S.S. Byas, J.
1. By his judgment dated April 26, 1977 the learned Sessions Judge, Jodhpur convicted the accused Anant Ram Under Sections 304, Part Iand 450, IPC and sentenced him to ten years' rigorous imprisonment on the first and five years' like imprisonmnent on the second count. Both the sentences were directed to run concurrently. The accused has comeup in appeal to challenge his conviction and sentence.
2. Briefly recalled, the fact and circumstances leading to the prosecution and conviction of the accused are that the deceased-victim Smt. Manjula was the wife of PW 1 Gokul Prasad. Gokul Prasad was employed in the Fire-brigade Unit of the Municipal Council, Jodhpur. The accused was also employed there in the same unit. The accused picked up friendship with Gokul Prasad and started visiting his house. Gokul Prasad started treating the accused his younger brother. At the relevent time in June, 1976 Gokul Prasad was living with his wife and children in Pratap Nagar Colony, Jodhpur. On June 17, 1976, Gokul Prasad left the house and went on duty to Siwanchi Gate, Jodhpur, at about 1.00 P.M. on that day the deceased-victim Manjula was sleeping on the floor of a room in her house along with her three minor children, none above the age of six years. All of a sudden she felt pressure on her chest and neck. She got awake and saw the accused on her chest. He wanted to take liberty with her which she resisted. The accused then pressed her neck and struck blows with a knife on her abdomen and lower parts. There was profuse bleeding from her wounds and the clothes she was wearing got-drenched with it. A few moments later, PW 3 Ku. Sharmila d/o PW 4 Smt. Meera, whose house is situate nearby, came there where Manjula was lying. She saw the victim in a pool of blood. Smt. Manjula told her what had happened with her. Ku. Sharmila went to her mother PW 4 Smt. Meera and apprised her of the situation. PW 2 Subash, who is the son of Smt. Meera (PW 4) was immediately sent to Gokul Prasad (PW 1). Gokul Prasad came to his house and saw Smt. Manjula lying on the floor of the room. She apprised him of the incident. Gokul Prasad immediately took her in a three-wheeler auto-rickshaw to M.G. Hospital, Jodhpur. She was admitted therein for treatment. It was then near about 4.00 P.M. At about 4.30 P.M., the Police Station, Soorsagar was informed on telephone about the injured condition of the victim and her being admitted in the hospital for treatment. The Station House Officer Pepsingh (PW 9) immediately reached the hospital at about 5.00 P.M. Smt. Manjula was then unconscious. She regained consciousness at about 7.00 P.M. The SHO Pepsingb recorded her statement Ex. P 1 in which she narrated the whole incident. The police treated Ex. P 1 as the First Infomation Report and registered a case thereunder. The victim's injuries were examined at about 3.40 P.M. on June 17, 1976 by the Medical Jurist Dr. R.K. Gehlot (PW 5). He noticed the following injuries on her person:
(1) Incised wound 1.5 cm. x 0.5 cm. and muscle deep 5.00 cm. to the left of umblious vertically placed
(2) Incised wound 1.5 cm. x 0.5 cm. x skin deep about 4 cm. below and lateral to injury No. 1 obliquely placed
(3) Abrasion 1 0 cm. x 0.5 cm. in the mid-line of neck just below the thyroid cartilage
(4) Bruise 4.0 cm. x 1.6 cm. on the middle of the neck just above the thyroid cartilage
(5) There was incised wound 'V' shaped, the lateral part was larger.
It was Situated just lateral to left labia majora in the upper 2/3rd region. The medial limb was measuring 4.5 cm. x 0.8 cm. and the lateral limb was measuring 5.7 cm. x 1.0 cm. The injury was bone deep.
