1. Accused Mangilal, Madan, Birdha, Ganesh, Laxmi Narian, Bhagirath, Kanhaiyalal and Bherulal were tried by learned Sessions Judge, Kota, for offence under Sections 148, 302 and 302/149. I.P.C., in connection with the murder of Hira, on July 1, 1973, in village Raju Khera. Learned Sessions Judge, found all the accused cot guilty of the above charged, by his judgment dated February 8, 1974 and acquitted them.
2. Aggrieved by the judgment of acquittal, the State Government filed an application for leave to appeal against all the eight accused. The application came up for admission before a Division Bench of this Court, on October 21, 1974. The Court after hearing the Public Prosecutor, admitted the appeal against Mangilal, Madan, Ganesh, Laxmi Narain, Kanhaiyalal and Bherulal The application for leave to appeal submitted against Birdha and Bhagirath was rejected.
3. After arguing for some time learned Counsel, appearing on behalf of the State, lightly conceded that no case under Section 149, I.P.C., was made out against any of the accused-respondent and that he would not press the accused except one against accused Mangilal. We are accordingly concerned with the case of accused Mangilal in this appeal.
4. The facts, in brief, are that deceased Hira is alleged to have hold affairs with Mst. Dhapu PW 5. The deceased visited her intermittently. In the eight preceding the fateful date the deceased paid a visit on Mst. Dhapu. He passed the whole night in her company. In the early hours of the morning she suspected some foul play on the part of villagers She, therefore, asked her paramour to slip out stealthily. At about 8 or 9 a.m. on July 1, 1973, Hira was pursued by accused Mangilal and Ors. Accused Mangilal fired his gun as a result whereof the deceased sustained eight injuries detailed in the post mortem report, dated July 1, 1973 After making murderous attack on Hira, accused, Mangilal accompanied by other accused met PW 4 Devilal Accused Mangilal said in a tell-tale manner that Hira had already been murdered and that they should belabour Devilal also. In response to this call, besides Mangilal, Kanhaiyalal, Birdha, Ganesh and Ors. caused as may as seven injuries to Devilal as mentioned in the injury report prepared by Dr. Om Prakash Mantri. Hira injured hastened forward for rescue. He ultimately fell down near a tree in the field of Ram Pratap Meena. On hearing the gun shot sound PW 6 Bala and PW 7 Mehrab rushed towards the direction where from the sound emerged and ultimately reached the place where the injured was lying under a tree. They asked Hira as to who had caused him the gun-shot wound. In reply Hira stated that Mangilal had fired his gun at him and caused injuries to him. PW 6 Bala went to the Police Station and lodged first information report Ex. P/1. After registering the case under Section 307 I.P.C., the Investigating Officer reached she scene of the occurrence In between this period Hira was removed to the Hospital at Chechat. PW 13 Dr. Om Prakash clinically examined Hira. He noticed eight gun-shot wounds on different parts of his body. As Hira was found in semi conscious condition, his statement was recorded by the SHO His general condition being serious, his relatives were advised to take the patient to the District Hospital, Kota. On way Hira succumbed to his injuries. Next morning Hira's dead body was taken to Chechat. Autopsy on his dead body was performed by PW 13 Dr. Om Prakash, at 8.45 p.m. on July 2, 1973. In the opinion of the Doctor all the injuries, mentioned in the post mortem report, were anti-mortem and they were sufficient in the ordinary course of nature to cause death. On July 1, 1973, at 4.30 p.m. the same Doctor clinically examined Devilal, PW 4, and noticed the following injuries on his person:
1. Contusion 4 1/4 ''x 1 1/4' on fronto-lateral aspect of right side of chest on its upper half simple but referred to x-ray examination.
2. Multiple contusions two of large size:
(a) 5 1/2' x 1'
(b) 8 1/2' x 2'
on back of chest, simple injuries by blunt weapon.
3. Abrasion 3/4' x 3/4' on right scapular region simple and by blunt weapon.
4. Abrasion 1' x 1/2' placed on a contusion of size 2' x 1/2' on the back of right elbow joint. It was referred for x-ray examination.
5. Contusion 3' x 1/4' on the posto-medial aspect of left fore arm on its lower half simple injury by blunt weapon.
6. Contusion 3/8' x 3/8' on the back of left forearm on its upper half.
The duration of the injuries was within ten hours. Devilal was also referred for x-ray examination. On x-ray spectrum fracture of his ulna was detected.
5. The police, after usual investigation, submitted challan against the above named eight accused persons, who were eventually acquitted by learned Sessions Judge Hence this appeal.
6. Learned Counsel appearing on behalf of the State, has vehemently urged that there can be no dispute on the point that the person who caused injuries to Hira deceased intended to cause his death. In support of his submission he has placed reliance on the post-mortem report coupled with the statement of Dr. Om Prakash Mantri Mr. D.K. Soral, appearing on behalf of the respondents, quoted and relied upon the following portion of the statement of the Doctor:
If immediate medical aid would have been given to this patient he would have survived.
He then urged that none of the accused could be convicted under Section 302 I.P.C.
