Prashant Kumar, J. - These appeals have been filed against the judgment of conviction and order of sentence dated 27.01.1982 passed by IIIrd Additional Sessions Judge, Hardoi in Sessions Trial No. 185 of 1981, whereby and where under he convicted all the appellants under Section 302/34 of the I.P.C. and sentenced them to undergo imprisonment for life.
2. Since, the above appeals arose from the same judgment passed in the above Sessions Trial, thus, they are heard together and disposed of by this judgment.
3. The case of prosecution in brief is that on 01.01.1981 at about 11:00 A.M. uncle of the informant namely Shanker (deceased) had gone to his field for bringing green fodder (Chara). As soon as he reached there, appellants armed with Bhala and Lathi reached there and started abusing him. When the deceased forbid them from abusing, they exhorted themselves for breaking the hands and legs of deceased and started assaulting him with the weapons carried by them. It is submitted that the informant and other witnesses present near the place of occurrence, challenged the appellants then they fled away. It is further submitted that the uncle of informant received several injuries caused by Bhala and Lathi. Thereafter, the deceased was brought to the police Station, where First Information Report was lodged.
4. On the basis of aforesaid F.I.R. police had instituted case Crime No. 1 of 1981 under Sections 324 and 325 of the I.P.C. on 01.01.1981 at 1:15 P.M. and took up investigation. It appears that after lodging the First Information Report, the injured (deceased) was sent to Bilgram Hospital for medical examination. The doctor (PW-6) medically examined him on 01.01.1981 at 1:30 P.M. It is further stated that the doctor referred the deceased to Sadar Hospital, Hardoi for better treatment. It appears that informant and others brought the deceased to the bus station for catching bus. At that time itself, the Investigating Officer (PW-3) arrived at bus station and recorded the statement of informant and deceased under Section 161 of the Cr.P.C. Thereafter, the deceased was brought to Sadar Hospital, Hardoi. It further appears that in course of treatment the deceased died on the next day in the evening. Thereafter, the doctor (PW-4) conducted postmortem examination on the dead body of the deceased on 03.01.1981 at 4:35 P.M. and opined that the deceased died due to shock and hemorrhage, as a result of antemortem injuries. Thereafter, the police added Section 304 of the I.P.C. in the First Information Report. It appears that after completing the investigation, the Investigating Officer submitted charge-sheet under Section 304/34 of the I.P.C. against all the appellants. The learned Chief Judicial Magistrate took cognizance of the offences and then committed the case to the court of sessions as the offence under Section 304 of the I.P.C. is exclusively triable by the court of session.
5. After commitment, the present sessions trial instituted and then learned Sessions Judge framed the charge against the appellants under Section 302 of the I.P.C. and explained the same to the accused person to which they pleaded not guilty claimed to be tried. During the trial, prosecution had examined altogether seven witnesses in support of its case. The prosecution had also brought on the record several documentary evidences including dying declaration of the deceased recorded by the investigating Officer under Section 161 of the Cr.P.C. After close of the prosecution case, the appellants were examined under Section 313 of the Cr.P.C., in which their defence is of total denial. After considering the oral evidence, dying declaration and medical evidence, learned trial court concluded that the present case falls under Clause thirdly of Section 300 of the I.P.C. and thus, the appellants had committed offence of murder. Accordingly, the learned trial court convicted all the appellants under Section 302/34 of the I.P.C. and sentenced them to undergo imprisonment for life. Against the aforesaid judgments, present appeals filed.
6. While assailing the impugned judgment, Sri Arun Sinha, Sri Mridul Rakesh and Sri Maneesh Kumar Singh, learned counsels appearing for the appellants submitted that there are contradictions in the statements of eye witnesses. It is submitted that PW-1 stated that the occurrence took place at 11:00 A.M. whereas, PW-2, in his cross examination, stated that occurrence took place at 8:00 A.M., this shows that either of the two eye witnesses were telling lie. Accordingly, it is submitted that on the statements of above witnesses, conviction of the appellants not warranted. It is further submitted that the alleged dying declaration (Exhibit Ka-11) cannot be relied upon because the same was recorded by the Investigating Officer without taking the certificate of the doctor that the deceased was in fit mental condition for giving statement. It is further submitted that while recording the dying declaration, the Investigating Officer had not complied the provisions of clause 115 of the U.P. Police Regulation, thus, on that account also the alleged dying declaration cannot be relied upon. It is then submitted that even if it is presumed, for the sake of argument, that the appellants assaulted the deceased, no offence under Section 302 of the I.P.C. made out. Because, it is alleged in the F.I.R. that the appellants exhorted themselves for breaking the hands and legs of the deceased. Thus, the appellants had not assaulted the deceased with an intention to commit his murder. It is further submitted that from perusal of postmortem report (Exhibit Ka-22) and the first injury report ((Exhibit Ka-17) it is clear that the deceased received injuries on his hands and legs. There is no injury on the vital parts of the body of deceased. Accordingly, it is submitted that no offence under Section 302 of the I.P.C. made out. It is further submitted at best offence under Section 304 part two made out. Therefore, learned counsels for the appellants submit that the impugned judgment of conviction and order of sentence is liable to be set-aside.