Injuries No. 1,2 and 5 were opined to have been caused by some sharp edged Weapon while the remaining two by some blunt object. Injury No. 5 was designated as grievous and also as dangerous to life. On X-ray examination it revealed that there was fracture of left public bone.The report issued by him is Ex.P 7. The Investigating Officer visited the site and prepared the site plan, He also seized and sealed the blood stained clothes of the victim. The accused was arrested on June 18, 1976 vide arrest memo Ex- P 28. On June 20, 1976 the accused, whilst under police custody, gave information recorded in Ex. P 21 disclosing his desire to get the knife recovered. In consequence of the said information, knife was recovered from his house at his instance. It was seized and sealed. Despite surgical operation and medical treatment, Smt. Manjula did not survive and passed away in the night between 26th and 27th June, 1976 in the hospital. Section 302, IPC was added during the investigation. The autopsy of the victim's dead-body was conduced on June 27, 1976 by the Medical Jurist Dr. Prakash Dayal (PW 6). He noticed the following injuries:
(1) Bruise with abrasion 4 cm x 1 cm on the anterior aspect of neck in the thyroid region
(2) A stitched wound 1.5 c.m. long on the abdomen on right side 5 c.m. from the mid line at the level of umblicus. It was muscle deep
(3) Stitched wound 1.5 c.m. long on the abdomen 2 cm. from the mid-line and below injury No. 2
(4} Stitched wound 'V' shaped on the left side of the middle of levia. The peritonous had been perforating and there was peritenitis with black pigmentation, present in the pelvis and on the small intestines.
3. In the opinion of Dr. Prakash Dayal, the cause of death of the victim was shock as a result of peritenitis. The peritenitis was the result of injury No. 4. Injury No. 4, according to him, was sufficient in the ordinary course of nature to cause the death. The post mortem report issued by him is Ex. P 10. The blood stained clothes and the knife were sent for chemical examination. Human blood was detected on all of them. On the completion of investigation, the police submitted a challan against the accused in the Court of Additional Munsif and Judicial Magistrate (1), Jodhpur, who in his turn committed the case for trial to the Court of Sessions. The learned Sessions Judge framed charges under Sections 302 and 450, IPC against the accused, to which he pleaded not guilty and demanded the trial. Denying the whole prosecution Story as a false and fabricated piece of concoction. He claimed absolute innocence and alleged that he was in another village on the day of incident. In support of its case the prosecution examined 15 witnesses and filed some documents. In defence, the accused examined two witnesses to make out a plea of alibi. On the conclusion of trial, the learned Sessions Judge found no merit or turth in the defence of alibi put forward by the accused. He further held that Smt. Manjula was done to death by the accused. However, the offence made out was taken to be that Under Section 304 Part I instead of Section 302, IPC. The accused was consequently convicted under Sections 304 Part I and 450, IPC and was sentenced as mentioned at the very out set. Aggrieved against his conviction and sentence, the accused has taken this appeal.
4. I have heared Shri M.M. Singhvi, learned Counsel appearing for the appellant and Shri L.S. Udawat, learned Public Prosecutor. I have also gone through the case file carefully.
5. Mr. Singhvi did not challenge the cause of death of the deceased victim Smt. Manjula. I have also gone through the post mortem report Ex. P 10 as well as the statement of Dr. Prakash Dayal (PW 6) and find no good and cogent reasons to distrust his opinion regarding the cause of death of the victim. It, therefore, stands proved and there is no dispute about it that the death of Smt. Manjula was not natural but homicide, in nature.
6. Before proceeding further, it may be pointed out that there is no eye witness of the occurrence. The prosecution case entirely hinges on the circumstantial evidence which is of the following sets:
(1) the dying declarations;
(2) the extra judicial confession of the accused;
(3) the recovery of knife in consequence of the information furnished by the accused and the knife was found stained with human blood and
(4) the accused was seen running away on bicycle from the house of the victim.
7. In assailing the conviction of the accused, it was vehemently contended by the learned Counsel that there was almost nil evidence to connect the accused with the death of the victim. According to him, the four sets of evidence referred to above do not stand proved in the first place and even if taken as proved, were insufficient to seek the conviction. Looking to the contentions raised, it would be proper to deal with the contentions at seriatim.
