge, however, while considering the facts and
circumstances of each of the accused at the time of occurrence imposed a
sentence of ten years rigorous imprisonment under Section 302 of the
Indian Penal Code to accused Kameshwar Yadav and Hari Yadav and one years
rigorous imprisonment to Jaldhari Yadav and Parmeshwar Yadav and Kameshwar Yadav
under Section 323 of the Indian Penal Code.
Three Criminal Appeals were preferred by the accused persons. The High Court
dismissed the said appeals, but keeping in view the fact that the Learned
Sessions Judge committed a serious error in imposing the punishment of 10
years rigorous imprisonment for commission of an offence under Section 302
of the Indian Penal Code, imposed the sentence of rigorous imprisonment for
life. Appellant is, thus, before us.
Mr. Sushil Kumar, learned Senior Counsel appearing on behalf of the appellant,
inter alia, would submit that the occurrence having taken place on 11.8.1981
and the death of deceased having taken place on 1.9.1981, the appellant cannot
be stated to have committed any offence under Section 302.
pointed that according to the Doctor, the deceased left the hospital on
27.8.1981 without his permission and thus he might have died of some other
disease in between the period 27.8.1981 and 1.9.1981. The Learned Counsel
submitted that keeping in view the injuries suffered by the deceased, the same
were possibly caused by a lathi.
Mr. Gopal Singh, learned counsel appearing on behalf of the state on the other
hand, supported the impugned judgment.
Presence of the appellant at the scene of the incidence is beyond any dispute.
The autopsy surgeon in his evidence while proving his report, identified three
injuries appearing on the person of the deceased. Injury No.
found to be grievous in nature and dangerous to life which was likely to be
caused by sharp weapon such as farsa whereas other injuries which were simple
in nature could have been caused by hard and blunt object (may be lathi). He
was of the categorical opinion that the injury No.1, in ordinary course of
nature, was sufficient to cause death.
cross examination his attention was drawn to the book Modis Medical
Jurisprudence & Toxicology (22nd Edition). In answer to a question, he
abrasion can be possible by lathi as well. Volunteers it can also be caused by
sharp weapon. If the margin of the wound is sharp, it is inferred that it was
caused by sharp weapon.
may notice that it was categorically stated by the said witness that there was
no provision for treatment of such injury and such cases are ordinarily
referred to neuro surgeon at Ranchi.
appears that on 27.8.1981, a report was sent that deceased died in Gaya hospital on 1.9.1981.
Our attention has been drawn to one slip attached to the said report wherein a
prayer was made for insertion of Section 302 of Indian Penal Code in the said
case, which reads as under:
continuation of Injury Report of Chandra Gorait of Singh Pokhar, Sherghati I
have to inform you that he has developed unomiplagia and he left the hospital
on 27.8.1981 without the knowledge of undersigned. He has not submitted x-ray
of right hand till now. This is for information and necessary action.
Submission of the learned senior counsel Sh. Sushil Kumar is that the deceased
left hospital on 27.8.1981 without any information to the doctor therefore,
cannot be accepted. The fact that the deceased died in the District Hospital is not in dispute. We have noticed hereinbefore that the
Doctor himself suggested that there was no provision for treatment of such
patients at Sherghatti. Evidently, therefore, the relatives of the deceased
took him to the District Hospital for better treatment. For the said purpose, the consent of
the doctor might not have been taken or brought to the personal knowledge of
the doctor concerned.
is, however, significant that the aforementioned quotation was made from the
purported note made by somebody which formed part of the case diary. The said
document was not proved. Attention of the investigating officer was not drawn thereto.
No such question appears to have been raised before the High court. We are
really at a loss to understand as to how reliance has been placed thereupon on
the basis of a piece of paper which appeared in the case diary. We deprecate
such a practice.
be of some interest to notice that Dr. S.P. Gupta has used the word unomiplagia.
We have not been able to find what it means in the medical dictionary.
Deposition of Dr. S.P. Gupta who was examined before the Learned Sessions Judge
as PW 10 has not been brought on record by the appellants.
reason therefor appears to us as obvious. Several unsustainable pleas have been
raised before the Trial Court on behalf of the appellant. It appears that at
one point of time a plea of insanity has as also his having no relationship
with the other accused, had also been taken. It appears from the records that
he had also absconded for some time.
Submission of Mr. Sushil Kumar that such an injury can be caused by hard and
blunt substance may be correct in view of the statements made by the autopsy
surgeon but merely because there is a possibility in regard thereto, the same
by itself cannot be a ground for holding that ocular evidence should be
disbelieved. There are a large number of authorities of this Court which
clearly show that in certain situations, the wound produced by a blunt
instrument may similarly seem to be an incised one. [See
was not a case where there was a sudden fight. The accused came prepared at the
place of occurrence. An altercation might have taken place but not only
repeated assaults were made, other witnesses also suffered injuries.
Each case must be decided on its own facts as has been held in Kailash (Supra).
law in this regard was laid down in Kailash (supra) in the following terms:
Virsa Singh v. The State of Punjab [1958)SCR 1495] wherein Vivian Bose, J.
opined that infliction of one injury by accused may be sufficient to hold him
guilty for commission of an offence under Section 302 of the Indian Penal Code
considering whether the intention was to inflict the injury found to have been
inflicted, the enquiry necessarily proceeds on broad lines as, for example,
whether there was an intention to strike at a vital or a dangerous spot, and whether
with sufficient force to cause the kind of injury found to have been inflicted.
It is, of course, not necessary to enquire into every last detail as, for
instance, whether the prisoner intended to have the bowels fall out, or whether
he intended to penetrate the liver or the kidneys or the heart. Otherwise, a
man who has no knowledge of anatomy could never be convict, for, if he does not
know that there is a heart or a kidney or bowels, he cannot be said to have
intended to injure them. Of course, that is not the kind of enquiry. It is
broad-based and simple and based on commonsense; the kind of enquiry that
twelve good men and true could readily appreciate and understand.
it shortly, the prosecution must prove the following facts before it can bring
a case under Section 300. First, it must establish, quite objectively, that a
bodily injury is present;
the nature of the injury must be proved; These are purely objective
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.
these three elements are proved to 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.
For the reasons aforementioned, there is no merit in this appeal, which
accordingly is dismissed.