7. We find no merit in the argument of the learned Counsel for the respondents. The law on this point stands well settled. The first case on the point is Virsa Singh v. State of Punjab : 1958CriLJ818 A similar argument which has been advanced before us had been submitted to their Lordships of the Supreme Court, taking aid from the case of Emperor v. Sardar Khan AIR 1916 Bom 191 Their Lordships of the Supreme Court repelling the contention held that the Court in Sardar Khan's case (supra) wrongly' linked up the intent required with the seriousness of the injury and that the two matters were quite separate and distinct, though the evidence about them might some times overlap. The question was not whether the accused intended to inflict a serious injury or a trivial one, but whether he intended to inflict the injury that was proved to be present If he could show that he did not, or if the totality of the circumstances justified such an inference, then, of coarse, the intent that the section required was not proved. But if there was nothing beyond the injury and the fact that the accused inflicted it the only possible inference was that he intended to inflict it. Whether he had known of its seriousness, or had intended serious consequences, was of no importance. Whether the injury was serious or otherwise and if serious, how serious, was a totally separate and distinct question and had nothing to do with the question whether the accused in ended to inflict the injury in question. In the same case their Lordships further observed that the prosecution in the first place was required to establish objectively that a bodily injury had been accused. Secondly, the nature of the injury must be proved. Thirdly, is must be proved that there was an intention to inflict that particular bodily injury, that is to say, it was not accidental or unintentional, Once these three elements were proved to be present, the enquiry proceeded further and, fourthly, it must be proved that the injury of the type, just described, made up of the three elements set out above, was sufficient to cause death in the ordinary course of nature. The fourth part of the enquiry was purely objective and inferential and had nothing to do with the intention of the offender. Once these four elements were established by the prosecution the offence was murder under Section 300 'thirdly'. In the case on hand all the four elements required to be proved have been established by the prosecution. Dr. Om Prakash Mantri has categorically stated that all the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death.
8. Virsa Singh's case (supra) was followed by their Lordships of the Supreme Court in Anda and Ors. v. The State of Rajasthan : 1966CriLJ171 and State of Andhra Pradesh v. Rayavarapu Punnayya and Anr. : 1977CriLJ1 . Lord Goddard in Rule v. Stence 1947 1 All ER 816 observed:
No doubt, if the prosecution proves an act the natural consequence of which would be a certain result and no evidence or explanation is given, then a Jury may, on a proper direction, find that the prisoner is guilty of doing the act with the intent alleged.
9. On the above analysis of the facts and law we reach the conclusion that the person, who inflicted injury on Hira, intended to cause his death or at any rate, caused the injury, which was found sufficient in the ordinary course of nature to cause death.
10. Now remains the vital question as to whether the accused Mangi Lal can be held responsible for committing the murder of Hira. The entire evidence led by the prosecution in this case can be classified under the following heads:
(1) Dying declaration,
(2) Extra Judicial Confession
(3) Statement of the eye-witnesses, and
(4) Circumstantial evidence, corrpborating the above evidence.
11. PW 6 Bala is the author of the first information report. He stated that in the morning of the calamitous day he was sitting outside his house. He heared report of the gun-fire and rushed towards the direction from which the sound echoed. He found Hira lying under a Khajcor' tree. He was also accomplanied by PW 7 Mehrab. The witness then states that on his asking Hira, the latter, told him that Mangilal had caused the injuries by firing his gan at him. To the fame effect is the statement of PW 7 Mehrab. No doubt, PW 6 Bala stated that at first he reached the spot and thereafter Mehrab appeared on the scene of the occurrence, where his brother was lying. Mehrab in cross-examination stated that the deceased disclosed the names of his assailants and responded to the question asked by him and not by Bala Such a discrepancy in the statements of the two witnesses is of no consequence. It is of no importance whether Mehrab first asked the question or whether it was Bala who made a query regarding the name of the assailant. The paint worth consideration is whether the deceased, in fact, gave the name of the assailant or not
12. The statements of the above two witnesses stand corroborated by the fir t information report given by PW 6 Bala. The relevant portion of that report is as under:
eSus ghjk ls iwNk fd rsjs fdlus nh rks mlus dgk fd ekaxhyky us nh eSus mldh pksVs ns[kh isV es uhu txg [kqu fudy jgk gS A
This oral dying declaration made by the deceased immediately after the occurrence does cot suffer from any infirmity. Learned Sessions Judge magnified a trifling matter and made a mountain out of a mole-hill. He based the entire reasoning for rejecting the dying declaration on a very minor contradiction in the statements of PW 6 Bala and PW 7 Mehrab. He failed to notice crucial fact that the name of Mangilal accused as the assailant had appeared in the first information report, recorded within two hours of the actual occurrrnce and the fact of the deceased making a dying declaration to him had also been mentioned therein
13. A dying declaration cannot be equated with the statement of an accomplice No doubt, dying declaration has to be subjected to close scrutiny keeping in view the fact that the statement has been made in the absence of the accused However once the court cornea to the conclusion that the dying declaration is a truthful version as to the circumstances of the case and the as ailant of the victim, there is no question of further corroboration. Reference may be made to Khusal Rao v. State of Bombay : 1958CriLJ106 . It has also been observed by the Supreme Court in Jaswant Singh v. State : 1978CriLJ1869 , that if the court is satisfied that the dying declaration recorded by the Sub-Inspector of Police, is truthful, it is open to it to convict the accused on its basis without any independent corrcboration. Again in v. More v. State of Maharashtra : 1978CriLJ644 their Lordships of the Supreme Court held that:
If the truthfulness of a dying declaration is accepted, it can always form the basis of conviction of the accused.
