Kalimullah Khan, J.
1. Government Appeal No. 262 of 1984 and Criminal Appeal No. 2471 of 1983 have emerged out of one and the same impugned judgment and order dated 5.10.1983/10.10.1983 passed by the Sessions Judge, Jhansi in Session Trial No. 246 of 1982 State v. Devi Singh and two others' P.S. Chirgaon, District Jhansi and, therefore, both these appeals are being disposed of by this common judgment. According to prosecution the incident has taken place on 4.7.1982 at 12:00 O'Clock (noon) within the limits of P.S. Chirgaon, District Jhansi whereas F.I.R. was registered on 4.7.1982 at 5:00 P.M. after covering a distance of 9 K.M. from the scene of incident to the police station concerned. First informant Thakur Das S/o. Khalakh Yadav R/o. village Atpeyee, P.S. Chirgaon, District Jhansi has lodged the F.I.R. Exhibit Ka-1 in P.S. Chirgaon with an accusation that on 4.7.1982 at 12:00 O Clock (noon) accused Chandan Singh S/o. Bachchi Lal, Lakhan Singh S/o. Radha Lal and Devi Singh S/o. Radha Lal Yadav were putting pieces of bricks opposite his door. He is nephew of Tulsi Das S/o. Parashuram Yadav forbade them to do so. Villagers Ram Sewak, Kripa Ram, Veer Singh and others also forbade them to put the bricks opposite the door of informant but accused persons did not pay any heed to it. But Tulsi Das hereinafter called the deceased insisted and asked them not to put the bricks there whereupon accused Chandan Singh and Lakhan Singh made exhortation to kill him. Both the aforesaid accused caught hold off and accused respondent Devi Singh gave a Farsa blow at the neck of the deceased. After sustaining injury deceased fell down. Witnesses chased accused and then they ran away. However, witnesses succeeded in capturing the Farsa from Devi Singh which was blood stained.
2. Chik report was drawn on the basis of the aforesaid written report and case was registered in the General Diary on dated 4.7.1982 at 5:00 P.M. u/s 307 I.P.C. The informant handed over the aforesaid Farsa at the police station regarding which a recovery memo. was prepared which is Exhibit Ka-3. The blood stained Baniyan and Taulia of the deceased were taken into police custody regarding which a recovery memo. Exhibit Ka-8 was prepared. Blood stained and plain earth were also taken in police custody regarding which a recovery memo. Exhibit Ka-11 was prepared during the investigation. Dece
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ased Tulsi Das in an injured condition was subjected to medical examination. Following injury was found at his neck:
(i) Incised wound 5 inch x 2 inch x 3 inch sharp on back of neck of root oozing of blood incised Bony part were felt. X-ray was advised.
(ii) Traumatic swelling 2 inch x 1 inch on width aspect of left ankle joint was also noticed.
Injury No. 1 was kept under observation. X-ray was advised for injury No. 2.
In the opinion of doctor injury No. 1 was caused by sharp edged weapon while injury No. 2 was caused by blunt object. Duration of injury was fresh at 6:00 p.m. on 4.7.1982; date and time of his medical examination.
3. After completing the investigation, I.O. submitted charge-sheet Exhibit Ka-13 u/s 307 I.P.C. on 21.7.1982, thereafter, as it appears deceased died. Inquest report was prepared, alongwith necessary papers body was subjected to post-mortem examination. Following ante-mortem injury was noticed at his body:
(i) Cut wound 8 inch x 2 inch x bone and tissue deep on the back, extending from left side base of neck upto right medial scapula region i.e. the wound was oblique. Margins of the wound were clean cut. Underlying tissue of neck and shoulder were also cut.
(ii) Bed sores present over whole of sacral and buttock region of the back with hospital dressings.
(iii) Superficial wounds over both knees.
The death was as a result of combined cause of cut wound on the back of neck oval extensive bed sores over the buttock and sacral region haemorrhage and septicemia.
4. Case was converted u/s 302 I.P.C. and supplementary charge-sheet was submitted u/s 307/302 I.P.C. against all the three accused.
5. Accused Devi Singh was charged for the offence punishable u/s 302 I.P.C. whereas accused respondent Lakhan Singh and Chandan Singh were charged u/s 302/34 I.P.C. They denied the charge and claimed their trial.
