GARG, J. - (1.) THIS appeal has been filed by the accused appellant against judgment and order dated 13. 7. 2001 passed by the learned Addl. Sessions Judge No. 2, Sri Ganganagar in Sessions Case No. 8/98 by which he convicted the accused appellant for the offence under section 302/34 IPC and sentenced him to undergo imprisonment for life and to pay fine of Rs. 1000, in default of payment of fine, to further undergo one month RI.
(2.) IT may be stated here that in this case there was one more accused, namely, Yogesh Kumar, who was also being tried by the learned Trial Court alongwith accused appellant, but during the pendency of trial, he died on 12. 4. 1999 and therefore, proceedings against him were dropped by the learned Trial Court vide order dated 8. 6. 1999 and thus, thereafter, trial continued only against the present accused appellant. It arises in the following circumstances: On 14. 1. 1998, PW14 Jeerudin, who was at that time ASI, Police Station Purani Abadi, Sri Ganganagar received a cryptic telephonic information/message that one person was lying in injured condition in the lane and he was being brought to the hospital and the information was reduced into writing by PW14 Jeerudin in the Rojnamcha Ex. P/40a and thereafter, PW14 Jeerudin reached hospital, where he found Ram Kishan (hereinafter referred to as the deceased) in injured condition and deceased gave parcha bayan (Ex. P/32) to PW14 Jeerudin on 14. 1. 1998 at about 12. 30 AM to the effect that he was LDC in the Sales Tax Department and at about 10. 00 PM when he was going to dhani of Surjeet Singh on foot and when he reached near the turn of road, accused appellant Satish Kumar and his nephew Yogesh Kumar (another accused, who died during the pendency of trial) and 2-3 more boys met him and they caughthold him and thereafter, he was taken to the house of the accused appellant, were he was given beating by knives by the accused appellant and his nephew (Yogesh Kumar, who died during the pendency of trial), as a result of which, blood came out from his body and seeing blood coming out from his body, he was shunted out from the house by the accused appellant and another accused Yogesh and thereafter, he made hue and cry and after some time, he was brought to the hospital by some persons. It was brought to the hospital by some persons. It was further stated by the deceased that he was demanding Rs. 25000/- from the accused appellant and the papers of the house of the accused appellant were with him, which were taken by the accused appellant from him and since he was again demanding papers of the house from the accused appellant, therefore, because of this, he was beaten by the accused appellant and another accused Yogesh by knife. That parcha bayan of deceased was reduced into writing by PW14 Jeerudin and the same is Ex. P/32 and that parcha bayan Ex. P/32 of deceased was recorded by PW 14 Jeerudin in presence of PW 9 Dr. Avinash, who made endorsement on it to the effect that it was recorded in his presence. On the basis of that parcha bayan of deceased Ex. P/32, a case for the offence under section 307, 342, 354, 147, 148, 149 IPC was registered and regular FIR Ex. P/39 being No. 18/98 dated 14. 1. 1998 at Police Station Purani Abadi, Sri Ganganagar was chalked out and investigation was started. During investigation, deceased was got first medically examined by PW2 Dr. B. M. Sharma and his injury report is Ex. P/3, which shows that he received as many as 14 injuries and they all were caused by sharp edged weapon. It may be stated here that deceased died on 16. 1. 1998 at 5. 00 AM in the hospital and therefore, the case was converted into Section 302 IPC and thereafter, post mortem of the dead body of the deceased was got conducted by PW2 Dr. B. M. Sharma and the post mortem report is Ex. P/4, where it was opined that the cause of death of the deceased was shock due to injuries to the liver lung and pan crease. The site plan Ex. P/2 was got prepared by PW14 Jeerudin and from the house of accused appellant, PW14 Jeerudin seized jacket (article 8) and watch (article 7) belonging to deceased through fard Ex. P/7 in presence of two motbirs, namely, PW3 Bheemsen and PW8 Lekhraj. The accused appellant was got arrested through arrest memo Ex. P/42 and during arrest, the accused appellant gave information