C.B. Capoor, J.C.
1. Dayal has appealed through the Superintendent District Jail Nahan against the order of the learned Sessions Judge, Mandi and Chamba Division, convicting him of an offence under Section 304, Part II, I.P.C., and sentencing him to undergo rigorous imprisonment for a period of six years. The appellant was prosecuted for the offence under Section 302, I.P.C., but was acquitted of that and the State has submitted to the order of acquittal.
2. The facts leading to the prosecution of the appellant lie within a narrow compass and may briefly be stated as below:--
The appellant and Biasakhi, hereinafter to be referred as 'the deceased', were residents of village Jaol and their fields used to be irrigated with the water of the same Kuhl known as Sarli. Differences had arisen between them over the right to take water from the said Kuhl and on 20th November 1960 a complaint was filed by the deceased against the appellant and some others in the Gram Panchayat Pandol. Efforts made by the Samjhota Committee to resolve the ditterences proved abortive. On the morning of 15th July 1961, the last day of the month of Har, the deceased assisted by his daughters-in-law Smts. Soma (P. W, 2) and Lohli (P. W. 3) was carrying on Halod operation (i.e. ploughing the field with a view to weed out grass and damaged plants) in his paddy field and had diverted half of the water running in the Kuhl to his field. On that day Smt. Drumti (P. W. 4) was working in the field of the appellant.
At about 10 A.M. the appellant went to his field and enquired of Smt. Drumti if water was flowing upto his field. She replied that it was flowing in small quantity and thereat he went to the deceased and asked him as to why he had diverted the whole of the water to his field. The latter said that he had diverted half of the water only and that shortly he would be letting the whole of the water flow to his (the appellant's) field. The appellant dragged the deceased upto the Kuhl and said that he would divert the whole of the water to his field and began to hurl fist blows and kicks at him. He managed to escape and ran towards the field of Sunder. The appellant gave him a chase and caught hold of him in the field of Sunder and again inflicted fist blows at and gave kicks to him as a result of which he fell down on the ground but the appellant continued to belabour him. At that time Govindu (P. W. 5) assisted by Gangu (P. W. 1) was working in his field and gave a shout to the appellant not to belabour the deceased but no heed was paid to it. He rushed towards the field of Sunder. When he reached there he found that the deceased was already dead. He asked the appellant as to what he had done whereat he replied that he had done what he wished to do and that he could take such steps as he liked and thereafter he fled away.
Smts. Soma and Lohli (P.Ws. 2 and 3) also rushed to the field of Sunder and massaged the body but to no purpose as life had already become extinct. A report (Ex. P.A) of the incident was lodged on the same day at 2.30 P.M. by Govindu (P. W. 5) at police post Ghata. Post-mortem examination was conducted by Dr. Sant Ram (P. W. 11) Medical Officer Incharge Civil Hospital Joginder-nagar on the next day at 10 A.M. As a result of external examination a small contused wound on the upper and outer part of the left occipit region about 3' above mastoid and abrasions on the left loin 21/2' above iliac crest left and post-mortem peeling off of superficial layer of skin over the left elbow and on the back of leftforearm were found. According to the Medical Officer the probable time that elapsed between injury and death was a few minutes and between death and post-mortem about 24 hours. The cause of death, according to him, was shock, resulting from direct hit on solar plexus (a highly nervous tissue, situate immediately, below the stomach and in front of the main blood vessels).
3. The decision of the case to a large extent hinges, on the medical evidence and the material portion of the statement made by Dr. Sant Ram (P. W. 11) may be noticed at this stage. He has stated that the injuries found on the dead body were of so minor nature that they could not have directly or indirectly caused death and that shock could not he attributed to any abnormality in any vital organ of the body. Shock could nave seen caused by injury to the highly nervous tissue and in the human body there were two such areas, one the testis and the other solar plexus. An injury on the testis leaves a mark on the scrotum whereas an injury on the solar plexus may not leave a mark on the skin. There was no mark of an injury on the scrotum of the deceased and as such the shock was due to injury on the solar plexus.
