- (1.) THE incident giving rise to this appeal relates to village Hanutpura. Appellants Sultan and Genda are father and son. THEy and the deceased Kalu owned adjacent fields there in the vicinity of Meenawali Kothi. It is alleged that almost a month before Kalu's death, accused Genda entered the house of his brother Hariya at night, where Hariya's wife Smt. Badami (p. w. 6) was sleeping. At that time Hariya was sleeping at Meenawali Kothi. Smt. Badami raised an alarm on seeing accused Genda, but he ran away. Kalu also heard Badami's shouts and he was informed by her that Genda had entered the house and had run away. Genda's father accused Sultan, who was sleeping at a short distance in his own house, came there. Kalu ran after Sultan and gave him a lathi-blow which fell under his ear. It is said that it was in that connection that both Sultan and Genda gave a threat to Kalu that they would kill him some day. This according to the prosecution, was the reason why on the night in between September 2 and September 3, 1963, when Kalu was sleeping in the field, near his cattle, the accused took him in front of their own house and there accused Sultan caught hold of him while accused Genda cut; away the right leg of Kalu at the thigh with axe Ex. 7. It is further alleged that thereafter accused Genda went to the temple where Sarpanch Kalyandas (P. W. 1) was sleeping, woke him up and told him, in the presence of Hanuman (P. W. 2) who was also sleeping near Kalyandas, that he and bis father Sultan had cut the leg of Kalu with an axe at Meenawali Kothi. Kalyandas asked him to call Up-Sarpanch Chiranjilal (P. W. 9) and, when Genda brought him. He reiterated what he had told the Sarpanch about the injury which he and his father had inflicted on the person of Kalu. Genda was then asked to fetch his father Sultan, but Sultan came there himself and he also told Kalyandas (P. W. 1) in the presence of Up-Sarpanch Chiranji Lal (P. W. 9) and Hanuman (P. W. 2) that he had caught hold of Kalu while Genda had cut his leg. Kalyandas then sent Up-Sarpanch Chirnjilal to inform the members of Kalu's family and also to visit the place of occurrence. Chiranjilal accordingly informed Bhairon (P. W. 3) and Hariya (P. W. 8), brothers of Kalu, about what had been reported, and took them as well as Narain (P. W. 10) to Meenawali Kothi. On reaching there, they found that Kalu was lying injured in front of the house of the accused and his right leg had been completely severed from the body at the thigh and was lying nearby. Chiranjilal and others asked Kalu what had happened and it is alleged that Kalu told them that accused Genda and Sultan had brought him from his hut after gagging him, Sultan caught hold of him, and that accused Genda cut off his leg at the thigh. He was bleeding profusely and so he was placed on a cot and Chiranjilal and others started taking him to the hospital at Amarsar. When they had gone only a few paces, Kalu complained of severe pain and expressed his desire that he may be left where he was and that the doctor may be brought there. He was placed on the cot under a 'bam-bool' tree, while his brothers Bhairon & Hariya rushed to fetch a doctor from Amarsar. Kalu, however, succumbed to his injuries within two hours, before the arrival of the doctor. Bhairon and Hariya came to know of it while they were still at Amarsar and thereupon Bhairon lodged report Ex P. 1 at Amarsar police out-post at 5. 30a. m. Head Constable Onkarnath (P. W. 14) copied out the report in the Roznamcha and sent the original report to police station, Shahpura, so that a case may be registered there. He took two constables with him and left in the company of Bhairon and Hariya to the place of occurrence. THEy had gone only a short distance from the out-post, when Bhairon and Hariya saw accused Genda going on the road and pointed this out to the Head Constable, who ran and arrested Genda. It is alleged that he was wearing 'dhoti' Ex. 5 and shirt Ex. 6 at that time and these were taken by the Head Constable in his custody because they were found to be stained with blood. THE seizure memo evidencing the recoveries is Ex. P. 11. THE seized articles were sealed on the spot. THE police party reached the place where the dead body of Kalu was lying on the cot and there-after the Head Constable claims to have recovered the axe Ex. 7 under memorandum Ex. P. 2 and it is alleged that it was also found to be stained with blood. Shortly after, Veer Baboo (P. W. 15) who was incharge of police station, Shahpura, reached the place of occurrence at 3 p. m. after registering a case in pursuance of the first information report. He took in his custody the sealed packet containing the 'dhoti' and the shrit of accused Genda as well as the other sealed packet containing the axe. He found the blood lying at the place of occurrence, in front of the house of the accused, and drew up two site-plans one of the place where the incident had taken place and the blood was lying in profuse quantity and the other of the place where the dead body was lying under the bambool tree. He took the blood stained earth also into his possession and prepared the inquest report Ex. P. 3. He arranged post-mortem examination of the dead body by Dr. P. K. Sinha (P. W. 13) the same day, at the field where was lying, and Ex. P. 9 in the post-mortem report.
