This lamentable incident between two full brothers over almost a trifle which resulted in the death of one of them took place on 29th May, 1956. Nokhali, the deceased, was the elder brother of the appellant, Rambaran Mahton. Both of them were separate in mess and cultivation.
According to the prosecution, there was exchange of abuses between the two brothers and the appellant dashed him to the ground and sat upon his stomach and belaboured him with fists and slaps. This rendered him senseless. Both the appellant and his mother gave him water to drink but he did not regain his senses. Before medical aid could be given to the deceased, he expired.
In the opinion of the doctor, the injuries were caused by some hard blunt substance. His further opinion was that these injuries could be caused by strong kicks and fists. The death was caused by shock and haemorrhage as a result of the aforesaid injuries.
According to the defence, when Nokhali came to the place of occurrence he was in a fit of anger and caught hold of the appellant by the throat, and the appellant, in order to extricate himself, pushed him aside and Nokhali fell on a (spade) kodari which was lying in the field. The suggestion is that the injuries that the medical officer found on Nokhali were probably caused by fall on the handle of the kodari.
There can be no doubt that the deceased received some serious injuries including injuries on the head and chest and the spleen which actually brought about his death. Having regard to the nature of these injuries it seems difficult to accept the theory that they were caused by a fall on the handle of a spade. The injuries that were on his person, namely, on the head and chest, could not have possibly been caused by a mere fall on the spade. In that circumstance we could have expected at best one injury on his body.
Further, it will appear from the nature of the injuries that they must not have been caused without application of some force. It is unlikely that a mere fall will bring about those injuries. The defence theory about the manner of the causation of the injuries must therefore be discarded.
The question is what offence is disclosed by the evidence produced by the prosecution. Section 320 I.P.C. describes “grievous hurt”. Section 325 provides for punishment for voluntarily causing grievous hurt.
What is meant by “voluntary to cause hurt” is laid down in Section 321. What will in law amount to voluntarily causing grievous hurt is described in Section 322 I.P.C. Explanation to Section 322 really unfolds the significance of the expression “voluntarily to cause grievous hurt”. It states in clear terms that the offender both causes grievous hurt and intends or knows himself to be likely to cause grievous hurt.
It will appear from Section 325 read with Section322 I.P.C. that the essential ingredients of voluntarily causing grievous hurt are three in number: (1) grievous hurt as described in S. 320 must first be caused. If the hurt actually caused is simple, a person cannot be held guilty of voluntarily causing grievous hurt even if it was in his contemplation; (2) the offender intended, or knew himself, to be likely to cause grievous hurt. If he intended or knew himself to be likely to cause only simple hurt, he cannot be convicted for the offence under Section 325 even if the resultant hurt was grievous. In the other words, to constitute the offence of voluntarily causing grievous hurt, there must be complete correspondence between the result and the intention or knowledge of the accused (3) the hurt was caused voluntarily.
In other words, the causation of grievous hurt was either in contemplation or was the likely result of the act done. It is manifest that in the nature of the things it is difficult to obtain direct proof of what the offender thought was likely to happen. In all cases it is really a question of inference from the nature of the act committed by the offender, his conduct and the surrounding circumstances of the case.
When the act that he did in the process of causing hurt is such as any person of ordinary prudence knows it likely to cause grievous hurt, he may safely be taken to have intended grievous hurt, or at least to have contemplated grievous hurt as likely to occur. If the act was such that nothing more than simple hurt could reasonably be thought likely to ensue from it, then although grievous hurt may unexpectedly have ensued, the offender can be convicted of simple hurt, only assuming that grievous hurt was not in his contemplation. This is quite obvious on the plain reading of Section 322 along with Section 325 I.P.C.
Bearing in mind these underlying principles, the question is whether the appellant in this case intended to cause or had the knowledge of the likelihood of causing grievous hurt.
The means by which the injury was caused is not the true criterion. If it were, so howsoever, grievous an injury may be, provisions of Section 325 will not be attracted if no weapon was used in causing it. The answer really depends upon the nature of the injury caused and the manner in which the blows were administered, whether by fists and slaps or by a weapon.
What we find in this case is that Nokhali had been dashed to the ground. He was wholly undefended. While he was lying on the ground, the appellant sat on his stomach and administered him fists and slaps. He had sustained no injuries, not even a scratch. If the absence of injuries on the person of the appellant is indicative of anything it is this that Nokhali was completely in his grip, totally, unable either to strike him in self-defence or extricate himself from his hold.
While Nokhali was lying in such a helpless condition, the appellant assaulted him recklessly with fists and slaps on every part of his body. This is not all. It appears that the blows must have been given with more than usual force. As will appear from the opinion of the doctor, three of his ribs were fractured and the spleen was ruptured. It is true that the spleen was in enlarged condition, as stated by the doctor, and it is likely that even slight force might have resulted in the rupture of the spleen.
But there is absolutely no explanation so far as the fracture of the ribs is concerned. These injuries, in my opinion, could not have been caused unless blows were given to him with great force. There will absolutely be no justification for the appellant to strike him with strong fists and slaps when he neither retaliated nor tried to defend himself. If in such circumstances a person belabours a man with fists and slaps, it is, I think, obvious, as it will be obvious to every body of ordinary prudence, that grievous hurt would ensue.
In my opinion, the offence that was caused in this case was grievous hurt, as contemplated by Section 325, IPC.
Lastly, Sir Sultan contended that the sentence of five years was in the circumstances of the case, too severe. It is common ground that plot 849 which was the venue of the occurrence did not belong to the deceased but that it had been allotted exclusively to his mother who was admittedly residing with the appellant. Nokhali had no business to go to plot 849 where the appellant, along with his mother and sisters, was carrying on irrigation work peacefully. Further, after Nokhali became senseless, he did not forsake him and leave the place. He stayed on to tend him. The evidence shows that he gave him water to drink and also sprinkled water upon his body in order to bring him to senses. It is indicative of the fact that remorse eventually overpowered him when passion subsided, and the humane in him triumphed.
In my opinion, these circumstances show that the appellant beat his brother under great provocation given by the deceased himself and in the heat of the moment. Having regard to the relationship between the parties and also the fact that this unfortunate incident occurred on the spur of the moment due to provocation given by the deceased himself and also absolutely no intention on the part of the appellant either to kill him or to cause him such bodily injury as was likely to cause his death, I think the ends of justice will be sufficiently met if he is awarded one year’s rigorous imprisonment.