4. The appellant was arrested on the day of the incident and was produced before Shri Budh Ram (P. W. 12) Magistrate second class Jogindernagar on 10-8-1961 tor recording his confessional statement. Ex. P.O is the statement made by the appellant on 11-8-1961. It is not. in the nature of a confession and the prosecution did not rely upon it at the trial.
5. The appellant pleaded to be not guilty to the charge levelled against him. It has not been denied by him that on the day of the incident Smt. Drumti (P. W. 4) was working in his field and Smts. Soma and Lohli (P. Ws. 2 and 3 respectively) were working in the field. of the deceased or that Govindu (P. W. 5) was working, in his field. According to him Smts. Ramju and Dad and not Gangu (P. W. 1) were assisting Govindu. The aforesaid Ramju and Dad were examined as Court witnesses and they denied to have been working in the field of Govindu on the day of the incident. While it has not been denied that the appellant had asked Smt. Drumti (P. W. 4) if Kuhl water was flowing upto his field it has been denied that he had gone to the deceased and had asked him as to why he had diverted the whole of the water to his own field or that he had dragged the deceased upto. Kuhl or had belaboured him. 9 witnesses namely Negi (D. W. 1), Basaser (D. W. 2), Shankar (D. W. 3), Mam Ram (D. W. 4), Hira (D. W. 5), Kalu (D. W. 6), Bansi (D. W. 7), Nardu (D. W. 8) and Bhagat (D. W. 9) were examined on behalf of the appellant in proof of the fact that the deceased was suffering from cough, asthma and breathlessness and the suggestion on behalf of the defence-is that on the day of the incident while he was smoking tobacco in the company of Govindu (P. W. 5) at the been between the fields of Sunder and Govindu he popped ott.
6. The learned Sessions Judge was satisfied that the appellant had belaboured the deceased as alleged on behalf of the .prosecution. He was not satisfied that the appellant intended to kill the deceased or to inflict such bodily injury as was likely to cause death. In his opinion the appellant had caused the death of the deceased by doing an act with knowledge that it was likely to cause death and as such was guilty under Part II of Section 304, I. P. C. I find it rather difficult to appreciate the reasoning of the learned Judge and on the findings recorded by him the case fell under the first part of Section 304 andnot under the second. The relevant portion of Section 304, I. P. C., reads as below:
'Whoever commits culpable homicide not amountingto murder shall be punishe'd with.....and shall also be liable to fine if the act by which the death is caused isdone with the intention of causing death, or of causing such bodily injury as is likely to cause death;
or with.......if the act is done with the knowledge thatit is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death.'
7. It would thus appear that if such bodily injuryas is likely to cause death is intentionally caused andresults in the death of the victim the case would tallunder Part I, and not under Part II. Stated differentlyPart II comes into play when death is caused by doingan act with knowledge that it is likely to cause deathand when such act is the infliction of bodily injury theinfliction must not be intentional. A person who intentionally causes bodily injury with knowledge that such actis likely to cause death must necessarily be a person whodoes an act with intent to cause bodily injury likely toresult in death.
8. In the case of Behari v. State, reported in AIR 1953 All 203, Sections 299, 300 and 304, I. P. C., were, if I may say so with respect, very ably analysed and itwas held that Section 304- will inter alia apply to thecase when the act is done With the knowledge that death is likely to ensue but there is no intention to cause death or an injury likely to cause death. In such casesthere may be either no intention to cause any injury atall or there may be an intention to cause simple or grievous hurt but not an injury likely to cause death.
9. In the case of Badri v. State, reported in AIR 1953 All 189, it was held that where the injuries inflictedon a person are not such as are sufficient in the ordinary course of nature to cause death but are merely injurieswhich are likely to cause death then the accused are guilty under Section 304, Part I and not under Part II.
10. The appellant had inflicted fist blows and kicks at the deceased. Such blows could not have been inflicted accidentally and must be held to have been inflicted intentionally. The finding recorded by the learned Judge that the act by which death was caused was known by the appellant to be likely to cause, death involves the following findings:
(1) that the appellant had intentionally inflicted fist blows and kicks inter alia in the abdominal region;
(2) that the cause of death was injury to solar plexus and
(3) that the appellant knew that injury to solar plexus was likely to cause death. The aforesaid findings bring the case under the first part of Section 304, I. P. C.
