T.N.R. Tirumalpad, J.C.
1. The appellant Lenson Koir-eng, has filed this appeal against his conviction under Section 302 I. P. C, and against the sentence of life imprisonment passed against him by the Sessions Judge, in Sessions Trial No. 25 of 1961 on 27-2-1962.
2. The case against the appellant is briefly as follows:
There is a village School in the village, Makokching Sadu. The villagers including P. Ws. 1, 3, 4, 6 and 7, the deceased Tinsongir, the appellant and his. brother Lenhung (P. W. 2) attended a meeting of the villagers on 20-6-1961 and decided, that the villagers should work on 27-8-1961 for plastering the walls of the School with mud and straw. Accordingly, the work started early morning on 27-8-1961 and all the persons mentioned above except the appellant were doing the work. As the appellant was late, the villagers who were working decided to fine the appellant. When the appellant arrived at about 9-00 a. m. or so, P. W. 7 told him that he has been fined Rs. 3/-. The appellant got angry and went away in a huff saying that the villagers may do anything they liked. Thereafter, there was a quarrel between Lenhung (D. W. 1), who is the younger brother of the appellant and P. W, 7, but the other persons working, intervened and separated them. Thereafter, the work was going on, P. Ws, 3 and 7 and Lenhung (P. W. 2) were working inside the School, while P. Ws. 1, 4 and 6 and the deceased Tinsongir were working out-flide. P. W. 1 was preparing mud plaster and the deceased was cutting straw, while P. Ws. 4 and 6 were plastering the outer walls of the School.
3. At that time the appellant was said to have come rushing to the School at about noon with the Dao Ext. M/1 in his hand. On seeing him, Tinsongir stood up for fear that appellant may do something violent. The appellant rushed towards Tinsongir and gave him a cut with the Dao on his left fore-head causing a 5' long injury and Tinsongir fell down unconscious bleeding profusely. P. W.' 1 raised an alarm 'a man was being killed'. Thereupon, P. Ws. 3, 4 and 6 rushed towards the appellant and before the appellant could give another blow with the Dao, P. W. 3 caught hold of the Dao. P. W. 7 also, came out and all of them together arrested the appellant and also D. W. 2, P. W. 9, the cousin brother of the deceased also arrived on the scene on hearing the hue and cry. Then P. W. 9 along with P. Ws. 4 and 6 took the injured person Tinsongir and the appellant and D. W. 2 to the Police Station at Imphal, which, was 20 miles away and P. W. 9 gave the F. I. R, Ext. A/4 to P. W, 10, the Officer in charge at about 6-45 p. m. In the F. I. R. we find it stated that while the plastering of the School was going on a quarrel ensued between P, W. 7 and D. W. 2, that Tinsongir intervened in the quarrel and that the appellant rushed in with a Dao and questioned Tinsongir why he had intervened in the quarrel and assaulted Tinsongir on the fore-head with a Dao. The appellant and P. W. 2 were then arrested by the Police and put in the lock up and a case under Section 326 I.P.C. was registered by P. W. 10. Tinsongir was then sent to the Hospital where he was examined by P. W. 2, the Doctor at 8-00 p. m. and he detected on external examination an injury 5' x 1/2' x 1/2' on the left fore-head beginning about 1/2' above the middle of the left-oye-brow and tailing off at about 3 1/4' above the left ear.
4. The investigation was handed over to P. W. 11 on 28-8-1961 and P. W. 11 examined some witnesses and on seeing two injuries on D. W. 2 Lenhung, he sent D. W. 2 to the hospital where he was examined at about 4 p. m. on 28-8-1961 by the Doctor D. W. 1, who found two injuries on the upper and lower eyelids of the left and right eyes of D. W. 2.
5. P. W. 11 went to the hospital and took the statement of Tinsongir, who could at that time speak in a feeble voice. That recorded statement is Ext. A/5, in which Tinsongir gave a version which was quite different from the version given by P. W. 9 in the F. I. R. In Ext. A/5, which was subsequently treated as a dying declaration under Section 32 of the Evidence Act, Tinsongir stated that the appellant was late in coming for plastering and P. W. 7 told him that he would be fined and the appellant got angry and went away and thereafter a quarrel took place between P. W. 7 and D. W. 2, which was pacified by the villagers and that subsequently while he was cutting straw and P. W. 1 was making mud plaster, the appellant came running and suddenly attacked him with a Dao and he fell down unconscious. It is this version given in Ext. A/5, which was subsequently spoken to by all the witnesses. P. W. 11, continued further investigation in the case, but on 1-9-61 Tinsongir, who was fully conscious between 27-8-61 and 1-9-1961 and was responding to the treatment given in the hospital suddenly collapsed and died. P. W. 3, another Doctor did the post-mortem examination and he found an injury 5' x 1/4' x 1' and he also found that there was fracture of the bone and rupture of membrane and maceration of brain and presence of pus and he was of opinion that death was due to shock and continuous hemorrhage and septicemia following the injury and that the injury was sufficient in the ordinary course of nature to cause the death.
