S. Rangarajan, J.
(1) Sham Lal and Padam Lal (accused I and 2) are the appellants in Cr. Appeal 158 of 1971 and Madan Lal (accused 3) is appellant in Cr. Appeal 159 of 1971. Both the appeals will be disposed of by a common judgment since they arise out of a common judgment. All the three accused were found guilty under section 326/34 Indian Penal Code . ; Sham Lal was sentenced to undergo rigorous imprisonment for five years while the other accused have been sentenced to undergo rigorous imprisonment for three years each.
(2) The case of the prosecution is that on 8-6-1970 at about 8.30 p.m. all the three accused (all of them being aged about 21), who lived in the Sabzi Mandi area went in a taxi to Geeta colony, Gandhi Nagar where the deceased (Ram Lal, aged about 17) was living. They saw the deceased going ahead of them. On seeing Ram Lal all the accused got down from the taxi. The accused asked Ram Lal to accompany them to carry on pick-pocketing. When Ram Lal declined Padam Lal and Madan Lal gave fist blows, caught hold of him and asked Sham Lal to do away with him. Sham Lal thereupon gave a knife blow on the back of right thigh of Ram Lal. Thereafter all the three accused ran away.
(3) Ramesh Chand, brother of Ram Lal (P.W. 4) took the deceased to the Police Station Gandhi Nagar where the F.I.R. (Ex. Public Witness 5/A) was lodged by Ram Lal within about half an hour of the occurrence. His statement was recorded by S. 1. Kapur Singh [P.W. 5). From there Ram Lal was taker to the Irwin Hospital where he was admitted at about 9.30 p.m. There was profuse bleeding from his wound. Gangrene set in later resulting in the amputation of his right leg. He died at 5.45 p.m. on 17-6-1970. He had developed pneumonia as a result of toxaemia and septicaemia on account of the wound becoming infected; the amputation became necessary for this reason. Inspector Inder Lal Kapur (P.W. 8) arrested Madan Lal and Padam Lal on 18-6-1970 and Sham Lal on 30-6-1970. They denied their participation in the occurrence.
(4) Among the three eye witnesses Trilochan Singh was declared hostile at the request of the prosecution in the committing court and Ganesh Das was examined without even being examined by the committing court on the ground that he had been won over. The only eye witness who gave evidence against the accused in the comitting court was the brother of Ram Lal (deceased), Ramesh Chand (P. W. 4), but when he was examined in the trial court he went back on the statement he had made in the committing court. In the result, the statement made by him in the committing court was transferred to the record of the Sessions Court under section 288 Criminal Procedure Code . by the learned Addl. Sessions Judge after he was duly confronted with the various portions of his statement in the committing court which were contrary to the evidence given by him at the Sessions trial. According to his evidence before the Court of Sessions, Ramesh Chand (P.W. 4) and Clanesh Das were going towards the house of the deceased (Ram Lal) at about 8.30 p.m. on 8-6-1970, when they saw him lying injured with a stab wound on his back: in the open ground of a school in Block No. 10, Geeta Colony. He did not see any one causing injury to Ram Lal.
(5) The learned Addl. Sessions Judge passed a duly considered order on 7-10-1971 giving his reasons briefly for transferring the evidence of Ramesh Chand before the committing court to the record of the court of Session under section 288 Criminal Procedure Code ., a course which was stated to be highly desirable in Perivasami v. State of Madras : 1967CriLJ975 . It has not been urged before me that the necessary formalities and proper procedure had not been followed in the matter of transferring the said evidence under section 288 Criminal Procedure Code . All that has been stated before me is that the evidence so transferred under section 288 Criminal Procedure Code . is not reliable and that it should not be acted upon without corroboration. It is settled law that corroboration is necessary to act upon the testimony transferred under section 288 Criminal Procedure Code . and that the court should be satisfied about the truth and reliability of the statement so transferred under section 288 Criminal Procedure Code . vide Shairnappa Mutyappa Halke v. The State of Maharashtra : 4SCR589 . It was pointed out, however, in the said decision that where, even without such extrinsic support, the Judge of facts, after bearing in mind the intrinsic weakness of the evidence, in that two different statements on oath have been made, is satisfied that the evidence is true and can be safely relied upon, the Judge will be failing in his duty not to do so. in that reported case, however such satisfaction not being possible the Court did not act upon the evidence so transferred to the file of the Court of Session under section 288 Criminal Procedure Code .
