CRIMINAL APPEAL 122/87 on 12 December 1994

1. Kuleshwar Yadav Son of Govind Yadav

2. Bali Yadav Son of Govind Yadav

3. Razia Devi W/o Govind Yadav, residents of village Manohar Chak, P.S.Mohanpur (Barachatty), District Gaya.

CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH and HONOURABLE MR. JUSTICE SHAILENDRA SINGHORAL JUDGMENT(Per: HONOURABLE MR. JUSTICE SUDHIR SINGH)

Date : 11-11-2022

The present criminal appeal has been preferred in the year1995 i.e. 27 years ago against the judgment of conviction and theorder of sentence dated 12.12.1994 passed by the learned SessionsJudge, Gaya in Sessions Trial No. 612/90 (arising out ofBarachatty P.S. Case No. 122/87, G.R. case No.2778/87),whereby and whereunder the appellants have been convicted underSection 302 of the Indian Penal Code and sentenced to undergoR.I. for life.

2. It is the case of the prosecution as narrated by theinformant (P.W.1) in his fard beyan dated 31.10.1987 that owingto the land dispute, the sons of his brother Govind Yadav, namely,Kuleshwar Yadav and Bali Yadav used to threaten him regardingthe partition of land even though the matter was already decidedwith the aid of Panch. The informant further alleged that thematernal uncle of Kuleshwar Yadav and Bali Yadav, namely,Narayan Yadav and Prabhu Yadav called Kuleshwar Yadav, BaliYadav, Nado Yadav and Rajo Yadav and hatched a plan to kill theinformant, after which they sent Kuleshwar and Bali to villageManoharchak for this purpose. The informant further stated thaton 30.10.1987, when the informant was washing his mouth at hisdarwaja, appellant Kuleshwar Yadav caught hold of him andappellant Bali Yadav started assaulting him with chapda and saidthat ‘cut his head’. Thereafter, the mother of both accusedpersons, namely, Razia Devi took garasa and lathi from the houseand gave garasa to Kuleshwar and kept lathi with her and startedassaulting him. Then informant started shouting, upon which hiswife Rampati Devi came and fell down on the body of informantbut the accused persons did not spare her and continuedassaulting the informant along with his wife even in fallencondition with the help of garasa, lathi and chapda. Both started shouting but due to fear, the villagers were not coming and allthree accused persons were abusing and were saying that anyonewho will come in rescue will be killed. Thereafter, their son,namely, Basudeo Yadav got terrified after seeing the informantand his wife in injured condition and rescued himself inside thehouse and closed the door. Upon hue and cry made by BasudeoYadav, the villagers, namely, Pokhan Yadav, Somar Yadav, SiriYadav and other persons of the village came and saved them. Theinformant further stated that until he was alive, he saw threepersons in front of him and thereafter he and his wife gotunconscious. The informant further stated that he did not knowwhen he was brought to Mohanpur Government Hospital.

3. On the basis of fardbeyan, Barachatty P.S. CaseNo.122/87 was registered under sections 324, 307, 323/34,120(B) of the Indian Penal Code and investigation was taken up.In course of treatment, wife of the informant, namely, Rampatidied whereafter Section 302/34 of the Indian Penal Code wasadded.

4. After investigation, the police submitted charge-sheet andcognizance was taken by the Jurisdictional Magistrate andthereafter the case was committed to the Court of Sessions.

Charges were framed against the appellants to which theappellants pleaded not guilty and claimed to be tried.

5. During trial, the prosecution examined altogetherfourteen witnesses, namely, Jageshwar Yadav (P.W.1), Dr. ArjunSingh (P.W.2), Kunti Devi (P.W.3), Somar Mahto (P.W.4), SiriYadav (P.W.5), Pokhan Yadav (P.W.6), Chhathu Yadav (P.W.7),Dr. Farasat Hussain (P.W.8), Basudeo Yadav (P.W.9), MaheshRam (P.W.10), Kamal Nain Yadav (P.W.11), Bholi Yadav(P.W.12), Santan Prasad (P.W.13) and Arjun Sharma (P.W.14). Insupport of its case, the prosecution has also produced exhibits asExt. 1 (fardbeyan), Ext. 2 (post mortem report), Ext. 3 (injuryreport), Ext. 1/1 (signature of Basudeo Yadav on fardbeyan), Ext.4 (formal F.I.R.), Ext. 5 (signature of Kamal Nayan Yadav on thecarbon copy of surtehal), Ext. 5/1 (signature of Bholi Yadav onthe carbon copy of surtehal), Ext. 6 (discharge ticket of JageshwarYadav), Ext. 7 (certificate regarding receiving of dead body), Ext.8 ( OPD entry No. 2451 of Mohanpur Hospital), Ext. 8/1 (OPDentry No. 2452 of Mohanpur Hospital), Ext. 9 and 9/1 (two bedhead ticket of Govt. Hospital, Mohanpur). After conclusion of thetrial, the learned Trial Court convicted and sentenced theappellants in the manner indicated above.

