- (1.) THIS is an appeal by Sanwalia and Isra against their conviction under sec. 302 of the Indian Penal Code by the Additional Sessions Judge of Merta.
(2.) THE case relates to an incident which took place on the 10th December, 1949, early in the morning at about 7 or 8 A. M. THE prosecution story was that Ramsukh deceased was as usual going from village Pura to village Ladnu where he used to sell his milk. While he was on his way and had gone some distance from village Pura, the two accused met him on the way. Sanwalia was armed with a lathi and Ishra with a spear. THEy attacked him and Ramsukh raised an alarm. This brought Goma, Pokar and Dula P. Ws. to the scene. THEse people are admittedly chance witnesses, though two of them Goma and Dula had their fields near-about. Hearing the cries of the deceased Ramsukh, two of them namely Goma and Pokar came from one side while Dula came from the other. When they reached the place where the attack was taking place, they saw the two appellants belabouring the deceased who had fallen down on the ground. Ishra was using a spear and Sanwalia was using a lathi. THEir estimate is that the deceased was given about half a dozen blows by each of the accused while he was lying on the ground. Before these witnesses could effectively intervene, the accused had gone away towards the north. One of them namely Goma immediately went to the village and gave information to Balu, brother of the deceased. Balu and other persons of the village came to the spot soon after. Arrangements were then made to take the injured person to the hospital at Ladnu. Ladnu is about 2 miles from where the incident had taken place, and the evidence is that Ramsukh deceased was taken to the hospital on a charpoy, and reached the hospital at about mid-day. He was then examined by the Doctor and was found to have a very large number of injuries caused by a sharp weapon as well as by a blunt weapon. THE report of the incident was made by Balu at 7 P. M. , and the Sub-Inspector then started for the hospital where the deceased was. He took down the dying declaration of the deceased, which is Ex. P-4. Ramsukh died early next morning at 5 A. M. , and thereafter his post mortem examination was performed. THE evidence of the Doctor is that death was due to haemorrhage as a result of incised wounds and shock caused by the fracture of the bones. The dying declaration shows that on the previous evening a buffalo of Sanwalia had eaten up some stalks of Bajra belonging to Ram Sukh. So he had gone in the night and complained to Mst. Tejuri, wife of Sanwalia. The accused were not present in the house at that time. The prosecution suggests that because of this complaint made by Ramsukh, the accused waited for him armed with a lathi and spear on the way from Pura to Ladnu, as they must be knowing that he was in the habit of going in the morning by that way to sell milk at Ladnu. Both the accused pleaded 'not guilty'. Ishra said that he had been implicated on account of enmity, and alleged that he had made a report of the theft of a camel belonging to him some 18 months before the incident against Rugla, nephew of Goma P. W. , and had said in that report that Goma and Pokar PWs. , and Thakur Harisingh were behind the theft. The Police had investigated that case and arrested Rugla. That is why he has been falsely implicated in this affair. It is remarkable however that no allegation of enmity was made by the accused against Ramsukh or his brother Balu. No explanation was given by the accused as to why Ramsukh should join with these persons. Sanwalia merely said that he had been implicated as he had helped Ishra in tracking the footprints of the stolen camel. The main evidence in the case consists of the statements of Goma, Pokar, and Dula. Nothing has been brought out in the cross-examination of Goma to show that he had any reason to bear enmity with the accused. There is further no evidence to prove the statement of the accused that a report of the loss of a camel had been made at the police station, and the Sub-Inspector had come and investigated into the matter, and arrested Goma's nephew Rugla. All that we find from Goma's statement is that Ishra had left his camel somewhere; but Goma denies that any report was made against his nephew in that connection. He also denies any investigation by the police. So far as Pokar is concerned, nothing has been brought out in his evidence either to show that he had any reason for implicating the accused falsely. All that appears is that Pokar is a distant relation of the deceased, but that, in our opinion, is not sufficient reason for us to disbelieve the statement of Pokar. So far as Dula is concerned, no enmity has been established between him and the accused, and therefore there is no reason why he should perjure himself. All that has been suggested is that Dula has been purchased by a promise that Ramsukh's daughter would be married to Dula's brother Kana, if he gave this evidence. But Dula has denied that any such promise was made, and the accused have not been able to show by any satisfactory evidence that Ramsukh's daughter has been promised to Dula's brother in order to induce him to give this evidence. We, therefore, see no reason to disbelieve the testimony of these three witnesses and are of opinion that the statements given by them are true, and show that the deceased was attacked by these two accused and by no one else. Learned counsel for the