(6) Before discussing the evidence thus transferred in the light of the testimony P. W. 4 gave before the Court of Session it is necessary to set out what the deceased himself has stated in the F.I.R. (Ex. P. W. 5/A). The official translation of the same, which is in Hindi, reads as follows :-
'Ireside at the address mentioned in column 2 and sell melons and fruits etc. on a Rehri. At about 8.30 p.m. while I was going to take tea at a tea shop situate in the Block No. 10, Geeta colony, after (displaying goods) on the Rehri, a taxi stopped on the road near the dispensary, and Sham Lal alias Mamoo son of Nihal Chand, Padam alias Jat and Kale got down there from. They came to me, abused me in the name of my sister, (the actual words being 'Behn chod') and asked me as to whether I would join them. Thereupon I told (them) that I had left pick-pocketing and that they should not harass me. Thereupon Padam and .Kale gave me slaps and fist blows in the first instance. Then both of them caught hold of me and exhorted Sham Lal to go ahead and not to wait (the actual words being-''Kar-De-Kaam Ko'). Thereupon Sham La] inflicted a knife blow (with the knife) which he was holding in his right hand on the back of my right thigh. As a result of that the. blood began to ooze from (the injury) and I fell down. In the meantime both my brother Ramesh and Ganesh Dass reached there. They shouted but all the three accused (persons) ran away. Ganesh Dass and my brother have brought me to the Police Station. I am feeling much pain. I may be got examined medically and action taken against them (the accused persons). I have heard the statement and the same is correct. Sd : Ram Lal (in Hindi).'
P. W. 4 admitted that he had taken the deceased to the Police Station immediately after which the F.I.R. was recorded.
(7) In the committing court Ramesh Chand had sworn that when he was going to the quarter of the deceased along with Ganesh Das a taxi stopped near the Dispensary when three persons, whose names he mentioned as Sham Lal alias Mamu, Padam Lal alias Jat and Madan Lal alias Kale, got down from the taxi. These persons were duly identified by him as the three accused who were then before the commiting court. He gave full details concerning the deceased having been caught hold of by Madan Lal and Padam Lal, their asking the deceased to accompany them for pick-pocketing, the deceased declined to do so on the ground that he had given up that business but was plying Rehri, Madan Lal and Padam Lal giving fist blows and exhorting Sham Lal that Ram Lal should be done away with. Sham Lal then gave a knife blow to his brother. Thereafter all the three accused ran away. He took the deceased, who had started bleeding, along with Ganesh Dass to Gandhi Nagar P. S. where he also joined him in lodging report (the expression used is 'we lodged a report'). Thereafter he took the injured to the Irwin Hospital along with a Constable and remained with his brother for all the days. He had referred to the presence of Tarlochan Singh also at the time of the occurrence. P. W. 4 (Ramesh Chand) himself was in jail at the time of his statement before the committing Magistrate in a case under section 307 1. P. C. ; he had been convicted under the Opium Act for seven days. He was also prosecuted in connection with theft of property. At this stage he volunteered a statement before the committing court itself that that theft case was foisted against him at the instance of Sham Lal because of enmity. He admitted that his nephews Khem Chand and Harish Chander also indulged in pick-pocketing. He denied the suggestion that the three accused were implicated falsely on account of enmity. Having made the above categorical statement he went back on the entire statement when examined in the Court of Session. When he was confronted with the various portions of his statement in the committing court he could only say that he could not remember whether he had made such a statement. Later he volunteered staling that he had given such a statement in the committing court as was tutored by the Police under threat.
(8) I am in agreement with the learned Additional Sessions Judge who has given detailed reasons for choosing to act upon the testimony given by P. W. 4 in the committing court in preference to what he had stated in the Court of Session. I can find no reason for thinking that the deceased falsely implicated the three accused. A suggestion was made to Public Witness 4 (denied by him) that he had himself caused the injury on the deceased in order to falsely implicate the accused. This seems to be an extreme suggestion for which there is no support whatever. It seems obvious that Public Witness 4 had been won over at the trial. His statement that he had not seen the occurrence is prima facie inconsistent with the statement which the deceased made in the F.I.R. Not only had the deceased referred to Public Witness 4's presence then but it was admitted by Public Witness 4 in the committing court that he had taken the injured to the Police Station when the F.I.R. was recorded. His version before the Court of Session is thus opposed to his own conduct and the F.I.R. having been lodged by the deceased in his presence. It seems obvious that what Public Witness 4 had stated before the committing court and what the deceased had himself stated in the F. I. R. was true.