7. On the other hand, Sri Umesh Verma, learned Additional Government Advocate submits that there is no contradiction in the testimony of PW-1 and PW-2 with respect to manner of occurrence, place of occurrence and time of occurrence. It is submitted that the PW-2, in his Examination-in-Chief stated that the occurrence took place at 11:00 A.M., it appears that due to the constrain of cross examination at one place he stated that he reached at place of occurrence at 8:00 A.M. and during that time occurrence took place. It is submitted that PW-2 is a rustic illiterate villager, thus, such contradiction bound to occur in his statement and that too when he faces skilled cross examiner. It is further submitted that the Investigating Officer recorded the statement of the deceased under Section 161 of the Cr.P.C. It is further submitted that initially the crime was registered under Sections 324 and 325 of the I.P.C., thus, Investigating Officer had recorded the statements of the injured (deceased) within the shortage time for knowing about the actual incident. It is submitted that the Investigating Officer had not recorded the dying declaration, therefore, the question of noncompliance of clause 115 of the U.P. Police Regulation does not arise. There is no provision either in the Cr.P.C. or in the police Regulation for taking signature of the author of the statements and other witnesses, while recording the statements under Section 161 of the Cr.P.C. It is submitted that in view of the judgment of Hon''ble Supreme Court in Sri Bhagwan v. State of Uttar Pradesh reported in (2013) 12 SCC 137, the dying declaration (exhibit Ka- 11) had been rightly relied upon by the learned trial court for convicting the appellants.
8. It is then submitted by the learned Additional Government Advocate that from perusal of dying declaration and testimony of PW-1 & PW-2, it is clear that the appellants went to the field of deceased armed with different weapons with intention to assault the deceased. Thus, the appellants intentionally caused bodily injuries to the deceased. He further submits that the doctor (PW-4) who conducted postmortem examination opined that all the injuries, found on the body of deceased, cumulatively sufficient in the ordinary course of nature to cause death. Accordingly, it is submitted that the learned trial court rightly concluded that the incident falls within four corner of clause thirdly of Section 300 of the I.P.C. Thus, it is submitted that the appellants were rightly convicted and sentenced under Section 302 r/w Section 34 of the I.P.C. by the learned trial court. Thus, no interference require by this court.
9. Having heard the submissions, we have gone through the record of the case. The doctor, who conducted postmortem examination had found the following ante-mortem injuries;
I. Multiple scabbed abrasion in an area of 3 c.m. x 5 c.m. on right side of face.
II. Scabbed abrasion 1 c.m. x � c.m. on left temple.
III. Contusion 5 c.m. x 4.5 c.m. on front of left fore-arm, 10 c.m. below elbow.
IV. Incised wound 3 c.m. x 0.8 c.m. x muscle deep on inner surface of left fore-arm 12 c.m. below elbow, margins were clean cut.
V. Punctured wound with clean cut margins on back of left fore-arm 3 c.m. above wrist. It was bone deep.
VI. Incised wound with clean cut margins of size 5 c.m. x � c.m. x muscle deep on dorsum of left hand extending between the web of left little and middle fingers.
VII. Lacerated wound 1.2 c.m. x 0.4. c.m. on back of left hand just below wrist.
VIII. Contusion 5 c.m. x 4 c.m. on back of right fore-arm 10 c.m. above the wrist.
IX. Punctured would with clean cut margins on back of right forearm, 9 c.m. above the wrist joint of size 2 c.m. x 1 c.m. bone deep.
X. Contusion 3 c.m. x 3 c.m. on back of right hand, 2 c.m. below wrist.
XI. Lacerated wound 1.2 c.m. x 0.4 c.m. x bone deep on back of right middle finger at the proximal phalanx.
XII. Lacerated wound 1.3 c.m. x 0.4 c.m. x bone deep on back of right proximal inter-phalangeal joint of little finger.
XIII. Contusion 5 c.m. x 2 c.m. on back of right upper arm, 13 c.m. below shoulder.
XIV. Incised wound with clean cut margins of size 5 c.m. x 2 c.m. x bone deep on front of middle ⅓ of left leg.
XV. Contusion 11 c.m. x 2.5 c.m. on front of upper part of abdomen placed transversely.
10. In the opinion of the doctor (PW-4) the deceased died due to the shock and hemorrhage. We further find that the defence had not challenged the aforesaid finding of the doctor (PW-4). In that view of the matter, we find that the deceased died a homicidal death.
