KAN SINGH, J. - (1.) THIS appeal has been brought by accused Laxman against the judgment of the learned Additional Sessions Judge, Gangapur City, dated 17th October 1970, convicting the accused of an offence under sec. 302 IPC and sentencing him to imprisonment for life together with a fine of Rs. 1,000, in default, further rigorous imprisonment for one year.
(2.) THE incident to which the case relates, took place on the night between 26th and 27-3 1970 at the house of Moolia PW 4 at village Kot, which is within the bounds of the Police Station, Mahua situate at a distance of 14 miles from the police station. Moolia PW 4 was at his field that night and his wife Smt. Kistoori, aged 40 years, was at his house. She was aroused at dead of night when a miscreant tried to snatch away a khangwali, an ornament worn on the neck. She tried to catch hold of the miscreant and was able to grasp the shirt worn by the miscreant. At that stage, the miscreant gave two stabs to Smt. Kistoori with a knife that he was having with him. One injury was caused on her right leg and the other on har abdomen. She raised an alarm and the miscreant filed away. She was able to recognise the miscreant and, according to the version that she gave to some persons including her husband Moolia, it was none other than accused Laxman who had inflicted the two injuries on her person. THE villagers took the injured woman to the Primary Health Centre at Mandawar about 5 a. m. Dr. H. P. Gupta PW 1, incharge of the Primary Health Centre, attended to the injuries of Smt. Kistoori. Smt. Kistoori told Dr. Gupta how she had been injured and she further named Laxman as her assailant. Dr. Gupta sent information to the Police Station at Mandawar. THE First Information Report is Ex. P. 1 on the record. Smt Kistoori expired the same day at 5. 35 p. m. but before her end came, Dr. Gupta had arranged for the presence of Shri Krishna Singh, Tehsildar and Second Class Magistrate, Mahua, PW 2, who was camping at Mandawar. Shri Krishnasingh recorded the dying declaration which is Ex. P. 8 on the record. THE post-mortem examination of the dead body was performed by Dr. Gupta, who found the following external injuries on the dead body.- " (1) Puntured wound 2" x 1-1/2 x 4-1/2" in the epigastric region. (2) Incised wound 1" x 1/4" x 1/4" on the right leg 4" below the right knee joint on the medical side of the leg. " THE internal injury was one punctured wound 1" x 1/2" x 1-1/2" at inferior surface of the right lobe near the hilum of the liver. It was the result of external injury No. 1. THE cause of death was shock resulting from internal haemorrhage by injury to liver. THE injury to the liver was sufficient in the ordinary course of nature to cause death. There was no eye-witness in the case which depended on the three dying declarations, the first one made by Smt. Kistoori before the villagers. It was deposed to by PW 3 Zahoor Khan and PW 4 Moolia. The second dying declaration was deposed to by Dr. Gupta PW 1 and the third one was the declaration Ex. P. 8 recorded by Shri Krishnasingh PW 2 The learned Additional Sessions Judge placed reliance on the testimony of PW 4 Moolia though he did not believe PW 3 Zahoorkhan. He further believed the testimony of Dr. Gupta and Shri Krishnasingh before whom the respective dying declarations were made. The plea of the accused was one of denial and he stated that he was at his field at the relevant time. He examined DW 1 Kajod and DW 2 Kalyan in support of his plea of a libi. Their evidence was not accepted as trust-worthy by the learned Judge. Learned counsel for the appellant has taken us through the evidence and has advanced a two fold argument In the first place, he submits that the evidence was not at all sufficient for conviction and for this he attacked the dying declarations. He urged that the dying declarations were prompted by the husband and other persons and the injured could not have recognised her assailant as it was night-time. In the second place, he argued that it could not be said with any definiteness that the accused aimed the blow at any particular part of the body of Smt. Kistoori or that he had the intention to cause the particular injury which resulted in Smt. Kistoori's death. Learned counsel maintains that, in the circumstances, if at all, the accused would be guilty only of the offence under sec. 304 part I IPC and not under sec. 302 IPC. What Smt. Kistoori conveyed to Dr. Gupta is contained in the first Information Report Ex. P. I which reads as follows - "sub: - Information about the injured patient Smt. Kistoori wife of Moolia Khatik. It is to write in the above connection that today on 27-3 70 at about 5 a. m. Smt. Kistoori w/o Moolia Khatik of village Kot was brought to the Primary Health Centre in an injured condition. She was admitted. When questioned at the time of the admission, she stated that she was sleeping in the tibari of her house. At night about 2 a. m. Laxman Chowkidar s/o Bhajja Chowkidar, r/o village Kot tried to take away the Khangwali worn on her neck Thereupon she caught hold of him. the baniyan of Laxman came in her hands and it was torn, and Laxman stabbed with a knife on her belly and he ran away. " The doctor added that her condition was serious. It was further mentioned that Moolia son of Chitter Khatik, Bhagwana s/o Birbar Khatik, Babulal s/o Moolia, Mansukha Nai and Jahoora s/o Rahim had brought her from Kot for treatment. PW 4 Moolia stated that about 1. 30 or 2 a. m. in the night when he was sleeping at the threshing floor of his 'field, one Ramswaroop accompanied by one Motilal came and told him that his wife had been stabbed by a thief. He then came to the village The villagers had assembled at his house. Smt. Kistoori was lying on a cot under the chappar. She had two injuries, one on her abdomen and the other on her leg and blood was coming out of the wounds. The wounds had been dressed. Moolia then enquired from his wife as to who had injured her and she stated that Laxman son of Bhajja had struck her with the knife. She said nothing else and then she was brought to the Mandawar Hospital.
(3.) WE have read the statement of PW 3 Zahoorkhan as well. The learned Additional Sessions Judge had discarded it and having read it, we think, he did so rightly. While Zahoorkhan said one thing in his examination-in-chief, he said quite the contrary in the cross-examination. It is surprising that he was not declared hostile by the prosecution and subjected to cross-examination. Be that as it may, we are inclined to think that he had been won over. Pw 2 Shri Krishnasingh stated that on 27-3-70 while he was camping at Mandawar, a Head Constable of the Police made an application (Ex. P. 7 on the record ) requesting him to take down the dying declaration on Smt Kistoori who was admitted at the Mandawar Hospital. Accordingly, he proceeded to the hospital and recorded the statement of Smt. Kistoori which is Ex. P. 8 on the record. Shri Krishna Singh had, however, admitted that Smt. Kistoori was deposing by gestures about the attempt of the accused to snatch her Khangali and she being stabbed with a knife. It was only on Shri Krishnasingh's asking her that she named the accused with his parentage as her assailant. It has to be further noticed that this statement was recorded at 5. 30 p. m. and Smt. Kistoori expired only five minutes thereafter. We are, therefore, not inclined to attach that much value to this dying declaration as we would do in the case of the statement of a person recorded at a time when the faculties of the deponent would not be at a low ebb; the life being in its flicker. Any way, it is noteworthy that there is not even a suggestion of any ill-will or enmity between Smt. Kistoori and the accused between Moolia and the accused or his people. ;