11. Having made the aforesaid observations, 1 advert to the merits of the appeal.
12. The first point urged by Shri Indar Singh the learned counsel appearing as amicus curiae is that the prosecution witnesses Soma, Lohali, Gangu and Govindu were not independent inasmuch as the first three were related to the deceased and there was ill-will between the last and the appellant. It does appear that the first three were related to the deceased and th'at Govindu had appeared as a witness against the appellant in a case filedby one Shyam. At the same time, it cannot be lost sightof that even according to the appellant the aforesaid per-sons with the exception of Gangu were close to the scene of occurrence. The report of the incident was lodged by Govindu within about 4 1/2 hours of the incident and the prosecution version as then disclosed is substantially the same as put forward in the course of evidence. Smt. Drumti (P. W. 4) who even according to the appellant was working in his field has stated that he had enquired of her if Kuhl water was reaching his field and at her reply that it was flowing in small quantity he left the place and that after a short while she heard a noise from the direction in which the field of Sunder was. She went there and saw that the deceased was lying in the field of Sunder, his daughters-in-law were massaging his Body and Govindu and Gangu were also at that place, in cross-examination she has stated that when she reached the field of Sunder the appellant was not there. The prosecution story in all its material particulars has been narrated by P. Ws. Gangu, Soma, Lohali and Govindu. It finds support from the statement made by Smt. Drumti and the finding reached by the learned Sessions Judge that the appellant had belaboured the deceased does not appear to be open to any exception.
13. The second point urged on behalf of the appellant is that in view of the statement made by Dr. Sant Ram (P. W. 11) it could not be held that it was any act on the part of the appellant which had caused the death of the deceased. Reliance in particular has been placed upon the statement that the injuries found on the dead body were not directly or indirectly the cause of death and that if he had not been supplied by the police with the information that fist blows and kicks had been given at the deceased he could not have come to the conclusion that death was due to a hit on the solar plexus. The last mentioned statement appears to have been made under some confusion. The witness had previously stated that death was due to shock and that as there was no mark of injury on the scrotum and shock could not be attributed to any abnormality in the vital organs of the body shock was due to the injury on the solar plexus. On the medical evidence it is clear that death was due to shock resulting from direct hit on the solar plexus and it appears from the prosecution evidence that fist blows and kicks were inflicted by the appellant in the abdominal region of the deceased also. None of the witnesses examined on behalf of the appellant alleges to have been present at the time of the incident under consideration. Those witnesses have merely stated that the deceased suffered from cough, asthma and breathlessness me medical evidence did not disclose that the deceased died of suffocation and even if it be held that he suffered from asthama and breathlessness his death could not be attributed to the aforesaid malady.
14. Explanation No. 1 to Section 299, I.P.C., runsas below:
'A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.'
Thus if the appellant's evidence that the deceased suffered from cough, asthma and breathless-ness is accepted and the appellant is held to have caused bodily injury he shall be deemed to have caused his death. I, therefore, hold that the appellant had caused the death of the deceased.
15. It has next to be seen if the knowledge that an injury to solar plexus is likely to cause death couldbe imputed, to the appellant. It is too well-known, that abdominal region is a vital part of the human body. Few laymen, however, know that solar plexus is such a delicate part that an injury to it may cause death and I find it a little difficult to hold that the appellant knew that a fist blow or a kick at that delicate part was likely to result in death. It cannot, therefore, be held that the act by which the death of the deceased was caused was known to the appellant to be such as was likely to cause death or that it was committed with intent to cause bodily injury likely to cause death. The case, therefore, was not covered by either the first or the second part of Section 304, I. P. C.