Ex. P/44 to PW15 Loonsingh, SHO Police Station Purani Abadi that he could get recovered two katars, which were wrapped in the shawl (article 9) from his house and in pursuance of that information Ex. P/44, through fard Ex. P/33, in presence of PW 11 Nandlal and Rajkumar, PW15 Loonsing Seized katar (article 1) and shawl (article 9) and similarly, another katar (article 10) was seized through fard Ex. P/34 from another accused Yogesh Kumar, though information about recovery of katars was given by the accused appellant. The seized articles were sent to FSL and the FSL report is Ex. P/46. After usual investigation, police submitted challan for the offence under section 302/34 IPC against the accused appellant and another accused Yogesh Kumar (who died during the pendency of the trial) in the Court of Magistrate and from where the case was committed to the Court Session. On 18. 6. 1998, the learned Sessions Judge, Sri Ganganagar framed the charges for the offence under section 302/34 IPC against the accused appellant and another accused Yogesh Kumar. The charges were read over and explained to them. They denied the charges and claimed trial. During the course of trial, the prosecution got examined as many as 15 witnesses and exhibited several documents. Thereafter, statement of the accused appellant under section 313 Cr. P. C. was recorded ant in that statement, the accused appellant gave explanation that on the fateful day, deceased came to his house at about 11-11. 30 PM in the night and deceased, after holding his wife DW 1 Santosh, sat on her with the intention to commit rape with her and when his wife DW1 Santosh cried, his nephew Yogesh Kumar (another accused) came there and he lifted the deceased, who was lying on DW 1 Santosh and thereafter, Yogesh Kumar gave knife blows to the deceased and thereafter, deceased ran away after climbing over the wall and he came to the house in then night at about 12-12. 30 AM and thereafter, he was told the whole incident by Yogesh Kumar and his wife DW1 Santosh. In defence, one witness DW1 Santosh, wife of the accused appellant, was examined. After conclusion of trial, the learned Addl. Sessions Judge No. 2, Sri Ganganagar through impugned judgment and order dated 13. 7. 2001 convicted the accused appellant for the offence under section 302/34 IPC and sentenced him in the manner as indicated above inter-alia holding:- (i) That parcha bayan of deceased Ex. P/32 was treated as dying declaration and thus, he placed reliance on it. (ii) That statement of deceased Ex. P/32 was recorded by PW14 Jeerudin in presence of Dr. Avinash, PW9 and PW14 Jeerudin had given explanation why Magistrate was not called by stating that since the deceased was being taken in the operation theatre for operation, therefore, Magistrate was not called for. (iii) That over writing, which was found on the parcha bayan of deceased Ex. P/32 with respect to time, was not found serious one as according to the learned trial Judge since in the Rojnamcha Ex. P/40a, time of departure was mentioned as 12. 05 AM, therefore, in these circumstances, parcha bayan Ex. P/32 could be recorded at 12. 30 AM in the night. (iv) That plea of the accused appellant that the incident had taken place in grave and sudden provocation and therefore, offence under section 302 IPC should have not been found proved, was rejected by the learned trial Judge. (v) That prosecution has proved its case beyond all reasonable doubt against the accused appellant for the offence under section 302/34 IPC. Aggrieved from the said Judgment and order dated 13. 7. 2001 passed by the learned Addl. Sessions Judge No. 2, Sri Ganganagar, this appeal has been filed by the accused appellant. In this appeal, the following submissions have been made by the learned counsel for the accused appellant:- (i) That parcha bayan Ex. P/32, which was recorded by PW14 Jeerudin should have not been treated as dying declaration because of the following reasons:- (a) That there was no certificate of the doctor certifying that the deceased was in a fit condition to give statement. (b) That since the statement of deceased Ex. P/32 was recorded by the police officer, therefore, there was full opportunity for calling the Magistrate and since Magistrate was not called for, therefore, a doubt has arisen on the veracity of parcha bayan