(2.) THE same evening Veer Baboo arrested accused Sultan and took his 'dhoti' Ex. 9 in his possession and sealed it on the spot. THE prosecution has further alleged that accused Sultan gave the information to Veer Baboo that he had hidden his other 'dhoti' after washing it and that he could get it recovered. That information was recorded in memorandum Ex. P. 15, and it is said that Dhoti' Ex. 8 was recovered in pursuance thereof, at the instance of the accused, from his house. THE 'dhoti' was sealed on the spot. THE prosecution has also produced report Ex. P. 16 of the chemical examiner and report Ex. P. 17 of the serologist for the purpose of showing that the 'dhoti' and the shirt of accused Genda and the 'dhoti' of accused Sultan as well as the axe were found to be stained with human blood. It is with these allegations that accused Sultan and Genda were challaned by the police. Accused Sultan completely denied the allegation of the prosecution, including the recovery, and pleaded that he was at Amarsar on the date of the incident because he had gone there for his treatment, that he stayed for the night at the house of Hanuman Mali and that the medical officer gave him treatment that night. Accused Genda also denied the allegations of the prosecution as well as the recoveries, but he did not say any thing further. The accused examined one Hanuman (D. W. I) in support of the version given by accused Sultan, but the witness stated that he did not even know Sultan and had not seen him earlier. The learned Sessions Judge, Jaipur District, who tried the accused, reached the conclusion that accused Genda had committed an offence under sec. 302 Indian Penal Code, while accused Sultan was guilty of an offence under sec. 302 read with sec. 34 Indian Penal Code. He, however, held that imprisonment for life would meet the ends of justice and sentenced the accused accordingly. It is in these circumstances that this joint appeal of the accused has arisen. As will appear from the above, there is no direct evidence of the alleged commission of the offence by the two accused. The learned trial Judge has based his findings on a chain of circumstantial evidence. He has relied on the evidence regarding the motive for the offence, the alleged dying declaration of deceased Kalu, the extra judicial confessions of the two accused the recovery of the blood stained dhoti' and shirt of accused Genda and the fact that the incident had taken place just in front of the house of the accused where a lot of blood was found to be lying. Mr. Chatterjee, learned counsel for the appellants, has advanced his arguments on all these pieces of circumstantial evidence, and we shall consider them one by one. So far as the evidence bearing on the motive for the crime is concerned, the evidence consists of the statements of Badami (P. W. 6), Chotmal (P. W. 7) and compounder D. P. Gaur (P. W. 4 ). Smt. Badami is the wife of Hariya, the brother of the deceased, and she has stated how about a month before the death of Kalu, she was sleeping alone in her house while her husband Hariya was sleeping at Meenawali Kothi, how accused Genda entered her house in the night, how she raised and alarm and how Genda ran away but her husband's brother Kalu came there and on the arrival of Sultan accused on hearing her shouts. Kalu gave a lathi blow on his ear, as a result of which the two accused held out the threat to kill Kalu some day. Nothing has been elicited in the cross-examination of this witness to discredit her testimony and in fact no criticism has been offered on the evidentiary value of her statement. We would therefore accept it as reliable. It is in fact supported by the evidence of Chotmal (P. W. 7) against which also no criticism has been offered by the learned counsel for the appellants. Then there is the statement of compounder D. P. Gaur (P. W. 4) of the Primary Health Centre at Amarsar. He has stated that accused Sultan was known to him, that on 25th July, 1963 he had come to the hospital for the treatment of his ear injury, and that he was discharged on 10th August, 1963. There is no reason to disbelieve the statement of this witness also. All that Mr. Chatterjee has argued is that the statement of the compounder does not find support from the testimony of Dr. P. K. Singha Medical Officer of the Primary Health Centre, and the learned counsel has pointed out that what the medical officer stated was that on 2nd September, 1963 he was out of station but in his out door register it was entered that one Sultan Singh had taken treatment in the hospital that day. The learned counsel has further pointed out that Sultan Singh was an old patient, and that he had come for the first time to the dispensary on August 10. We do not, however, think that the evidence of the compounder is shaken by the testimony of the medical officer in any way. It is to be remembered in this connection that accused Sultan had taken the plea in the trial court that he had gone to Amarsar a day preceding to the day of occurrence, for his treatment, that he stayed there with Hanuman Mali, and that the medical officer was called and gave him treatment