(9) It was faintly argued that it was dark at the time of occurrence. and the identity of the accused could not be known. No such suggestion was put to Public Witness 4 when he was cross-examined in the comitting court. All the three accused were known to the deceased as well as Public Witness 4. The description of the accused was given by the deceased. as set out in the above translation coupled with the evidence of P.W. 4 transferred to the trial record under section 288 Criminal Procedure Code ., makes the identity of the appellants quite clear. It was summer (June) when the occurrence took place; the sun sets very late. There is no reason to think that either the deceased or Public Witness 4 was unable to identify the assailants. The report had been given very promptly at the Police Station, within about half an hour of the occurrence; there was no time for concoction. The parts played by the respective accused were also mentioned in the F.I.R. and this is a case where implicit reliance can be placed upon what the deceased had himself said at the time of lodging the F. I. R.
(10) The learned counsel for the appellants relied upon Gopal Singh and another v. The State of Madhya Pradesh : 1972CriLJ1045 , the headnote of which reads:
'Adying declaration which does not contain complete names and addresses of the persons charged with the offence, even though may help to establish their identity, is not of such a nature on which conviction can be based. It cannot be accepted without corroboration'.
(11) I am afraid that the headnote does not bring out accurately what appears to have been decided. That case ended in acquittal before the learned Additional Sessions Judge; the High Court had set aside the acquittal. The learned Additional Sessions Judge had rejected the dying declaration and the alleged statement said to have been made by the deceased to two prosecution witnesses. In the F.I.R. the identity of the accused had not been sufficiently indicated. The deceased had created a number of enemies for himself. There were other persons also of the same names and residing in the same village who were on inimical terms with the deceased. The shirt of one of the accused bearing blood stains was not seized on the day he was arrested but only later. There were other factual reasons which gave room for doubts and it was, thereforee, found that the interference with the order of acquittal was not justified.
(12) There could be a conviction upon the deceased's statement concerning the circumstances in which he was injured and the same resulted in his death. No dying declaration, as such, was formally recorded in this case. No questions have been put by either side regarding this aspect. This was obviously due to the deceased having lost a considerable amount of blood, he being surgically treated and the wound becoming sceptic and amputation having become necessary. The significance to be attached to what the deceased had mentioned in the F.I.R. which was given so promptly after the oceuirence could not be minimised. What the deceased had said in the F. I. R. is amply supported by the statement of P. W. 4, whose evidence was transferred to its file by the Court of Session under section 288 Criminal Procedure Code .
(13) A feeble argument was advanced before me that the F. I. R. could not be received in evidence under section 32 of the Evidence Act because it did not pertain to the circumstances of the occurrence resulting in his death. In support of this contention reliance was placed on the decision of the Supreme Court in Moti Singh v. The state of U. P. : 1964CriLJ727 . In that case it was not proved that death was the result of injuries sustained by him in the course of the incident. There being no such evidence in that case it was held that it was not proved that death was due to injuries received in the incident and Section 32(1) of the Evidence Act was, thereforee, not attracted. The decision of the Lahore High Court reported in Indian cases Vol. 126 (1930) 511(Wali Mohammad v. Emperor) is also or no assistance to the appellants. The onset of pneumonia, as a result of which the person died in that case, was not connected with the injuries inflicted on him at the time of the incident.
(14) In the result I hold that the prosecution has made out beyond reasonable doubt its case that Padam Lal and Madan Lal had caught hold of the deceased, gave fist blows and that Sham Lal had caused the injury on the right thigh of the deceased with a knife.