6. In order to prove its case prosecution examined Thakur Das, first informant, P.W. 1 who deposed that on the day of incident at about 12:00 O'Clock (noon) all the three accused Chandan Singh, Lakhan Singh and Devi Singh were putting pieces of bricks opposite his door. Deceased and other forbade but they did not stop, hence deceased insisted that he would not allow them to put the bricks there any more whereupon on the exhortation made by Chandan Singh and Lakhan Singh, accused Devi Singh gave a Farsa blow on the neck of the deceased as a result of which he sustained injuries and fell down. The Farsa was snatched from Devi Singh by the witnesses which was deposited in the police station along with first information report.
7. Ram Sewak P.W.-2 has deposed that 12-13 months ago at about 12:00 O'Clock (noon) he was taking bath along-with prosecution witness Kripa Ram and Veer Singh at the well in the village. They heard hue and cry coming from the house of Thakur Das then all the three aforesaid persons reached there at the door of Thakur Das and noticed that accused persons were hurling abuses to Thakur Das and Tulsi Das on the issue of keeping the pieces of bricks there at his door. But the witness retracted from his earlier statement given to I.O. and stated that he saw nothing and none had assaulted Tulsi Das in his presence. When he reached there, he saw that Tulsi Das was lying there on the ground after sustaining injuries. But Thakur Das, first informant had disclosed there at once that Devi Singh, Chandan Singh and Lakhan Singh have assaulted to Tulsi Das with Farsa and Thakur Das had claimed that he had snatched Farsa from Devi Singh. He further stated that when he went to police station then Farsa was not taken to police custody in his presence but he admits that he was witness of recovery memo. of Farsa as the I.O. has obtained his signature on the recovery memo.
8. Kripa Ram, P.W.-3 is another witness of fact who deposed that Farsa injury was not caused to Tulsi Das in his presence and he disowned to have seen Tulsi Das on the ground. However, he has deposed that after hearing noise, he had reached at spot where Thakur Das told him that Devi Singh had given a Farsa blow at the neck of Tulsi Das. However, he stated that the said Farsa blow was not given in his presence nor he snatched said Farsa contradicting his earlier statement recorded u/s 161 Cr.P.C. He admitted that he was taking bath on the well alongwith Ram Sewak and the noise were heard by them at the well which lies at a distance of 20-25 steps from the house of Thakur Das. The incident took place 12-13 months ago at about 12:00 O'Clock (noon). Both these P.W. 1 and P.W. 2 turned hostile and they were subjected to cross-examination by prosecution.
9. Constable 488 Balwan Singh Yadav, P.W. 4 has deposed that he was constable-cum-clerk at P.S. Chirgaon since July to December, 1982. In the evening of 4.7.1982 at about 5:00 P.M., the F.I.R. Exhibit Ka-1 was lodged by Thakur Das and on its basis he drew the chik report in his own handwriting and signature which is Exhibit Ka-2. No Sub Inspector was there at the police station at that time. The first informant had handed over the Farsa material Exhibit 1 to police which was blood stained. The witness admits the taking of said Farsa into police custody, he prepared the recovery memo. Exhibit Ka-3 in his own handwriting and signature in the presence of prosecution witness Ram Sewak P.W. 2 and Kripa Ram P.W. 3 who had put their signature thereon and the case was registered in the General Diary at the same time. The copy thereof is Exhibit Ka-4. On 30.8.1982 the case was converted u/s 302 I.P.C. from section 307 I.P.C. As the death report was received from P.S. Navabad which is entered at Rapat No. 11 on 30.8.1982 in the General Diary in the handwriting and signature of Head Constable Hasim Singh. True copy thereof has been proved by this witness as Exhibit Ka-5. The case property was sent to Chemical Examiner, Agra through constable Geda Lal in a sealed condition.