6. Learned counsel for the appellants has submitted that thejudgment and the order under challenge are bad in the eye of lawas the learned trial court has not appreciated the evidenceavailable on the record. Learned counsel has pointed out thatthere are no specific allegations against all the three appellants ofcausing injury upon the deceased in the fard beyan of theinformant. The learned counsel in furtherance of his argumentsubmitted that the prosecution in an endeavour to improve its casematerially has made specific allegation against the appellants inthe deposition of the witnesses but has failed to prove its caseand, therefore, as a result of failure of the prosecution to prove thespecific allegation against the appellants, the offence underSection 302 of the Indian Penal Code cannot be attracted. Thelearned counsel also submitted that without the aid of Section 34of the Indian Penal Code, the conviction of the appellants cannotbe sustained and falls palpably in the eyes of law. In addition tothe aforesaid arguments, learned counsel argued that the deceasedsuccumbed to death after 20 days of the incident and, as such,death has taken place due to secondary haemorrhage and notcaused due to primary haemorrhage, as a result of which Section302 of the Indian Penal Code is not attracted. The learned counsel lastly submitted that the prosecution has not been able to provethe place of occurrence beyond all reasonable doubts.

7. Learned A.P.P. for the State has submitted that thejudgment of conviction and order of sentence under challengerequires no interference as the prosecution has been able to proveits case beyond all reasonable doubts. From the evidence, whichhas been adduced by the prosecution, the guilt of the appellants issatisfactorily proved and there is no infirmity in the judgment ofconviction and order of sentence rendered by the trial court.

8. After hearing the arguments advanced by the learnedcounsels appearing for the parties and perusing the materialsavailable on record, following issues arise for consideration inthis appeal:-

(I) Whether the cause of death of the deceasedis directly associated with the act of the appellants?

(II) Whether the prosecution has been able toprove the place of occurrence beyond allreasonable doubt?

(III) Whether the cause of death is directlyassociated with the act of the appellants i.e. to saywhether the death has taken place due to primaryhaemorrhage or secondary haemorrhage?

9. Now coming to the first issue, from perusal of the fardbeyan of the informant and deposition of the prosecution witnesses it appears that initially the case of the prosecution asper the fard beyan of the informant was that the deceased wasassaulted by all the three appellants. Further, the informant in hisfard beyan has not mentioned any specific allegation of assaultagainst any of the appellants. However, later on the prosecutionhas materially improved its case which would be evident from theperusal of paragraph 5 of deposition (cross examination) of theinformant (P.W.1) and in paragraph Nos.1 and 2 of deposition ofP.W.9. In their depositions an attempt to materially improve theprosecution story has been made by attributing specific allegationagainst the appellant Kuleshwar Yadav and Balli Yadav forinflicting a garasa injury on the head and inflicting chapda injuryon the abdomen of the deceased respectively. Likewise, P.W.3 hasalso made specific allegation against the appellants KuleshwarYadav and Balli Yadav for assaulting the deceased. From the barereading of the fard beyan, it appears that the informant has notstated anything about her presence as an eye witness at the placeof occurrence at the relevant point of time. Therefore, it would beunsafe to rely upon the deposition of P.W.3 in so far as theallegation of assault is concerned. From the totality of the facts ofthe case, it is evident that the witnesses are not consistent in theirversion and the case of the prosecution suffers from glaring infirmities and material improvement. The learned trial court hasconvicted all the appellants under Section 302 of the Indian PenalCode without taking aid of Section 34 of the I.P.C. In order tobring home the guilt under Section 302 of the Indian Penal Codesimpliciter, we would like to refer to the law settled by theHon’ble Supreme Court in Dhaneswar Mahakud and othersVersus State of Orissa reported in (2006) 9 SCC 307, wherein the Hon’ble Court in paragraph 8 observed the following :

