R.S. Bindra, J.C.
1. The appellants Rabi Deb Barma and Nehai Deb Barma, real brothers, were committed to the Court of Session on a charge under Section 302, read with Section 34 of the Indian Penal Code, but were acquitted of that charge and instead convicted under Section 325 read with Section 34 of the Indian Penal Code. Each was sentenced to seven years' rigorous imprisonment and a fine of Rs. 1000/-, or in default, additional rigorous imprisonment for one year. The trial Court directed that if the fine was realised it shall be paid wholly to the wife of Lakshman Deb Barma the deceased of this case. The convicts having felt aggrieved filed the instant appeal through jail but subsequently they engaged Shri R. Ghosh who has argued the appeal today on their behalf.
2. The case of the prosecution can be set out in a few words. In connection with the marriage of Kamala P. W. 4. the daughter of Bhagirath Deb Barma P. W. 2, a feast was held in the house of the latter on 7.3.1964 in honour of the members constituting the bridegroom party. It was a term of the agreement culminating in the marriage that the provisions required for the feast shall be supplied by the bridegroom party. When the members of the marriage party were being fed, the cooked meat ran short, Lakshman Deb Barma. an uncle of Bhagirath Deb Barma, called upon the members of the groom party to arrange for more meat. The two appellants, who were members of the groom party, curtly observed, in reply to the demand made by Lakshman Deb Barma, that the latter better enjoy 'pieces of banana tree instead of meat'. That observation gave rise to a quarrel between Lakshman on one hand and the two appellants on the other. The appellants felt irate and in fitful mood Rabi seized a piece of firewood lying closeby and gave a blow therewith on the head of Lakshman, who slumped. Nehal lost no time in securing another piece of fuel-wood and administered another blow on the head of Lakshman while he lay prostrate on the ground. Lakshman bled profusely from the two head injuries and lost consciousness. The appellants probably felt scared and so fled the place after dropping the weapons used by them. Bhagirath, the father of the bride Kamala. left immediately for the police station, Khowai, in company with Dayananda P. W. 5 and one Jatindra to report the occurrence. On the way they happened to meet Bas-anta Deb Barma P. W. 1. a real brother of Lakshman, and so Bhagirath narrated the occurrence to him. Basanta took upon himself the task of reporting the matter at the police station and so he went to Khowai and lodged the report Ext. P-1 (a) at 21-00 hours on 7.3.1964.
3. It was P. R. Dutta P. W. 15 who registered a case on the basis of that F.I.R. and half-an-hour thereafter he left for the village of occurrence where he reached at 11-30 P.M. He prepared the injury statement and rough site plan. Thereafter he sent Lakshman to the hospital for treatment. However, Lakshman succumbed to his injuries at 9-50 A. M. on the 8th March.
4. The post mortem on the body of Lakshman was carried out by Dr K.K. Sen at 12-15 P.M. on the 8th March. He found one lacerated wound, measuring 2' ' '. on the frontoparietal region of the scalp a little left to the midline, and another lacerated wound, measuring 2' ' '. on the parietal region of the scalp a little right to the mid-line. The internal examination revealed a fracture extending from the middle of the frontal bone upto 1' of left parietal bone, covering both the tables, besides extravasation of clotted blood on both sides of the fractured bones. The brain matter was found slightly depressed while the left middle meningeal artery was found ruptured. The death according to Dr. Sen, had been caused by shock and haemorrhage arising out of the rupture of the middle meningeal artery.
5. Both the accused entered the plea of not guilty at the trial. Their defence was one of pure denial though they admitted that they had gone to the house of Bhagirath as members of the bridegroom party and were present when wrangle arose over the short supply of meat and vegetables by the groom party.
6. The prosecution examined 15 witnesses in all to prove the charge. The accused contented themselves with the statements made under Section 342. Cr.P.C. The learned Sessions Judge accepted the prosecution version that the blows by the two accused had been given to Lakshman in the manner and under the circumstances testified by the ocular witnesses. However he was of the opinion that though 'it can be easily inferred that the accused had the intention of causing serious injuries upon the head of the deceased with the knowledge what would follow from such a serious wound', but, he added, it is not possible to reach the; firm conclusion who out of them had dealt the fatal blow. He happened to observe further that what could be safely held was 'that the accused had the intention of giving a beating on the head of Lakshman whereby there may be fracture on the head of Lakshman', and on the latter premise he expressed the opinion that 'the conviction under Section 325 read with Section 34 I.P.C. would be proper in order to meet the ends of justice'. Consequent on these conclusions the accused were acquitted of the charge under Section 302/34 I.P.C. and convicted and sentenced under Section 325/34 I.P.C. The Sessions Judge having imputed the common intention to the two accused of causing serious injuries on the head of the accused with the knowledge what those injuries could lead to the Proper course for him to follow would have been to convict the two accused under Section 304 I.P.C. if not under Section 302 I.P.C. However, since the State has not come up in appeal against the acquittal of the accused on the charge under Section 302/34. I.P.C. I need not pursue the matter any further.
7. Shri R. Ghosh has candidly conceded at the bar that the conviction of the two appellants under Section 325 read with Section 34 I.P.C. is well founded and so he is not out to challenge the same. I think he is justified in adopting that stand. The statements of Bhagirath P. W. 2 and Dayananda P. W. 5, whose presence at the time of occurrence was not challenged, constitute unimpeachable and formidable pieces of evidence in support of the verdict of guilty under Section 325/34 I.P.C. Their testimony is reinforced by the medical evidence furnished by the statement of Dr. Sen. Hence, I affirm the conviction of the two appellants under Section 325/34 I.P.C.