11. Now, the question arose for determination in these appeals, whether the appellants had committed the present crime and if so, what is the nature of offence?
12. PW-1 (informant) and PW-2 (an independent witness) are the eye witnesses of the occurrence. They have categorically stated that on 01.01.1981 at about 11:00 A.M. while they were collecting grass from the field, they saw that the appellants were assaulting the deceased with Bhala and Lathi. They also stated that when they challenged them, they fled away.
13. From perusal of cross-examination of above witnesses, we find that they are consistent with respect to the manner of occurrence and place of occurrence. It appears that PW-2 in his cross examination at paragraph-4 had stated that he reached at the field for collecting fodder at about 8:00 A.M.. He further stated that when he started collecting fodder, the occurrence took place. It is worth mentioning that in the examination-in-chief this witness had stated that the occurrence took place at 11:00 A.M.. Thus, the aforesaid statement given by PW-2, appears to have been made in the constrain of cross examination. It appears that PW-2 is a rustic, illiterate villager, thus such minor contradiction is bound to occur in his statements and that too when he faces some skilled cross examiner. In that view of the matter on the basis of the aforesaid statements, his entire statements cannot be disbelieved. Moreover, the doctor (PW-6), who examined the injuries of the deceased on the date of occurrence at about 1:30 P.M., had categorically stated in his deposition that injured might had received the injuries on 01.01.1981 at about 11:00 A.M. In that view of the matter, we find that there is no major contradiction in the deposition of PW-1 & PW-2, on which their testimony can be thrown over board.
14. In the instant case, Investigating Officer (PW-3) recorded the statement of injured (deceased) under Section 161 of the Cr.P.C. on 01.01.1981. From perusal of the aforesaid statement (Exhibit Ka-11) we find that the said statement is very concise, wherein the injured (deceased) stated that he was assaulted by Meghnath and Mani Ram by Bhala, whereas Ram Sanehi and Ram Babu assaulted him with Lathi. He further stated that the Bhala of Mani Ram was flatter, whereas Meghnath was holding a pointed Bhala. He further stated that the aforesaid occurrence took place because he was talking to purchase land of Sukhdai.
15. It appears that the aforesaid statement of the deceased become dying declaration after his death on the next day of occurrence. It is submitted by the learned counsels for the appellants that since the aforesaid dying declaration recorded by the Investigating Officer, therefore, no reliance can be placed on it. It is submitted that admittedly, the deceased was in hospital, but the Investigating Officer had not made any efforts for the recording of the statement of deceased by a Magistrate, nor he took certificate of the medical officer regarding the mental condition of the deceased. The aforesaid submissions of learned counsel for the appellants not acceptable, in view of the judgment of Hon''ble Supreme court in Sri Bhagwan case (Supra). In a similar circumstance their Lordships'' held that the statements recorded by the Investigating Officer under Section 161 of the Cr.P.C. can be relied upon by the court as dying declaration. It is worth mentioning that in that case also originally the First Information Report registered under Section 326 of the I.P.C., thus, Hon''ble Supreme Court has observed that the Investigating Officer was right in recording the statement of injured (deceased) of that case within the shortest possible time. It is further held that for recording the statement under Section 161 of the Cr.P.C. of injured, the Investigating Officer is not require to take the signature of the author or of witnesses on the statements.
16. In the said judgment Hon''ble Supreme Court further held that statement recorded by the Investigating Officer under Section 161 of the Cr.P.C. may become a dying declaration on the death of victim and same is admissible under Section 32 of the Indian Evidence Act. In the aforesaid judgment their Lordships further held that clause 115 of the U.P. Police Regulation had no application in the case of recording of the statement of injured (victim) under Section 161 of the Cr.P.C.. The said Rule of the U.P. Police Regulation relates to recording of dying declaration. Since, in the instant case originally the F.I.R. was instituted only under Section 324 and 325 of the I.P.C., thus, we find no illegality in recording the statement of injured (deceased) by the Investigating Officer (PW-3) under Section 161 of the Cr.P.C.
In view of the statements of PW-1 & PW-2 read with dying declaration, we find that the prosecution have been able to prove that the appellants intentionally assaulted the deceased with Bhala and Lathi and caused injuries to the deceased, due to that the deceased died on the next day.
17. It is submitted by learned counsel for the appellants that though the deceased had received altogether 14 to 15 injuries but none of the injuries are on the vital parts of the body. It is further submitted that none of the injuries in their individual capacity are sufficient to cause death of any person in ordinary course of nature. Thus, it is submitted that the learned court below had wrongly come to the conclusion that the said injuries are sufficient to cause death in the ordinary course of nature, hence, the case fall under clause thirdly of Section 300 of the I.P.C.