“8. Before we consider the eye-witnesses' version of theincident and the medical evidence, we would like to ventureupon the argument advanced by the counsel for the appellantsthat whether in the absence of a charge under Section 34 IPCthe accused-appellants can be convicted with the aid thereof,when they were charged with an offence under Section 302 readwith Section 149, IPC only. To convict the accused of anindependent charge under Section 302 IPC, it is necessary thatthe Court should reach to the conclusion that the injuriesinflicted by each individual taken in isolation, were sufficient inthe ordinary course of nature to cause death of deceasedpersons. If the Court reaches to the conclusion on the 'basis ofthe material placed before it that the injuries were sufficient inthe ordinary course of nature to cause death and the nature ofinjuries was homicidal, the Court can convict each and everyaccused under Section 302 IPC, but if the Court cannotconclusively reach to the finding that each and every individualinvolved in commission of the offence has caused such injurieswhich are sufficient in the ordinary course of nature to causedeath, the accused cannot be convicted under Section 302 IPC.If the injuries caused are sufficient in the ordinary course ofnature and they have been caused in furtherance of the common intention, then each and every individual propagating thecommon intention can be convicted under Section 302 readwith Section 34, IPC, although he has not been charged underSection 34 IPC and has been charged under Section 149 IPCalong with Section 302 IPC.”

Now coming to the facts of the present case the prosecutionin its entire case has not alleged any allegation of specific assaultagainst appellant no.3. So far appellant no.2 is concerned,although initially there is no specific allegation against himhowever during course of trial by way of material improvementan allegation of assaulting the deceased on her abdomen has beenattributed against him. From perusal of the post-mortem report(Ext.2) it appears that the doctor has opined that death has beencaused due to toxemia, shock, sepsis and pressure over vital partof the brain. Therefore, so far the injury attributed to have beencaused by the appellant no. 2, namely, Bali Yadav is concerned,the same cannot be said to be a fatal or homicidal injury. Nowapplying the principle as laid down in the case of DhaneswarMahakud(supra) the prosecution in this case has failed to provean independent charge under section 302 I.P.C simpliciter againsteach of the appellants. There is no sufficient material available onrecord which could have brought the learned trial court toconclusively reach to the finding that each injury as attributed against the appellants are sufficient in the ordinary course ofnature to cause death of the deceased. Thus, the learned trial courthas erred in convicting each of the appellants under Section 302of the I.P.C without taking aid of Section 34.

10. Now adverting ourselves to the second issue, from theperusal of the fard beyan it appears that there is only one place ofoccurrence where the incident is said to have taken place. Theplace of occurrence as narrated in the fard beyan is the darwaja ofthe informant where he alongwith his wife was assaulted by theappellants through lathi, garasa, chapda. But from the perusal ofthe deposition of the informant, there is a material improvementin the story of the informant, which is evident from the reading ofparagraph 1 and 2 of examination-in-chief, that a there are twoplace of occurrence, one is the darwaja of the informant, wherehe was washing his mouth when the appellants are said to havecased assault on his person and his wife, who is said to have cometo the place after hearing the voice of the informant and tried toprotect him. Thereafter the wife went to the angan of the house,where the appellants have assaulted her person. It further appearsfrom paragraph 5 of the deposition (cross-examination) of theinformant, where he has categorically stated that he went into thestate of unconsciousness after seeing the blood which was spilled in the angan. But P.W.9, who claims himself to be an eye witnessto the said incident has deposed, with respect to the first place ofoccurrence, in paragraph 2 of his deposition (examination-in-chief) that, he was at the darwaja of his house and his father wasat the darwaja of a dalan which is at the distance of 20 feet fromthe darwaja and at that place the fight occurred. Thereafter, thedeceased and the informant came to angan and the appellantsassaulted them. The witness categorically deposed that the entireincident of assault on the persons of the informant and thedeceased took place at angan. From the bare reading of thedeposition of P.W.10, the Investigating Officer of the case, itappears that the witness has mentioned two place of occurrencewherein in paragraph 3 of his deposition (examination-in-chief)he has stated about the first place of occurrence as pagdandi, fromthe east of which there is darwaja of the house of the informantand at that darwaja he saw lot of blood. In paragraph 8 of hisdeposition (cross-examination), he mentioned about second placeof occurrence, which is the angan wherein he did not find anyblood. Further the defence has made a suggestion to the informantin paragraph 7 of his deposition (cross examination) in relation tothe place of occurrence which was denied by the informant.However, the informant has not explained the reasons for such material improvement made by him in his deposition in relationto the place of occurrence, which creates doubt in relation tohappening of the incident of assault at such place. At thisjuncture, we would like to rely upon the judgment of Pohlu vs.State of Haryana reported in MANU/SC/1148/2004, wherein theHon’ble Supreme Court in paragraph No.11 has observed thefollowing :