10. S.I. Arsad Ali Khan is the I.O. of the case and he has proved the same.
11. Dr. Harish Kumar is the House Surgeon, Orthopedic in Medical College, Jhansi who claims to be posted as such in the month of July and August, 1982. He had brought the bed head ticket of the deceased before the Court and on its basis he deposed that Tulsi Das was admitted to the hospital on 4.7.1982 at 10:15 P.M. He was referred by Medical Officer, Chirgaon. He has filed the bed head ticket on record. At the time of his death he claims to be on duty on 18.8.1982 and he has certified the death of deceased and proved it as Exhibit Ka-17. Dr. M.R. Vovindani, Medical Officer, Civil Hospital, Lalitpur has been examined as P.W. 7. He has deposed that he medically examined the deceased when he was brought in an injured condition and prepared the injury report.
12. Dr. D.N. Shukla, Radiologist, District Hospital, Pratapgarh examined as P.W. 8 has deposed that he was on post-mortem duty as Medical Officer, Jhansi on 20.8.1982. On the said date, at about 11:00 A.M. body of deceased was brought in a sealed condition by constable Mahesh Chandra and Jairam. He subjected the dead body and prepared the post-mortem examination in his own handwriting and signature Exhibit Ka-20.
13. Constable 563 Jairam, P.S. Navabad, District Jhansi, P.W. 9 has deposed that he was posted in P.S. Navabad on 19.8.1982. He claims to have accompanied Darogaji upto medical college, reached there at 3:00 p.m. where the inquest report was prepared by Darogaji in his own handwriting and signature Exhibit Ka-21. He carried the dead body upto mortuary. He proved the papers attached to the inquest. Dr. P.K. Dabral, C.W.-1 has deposed that having gone through the bed head ticket of Tulsi Das (deceased) that there was no improvement of healing of injury sustained by Tulsi Das but the reason of his death was especially Anemia and Septicemia.
14. All the three accused were examined u/s 313 Cr.P.C. They denied the prosecution evidence and attributed their false implication in this case. However, they have adduced no evidence in their defence.
15. On the basis of the evidence on record, learned Trial Court vide impugned judgment and order dated 5.10.1983/10.10.1983 extended the benefit of doubt to accused Chandan Singh and Lakhan Singh and acquitted them from the charges levelled against them. However, he found Devi Singh guilty of the offence punishable u/s 304 Part II of I.P.C. and convicted him accordingly. The charge framed u/s 302 I.P.C. against him was not found proved.
16. After hearing learned Counsel for the accused on the point of sentence, he sentenced him to undergo five years rigorous imprisonment u/s 304 Part II of I.P.C. The period already undergone by the accused during the trial of the case was directed to be computed towards period of sentence.
17. Feeling aggrieved, State of U.P. filed Government Appeal No. 262 of 1984 u/s 378 Cr.P.C. against the impugned judgment and order dated 5.10.1983/10.10.1983 in S.T. No. 246 of 1982 on the ground that the judgment is not in accordance with the evidence on record and the law applicable to the facts and circumstances of the case and the learned Trial Court has committed gross illegality in acquitting Chandan Singh and Lakhan Singh. Apart from it they have also challenged the conviction and sentence of accused Devi Singh u/s 304 Part II of I.P.C. instead of 302 I.P.C. and prayed that this Court be pleased to allow this appeal and set aside the order of acquittal and convicted & sentenced them according to law. On the other hand, convicted accused Devi Singh has filed criminal appeal u/s 374 Cr.P.C. against the aforesaid judgment on the ground that the judgment and order of the Trial Court is bad in law and against the weight of evidence on record; because the prosecution has failed to prove the case by cogent and reliable evidence and the sentence is too severe.
18. We have heard learned A.G.A. and learned Counsel for the respondents as well as learned Counsel appearing for appellant Devi Singh. Perused the record.
19. On the basis of the evidence adduced on record, learned Trial Court has held that the date, time and place of incident is proved. Even the injury sustained by deceased is undisputed. The case of the prosecution is that the said injuries were caused by accused Devi Singh whereas the case of defence is that the deceased fell down on a plough kept at the door of Thakur Das and the said injury was caused by that ploughshare as Tulsi Das deceased was a patient of Epilepsy. However, there is no evidence on record to support the version of the defence rather Dr. T.N. Shukla has ruled out the causing of the said injury by the furrow of plough looking to the nature of incised wound of the injury which has cut two ribs at the neck of the deceased and there does not appear any reason to interference with the aforesaid finding of learned Trial Court. Dr. Shukla however admitted that the injury was clean cut and blade of plough does not become so sharp to cause such injury. Deceased has received one injury on the root of his neck as a result of which ribs No. 1 and 2 were cut and had also received traumatic swelling 2 inch x 1 inch medial aspect of the left ankle joint and if the deceased fell down backwards due to which he had received injury No. 1 at his body, he could not have received other injury No. 2, a traumatic swelling on the medial aspect of the left ankle joint. In that case he would have received some other injury at his hand or in the back or elbow joint or on his shoulder. In any case, the probability of cutting of ribs Nos. 1 and 2 would have been very remote. Ribs Nos. 1 and 2 could be cut only with a heavy blow of heavy cutting weapon like Farsa or Axe. Considering the length of wound the same could be caused by a Farsa.