accused has urged a number of circumstances to show that we should not place reliance on the testimony of these eye-witnesses. In the first place, it is urged that the report was made with some delay, as the incident had taken place at about 8 A. M. in the morning, and Balu had reached Ladnu hospital on his own showing at mid-day, and still no information was sent to the Thana up to 7 P. M. the same day. There is no doubt that there has been some delay in reporting the affair at the Thana; but considering that Ramsukh was mercilessly beaten and had as many as 30 or 40 injuries on his body, it may be that Balu did not immediately leave the hospital till he was sure that Ramsukh was as comfortable as he could be. We may also point out that Balu was the proper person to be questioned as to why he did not go to the Thana early; but no such question was put to him in cross-examination. As the matter therefore stands, we can only take it that he was delayed because he was looking after his brother who was so seriously injured, and whom he brought to the hospital first. Another point, that has been urged, is that there is discrepancy in the evidence given by Goma and Pokar on the one side and by Dula on the other. Goma and Pokar both say that they had no talk with Ramsukh and did not enquire why he had been injured. Dula, on the other hand, says that they had a talk with Ramsukh, and that this talk went on all the time till the village people came from the village. Considering the nature of the injuries received by Ramsukh, it may be that he was in his senses. At the same time, the injuries were so extensive that it is hardly likely that Ramsukh would be in a position to talk very much. We have the evidence of the Sub-Inspector that even in the hospital after Ram sukh's injuries had been dressed, he could talk with difficulty, though clearly. It seems to us, therefore, that the statement of Goma and Pokar is more likely to be true, and in any case the discrepancy is not of such a nature as to make us disbelieve the evidence of these witnesses as to the incident itself. Another point, on which also Dula differs from the other witnesses, is when he says that Pokar was sent to the village to inform Ram-sukh's brother. It seems, however, that Dula has made a mistake, for Balu's statement also is that it was Goma who had come to inform him, and this is what is contained in the first report also. Then it is pointed out that there is a discrepancy between the first report, and the statements of the witnesses. In the first report it was said that the deceased was attacked by the two accused with a Birchhi and a Sela i. e. , spear. The evidence now is that Sanwalia accused had a lathi and Ishra had a spear. Considering that the report was made by a person who had not seen the incident itself we do not attach much importance to this fact. Medical evidence clearly establishes that the injuries were caused by a cutting weapon as well as by a blunt weapon, and we, therefore, accept the evidence of the witnesses in this connection. Then it is urged that the evidence, at any rate, of Pokar and Dula should not be believed, because their names were not mentioned in the first report. Balu took a written report to the Thana, which bore his thumb-impression. In this report only the name of Goma was written and not of the other two witnesses. It appears that as soon as this report was presented, the Sub-Inspector questioned Balu, and took down on the same piece of paper what Balu told him verbally. Thereafter, the Sub-Inspector noted that he proceeded to investigate the case. In this supplementary statement Balu mentioned the names of Pokar and Dula as witnesses to the incident. It has been urged by learned counsel that whatever was stated by Balu at the police station on being questioned by the Sub-Inspector amounts to a statement under sec. 162 of the Code of Criminal Procedure and is therefore inadmissible in evidence as a first report. What usually happens when a man comes to the police station to make a first report is that the police officer questions him and gets all the facts relating to the offence as well as the names of the witnesses and accused from him, and then the matter is recorded into writing. It seems to us that the mere fact that a person when he comes to the police station brings some writing with him should not preclude the officer from questioning him in the same way as he would have done if the man did not bring that writing. It may be that the writing may not be complete and contain all the necessary facts which, if there had been no writing, a police officer would have got from the informant before recording the information in the necessary book. We should not, therefore, rule out this useful source of information simply because an illiterate man like Balu brought a report written out by somebody who was not as conversant with law as police officers. It is only when the investigation has actually begun that statements made to police officers are inadmissible under sec. 162. The question when an investigation begins is a question of fact in each case. We have, therefore, to see whether in this case the investigation can be said to have commenced immediately the written report was handed over by Balu. It seems to us that the Sub-Inspector must have questioned Balu immediately he got the written report, and the supplemental statement made by Balu, in our opinion, merely completes the report