in the night. Thus the plea of the accused was that he was at Amarsar on September 2, 1963, and it was for that purpose that he recalled Dr. P. K. Sinha in order to substantiate his plea of 'alibi' by reference to the medical record. The cross-examination of that witness, as well as the re-examination, were directed on that plea, and had no bearing on the statement of compounder D. P. Gaur (P. W. 4), who had clearly stated that he knew accused Sultan, and that he had taken treatment for the injury of his ear on July, 25, 1963. In these circumstances, it appears to us that the prosecution has been able to prove the motive for the crime. The next important piece of circumstantial evidence against the accused is the alleged dying declaration of the deceased. The evidence in regard to it consists of the statements of Up-Sarpanch Chiranjilal (P. W. 9), Narain (P. W. 10) and the two brothers of the deceased Bhairon (P. W. 3) and Hariya (P. W. 8 ). Chiranjilal (P. W. 9) has stated that when he reached the place where Kalu was lying on the cot, in the company of the other three witnesses, Kalu told him that he was sleeping near his cattle in the field, that accused Sultan and Genda brought him there after gagging him and that Sultan caught hold of him while Genda cut off his leg. Mr. Chatterjee has criticised the statement of this witness on the ground that he did not say in his statement under sec. 164 Criminal Procedure Code that the deceased told him that accused Sultan had caught hold of him while accused Genda cut off his leg. This criticism, as has been pointed out by the learned Deputy Government Advocate, is really immaterial because we find that Chiranjilal had stated in his statement to the police under Sec. 161 Criminal Procedure Code, that the deceased had told him that it was accused Sultan who caught hold of him while accused Genda cut off his leg, and it seems to us that the witness did not bring out these details in his statement under sec. 164 Criminal Procedure Code because he thought it enough to say that the two accused had cut off the leg of the deceased. No other criticism has been made against the statement of Chiranji Lal. He is the Up-Sarpanch of the village and we have no reason to disbelieve his evidence. So also, there is no reason to disbelieve the statement of Narain (P. W. 10) A reading of his statement in the trial Court lends the impression that the witness did not mention in his statements to the police, or to the magistrate under sec. 164 Criminal Procedure Code that the deceased had told them that Sultan had caught hold of him while Genda had cut off his leg. But this is not really so. We have gone through the two statements, and find that the witness had given these details there. Narain has not been shown to be interested against the accused, or in favour of the prosecution, and we accept his statement also as reliable. The two other witnesses Bhairon (P. W. 3) and Hariya (P. W. 8) are the brothers of the deceased and we have therefore, perused their testimony with care and attention. Bhairon (P. W. 3), it has been pointed out on behalf of the appellants, has stated that the deceased had told him that he was beaten with a 'lathi' also, and since the prosecution has not alleged that any of the accused was armed with a lathi, it has been argued that Bhairon's statement is not trustworthy. It is true that Bhairon has stated that Kalu had told him that he had been beaten with a 'lathi' also, but the witness further stated that Kalu did not name any body for giving the Lathi blow and all that he said was that he had received a lathi injury also. It may be that the deceased might have gathered the impression that he had received some such injury, but at any rate, we are not prepared to reject the statement of Bhairon as unreliable for that reason alone. So far as Hariya (P. W. 8)is concerned. Mr. Chatterjee has pointed out that the witness is unreliable because he is said to have stated that Kalu informed him that both the accused had brought him to the place of occurrence after gagging him, and tying his hands, but this has not been stated by the other three witnesses. This argument is factually untenable because a perusal of the Hindi statement of the witness shows that he did not state in the trial court that Kalu had given the version that he had been gagged by the accused. As regards the tying of his hands, it is true that the other witnesses have not stated about it; but that might be because this detail was considered to be unimportant, as it undoubtedly is. As has been laid down by their Lordships of the Supreme Court in Khu-shal Rao vs. State of Bombay (1) and reiterated in Harbans Singh vs. State of Punjab (2), a dying declaration can by itself form the basis of conviction and it is not a weaker kind of evidence and its value has to be judged on the facts and circumstances of each case. The present incident took place during a moon-lite night and Kalu had ample opportunity to identify his assailants not only because he knew them so well but also because he saw them at very close quarters. That he was physically in a position to make a statement about his death to the prosecution witnesses, has been amply proved by the witnesses and also