G.R. Luthra, J.
(1) Mange Ram appellant was charged with the commission of offence of committing murder on the night between August 2 and 3 1979 of Dewan Chand, punishable under Section 302 Indian Penal Code and was sentenced to undergo imprisonment for life by an Additional Sessions Judge (Shri R.D. Aggarwal) by means of judgment dated May 24, 1980. The present appeal is directed against the said conviction and sentence.
(2) The version of the prosecution, briefly stated, is as follows. Ram Nath (Public Witness 3) is the owner of shop No. 90 at Rajpura Quarters Gurmandi, Delhi. He purchased the said shop from Mansa Ram a year or so before the murder of Diwan Chand. Previously Mansa Ram used to do confectionary business in the said shop and after he had sold it off to Ram Nath the said shop was let out by Ram Nath to Diwan Chand, now deceased, who was carrying on business of confectionary.
(3) Mange Ram appellant is a notorious bad character of the locality. He had some dispute with Mansa Ram in respect of the aforesaid shop. After the sale of shop and taking possession by Diwan Chand, Mange Ram appellant told the former that the former should either vacate the shop or pay a sum of Rs. 1000.00 otherwise latter would come to grief.
(4) On the night intervening August 2 & 3, 1979 Diwan Chand was sleeping on a cot in the open outside his shop. Mange Ram appellant came at about 1.15 A.M. (August 3, 1979) and by pointing out an open knife directed Diwan Chand to accompany the former. Diwan Chand was wearing only a small Lungee up to the knees and was not wearing anything else on the body. Out of fear Diwan Chand started silently accompanying Mange Ram. Mange Ram in that manner took Diwan Chand towards Ganda Nala (drain) on the road side via Gurmandi All the time Mange Ram was holding Diwan Chand by the left hand of the latter and was showing knife held in right hand. When Mange Ram and Diwan Chand approached the road near a drain the former gave two successive knife blows on the abdomen of latter Diwan Chand cried 'Bachao' and could not utter more on account of pain and fear. He fell down be smeared with blood in a lane by the side of House No. A37 Gurmandi Delhi. In the front row of house No. A37 Gurmandi is house No. A31. That house No. A31 was in occupation of Dhirender Kumar (Public Witness 2) who on the relevant night between August 2 and 3, 1979 went to sleep in the courtyard of the said house at I A.M. His parents were already sleeping outside the room on cots. Dhirender Kumar had hardly slept when he heard some voices of conversation. He got up and went outside. He saw that the cots where his parents were sleeping were lying empty. He went slightly further and found in front of House No. 37 Gurmandi a person fallen on the ground in semi-naked condition in a pool of blood crying 'Hai 'Hai'. Dhirender Kumar Public Witness 2 went to House No. A. 17, of Shri Chopra from where he gave a telephone call from telephone No. 712846 to the Police control room. The police control room transmitted that information to the Police Station Kingsway Camp. That information was received by Shri Krishan Kumar head constable (Public Witness 7) who was working as duty officer. The information was to the effect that one Dhirender Kumar had intimated the Police control room that near house No. A37 Gurmandi near Ganda Nala one person was lying in an injured condition having received injuries by knife. That information was recorded in daily diary at Seriall No. 21 and S.I. Rameshpal Singh (Public Witness 22) was entrusted with the investigation. Copy of daily diary entry is Public Witness 7/A.
(5) On receipt of information by the Police control room Delhi A.S.I. Shri Ram (Public Witness 13) who was posted in one of the control room vans, went to the spot and found Diwan Chand lying there in injured condition and bleeding. Diwan Chand was removed in that Police van to Hindu Rao Hospital where said A.S.I, reached at 2.12 Am on August 3, 1979.
(6) S.L. Ramesh Pal Singh (Public Witness 22) reached at the place of occurrence at about 2.05 Am on August 3, 1979. He was told that the injured Diwan Chand, in an unconscious state, was removed to Hindu Rao Hospital by the police control room van. No eye witness of the occurrence happened to be present at the spot. S.I. Ramesh Pal Singh deputed Ram Kishan constable to guard the spot. He then went to Hindu Rao Hospital He wanted to record the statement of Diwan Chand. He approached Dr. M.D.Aggarwal for inquiring if Diwan Chand was in a fit condition to make the statement. Dr. Aggarwal gave a certificate Ex. Public Witness 6/A to the effect that Diwan Chand was not fit to make a statement as he was in shock. Then Ramesh Pal Singh went to the spot at 3 A.M.
(7) He sent a report to the Police station on the basis of which formal First Information Report was recorded. In that first information report only thing recorded was as to how and in what condition Diwan Chand was found on the spot and that there was thus commission of offence punishable under Section 307 Indian Penal Code. At 5 A.M. Babu Ram (Public Witness 15) and Kuldip Kumar (Public Witness 18) met him. Those Public Witness 15 and Public Witness 18, as they told, were the eye witnesses of the occurrence.