which was handed over by Balu. The investigation in this case really began when the Sub-Inspector reached the hospital and began examining the deceased. The first case, to which we may refer, is Chandidan vs. The State (1) (1951 R. L. W. , 46. ). That case came before two Judges, and one of the Judges took the view that when a written report was presented, it was not necessary to record the statement of the person bringing the report, but if the investigating officer chose to do so it was part of the investigation, and was inadmissible in evidence unless the report did not disclose any offence, and the statement was taken to find out if any offence had been committed. The other learned Judge, however, dissented from this view and held that the mere fact that a written report was presented did not make it unnecessary to take down the information from the reporter's own lips and the latter statement, recorded by the police officer, would be admissible as first information report. As, however, the learned Judges were agreed on the order to be passed in that case, the point, on which they differed did not go further. The next case is Sheo Dan and others vs. The State (2) (1952 R. L. W. , 105. ). That was also a decision of two Judges, and it was held that all statements whether one or more, relating to the commission of a cognizable offence, made to the police before the commencement of the investigation, were admissible in evidence at an enquiry or trial and all such statements could very well be defined as first information report. We are of opinion that the view taken in this case is, if we may say so with respect, the correct view. Investigation does not necessarily commence immediately the first information report has been recorded. It commences when the first step is taken by the police towards ascertainment of the offence and the culprits thereof. When exactly this happens is, as we have already said, dependent upon the facts of each case. We may in this connection refer to Bhondu vs. Rex (3) (A. I. R. 1949 All. , 364.), where the same view was taken.
(3.) IN the case before us, we are of opinion that the investigation did not commence till the Sub-INspector went to the hospital and examined the deceased. What he enquired from Balu at the time when the written report was handed over to him was merely supplemental to that report and to complete it in all essential particulars which a police officer gets from an informant when he comes to make an oral report. It cannot, therefore, be said in this case that Dula and Pokar were not named in the first report. We may add that, in any case, we are satisfied that the three witnesses, namely Goma, Pokar and Dula had no cause to implicate the accused falsely, and we accept their evidence as true. Then there remains the dying declaration made by Ramsukh. The time when this statement was recorded is somewhat doubtful. According to the Sub-Inspector, he reached the hospital soon after 8 P. M. , and recorded this statement. The Medical Officer has however said that the Sub-Inspector did not come to the hospital till 10 P. M. It may, however, be noted that the Medical Officer was not present when the Sub-Inspector recorded the dying declaration, and under these circumstances, the statement of the Sub-Inspector is more reliable. In any case the Sub-Inspector has stated that the deceased was in possession of his senses and gave clear answers though with some difficulty. The statement Ex. P. 4 corroborates the evidence that has been produced including the medical evidence. There were no serious injuries on the head of the deceased, and therefore it is quite possible for him to retain consciousness. The statement is that the two accused were standing by a tree on the way from Sujangarh to Ladnu armed with a spear and a lathi, and as soon as Ramsukh passed them they attacked him. The deceased died within a few hours of the making of this statement. It is not suggested by the accused that the deceased had any reason to implicate them falsely. Under these circumstances, we accept the dying declaration made by Ramsukh as true. The next question is whether the accused have been rightly convicted under sec. 302 of the Indian Penal Code. Learned counsel urges that the case does not fall within any of the clauses of sec. 300 considering that care was taken not to cause serious injury to any vital organ of the body. It does appear that the attack was mainly confined to the hands and feet. At the same time, there is no doubt that the deceased was mercilessly beaten, and he had as many as about 40 injuries on his person. We have also the evidence of the witnesses that he was given about 10 to 12 blows even after he had fallen down, and one of the assailants was armed with a spear. Even though, therefore, there may not have been any intention on the part of the accused to murder the deceased, it is obvious that the act was done with the intention of causing bodily injury, and the accused must be presumed to know that by causing such a large number of injuries to a man who had already fallen down and was defenceless, they were likely to cause his death. The case would, therefore in our opinion, be covered by the second clause of sec. 300. The accused have, therefore, been rightly convicted. The learned Sessions Judge has already given them the lesser penalty, and we think that, under the circumstances of the case, this is enough. The appeal is hereby dismissed. . ;