16. The causing of death of any person by doing any rash or negligent act not amounting to culpable homicide is punishable under Section 304-A, I. P. G. Criminal rashness is 'hazarding a dangerous or wanton act with the knowledge that it is so and that it may cause injury but without intention to cause injury or knowledge that it will probably be caused. The criminality lies in Tunning the risk of doing such an act with recklessness or indifference as to the consequences' vide the observations made by Straight, J. in the case of Empress of Indiav. Idu Beg, ILR 3 All 776. In the case of Nidarmarti, Nagabhushanam In re, 7 Mad HCR 119, Holloway, J. stated as below:
'Culpable rashness is acting with consciousness thatthe mischievous and the illegal consequences may follow: but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent their happening.'
17. Intentionally or knowingly inflicted violence directly or wilfully caused is excluded under the aforesaid section. In other words, the aforesaid section does not apply to a case in which there has been voluntary commission of an offence against a person. Thus, where bodily injury is intentionally inflicted and the victim dies the offence would be one of simple or grievous hurt if the intention or knowledge which is an ingredient of culpable homicide is wanting. The appellant could not thus be held guilty of Section 304-A, I. P. C.
18. According to Clause (8) of Section 320, I. P. C., any hurt which inter alia endangers life is grievous. The voluntary causing of grievous hurt is punishable under Section 325 of the Code and as to what is tantamount to voluntarily causing grievous hurt is set forth in Section 322, which reads as below:
'Whoever voluntarily causes hurt; if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said 'voluntarily to cause grievous hurt.'
Explanation.--A person is not said voluntarily to cause grievous hurt except when he both causes grievoushurt and intends or knows himself to be likely to cause grievous hurt. But he is said voluntarily to cause grievous hurt if, intending or knowing himself to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of another kind.'
19. It would thus appear that it is an essential ingradient of the offence under Section 325 that eitherGRIEVOUS hurt should be intended to be caused or theoffender should have khowledge that the hurt caused waslikely to be grievous.
20. In the case of Jiba Bai v. Emperor, AIR 1917Bom 259 it was held by Beaman, J. that any hurt whichendangers human life must also be likely to cause, deathand where death is caused as a result of an injury which is not intended to cause death and was not in normal conditions likely to cause death the offence can neither be grievous hurt nor culpable homicide not amounting to murder and it must then be a case of simple hurt. Shah, J. the other learned Judge constituting the Bench did not express any definite opinion on the question, as to whether there was any real difference between the expression 'injury which is likely to cause death' and the expression 'hurt which endangers life'. The line of demarcation between culpable homicide not amounting to murder ana grievous hurt under the first part of the 8th clause of Section. 320, I. P. C. if at all is a thin and subtle one. There appears to be a good deal of force in the opinion expressed by Beaman, J. An injury which is likely to cause death must under normal conditions be also a hurt which endangers life. In the instant case it has been held that the appellant did not intend to cause bodily injury likely to cause death nor did he know that the injury which he was causing was likely to cause death. It would, therefore, not be safe to convict him of an offence under Section 325, I. P. C., either.
21. The appellant had voluntarily caused hurt and was clearly guilty of an offence under Section 323, I. P. C. It was urged on behalf of the appellant that if this Court reaches the conclusion that the appellant was guilty of an offence under Section 323, I. P. C., only the case should be referred to the Nyaya .Panchayat. Section 61. of the Himachal Pradesh Panchayat Raj Act provides that if at any stage of the proceedings in a criminal case pending before a Magistrate it appears that the case is triable by a Nyaya Panchayat he will at once transter the case to that Nyaya Panchayat which will try de novo. That section comes into play when a case is pending Before a Magistrate. It can have no application when a case is pending before a Court of appeal. Section 61 of the Himachal Pradesh Panchayat Raj Act substantially corresponds to Section 55 of the U. P. Panchayat Raj Act and it has been held in the case of Bhagwana v. State of U. P. 1952 All U 135: (Am 1953 All 367) that the latter section does not apply to the appellate stage.
22. I, therefore, accept the appeal in part, set asidethe conviction of the appellant for the offence under Section 304, Part II, I. P. C., convict him of the offenceunder Section 323, I. P. C. and sentence him to undergorigorous imprisonment for a period of one year.