20. Relying upon the aforesaid medical evidence, learned Trial Court has rightly discarded the suggestion and theory of defence that injury sustained by deceased was caused with ploughshare. When we made appraisal of the evidence of the prosecution witnesses P.W. 1 and P.W. 2, we come to the conclusion that the statement of P.W. 1, Thakur Das is fully corroborated by the contents of F.I.R. on facts of the assault being made by Devi Singh at the neck of deceased. The medical evidence also support his version as discussed in detail by learned Trial Court. No doubt P.W. 2 and P.W. 3 have turned hostile but they have supported the deposition of Thakur Das P.W. 1 in material particulars except that they are disowning that they had seen Devi Singh causing Farsa injury on the neck of the deceased. The date, time and place of incident have been admitted to by them i.e. door of house of Thakur Das at 12 O'Clock (noon) on 4.7.1982. When the abuses were exchanged in between the parties at the door of Thakur Das both these witnesses P.W. 2 and P.W. 3 were at a distance of 20-25 steps at the well and both of them have claimed to have reached there at the spot. P.W. 2 says that he saw Tulsi Das lying on the ground after sustaining injuries. Bloods were oozing from the wounds. What they say is that they have not seen as to who had caused the injury on the person of injured Tulsi Das. The aforesaid depositions of these P.W. 2 and P.W. 3 are in direct contradiction with their oral statement recorded u/s 161 Cr.P.C. by the I.O. However, they have been confronted in the cross-examination made by prosecution and the aforesaid contradiction has been proved by the I.O. of the case who has claimed that these witnesses P.W. 2 and P.W. 3 have stated during investigation that they were eye-witness of the incident and they had seen Devi Singh accused giving Farsa blow on the neck of the deceased. Moreover, both these P.Ws. claimed that when they reached at the spot at the relevant time they noticed that Thakur Das, first informant was disclosing to everybody including these witnesses that Devi Singh had caused Farsa injury to his nephew Tulsi Das who was lying on the ground. On the aforesaid factum of incident there is nothing on record to disbelieve the version of the informant Thakur Das and learned Trial Court has rightly believed his evidence on this point and held Devi Singh guilty for causing Farsa injury to the deceased.
20-A. We are of the view that merely because the witness was declared hostile, there is no need to reject his evidence in toto. In other words, the evidence of hostile witness can be relied upon at least to the extent, it supported the case of the prosecution. In view of the same, reliance placed on certain statements made by hostile witnesses before the Trial Court are acceptable. In Mrinal Das and Others Vs. The State of Tripura, , Hon'ble Apex Court held:
It is settled law that corroborated part of evidence of hostile witness regarding commission of offence is admissible. The fact that the witness was declared hostile at the instance of the Public Prosecutor and he was allowed to cross-examine the witness furnishes no justification for rejecting en block the evidence of the witness. However, the Court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it. The Court should be slow to act on the testimony of such a witness, normally, it should look for corroboration with other witnesses. Merely because a witness deviates from his statement made in the F.I.R., his evidence cannot be held to be totally unreliable. To make it clear that evidence of hostile witness can be relied upon at least up to the extent, he supported the case of the prosecution. The evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution.
The same view was reiterated by the Hon'ble Supreme Court in case of Sathya Narainan (appellant) v. State represented by Inspector of Police (respondent) 2013 (80) ACC 138.
21. Learned Counsel for the appellant Devi Singh and respondents in Government Appeal have invited our attention towards discrepancy occurred in the statement of Thakur Das, P.W. 1 and attempted to persuade us to disbelieve him on the ground that in his deposition it has occurred that the Farsa recovered at the spot and handed over to police was not produced in the Court rather the Faras produced in the Court was some different Farsa.