8. The only point raised by Shri Ghosh is that the sentence imposed on the two appellants is much too severe in the context of the circumstances in which the offence was committed. He submits that the situation flared up on the spur of moment and that the blows were given to the deceased when the appellants were in highly excited mood. He has, therefore, prayed that the sentence of imprisonment should be appreciably cut down and that of fine set aside altogether. Shri H.C. Nath. the learned Government Advocate, urges on the contrary that it is imperative for the Court to impose a sentence of fine besides that of imprisonment in terms of Section 325 I.P.C. and that since the convicts had used lethal weapons against the most vulnerable part of the body of the deceased, there is no scope for paring down the sentence either of imprisonment or of (fine. Shri R. Ghosh has ioined issue with Shri H.C. Nath in the matter of interpretation of Section 325 respecting the imposition of sentence of fine. Therefore, this legal Question may appropriately be dealt with in the first instance.
9. Section 325 enacts that whoever voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. The expression 'and shall also be liable to fine' is used in a large number of sections of the Penal Code including Sections 302 (murder) and 395 (dacoity). On the plain wording of the expression, it is not possible to accept as correct the contention of Shri Nath. As I think, what the expression clearly implies is that the convict is liable to a sentence of fine, apart from sentence of imprisonment, on his conviction under Section 325. The language of the expression definitely negatives the assertion that it is obligatory for the Court to impose sentence of imprisonment as well as of fine. If it were the intention of the Legislature that the convict shall necessarily be imposed some fine, besides a term of imprisonment, the words 'be liable' of the expression would have been substituted by some more commanding words leaving no discretion to the Court just as in the case of sentence of imprisonment The matter does not appear to be res Integra. Horwill. J. held in the case of Venkata Subbayya AIR 1972 Mad 550 : 44 Cri LJ 65 that 'the wording of this section makes it clear that there must be a sentence of imprisonment, whether a fine is imposed or not'. The underlined words clearly bring out that in the opinion of Horwill Justice it Is not obligatory for a Court to impose a sentence of fine besides that of imprisonment. The Patna High Court expressed itself in more categorical terms in the case of Tetar v. Ganauri. A.I.R. 1968 Pat 287 : 1968 Cri LJ 1108. The Assistant Sessions Judge in that case had held in appeal that a sentence of fine is imperative upon a conviction under Section 325, I.P.C. Repelling that view the High Court held that the true meaning of the expression 'shall also be liable to fine' is that there is a liability to fine, not that a sentence of fine must be imposed in every case of conviction under Section 325 or any other section using identical expression. The High Court observed further that such an expression is used in the Penal Code only in connection with those offences where the legislature has provided that a sentence of imprisonment is compulsory, and that in regard to such offences the legislature has left a discretion in the Court to impose also a sentence of fine in appropriate cases in addition to the imposition of a sentence of imprisonment which alone is obligatory. I respectfully agree with this interpretation of the expression. To the same effect are the observations found in the case State v. Theyyan : AIR1960Ker147 wherein it was held that the Court is bound to award a sentence of imprisonment to the accused convicted under Section 325 I.P.C. and that a sentence of fine in addition 'may also be awarded'.
10. This legal point has been specifically dealt with by the celebrated commentators Chitaley and Appu Rao on page 2771 as well as on pages 320-321 of their Commentaries on the Indian Penal Code (1st Edition). They have cited at page 321 three authorities, one each of Allahabad. Nagpur and Oudh High Courts, in support of the proposition that when a section says that the offender shall be punished with imprisonment and shall also be liable to fine. e.g. Sections 302 and 420 I.P.C. the sentence of imprisonment is obligatory but the sentence of fine is in the discretion of the Court. On page 2771 they state that the meaning of the expression 'shall also be liable to fine' in Section 325 is that there is a liability to fine and not that a sentence of fine must be imposed in every case of conviction under this Section. In other words, the commentators point out. the legislature has left discretion to the Court to impose a sentence of fine in appropriate cases in addition to the sentence of imprisonment which is obligatory. This opinion of the authors looks to be quite sound and it is also supported by authority. Shri H.C. Nath, it may be stated, has not cited any authority to buttress his contrary proposition. All that he has been able to aver, with some apparent force, is that the various Criminal Courts in Tripura have unanimously taken the view over a long period that the expression 'shall also be liable to fine' makes it obligatory for the Court to impose a sentence of fine besides that of imprisonment, and that he himself genuinely shares that interpretation of the expression. I regret my inability to subscribe to the correctness of this view. The fact that the subordinate Criminal Courts of this territory hold the firm view that the expression in question can only bear the interpretation canvassed by Shri Nath makes it necessary for this Court to express the true import of the expression, as has been done, and to direct that a copy of this Judgment should be circulated to all the Courts for their future guidance.
11. This takes me to the consideration of the question whether the sentence imposed on the two appellants is really excessive. The appellants have obviously been sentenced to maximum term of imprisonment provided by the section and in addition each one has been imposed a fine of Rs. 1000/-. Two features of the occurrence visibly stand out. They are: (1) That the assault made by the accused on Lakshman was not premeditated and (2) that each of the appellants administered only one blow to the victim. It is unfortunate that at the scene of occurrence two pieces of fuel wood were found handy by the culprits. It is equally unfortunate that Lakshman touched on the subject of short supply of meat and vegetables by the groom party openly and in the presence of all members of that party, and that he did not adopt the precaution of taking someone out of them aside and broaching the subject with him. Taking all these factors into consideration. I have reached the conclusion that the sentence is somewhat severe and so have decided to reduce it to one of five years rigorous Imprisonment and a fine of Rs. 500/- or. in default, six month's additional rigorous imprisonment, qua each convict, and order accordingly. The fine, if realised, shall be paid to the widow of Lakshman.
12. In the result, I reject the appeal on maintaining the conviction of both brothers under Section 325/34 I.P.C. but reduce their sentence in the manner and to the extent just stated.