(8) In the hospital Diwan Chand was first of all medically examined by Dr. Mrs. Asham Gulati (Public Witness 6) who was then working as casualty medical officer. On examination she found that Diwan Chand was fully conscious and had the following injuries : - '1. Incised wound 1' inch in size on the left para umbilical area with the soft tissues protruding out of it. 2. Another incised wound I' in size about 3' below the umbilicus systematic : No. abnormality deducted. After giving some treatment she referred Diwan Chand toC.M.O.on duty who at that time was Dr. M.D. Aggarwal (.PW 8). On examination Dr. Aggarwal found the following injuries on the person of Diwan Chand :-- '1. One incised wound in left Para umbilical area about 3 inches lateral to umbilicalous. It was I inch into half inch in size. Omentem coming out of the wound. 2. Incised wound two inches below and one inch lateral to ambiguous on right side and 1' inch deep up to the paritonium.' An urgent operation was done sometime in between 5 A.M. and 9 A.M. After about six hours of the operation Diwan Chand became conscious and was allowed to meet his attendants and relatives. Ram Nath (Public Witness 3) who as already staled is landlord of the shop occupied by Diwan Chand, met the latter in the hospital and the latter told the former that the latter was sleeping in the shop, that he was awakened by Mange Ram and taken to a place near about Ganda Nala where he (Diwan Chand) was stabbed with knife.
(9) On August 4, 1949 between 7 to 7.30 P.M. Ramesh Pal Singh recorded statement under Section 161 Code of Criminal Procedure of Diwan Chand. Diwan Chand supported the entire prosecution version regarding the occurrence. Shri Ramesh Pal Singh did not record dying declaration of Diwan Chand under the impression that Diwan Chand was recovering and was not in serious condition.
(10) After the operation Diwan Chand was recovering well and was maintaining his blood pressure. On August 7, 1979 he was referred to a physician but ultimately he breathed his last on August 8, 1979 at 4.20 P.M.
(11) On August 9, 1979 at about I P.M. Dr. Bharat Singh (Public Witness 16), Police Surgeon in the police hospital, conducted post-mortem examination on the dead body of Diwan Chand and found the following injuries on the body of the latter:- 1. One stitched wound over the front of abdomen on right paramedian line, 6 inches long. 2. One infected gaping wound over the left side of abdomen 2 inches left to the umbilicus. Size of the wound was 1'' into /'' abdominal cavity deep. Margins were eroded and infected. 3. One infected gaping wound over the right iliac fossa size '' into ' into abdominal cavity deep. 4. One infected gaping wounds over the right iliac fossa 2' inches below umblicious. Size of wound '' into ' into abdominal cavity deep. Dr. Bharat Singh also found that there were number of places, including intestines, inside the abdomen which were stitched. According to Dr.,Bharat Singh injuries Nos. 2 & 4 were stab ones while others were operational. He expressed an opinion that injury No. 2 was sufficient to cause death in the ordinary course of nature.
(12) On August 13, Mange Ram surrendered in court and was arrested. Si Ramesh Pal Singh obtained judicial remand of Mange Ram and on August 16, 1979 he made an application Ex. Public Witness 19/A for holding identification parade in respect of identifying of the appellant by Bubu Ram and Kuldip, eye witnesses. Identification parade was fixed to be held at Central. Jail on August 18, 1979. The aforesaid eye witnesses were taken to Jail on August 18, 1979 but the appellant refused to join identification parade on the ground that his photographs had been shown to the witnesses by the Police. Statement of Mange Ram refusing to join identification parade and the reasons thereforee were recorded by Shri Rakesh Kumar Metropolitan Magistrate (PW 19).
(13) Mange Ram denied entire prosecution version. He denied t that he had stabbed Diwan Chand with knife. He admitted that he refused to join identification parade. He pleaded that he was innocent.
(14) According to the version of the prosecution Kuldip Kumar Public Witness 18 and Babu Ram Public Witness 5 were eye witnesses to the occurrence but they did not support the prosecution and denied that they had seen anything.
(15) The only evidence supporting entire prosecution version which has come on record is the statement of Diwan Chand originally recorded under Section 161 of the Code of Criminal Procedure which became dying declaration under Section 32 of the Evidence Act after the death of Diwan Chand. That statement is Ex. Public Witness 22/B and was corded on 4th August 1979 by Ramesh Pal Singh Public Witness 22 who stated that he did record the said statement. On cross-examination Public Witness 22 told the time of recording of that statement as 7 or 7.30 P.M. In that statement Diwan Chand narrated the entire occurrence and fully described as to how he was forcibly taken from his shop to a lane near house No. A.37 Gurmandi where he was stabbed by a knife twice by Mange Ram. Diwan Chand also told that Mange Ram was notorious bad character of the area.