Ex. P/32 and thus, no reliance should have been placed on it. (c) That since the statement of deceased Ex. P/32 was recorded by police officer (PW14 Jeerudin), therefore, the same could not be treated or regarded as dying declaration. (ii) That since the alleged incident had taken place in the house of the accused appellant and the deceased came there with bad intention to commit rape with DW 1 Santosh, wife of accused appellant and since at that time, another accused Yogesh Kumar came there and injuries, where were caused to the deceased, were caused by another accused Yogesh Kumar and not by the accused appellant as he came later on and therefore, in these circumstances, the accused appellant had been falsely implicated in this case. (iii) That so far as recovery of katar (article 1) from the accused appellant is concerned, as per FSL report Ex. P/46, no blood was found on it and thus, this recovery is of no value. (iv) That since all other prosecution witnesses, especially PW1 Karma Singh and PW8 Lekhraj have been declared hostile and deceased had not narrated the incident before them just after occurrence, therefore, the prosecution case did not get corroboration form independent witnesses. This, it was submitted that the findings of conviction recorded by the learned trial Judge against the accused appellant for the offence under section 302/34 IPC cannot be sustained and liable to be set aside and the accused appellant is entitled to acquittal. On the other hand, the learned Public Prosecutor and the learned counsel for the complainant have supported the impugned judgment and order dated 13. 7. 2001 passed by the learned Addl. Sessions Judge, No. 2, Sri Ganganagar. We have heard the learned counsel for the accused appellant and the learned Public Prosecutor and the learned counsel for the complainant and gone through the record of the case.
(3.) BEFORE proceeding further, first medical evidence of this case has to be seen. Injury report Ex. P/3 and post mortem report Ex. P/4 of deceased The deceased was got medically examined by PW2 Dr. B. M. Sharma on 14. 1. 1998 and his injury report is Ex. P/3 and thereafter, deceased died in the hospital on 16. 1. 1998 at about 5. 00 AM and post mortem of the dead body of the deceased was got conducted by PW2 Dr. B. M. Sharma on 16. 1. 1998 at about 9. 00 AM and the post mortem report is Ex. P/4 and for proving the same, the prosecution has produced Dr. B. M. Sharma, PW2. Pw2 Dr. B. M. Sharma in his statement recorded in Court has stated that on 14. 1. 1998, he was Medical Jurist in the Government Hospital, Sri Ganganagar and on that day, he medically examined deceased and found the following, injuries on his body:- 1. Incised wound 1" x 1/6 deep not ascertained on right chest near middle line. 2. Incised wound 3/4" x 1/6" deep not ascertained on right epigestric region. 3. Incised wound 3/4" x 1/6" on right abdomen depth not ascertained 3" away from umblica. 4. Incised wound 1" x 1/6" depth not ascertained, 1/2" away from injury No. 3. 5. Incised wound 1/2" x 1/6" depth not ascertained on right abdomen, 6" away from umblica. 6. Incised wound 1" x 1/6" depth not ascertained, 2" left umblica. 7. Incised wound 3/4" x 1/6" depth not ascertained, 2" left mid line lower chest. 8. Incised wound 1-1/4" x 1/6" depth not ascertained, below injury No. 7. 9. Incised wound 1" x 1/6" depth not ascertained, 3-1/2" below injury No. 8. 10. Incised wound 1-1/4" x 1/6" depth not ascertained, left iliac foss. 11. Incised wound 1" x 1/2" x muscle deep, Rt. Forearm Lt. end middle half. 12. Incised wound 1" x 1/6" x muscle deep, Rt. forearm lower 1/3 near wrist. 13. Incised wound 1" x 1/6" x muscle deep, Rt. thigh. 14. Incised wound 3" x 1/2" x muscle deep, RT. inqui. area. He has further stated that all the aforesaid injuries were caused by sharp edged weapon. He has proved the injury report Ex. P/3. He has further stated that deceased died on 16. 1. 1998 at about 5. 00 AM an on that day at about 9. 00 AM, he conducted that post mortem of the dead body of the deceased and he found twelve injuries on his body and these injuries were sufficient in the ordinary course of nature to cause death and he opined that cause of death of the deceased was shock due to injuries to the liver, lung and pan crease. He has proved the post mortem report Ex. P/4. ;