“11. P.W. 2 Sukhdei has alleged in the F.I.R. thatthe occurrence took place near the village chaupalin which Hukam Chand, the deceased, wasassaulted. Before that the Appellants and Ors. hadentered her house, assaulted her and thereafterproceeded towards the chaupal. While disposing inCourt, she has attempted to change the place ofoccurrence by stating that she was assaulted in thesahan of her house and Hukam Chand wasassaulted just outside her house. Counsel for theState has shown to us the site plan from which itappears that the place where Hukam Chand isalleged to have been assaulted is only three stepsfrom the main door of the house of the informant.Counsel for the Appellants submitted that this hasbeen done deliberately, because the material onrecord does disclose that a different occurrencetook place near the chaupal in which the son of theinformant, namely, Dharamvir, was also involved.However, with a view to prevent the emergence of truth, the prosecution has shifted the place ofoccurrence and also not examined Dharamvir, sonof the informant, who was also involved in thatincident. What is apparent, however, is that P.W. 1has sought to shift the place of occurrence whereHukam Chand is said to have been assaulted.Though, according to her, she was assaulted insidethe house in the sahan and some blood haddropped in the sahan, and her clothes had also gotbloodstained, the Investigating Officer hascategorically stated that he did not find blood atany place either at the alleged place of occurrenceor in the sahan or on the clothes of the informant.Moreover, this witness named only three accusedpersons in the F.I.R. Later she added the name ofPrem Singh, and in the course of deposition inCourt she also implicated Raj Kumar. These factslead us to hold that she is not a wholly reliablewitness on whom the Court can place implicitreliance.”

Therefore, in the light of material contradictions arisingfrom the deposition of P.W.1, P.W.9 and P.W.10, we firmlybelieve that the prosecution has miserably failed to prove theplace of occurrence beyond all shadow of reasonable doubt.

11. Before we advert ourselves to the third issue, we wouldlike to expound the medical jurisprudence with respect to death caused due to Primary Haemorrhage, Secondary Haemorrhageand their relation with the nature of wound sustained by thedeceased. The lexicographical meaning of Haemorrhage, PrimaryHaemorrhage and Secondary Haemorrhage is given in“Butterworths MEDICAL DICTIONARY” (2[nd ]Edn., 1978),whichis quoted herein below:

“Haemorrhage: Bleeding; the escape of blood fromany part of the vascular system.

Primary haemorrhage: That occurring immediatelyafter injury.

Secondary haemorrhage: Haemorrhage occurring7-10 daysafter injury or operation and usuallyattributed to infection.”

In addition to the definition quoted hereinabove, we also find it important to refer to MODI’S MEDICALJURISPRUDENCE AND TOXICOLOGY (21[st] Edn., 7[th] Reprint1996, at p. 280) which defines Primary and SecondaryHaemorrhage as :

“Haemorrhage occurring immediately after aninjury is known as primary while delayedhaemorrhage which occurs after several hours ordays is known as secondary.”

In the realm of medical knowledge and its literature, it hasbeen elucidated that death of a person can be caused due to

several reasons, but for the sake of relevance and brevity, wewould like to limit ourselves only to the death of a person causedby secondary haemorrhage. The medical opinion with regard tocause of death finds its succinct elaboration in Parikh’s Textbookof Medical Jurisprudence and Toxicology (3[rd] Edn., 1979, at p.323) :

“SECONDARY CAUSES OF DEATH

The secondary causes of death are: infection; crushsyndrome; thrombosis; embolism; secondary shock;and other indirect results of the injury. Death mayalso result from previous disease accelerated by theinjury; supervention of a new disease;consequences of operative interference; or toneglect or wilful disobedience on the part of thepatient.

Infection

All wounds may become infected to a lesser orgreater degree depending upon the rapidity andefficiency of treatment, the virulence of the infectingorganism and the resistance of the host. Theinfection may result in (a) local sepsis orsepticaemia and pyaemia (b) infective processes inthe internal organs (c) necrosis or sloughing ofparts, and (d) tetanus.

Septic infection: In abrasions, the infection maymerely result in local sepsis or a spreadingcellulitis. In septic complications such assepticaemia and pyaemia, the spread of infectionfrom the injury must be traced and it should beremembered that bruising without breaking thesurface skin may lead to infection.