14. The prosecution case as far Mangilal is concerned, is throughout consistent. Both the above noted witnesses PW 6 Bala and PW 7 Mehrab have stated that the deceased in unequivocal words had stated before them that the accused fired a gun-shot at him. We accordingly hold that the oral dying declaration which was later on reduced into writing in the first information report is truthful and convincing It further stands corroborated with Ex. P/6 which is a second dying declaration. The latter dying declaration was proved by the statement of PW 12 Ram Narain. This dying declaration was reduced into writing at a later stage. It contains a detailed version of the entire incident. In this dying declaration also the deceased had stated that Mangilal fired gun-shots at him and this dying declaration could certainly be read as a corroborative piece of oral dying declaration discussed above.
15. Besides the dying declaration, there is an extra judicial confession made by the accused Mangilal just after the occurrence. PW 4 Devilal stated that just after causing injuries to Hira, he met the accused on the way Having seen him Mangilal told his associates that Hira had already been done to death and they would then deal with Devilal. Saying this, they inflicted a number of blows on the person of PW 4 Devilal. This witness was clinically examined on July 1, 1973 i.e. on the very day of the occurrence by PW 13 Dr. Om Prakash Mantri at 4 30 pm. After examination the Doctor noticed six injuries on his person. One of the injuries was grievous In the opinion of the Doctor the injuries sustained by Devilal were of ten hours' duration. Thus, the statement of this witness finds corroboration in material particulars by the injury report, read with the statement of PW 13 Dr. Om Prakash. The presence of the injuries on the person of this witness lays further assurance to the prosecution case and there is no reason why this witness should specifically name Mangilal as the assailant of the deceased specially when Mangilal had not caused grievous hurt to him. This witness has been cross-examined at leegth. Nothing has appeared in his statement on the basis of which the veracity of his statement could be challenged. The Doctor Incharge of the Hospital, Chechat, noticed that the injuries sustained by this witness were of serious nature. As such under the advice of the concerned Doctor he was admitted as an indoor-patient to the Hospital at Kota, where he remained unconscious for some time and had to remain there as an indoor patient for 8 days. In such circumstances, it was most natural for the investigating officer to examine him after the witness was discharged from the Hospital at Kota and thus the delay in the examination of this witness by the police in the course of the investigation has reasonably been explained. Learned Counsel appearing on behalf of the accused in the lower court was conscious of this fact and that is why he did nod put any question to the investigating officer regarding the delayed examination of this witness. Learned Sessions Judge has not cared to give due importance to the extra-judicial confession made by the accused. We have thoroughtly scrutinised the statement of PW 4 Devilal and we are satisfied that the extra judicial confession made by the accused before this witness was truthful and therefore, such a statement can well be relied upon. The evidence of extra judicial confession made by an accused to a witness cannot be termed to be a tain ed evidence. If the court believes the witness before whom the confession is made and it is satisfied that confession was voluntary, a conviction can safely be founded on such evidence alone Reference in this connection may be made to Maghar Singh v. State of Rajasthan : 1978CriLJ644 . Corroboration of an extra-judicial confession is generally sought as a matter of abundant caution, hough it is not the requirement of law. In the case on hand the extra judicial confession stands corroborated by the dying declaration itself as well as other evidence, which we have dealt with above.
16. Three witnesses PW.1 Laxmi Narain, PW 3 Kana and PW 10 Bheru have been examined by the prosecution as eye-witnesses of the occurrence. Learned Sessions Judge has wrongly rejected their testimony on the basis of some miner contradictions appearing in their statements. That apart, the evidence of dying declaration the extra judicial confession, corroborated by the medical evidence, as well as the strong evidence of motive, proved by the statement of PW 5 Mst. Dhapu, are sufficient to hold accused Mangilal guilty for the offence punishable under Section 302, It is an appeal against acquittal and as such we do not consider it safe to reverse the finding of fact arrived at regarding other accused. We give them benefit of doubt.
17. The net result of the above discussion is that the State appeal partly succeeds. The judgment of the trial Court dated February 28, 1974 acquitting accused Mangilal is set aside. He is convicted under Section 302 I.P.C.
18. Learned Counsel appearing on behalf of accused-respondent Mangilal was also heard on the point of sentence. In the facts and circumstances of the case we are of the opinion that it would meet the ends of justice if the accused is sentenced to imprisonment for life. The acquittal of the rest of she accused is maintained. Accused-respondent Mangilal is on bail. The trial Court will issue warrant of arrest and after his arrest send him to jail to undergo the term of imprisonment awarded by this Court.