1. The appellant Kanhaiyalal and his son Ramlal (who is only 17 or 18 years old) have been convicted by the learned Additional Sessions Judge, Shajapur, under Section 304, Penal Code and have been sentenced to- five year's rigorous imprisonment each. '
2. The prosecution story in brief is that on 10-7-1952 in the noon, in a field in village Patlaoda P. S. Shu Jaipur, District Shajapur, both the accused approached Siddu who was working there, Kanhaiyalal had an axe with him and gave a blow on the head of Siddu with the blunt side of the axe. Ramlal appellant had a 'pirani' (bamoo stick, sometimes with an iron blade) and gave a blow to the deceased with it. It is alleged that the deceased Siddu had beaten Kanhaiyalal's son Moti in the morning and so these two accused had gone to the field to take revenge from him. Siddu died then and there. A 'post-mortem' was performed next day i.e., on 11-7-1952 in Shujalpur by Dr. Lajpatrai P. W. 1 who deposed that Siddu had two external injuries only. The first injury was contused wound 1 1/2' x 1/4' on frontal region of the scalp and 2 inches deep, but the injury did not reach the bone. The next injury was contusion 8' x 3/4' vertical on back of lower part of chest. The doctor was of opinion that Siddu was very weak otherwise he would not have died as a result of these injuries. According to him the death was the result of shock and haemorrhage due to rupture of spleen and concussion of brain, which could have occurred due to his falling on the ground.
3. At the time when the two appellants are alleged to have given blows on the body of the deceased, Siddu, only two persons were present in the field and these are cattle grazers, Rama P. W. 2 and Madhva P. W. 16. The first information report was lodged by the wife of the deceased, Nadan Bai P. W. 13, on 11-7-1952 at 8 P. M., though the distance of the scene of occurrence from Police Station Shujalpur is hardly 5 miles. In this report the names of the two accused had been mentioned.
4. Out of the two witnesses, Madhva, P. W. 16 was not produced before the learned Sessions Court. His statement in the committing Court had been transferred to the Sessions file under Section 33, Evidence Act. It is well settled that before the Sessions Judge can transfer a statement he must record a finding that any of the circumstances enumerated in Section 33 existed and unless he is so satisfied on evidence led before him, the power vested in him under Section 33 cannot be exercised, -'Saudagar Singh v. Emperor' AIR 1944 Lah 377 (A). When a witness is material (in this case the eye witness Madhva was a material witness) justice requires that the witness, if possible, be examined in the trial in the presence of the accused. The learned Sessions Judge has admitted the evidence of an absent witness on the application of the Public Prosecutor, and the application alleged that something had gone wrong with the mind of the witness Madhva and that he was not in a condition that he may answer the questions correctly in the Court. A report of the Assistant Medical Officer Shu Jaipur was also submitted to the Court along with the application. This report dated 7-10-1952 that after some days' observations in the Hospital, full report could be sent. During these days, the learned Sessions Judge was recording the evidence in the case and he could have easily seen the eye-witness himself, when he was at Shajapur, in order to satisfy himself whether he was competent to testify and could understand the questions put to him. The explanation appended to Section 118, Evidence Act is quite clear on the point that a lunatic when ho is in lucid intervals is not imcomptent to testify, if he can understand and rationally answer the questions put to him, The Doctor could have been, but was not examined in the Court. The Police constable Kanhaiyalal P. W. 15 and P. W. 3 Bhanwarji were procured in the Court and as lay men they said 'his mind had gone wrong'. This may mean nothing.
The learned Judge did not care to arrive at the finding whether it was a case of general or partial insanity, whether the delusions were multifarious and of the wildest and most irrational character, abundantly indicating that the mind was diseased throughout or, while the mind may have been overpowered by delusions, though may be the offspring of mental disease and so far constituted insanity, yet left, the individual in all other respects rational and capable of transacting the ordinary affairs and fulfilling the duties and obligations incidental to the various relations of life, and, during lucid intervals, the witness was not prevented by partial unsoundness of the mind from understanding the questions put to him and giving rational answers to them. From a perusal of the judgment of the learned Sessions Judge, it appears, though not clearly, that the learned Judge was of opinion that the witness was incapable of giving evidence because of insanity.
In such cases the provisions of Section 118 could not have been ignored, and in my opinion, where a witness is declared incapable of giving evidence owing to insanity it is the duty of the Court to record its finding that the witness is prevented by his lunacy from understanding the questions put to him and giving rational answers to them. The fact that the witness had become incompetent to testify and so incapable of giving evidence must be proved strictly. As their Lordships observed in -'Chainchal Singh v. Empress' AIR 1946 PC 1 (B) in a civil ease a party, if he chooses, can waive the proof, but in a criminal case strict proof ought to be given that the witness is incapable of giving evidence. Their Lordships further observed that the fact that the counsel of the abused consented to the evidence of the witness being read under Section 33 in the Sessions Court does not do away with the necessity of the Court being satisfied by proof that the witness was incapable of giving evidence.
In my opinion the learned Sessions Judge was wrong in admitting the evidence of Madhva P. W. 16 under Section 33, Evidence Act without himself seeing the witness or without examining the doctor who had sent the report to the Public Prosecutor. It is clear that sufficient foundation was not laid for the reception of the previous deposition of Madhya in this case and I have therefore to exclude it from consideration.
5. Thus only one eye-witness Rama P. W. 2 remains. He deposed that he saw from a distance of 210 slaps the two appellants beating the deceased and that appellant Kanhaiyalal gave a blow on the head of the deceased. The learned Sessions Judge has believed this witness and there is nothing in the arguments of Mr. Sahasrabudhe, learned Counsel for the appellants, which may incline me to a view about the credibility of the witness different from that taken by the learned Sessions Judge. At noon time in July a person of normal eye-sight can see clearly from such a distance. There were however, only two injuries on the body of the deceased & these injuries were not grievous. The medical evidence was to the effect that these injuries could not have ordinarily produced death. If the injuries can be called only the remoter cause of death, and death of the deceased is not proximately connected with the act of violence, the appellants cannot be held responsible for causing death, and cannot be credited with the knowledge that such bodily injuries as the deceased sustained were likely to cause his death. It follows that the appellants cannot be convicted for an offence of culpable homicide not amounting to murder, I am, therefore, of opinion that the conviction of the appellants must be altered to one under Section 323, Penal Code from that under Section 304, Penal Code.
6. I therefore allow the appeal to this extent that I alter their conviction from Section 304 to one under Section 323, Penal Code and reduce the sentence of appellant Kanhaiyalal from 5 years to one year's rigorous imprisonment. It appears that Ramlal appellant is only 17 or 18 years old and has undergone nearly four months rigorous imprisonment. In my opinion this is sufficient to meet the ends of justice and therefore I reduce his sentence from 5 years rigorous imprisonment to that already undergone. Ramlal is therefore to be released forthwith if not required to be detained under any other process of law.