(15) The next question for consideration is what are the offences which have been committed in this case. Regarding the conviction of all the accused under Section 326/34 1. P. C., I do not think that in the circumstances any common intention to cause grievous injury to the deceased has been made out. The prosecution case only establishes that the accused wanted the deceased to join them once again in carrying on pick-pocketing activities. It was obviously not their common intention to inflict any grievous injury on him. There is nothing to suggest that Sham Lal took out the knife and caused injury on the back of the right thigh of the deceased as a result of or in pursuance of their common intention to cause hurt even with dangerous weapon. That could well have been, as it indeed seems to be, an act beyond their common intention, despite the statement that is attributed to Padam Lal and Madan Lal that he could do the work 'Kar-De-Kam-Ko' (go ahead and not wait). The above words have been employed by the deceased himself in the F. I. R.; this expression does not suggest beyond reasonable doubt that they wanted Sham Lal to even cause an injury with the knife to the deceased. There is nothing even to indicate that they knew he had a knife with him. The prosecution evidence in this case is not sufficiant to raise an inference that they shared even a common intention to cause hurt to him with a dangerous weapon. Nothing more than a common intention to cause hurt could, thereforee, be inferred against Padam Lal and Madan Lal. It is stated that they have been in jail for about 15 days after their conviction and that they were in jail for a period of nearly three months even before that i.e. until they were bailed out.
(16) In these circumstances the conviction of Padam Lal and Madan Lal is modified into one under Section 323/34 1. P. C. It seems to me that ends of justice would be served if action is taken under Section 4 of the Probation of Offenders Act, 1958. These two appellants are directed to execute a bond in the sum of Rs. 3,000.00 each with one surety each in the like amount to the satisfaction of the chief Judicial Magistrate to appear and receive the sentence when called upon to do so and in the meantime to keep peace and be of good behavior, for a period of two years from today. Time for executing the bond is given till 12-12-1972. On failure to execute such bond they will undergo R. 1. for one year the maximum permissible U/S 323 1. P. C.
(17) So far as Sham Lal is concerned it was urged that he could not be guilty of an offence other than one punishable under Section 324 Indian Penal Code . and that conviction under Section 326 Indian Penal Code . was not proper. It is unfortunate that the concerned doctors in this case have not been even fully questioned. Despite this deficiency it is clear from the death certificate issued by Dr. Tripta Gupta (P.W. 2) that the femoral artery was found to be divided into two at the level of the profunda. She had also given evidence about it during the trial. To a question put to her in cross-examination she stated that the operation of the deceased was not performed in her presence. It was urged, on this basis, that she could not have known about the femoral artery having been cut as stated by her in her chief-examination. This could have been clarified in re-examination by bringing out what she had stated in the death certificate which has been marked as Public Witness 2/A before the learned Additional Sessions Judge. But the mere fact that this was not put to her in re-examination does not in any manner belittle the weight to be attached to her testimony considering the artery having been cut when it is seen that she had herself issued the death certificate. It has been elicited from P. W. 2 (Dr. Tripta Gupta) that the cutting of the femoral artery would result in complete stoppage of blood supply to that part of the body and that if it was partially cut blood supply will be diminished. In addition to femoral artery if the sciatic nerve (It was also cut in this case) is cut partially this would result in sensation on that part of the body becoming diminished. The deceased had developed gangrene 5 days after his admission to the hospital. To prevent further infection amputation of the leg was considered necessary and decided upon on 15-6-1970.
(18) He died on 17-6-1970 at 5.45 p.m. inspire of efforts to revive him after there was cardio respiratory arrest. Public Witness 2 denied the suggestion that the complication due to infection set in only after the operation. She was positive that the same had intervened before the operation. In these circumstances pneumonia due to infection could not be attributed to the surgical treatment that was given. The autopsy was conducted by Dr. A. K. Ghosh (P. W. 1). The injury on the right thigh of the deceased was not on a vital part of the body and death was due to the deceased developing pneumonia as a result of injury on the back of his right thigh. The offence made out as against Sham Lal is one punishable under section 326 I. P. C.
(19) The deceased was and the accused Sham Lal is a young person. It seems to me that in the circumstances the sentence of 5 years may be somewhat excessive. The ends of justice would be met by reducing the sentence from five years to two years rigorous imprisonment. Sham Lal will be sent back to jail for undergoing the remaining period of sentence as reduced.
(20) Both the appeals fail subject to the modification of the convictions regarding Madan Lal and Padam Lal and sentences regarding all the three accused appellants.