18. The aforesaid submissions of learned counsel for the appellants cannot be accepted in view of the judgment of the Hon''ble Supreme Court in Brij Bhukhan v. State of Uttar Pradesh; [AIR 1957 SC 474], wherein, it has been held that it is open to the court to look into the nature of injuries and if they were cumulatively sufficient in the ordinary course of nature to cause death, clause thirdly of Section 300 of the I.P.C. will be applicable.
19. It has been held in Virsa Singh v. State of Punjab; [AIR 1958 SC 465] that :-
"the prosecution must prove the following facts before it can bring a case under Section 300, "thirdly". First, it must establish quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."
20. Again a four judges Bench of the Hon''ble Supreme Court in the case of Anda and others v. State of Rajasthan; [AIR 1966 SC 148] had held at paragraph 7 of the judgment, that:-
"7. The third clause views the matter from a general stand point. It speaks of an intention to cause bodily injury which is sufficient in the ordinary course of nature to cause death. The emphasis here is on the sufficiency of the injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary way of nature and when this exists and death ensues and the causing of such injury is intended the offence is murder. Sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused, and sometimes both are relevant. The determinant factor is the intentional injury which must be sufficient to cause death in the ordinary course of nature."
21. In Gudar Dusadh v. State of Bihar; [AIR 1972 SC 952], a three judges Bench of Hon''ble Supreme Court has held as under:-
"Clause "3rdly" consists of two parts. Under the first part, it has to be shown that there was an intention on the part of the accused to inflict the particular injury, which was found on the body of the deceased. The second part requires that the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death. So far as the first part is concerned, the court has to see whether the injury which was found on the deceased was the one intended by the accused or whether it was accidental without his having intended to cause that bodily injury. Once it is found that the injury was not accidental and that the accused intended to cause the injury which was actually inflicted and found on the body of the deceased, the first part shall be satisfied. The court would then go into the second part of the clause and find, in the light of the medical evidence as to whether the bodily injury inflicted was sufficient in the ordinary course of nature to cause death. If the court finds that the requirements of both the parts have been satisfied, the case shall be held to be covered by the clause "3rdly" unless it falls within one of the exceptions."
22. Recently, in Richhpal Singh Meena v. Ghasi @ Ghisa and others reported in [2014 Crl. Law Journal 4339] the Hon''ble Supreme Court has held that:-
"Applying the five-step inquiry, it is clear that: (i) there was a homicide, namely the death of Sunderlal; (ii) the assailants gave two lathi blows to Sunderlal which resulted in the fracture of his ribs and piercing of his lungs. The injuries were not accidental or unintentional-the assailants had a common intention of grievously injuring Sunderlal and it is not as if they intended to cause some injury to him other that the ones inflicted, (iii) the opinion of Dr. Amar Singh Rathore confirmed that the injuries caused to Sunderlal were sufficient to cause death in the normal course. Consequently, the homicide was a culpable homicide. Applying the law laid down in Virsa Singh [AIR 1958 SC 465] it is clear that Ghasi and Lala are guilty of the murder of Sunderlal, the offence falling Under Section 300 (thirdly) of the I.P.C. and punishable Under Section 302 of the Indian Penal Code."
23. In the instant case, we have already noticed above that the appellants went to the field of deceased armed with Bhala and Lathi and assaulted him mercilessly. The doctor (PW-6), who examined the deceased at the first instance, had found altogether thirteen injuries. The doctor (PW-4), who conducted postmortem examination had also found altogether fifteen injuries. According to PW-4, all the injuries cumulatively sufficient in the ordinary course of nature to cause death. It is worth mentioning that the defence not challenged the doctor (PW-4) that the said injuries are not sufficient in the ordinary course of nature to cause death. Thus, in view of the aforesaid judgments of the Hon''ble Supreme Court, the opinion of doctor will prevail as to whether the injuries sustained by the deceased are sufficient to cause death in the ordinary course of nature or not.
24. Since, the appellants intentionally caused bodily injuries on the deceased and in the opinion of doctor such bodily injuries cumulatively sufficient to cause death of the deceased in ordinary course of nature, in our view, the learned trial court had rightly concluded that the case falls within four corner of clause thirdly of Section 300 of the I.P.C. Thus, we find that the learned trial court had rightly convicted and sentenced to appellants under Section 302/34 of the I.P.C.. In that view of the matter, the impugned judgment of conviction and order of sentence does not require any interference by this court.
25. In the result, these appeals failed. Thus, both the appeals are hereby dismissed.
26. It appears that the appellants are on bail. Hence their bail bonds cancelled and they are directed to surrender before the court below immediately to serve out the sentence passed by the learned court below. The learned trial court is directed to take all coercive steps for the appearance of the appellants.
27. Office is directed to send back the lower court record along with the copy of this judgment to the concerned court forthwith for needful.