by the statement of Dr. P. K. Sinha (P. W. 13) who has stated that Kalu may have remained conscious for about an hour and a half, so that he was physically in a position to make the statement. The very fact that he was placed on a cot by the witnesses and was carried over a short distance on the way to Amarsar, but was then put down under a bam-bool tree, shows that he was in a position to make a request that he did not find it possible to proceed further because of the pain, and that he may be placed there and the doctor brought to him instead. There is also the consistent evidence of the four prosecution witnesses referred to above that Kalu clearly told them that accused Sultan caught hold of him while accused Genda severed his leg with an axe, and on these crucial points there is no contradiction in the evidence of the witnesses, so that we know what precisely the dying declaration was made to the witnesses at the earliest possible opportunity and it cannot be said that it was at all delayed. Thus the facts and circumstances of the case make the dying declaration fully reliable and we place reliance on the testimony of the four witnesses who have proved it. It maybe mentioned that Mr. Chatterjee invited our attention to an unreported judgment of their Lordships of the Supreme Court in Criminal Appeal No. 18 of 1957, but in that case the dying declaration was not relied upon by this Court so far as one of the accused was concerned and that was why it was not accepted as correct against the other accused. This is not so in the present case and the decision of their Lordships is of no avail to the appellants.
(3.) WE then proceed to consider the evidence regarding the alleged extrajudicial confessions of the two accused. As has been pointed out earlier, it is the allegation of the prosecution that it was accused Genda who first went to Kalyan Das and made a confession before him in the presence of Hanuman (P. W. 2) and re-iterated it on the arrival of Up-Sarpanch Chiranjilal (P. W. 9 ). It has then been alleged that accused Sultan came a little later and also confessed the guilt. WE have already dealt with the testimony of Chiranjilal (P. W. 9) and given our reasons why we accept it as correct. Kalyandas (P. W. 1) was the Sarpanch and Mr. Chatterjee has not been able to advance any argument against his testimony. He is an independent witness and we would accept his statement also as correct. The presence of Hanuman (P. W. 2) at the place of occurrence is quite natural because he was sleeping near Kalyandas (P. W. 1), in the same temple. No criticism has been offered against his statement and we are inclined to accept it also as correct. As their Lordships of the Supreme Court have laid down in Mulkraj vs. State of U. P. (3), it is enough if the substance of the extra judicial confession is given by the witnesses before whom it was made and it can be relied upon by the court alongwith the other evidence for the purpose of convicting the accused. As has been stated, the evidence of the dying declaration is reliable, and the extrajudicial confessions of the two accused further corroborate it. Mr. Chrtteriee has argued that the extra-judicial confessions have not been mentioned in the first information report, but the criticism is futile because that report was lodged by Bhairon and he was not present at the time when the confessions were made by the two accused. We may mention that corroboration of the prosecution evidence referred to above is further available by two facts which have been amply proved. Firstly, it has been proved that accused Genda was wearing 'dhoti' Ex. 5 and shirt Ex. 6 when he was arrested soon after the incident. The statements of Hariya (P. W. 8) and Jhuntha (P. W. 11) go to prove that this was so. Then there is the statement of Onkar Nath (P. W. 14), who was incharge of the police outpost at Amarsar, that when he arrested accused Genda, he found the blood stained 'dhoti' and shirt on his person, which he sealed on the spot. Veer Babu who was incharge of the Shah-pura police station has stated that he took the sealed packet of Genda's clothes in his custody from Head Constable Onkarnath, and Sub-Inspector Narendra Mohan (P. W. 16) has stated that he kept the sealed packet in the Malkhana, in proper custody. Constable Arjunram (P. W. 12) has stated that he safely delivered them to the chemical examiner. The statements of Bhairon (P. W. 3) and Jhuntha (P. W. 11) corroborate the recovery of 'dhoti' Ex. 5, and shirt Ex. 6 from the person of accused Genda. Reports Ex. P. 16 of the chemical examiner and Ex. P. 1 7 of the sero-logist prove that both the articles were found to be stained with human blood. This piece of evidence also corroborates the prosecution allegations and this is not, in fact, disputed. . It may also be mentioned that the place of the incident was just in front of the house of the two accused where lot of blood was found lying. The accused have not explained how this happened to be so, if not, under the circumstances alleged by the prosecution. The place of the incident is, therefore, another piece of circumstantial e\idence against the accused. Mr. Chatterjee tried to make out an argument from the statement of Veer Baboo (P. W. 15) that