Lastly, we would like to dwell upon the relation betweendeath and secondary haemorrhage, which is elucidated inLYON’S MEDICAL JURISPRUDENCE FOR INDIA (10th Edn.,1953, at p. 222) :

“Wounds on the Living : Is the Wound Dangerous ?…Danger to life depends, primarily, on the amount ofhaemorrhage, on the organ wounded, and on theextent of shock; secondarily, on secondaryhaemorrhage, on the occurrence of septicaemia,erysipelas, tetanus, or other complications...”

Now we advert ourselves to the facts of the case in handand from perusal of the post-mortem report of the deceased, itappears that the deceased suffered the following injuries :

(i) Infected wound 2”x3/4”x bone deep oververtex on scalp. On opening the cranial cavitysubdural haematoma was present.

(ii) On removing the bandage from abdomenhealed scar of right paramedian incision uponhealed scar of right paramedian incision upon which stiches removedis found. On opening theabdomen sanguineous fluid was present. Part oflarge intestine was gangrenous. Intestines wereadherent with liver and between coils itself.Liver was lacerated at several places. Stomachwas partially filled with bloody fluid.

Facts

Further, the doctor opined that the death has occurred due totoxemia, shock, sepsis and pressure over vital part of brain. Whileconsidering the argument put forth by the learned counsel for theappellants, we have given our anxious consideration forexamining that whether the cause of death, in this case, can bedirectly attributable to the injury allegedly caused by theappellants, in the backdrop of the fact that the deceased died after20 days of the alleged occurrence. In addition to the delay of 20days, it is also pertinent to take note of the fact that P.W.2,(doctor, who conducted post-mortem of the deceased),in the post-mortem report has found an infectious wound on thescalp. Further, part of the larger intestine was also found to begangrenous. One of the causes of death of the deceased in theopinion of the doctor is sepsis. Thus, on the basis of the aforesaiddiscussions, we reach to the conclusion that the cause of death ofthe deceased is not directly associated with the act of theappellants.

At this moment, we would like to refer to the judgment ofthe Hon’ble Supreme Court rendered in the case ofB.N.Kavatakar and Ors. vs. State of Karnataka, reported in1994 SCC (Crl) 579, observed the following:- "9. The next question that comes up for ourconsideration is what is the nature of the offence thatthe appellants have committed. The Medical Officerwho conducted autopsy on the dead body of thedeceased has opined that the death was as a result ofsepticaemia secondary to injuries and peritonitis. Aswe have indicated above, the deceased died after fivedays of the occurrence in the hospital. On an overallscrutiny of the facts and circumstances of the casecoupled with the opinion of the Medical Officer, we areof the view that the offence would be one punishableunder Section 326 read with Section 34 IPC."

In the present case also, the question, which arises forconsideration, is whether the cause of death is directly associatedwith the act of the accused. As indicated above, the medicalevidence goes on to show that the wounds sustained by thedeceased got infectious and caused sepsis and gangrene. Thedoctor in paragraph 6 of his deposition (cross examination), hasstated that ‘life could have been saved if proper treatment wouldhave been made as there was sufficient time’. Therefore, in thetotality of the circumstances of the present case, it cannot be said with certainty that the deceased died only on account of theinjuries allegedly given by the appellants. Further, the death of thedeceased appears more probably to be caused by the secondaryhaemorrhage, as a result of infections mentioned in post-mortemreport. Hence, in light of the settled precedent of Hon’bleSupreme Court in B.N.Kavatakar (Supra), the act of theappellants would not attract the offence under Section 302 of theIndian Penal Code, but at best Section 326 of the Indian PenalCode could be attracted. However, in light of the issue decidedabove, wherein the prosecution has failed to prove the place ofoccurrence beyond reasonable doubt, the allegation making anoffence under Section 326 of the Indian Penal Code also standsfalsified.

12. In view of the findings arrived at on the issuesformulated above, particularly in the light of failure ofprosecution to prove the place of occurrence beyond allreasonable doubt, we are of the considered opinion that theprosecution has failed to prove the charge framed against theappellants and, therefore, the conviction of the appellants cannotbe sustained.

13. In the result, the present criminal appeal is allowed. Thejudgment of conviction and the order of sentence dated 12.12.1994

passed by the learned Sessions Judge, Gaya in Sessions Trial No.612/90 (arising out of Barachatty P.S. Case No. 122/87, G.R. caseNo.2778/87) is set aside. Since the appellants are on bail, they aredischarged from the liabilities of their respective bail bonds.

(Sudhir Singh, J)

( Shailendra Singh, J)

Narendra/-

AFR/NAFRAFRCAV DATEUploading Date23.11.2022Transmission Date23.11.2022