(16) The aforesaid statement regarding motive of the crime finds support from the testimony of Ram Nath Public Witness 3. According to Ram Nath he was told by Diwan Chand once or twice that Mange Ram used to threaten Diwan Chand and asked him (Diwan Chand.) to pay him a sum of Rs. 1000.00 or vacate the shop. Ram Nath also supported version of the prosecution to the effect that Diwan Chand was a tenant under the former in a shop and that latter was carrying on confectionary business. Ram Nath explained that Mange Ram was interested in the shop because he had Some dispute with Mansa Ram and that is why Mansa Ram had to sell to him (Ram Nath).
(17) Ram Nath also stated that when he met Diwan Chand in the hospital, when latter regained consciousness, latter told as to how latter was forcibly taken and stabbed by Mange Ram on account of enmity over the shop. This was thus the dying declaration made on August 3, 1979 by Diwan Chand.
(18) The learned counsel for the appellant contended that the statement of Diwan Chand under Section 161 Criminal Procedure Code . even if it were treated as dying declaration could not be basis for conviction because there was no guarantee that that statement was actually made to Ramesh Pal Singh and if made was not influenced by the outcome of the investigation by the police and statements of alleged eye witnesses Kuldip and Babu. The learned counsel also pointed out that according to the statement of Dr. Aggarwal Diwan Chand on regaining consciousness after the operation on August 4, 1979 was allowed to meet his attendants and relatives and that under these circumstances the dying declaration could be influenced by his relatives and thus hardly had any evidentiary value. The learned counsel relied upon a judgment of Supreme Court in Balak Ram and another v. State of U.P. : 1974CriLJ1486 relevant observations of which are in para 55 which read as under:- 'Quite apart from this consideration, the dying declaration can have hardly any evidentiary value because Trebeni Sahai was in the midst of friends and admirers right since the time of the incident until the dying declaration was recorded, Dharam Pal was in his constant company and it is not unlikely that names of political opponents like Balak Ram, Dr. Kohli and Banney Khan were freely bandied about. The dying declaration could then be naturally influenced by the opinion and inferences of close friends like Dharam Pai.' The learned counsel also relied upon a judgment of Supreme Court in K. Ramchandra Reddy and another v. Public Prosecutor, : 1976CriLJ1548 which lays down that the courts have to apply strictest scrutiny and closest circumspection to dying declaration, before acting upon the same, that great sanctity is to be attached to the words of dying man yet the court has to be on the guard against statement of the deceased being the result of either tutoring, prompting or a product of his imagination. Reliance further is on a judgment of the Supreme Court in Bakshish Singh v. The State of Punjab : 1957CriLJ1459 in which it was held that a long statement made by a deceased as dying declaration did not seem to be genuine and appeared to be prompted and that thereforee, same could not be relied upon.
(19) According to the learned counsel for the appellant Ram Nath could not be relied upon firstly because the prosecutor himself found him to be unworthy of faith and thereforee, he, with the permission of the court, put such questions as could be asked in cross examination and that it was in reply to the questions in the nature of cross-examination that the said witness told about the dying declaration of Diwan Chand before him : and secondly because Mansa Ram and he were against Mange Ram and had even got a criminal case under Section 452 registered against Mange Ram which was ultimately cancelled.
(20) It is true that a dying declaration should not be readily acted upon and it must be scrutinised. It is also true that in the present case if Ramesh Pal Singh S.I. wanted he would have got the dying declaration recorded through a Magistrate so as to give it more authenticity. But in the present case there is good Explanationn as to why the method of getting statement of Diwan Chand recorded by a Magistrate was not resorted to. Ramesh Pal Singh on cross-examination states that he was under an impression that the condition of Diwan Chand was not serious so as to call for recording his dying declaration. He also stated that he did not secure presence of any other respectable person and did not think of getting the dying declaration recorded by a Magistrate because he could not contemplate that Diwan Chand would die. Diwan Chand also seemed to be under an impression that he had survived the onslaught. That is why he used the word 'Bach Gaya' in his statement Ex. Public Witness 22/B (now dying declaration) recorded by S.I. Ramesh Pal Singh. thereforee, omission on his part to get statement of Diwan Chand recorded by a Magistrate or recording his statement in presence of some respectable person does not cast any doubt about actual recording of the statement. thereforee, we are convinced that the statement of Diwan Chand recorded by Public Witness 22 is faithful and true version of what was actually stated by the former.