the hut of Kalu deceased was at a distance of about one furlong from the place of occurrence and that the prosecution version that the deceased was brought over that distance by the two accused against his wishes was wholly unconvincing because he could not have been forcibly carried for so long a distance. It is true that Veer Baboo has stated that the place of incident was at a distance of about one furlong from the hut of deceased Kalu, but it has been satisfactorily proved by the statements of Bhairon (P. W. 3) and Hariya (P. W. 8) that the deceased was sleeping at Meenawali Kothi, under a thatch, near the cattle, and not at his house, at the time of the incident, and so there was no question of carrying him forcibly over a distance of a furlong or so. Bhairon has stated that they had put thatches over their respective lands to tie their bullocks in Meenawali Kothi but otherwise they used to live in the village and that his brother Kalu used to sleep under a thatch to look after the cattle. He has further stated that Kalu had himself told him that he was sleeping near the bullocks, and this statement of Bhairon is supported by the first information report also in which he had stated that they used to tie their cattle at Meenawali Kothi where his brother Kalu used to reside. Hariya (P. W. 8) has also stated that Kalu told him that he was sleeping in the thatch in the fields at the time of the incident, and so it is futile to contend that it is the case of the prosecution that Kalu was forcibly taken by the accused over a distance of about one furlong from his house before he was taken in front of the house of the accused. Taking all the evidence together, there can be little doubt that the prosecution has succeeded in bringing home the guilt to both the accused. The question is what offence could be said to have been committed by them. Mr. Chatterjee has pointed out on the authority of Kapur Singh vs. State of Pepsu (4) that the offence would not fall within the purview of sec. 302 Indian Penal Code, but that it would be an offence under sec. 326 Indian Penal Code. On the other hand, the learned Dy. Govt. Advocate has invited our attention to Brij Bhukhan vs. The State of Uttar Pradesh (5), Public Prosecutor vs. Ramaswami (6) and In re Shamarao Bhairu (7) for the purpose of making the submission that the offence would fall within the purview of clause thirdly of sec. 300 of the Indian Penal Code so as to be punishable under sec. 302 Indian Penal Code. In order to appreciate this argument, it is necessary to refer to the statement of Dr. P. K. Sinha (P. W. 13 ). The witness has stated that he found the following injuries on the person of Kalu - (1) The right lower limb was separated from the body at the middle of the thigh and the site of the separation was lacerated. There were lacerations over the cut and the separated limb and there were several cuts below above and over the knee. (2) There were abrasions present over the medial aspect of the left thigh. (3) There were bruises over both the lips. According to the medical officer, the death of Kalu had occurred because of haemorrhage from the wounds on the right thigh, that these injuries could be inflicted by axe Ex. 7 and they had been caused by 'many blows'. The witness expressed the definite opinion that without immediate medical aid, the separation of the limb was sufficient to cause death in the ordinary course of nature. He has further stated that the injury was imminently dangerous and was bound to result in death because the big vessels had been cut. It has been proved that Kalu really succumbed to the injuries soon after. It has therefore, been proved that bodily injury No. 1, amongst others, was present on the person of the deceased and that it was so serious that it had completed severed the right lower limb from the body at the middle of the thigh. It has also been proved that the injury was inflicted by accused Genda when accused Sultan had caught hold of the deceased and had rendered him helpless. So also, it has been proved that accused Genda inflicted several cuts below, above and over the knee, as well as the cut which had severed the leg from the thigh, and that in doing so he used axe Ex. 7 with great force. We have seen the axe and it is very heavy and sharp, so that it is undoubtedly a formidable and a deadly implement. We have therefore, no hesitation in reaching the conclusion that both the accused intended to inflict that particular bodily injury, namely injury No. (1), and that it was not an accidental or unintentional injury and that no other kind of injury was intended to be inflicted It has also been proved that injury No. (1) was sufficient to cause death in the ordinary course of nature. Taking all these facts into consideration, we have no doubt that the case clearly falls within the purview of clause thirdly' of sec. 300 of the IPC and is punishable under sec. 302. The criteria for the application of that clause have been laid down by their Lordships of the Supreme Court in Virsa Singh vs. State of Punjab (8) and they are all found to exist in this case. We may also refer to public Prosecutor vs. Ramaswarni (6) and in In re-Shamarao (7) in support of the view which we have taken. ;