6. There was some disagreement between the two Doctors P. Ws.2 and 5. P. W. 2 had said that the injury was 5' x 1/2' x 1/4'while P. W. 5 said that it was 5' x 1/4' x 1'. Again, P. W. 3 said that the injury might not have proved fatal and that there would have been no surprise for him if the patient had survived and further that between 27-8-1959 and 1-9-1959 Tinsongir was conscious throughout and that he suddenly collapsed on 1-9-1961, But P, W, 5 said that the injury was fatal and was sufficient in the ordinary course of nature to cause death. In cross-examination P. W. 5 went even further and said that the injury was bound to cause death. He, however, said that the deceased might have survived with better medical aid. It may be mentioned here that P. W. 5 did not treat him and that it was P. W. 2 who treated him. Thus, this was a reflection on the treatment by P. W. 2. P. W. 5, however, tried to correct this reflection by saying that he meant that Tinsongir survived for 5 days with the medical treatment and that otherwise he might have died earlier. One is unable to understand how the latter evidence could be treated as an explanation of the earlier reflection on the treatment given by P. W. 2. The attempted explanation was an utter contradiction of the previous statement. In a murder case, such disagreement between two Doctors would even make a Court suspect, particularly when the injured person was conscious throughout and suddenly collapsed, that it was a case of his-management in hospital and that death would not have been caused ordinarily by such an injury. I could not understand how in the face of the disagreement between the two Doctors, the Sessions Judge could accept the evidence of P. W, 5 that the injury was sufficient in the ordinary course of nature to cause death.
7. Any way, after the death of Tinsongir, the Police charge-sheeted the appellant on 18-9-1961 under Section 302 I.P.C. and after the committal proceeding, the appellant was sent to the Sessions Court to take his trial. I must also mention here that after the injuries on D. W. 2 were attended to in the hospital on 28-8-1961, the Police left off D. W. 2 on 28-8-1961, itself.
8. The defence of the appellant was that he did not cause the injury to Tinsongir. According to him, on 27-8-1961 he arrived late for doing the plastering work and P. W. 7 told him that he has to pay a fine and he agreed to pay the fine and he went away. Subsequently, his mother informed him that his brother D. W. 2 has been murdered by the villagers at the School and he went back to the School to see the dead body of his brother and on arrival he was assaulted be the villagers and he fell down unconscious and he was taken to the Police Station. He did not know who caused the injury to Tinsongir.
9. The learned Sessions Judge accepted the prosecution case completely and relied on the evidence of the eye-witnesses P. Ws. 1, 4, and 6 and on the dying declaration of Tinsongir, namely, Ext. A/5, He also found that the evidence of P. Ws. 3 and 7 corroborated the evidence of the eye-witnesses. He also accepted the evidence of the two Doctors P. Ws. 2 and 5 that the injury-could have been caused by a Dao like Ext. M/,1 Various discrepancies in the evidence of the eyewitnesses were pointed out to the Sessions Judge, which would show that the version given by then was not the true version, but he brushed them all aside as minor discrepancies. With regard to the different versions given in the F. I. R. by P. W. 9, the Sessions Judge stated that P. W. 9. was not an eye-witness and had got his information from the women and children gathered at the place and so it did not tally with the version in the dying declaration Ext. A/5 and the prosecution version. He refused to accept the evidence of D. W. 2 that he was assaulted by the prosecution witnesses P. Ws. 1, 3, 4, 6 and 7 and that he had fallen down unconscious. With regard to the injuries found on D. W. 2, the learned Sessions Judge said that according to the evidence of D. W. 1, the injuries were less than 12 hours old when he examined him on 28-8-1961 at 4-00 p. m. and hence they could not have been received by D. W, 2 at the time of the incident which occurred at noon on 27-8-1961. He accepted that the appellant had previous grudge against Tinsongir as-deposed to by P. W. 8 and further that the appellant was angry on account of the fine imposed upon him and this caused him to inflict the injury. He also said that even if the injuries on D. W. 2 were caused by the villagers they were simple injuries and there was no justification for the appellant to cause the death of Tinsongir. He-further accepted the evidence of P. W. 5, Dr. Gopal Singh that the injury was sufficient to cause-the death of Tinsongir and so he accepted that the intention of the appellant was to cause Tinsongir's death. From this he came to the conclusion that the appellant was guilty of murder under Section 302 I.P.C. But as the murder was not brutal and Tinsongir died only 5 days-later, he imposed the lesser penalty of life imprisonment.