(21) There is also no reason to disbelieve the statement of Diwan Chand for the reason that after Diwan Chand regained consciousness after the operation he was allowed to meet his friends and relatives because there is hardly any justification to infer that any of his relatives met him or influenced him to make statement which he did. This is not a case of involving a number of accused where some persons could have been wrongly named. There could not be any reason on the part of Diwan Chand to wrongly name Mange Ram and allow the real culprit to go scot free. The Supreme Court authority : 1974CriLJ1486 has no application in the present case because in that case large number of relatives and political admirers had collected with the deceased and there was every possibility of his having been prompted to name some political opponents as culprits.
(22) Our view, in the present case, finds support from a judgment of Supreme Court in Ramawati Devi v. State of Bihar : 1983CriLJ221 . In that case no proper dying declaration was recorded and only a statement under section 161 Criminal Procedure Code . was recorded which was subsequently treated as dying declaration. Following was held :- 'A statement, written or oral, made by a person who is dead as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question, becomes admissible under Section 32 of the Evidence Act. Such statement made by the deceased is commonly termed as dying declaration. There is no requirement of law that such a statement must necessarily be made to a Magistrate. What evidentiary value or weight has to be attached to such statement, must necessarily depend on the facts and circumstances of each particular case. In a proper case, it may be permissible to convict a person only on the basis of a dying declaration in the light of the facts and circumstances of the case. In the instant case, the dying declaration has been properly proved. It is significant to note that in the course of cross-examination of the witness proving the dying declaration, no questions were put as to the state of health of the deceased and no suggestion was made that the deceased was not in a fit state of health to make any such statement.'
(23) It is also proved that Diwan Chand was in a fit state of health to make any statement. In the present case there is positive evidence of Dr. M.D. Aggarwal Public Witness 8 that Diwan Chand was conscious after about six hours of the operation and that according to the routine practice he was allowed to meet the attendants in the ward.
(24) Even if we disbelieve Ram Nath it does not ultimately effect the outcome of the case. We have already observed above that there is no doubt that the statement of Diwan Chand was actually recorded and that there was no motive on the part of Diwan Chand to have falsely implicated Mange . Ram. But apart from that we are of the view that there is hardly any good reason to disbelieve Ram Nath. The mere fact that the prosecutor was allowed to put such questions as can be asked in cross examination does not mean that the statement of the witness is washed off or is not worthy of reliance. It has come in the statement of Ram Nath that Mange Ram appellant is a history teacher. That statement finds corporation from the statement of Mange Ram appellant before Shri Rakesh Kumar, Metropolitan Magistrate when the appellant refused to participate in the identification parade. The appellant stated that the Police was in possession of his photo- graphs which had been shown to witnesses. It is a matter of common knowledge that photographs of history teachers or the ones under surveillance of police are kept by the police. When Mange Ram was such a bad character obviously Ram Nath must be fearing Mange Ram and might at the first flush have thought not to give statement against the latter but when he was subjected to cross-examination by the prosecutor it became impossible for him to keep back truth. thereforee, we are of the view that Ram Nath should be believed in these circumstances.
(25) The mere fact that Ram Nath was one of the persons who had lodged report under Section 452 Indian Penal Code against Mange Ram is no ground for discarding statement of Ram Nath as not trustworthy. There can be possibility that the aforesaid complaint was true but evidence to substantiate the same was not forthcoming for fear of Mange Ram and thereforee, case had to be cancelled. Hence it cannot be said that that report was necessarily wrong or false.
(26) It clearly appears that it was on account of fear of Mange Ram and risk to the life that Babu Ram and Kuldip did not support the pro-section.
(27) There is thus no doubt that the appellant had committed an offence punishable under Section 302 Indian Penal Code The appellant gave intentional injuries on the abdomen of Diwan Chand. Abdomen is vital part and it can be easily inferred that intention of the appellant was to cause death. In this way the case is covered by clause 'firstly' of definition of the word 'murder' as given in Section 300 Indian Penal Code Case is also covered by clause 3rdly of the said definition which says that culpable homicide is murder if the act by which death is caused is done with the intention of causing bodily injury to any person and bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. In the present case obviously injuries inflicted on the abdomen of Diwan Chand were intentional. We have already mentioned as to the nature and extent of injuries found by different doctors on medical examination. Dr. Bharat Singh Public Witness 16, as already stated, conducted postmortem examination and that he expressed an opinion that injury No. 2 was sufficient to cause death in the ordinary course of nature. Hence the act of the appellant in causing bodily injury No. 2, mentioned in the post mortem report, and the statement of Dr. Bharat Singh amounted to murder of Diwan Chand punishable under Section 302 Indian Penal Code.
(28) We, thereforee, find no force in the appeal and dismiss the same. Conviction and sentence is maintained.