22. Be it known that this stand of Thakur Das, P.W. 1 is not coloured version because he is not going to get any benefit by making aforesaid statement during trial if the Farsa produced in the Court was not the same which was used in the commission of the offence, snatched by him and other witnesses and handed over to police how can he say that it was the same Farsa. Had he been tutored he would have very easily deposed that it was the same Farsa. But it is a certificate of his honesty that he took resort of truth being rustic as observed by learned Trial Court during his deposition and also in the judgment it was he who could given such a statement before the Court. Likewise, learned Counsel for the appellant Devi Singh and respondents in the Government Appeal have invited our attention towards the deposition of Thakur Das, P.W. 1 that he has admitted during his evidence that the first of all he got report scribed by Kunji Master and handed it over to police but Darogaji got it scribed afresh by Mohar Singh, son-in-law of informant. True it is, that Thakur Das has given such statement but he has proved the said report scribed by Mohar Singh as Exhibit Ka-1 and has deposed that the contents of the F.I.R. were same in both the reports and he could not tell as to what difference was there in between the two reports. However, there is only one report which is Exhibit Ka-1 and his signature thereon is proved by him. If the narration of the incident is not happily worded in a written report and that is being scribed in a manner happily worded but the case of the prosecution remains the same and no difference minor or major in both the reports through cross-examination is brought on record then it would not be proper to throw out the report Exhibit Ka-1 for no fault of the maker thereof. It is constant case of prosecution that Devi Singh gave the Farsa blow on the neck. Therefore, the learned Trial Court has rightly recorded the finding that the aforesaid statement of Thakur Das is not fatal to prosecution in the facts and circumstances of the case.
23. Learned Counsel for the appellant Devi Singh has submitted that the statement of deceased recorded by I.O. u/s 161 Cr.P.C. has wrongly been taken into consideration by the learned trial as a dying declaration inasmuch as the said statement neither contains the signature of I.O. nor the signature of the maker thereof nor the signature of two attesting witnesses which is minimum requirement for such dying declaration recorded by I.O. to be admissible in evidence.
24. Even if we ignore the said piece of evidence relied on by the learned Trial Court the conclusion arrived at by him remains the same because there are ample evidence on record to fasten the guilt with the head of accused Devi Singh.
25. Since, there is no evidence that the causing of injury to Tulsi Das was an outcome of a pre-arranged plan with a cool calculation entered into by three accused inter se, therefore, elements of common intention and prior meeting of their mind appears to be lacking so far as the case of accused Chandan Singh and Lakhan Singh are concerned. Therefore, they could not have been held guilty for causing Farsa injury on the body of deceased with the add of section 34 I.P.C. and, therefore, learned Trial Court has rightly extended the benefit of doubt to them.
26. So far as the argument advanced by learned A.G.A. is concerned that accused Devi Singh should have been held guilty u/s 302 I.P.C. simpliciter we are of the view that it was not a case of murder for so many reasons viz. (i) the cause of death has admittedly been the result of septicemia which developed due to bed sore as pointed out by C.W.-1 P.K. Dabral as discussed in detail by learned Trial Court. Even the post-mortem examination report Exhibit Ka-20 disclosed that death is result of combined case of cut wound on the back of neck and extensive bed sores over the buttock and sacral region haemorrhage and septicemia.
27. Therefore, in view of the aforesaid medical evidence adduced on record, learned Trial Court appears to have rightly held that it was not a case punishable u/s 302 I.P.C. rather it was a case punishable u/s 304 Part II of I.P.C. There is no direct relation of injury caused on dated 4.7.1982 and the death after 1-1/2 month. Dr. P.K. Dabral has deposed that the injury sustained by deceased in this case could not be said to cause death after so long time. Moreover, the incident took place on the spur of moment followed by hot discussion and abuses in between the parties inter se on the spot. No repeated blow was given with Farsa. In the totality of the circumstances intentions to commit murder appears to be lacking.
28. Both the appeals lack merit and deserve to be dismissed. Government Appeal No. 262 of 1984 and criminal appeal No. 2471 of 1983 are, therefore, dismissed.