10. In appeal, it was argued for the appellant that having regard to the injury 5' long-beginning from 1/2' above the left eye-brow and tailing off about 3 1/2' over the felt ear, the wound: could not have been caused with the Dao, Ext. M/1, if, as spoken to by P. W. 2, Tinsongir was in a standing position when the injury was caused. I am not prepared to accept this argument. This is more or less a technical matter and on this point, the appellant could have cross-examined the doctors P. W. 2 and P. W, 5, both of whom had stated that the injury could be caused by the Dao, Ext. M/1, but he did not do so. It was next pointed out that according to P. W. 3, the Dao was blood-stained, but that the Dao which was produced at the Police Station had no blood stains on it, showing thereby that the Dao produced at the Police Station by P. W. 9, was not the Dao with which the injury was caused. But P. W. 4 had explained this by stating that there was rain at the time and it is quite possible that the blood stains on the Dao were washed off by the rain, as spoken to by P. W. 4.
11. (His Lordship then discussed the evidence and proceeded.) This again makes one accept the evidence of the eye-witnesses and the statement of Tinsongir in the dying declaration that it was the appellant who caused the injury.
12. The next question is whether the appellant is guilty of murder under Section 302 I, P. C. I have already indicated that the learned ' Sessions Judge was wrong in accepting the evidence of P. W. 5 that the injury in the ordinary course of nature was sufficient to cause death, Tinsongir was conscious at the Police Station. He was conscious throughout in the hospital from 27-8-1961 to 1-9-1961. He was in a position to give his dying declaration on 28-8-1961 and his collapse on 1-9-1961 was sudden. P. W. 2 himself said that the injury need not have proved fatal and that it would not have surprised him if he had survived. P. W. 5 also indicated that the deceased might have survived with better medical did. The possibility cannot be excluded altogether that there was no mismanagement in the treatment in the hospital and that death was not the result of such mismanagement. In a trial for murder, we have to be certain that the injury was sufficient to cause death, before we could say that the accused had the intention of causing such bodily injury as was likely to cause death or at least had the knowledge that it was likely to cause death. No doubt, the appellant used a sharp cutting instrument and he dealt the blow on the fore-head, which is a vulnerable pArticle But from this alone, we cannot rush to the conclusion that he had the intention of causing death or such bodily injury as is likely to cause death. It seems to me that in a case like this, where death took place 4 days later and during those 4 days the injured was fully conscious and he collapsed suddenly and there was disagreement between the Doctors as to whether the injury was fatal or not and the Doctor P, W. 5 stated that the deceased would have survived with better medical aid, the possibility cannot be altogether excluded that the injury was not fatal and that therefore the accused had no intention to cause death or such injury as was likely to cause death. At best, all that can be said is that the appellant caused grievous hurt by means of a sharp cutting instrument which, used as a weapon of offence, was likely to cause death. He can at best be charged only under Section 326 I. P. C.
13. (His Lordship then discussed the evidence and proceeded.) The truth of the matter seems to be that there was some disagreement between P. Ws. 1, 3, 4, 6, 7 and Tinsongir on one side and the appellant and D. W. 2 on the other, that there was a quarrel, that in the quarrel D. W. 2 was injured and the appellant went to the rescue of D. W. 2 and caused injury to Tinsongir which unfortunately proved fatal subsequently. Thus, it was not a case of a planned, deliberate attack by the appellant on Tinsongir.
14. Hence, the appellant can be found guilty only of causing grievous hurt to Tinsongir with the Dao, Ext. M/1 in the course of the quarrel. There is no evidence to show that the appellant caused the injury in the exercise of any right of private defence. That was not the defence of the appellant at all. Nor did D. W. 2 in his evidence say anything about it. Nor do I find from the evidence of the prosecution witnesses or from the cross-examination of the prosecution witnesses that any suggestion of the right of private defence was pleaded by the appellant. Under the circumstances, the appellant has to be held guilty of causing grievous hurt under Section 326 I.P.C. The conviction of the appellant under Section 302 I.P.C. is set aside and the appellant is convicted under Section 326 I. P, C, of having caused grievous hurt to Tinsongir.
15. With regard to the sentence, the sentence of life imprisonment given under Section 302 I.P.C. is set aside. As the grievous hurt appears to have been caused by the appellant in the course of quarrel in which D. W. 2, his brother received injuries and not deliberately, he does not deserve the maximum sentence prescribed under Section 326 I.P.C. A sentence of 4 years' R.I. would under the circumstances be sufficient in the ends of justice.
16. In the result therefore, the conviction and sentence given by the Sessions Judge are modified and the appellant is convicted under Section 326 I.P.C. and he is sentenced to R.I. for a period of four years.