8. The most formidable piece of circumantial evidence speaking against the accused is the dying declaration of the victim. The dying declaration is written as well as oral. The written dying declaration is Ex. P 1 recorded by the Investigating Officer Pepsingh (PW 9). He deposed that on receiving the telephonic message that Smt. Manjula was admitted in the hospital in an injured condition, he immediately reached there at about 5.00 P.M. but found her unconscious. At about 7.00 P.M. she regained consciousness. He recorded her statement Ex. P 1 in which she narrted the whole incident in details. In Ex. P 1 Smt. Manjula stated that she was sleeping on the floor of a room in her house. It was the time between 12.00 and 1.00 P.M. in the noon. She felt pressure on her chest and neck. She awoke and saw the accused sitting on her chest. She became bewildered. The accused pressed her neck and struck blows with a knife on the right side of abdomen and the lower parts. The accused was uterring the words that he would finish her. She became unconscious and the accused taking her dead, ran away. Pepsingh (PW 9) was cross examined at length but nothing could be elicited from him which may take his testimony relating to the recording of dying declaration (Ex. P 1) untrust worthy or incredible. The learned Sessions Judge accepted the testimony of Pepsingh and in my opinion rightly so. I am unable to conceive that P W 9 Pepsingh would falsely forge the dying declaration Ex. P 1. It bears the signatures of the deceased-victim Smt. Manjula. A dying declaration recorded during the investigation by the Investigating Officer is not hit by ban contained in section 162, Cr. PC Sub-section (2) of this section expressly makes a provision that a dying declaration which is admissible Under Section 32 of the Indian Evidence Act will not be hit by the provisions of inadmissibility of a statement made to a Police Officer. In other words a dying declaration recorded by a Police Officer during investigation is exempted from the provisions of Sub-section (1) of section 162, Criminal PC. Thus, Sub-section (2) of Section 162, Cr. PC exempts from its operation dying declaration falling within Section 32 of the Evidence Act. A dying declaration made to a Police Officer during the course of investigation is, therefore, not subject to the limitation mentioned in the main clause of the Section 162, Cr. PC. The dying declaration Ex. P 1 is, therefore, admissible in evidence and can be safely read against the accused.
9. PW 13 Ku. Shashi speaks about the oral dying declaration of the victim. She stated that when her younger sister Ku. Sharmila (PW 3) came crying that blood was oozing out from the wounds of the aunt (meaning thereby the victim Smt. Manjula), hearing this she (witness) went to the victim's house and found her lying on the floor of the room There was bleeding from her wounds. Smt Manjula was speaking slowly and told her that she was stabbed by the accused Anant Ram. This Witness was also cross-examined but again nothing could be extracted from her which may make her testimony unworthy of belief or credence. She is not related to the victim nor does it appear that she has any axe to grind against the appellant whom probably she even does not know.
10. There is then the testimony of the victim's husband Gokul Prasad (PW 1). He also stated that when he reached the house on being informed, he found his wife Smt. Manjula lying in a pool of blood with wounds in her abdomen and lower parts. She told him that his (Gokul Pradad's) friend Anantram had come, pressed her neck and inflic(sic)'e injuries 10 her with a knife and thereafter he ran away. It is true that the witness is a husband of the victim but his testimony cannot be pushed aside on this count. His testimony is to be judged on merit. The accused was his colleague and had picked up freindship with him. There was no bad blood between him and accused before this occurrence. Rather the accused was being treated as his younger brother by this witness. In these circumstances it is difficult to imagine that P W 1 Gokul Prasad will invent a false story of dying declaratian against the accused for no apparent reasons.
11. The learned Sessions Judge accepted the evidence discussed above relating to the dying declaration and concluded that the deceased victim had made the written dying declaration Ex P I and the oral dying declaration before PW 1 Gokul Prasad and PW 13 Ku. Shashi. On a careful serutiny of the evidence of these witnesses. I am unable to take a view different from that taken by the learned Sessions Judge. The fact, therefore, stands that the deceased-victim made the oral as well as the written dying declarations.
12. It is true that a dying declaration should be subject to a careful judicial scrutiny because it has come of its own peculiar feature. It is not a statement made on oath and is also not subject to cross-examination. It is also not made in the presence of the accused. All these factors must be taken into consideration while scrutinsing the evidence relating to the dying declaration. But at the same time the law attaches a special sanctity to the dying declaration. If the dying declaration successfully passes the test of careful scrutiny, it becomes a most reliable piece of evidence which does not require any corroboration. It has been established by a long series of the decisions of the Supreme Court that although a dying declaration should be carefully scrutinised but if after perusal of the same the court is satisfied that dying declaration is true and is free from any effect to prompt the deceased to make a statement and is coherent and consistent there is no legal impediment in basing the conviction on such a dying declaration even if there is no corroboration. As discussed above, the deceased-victim Smt. Manjula had no grudge against the accused. As also the witnesses speaking about the dying declarations have no animus against the accused so as to falsely implicate him. There is nothing to put the dying declarations at a discount or make them suspicious. In my opinion, the dying declarations made by the deceased victim Smt. Manjula are in themselves sufficient to seek the conviction of by him and none else.
13. The next set of evidence speaking against the accused is that he was seen by Ashok Rai (PW 15 just after the occurrence out-side the house of the victim while he was hurriedly running away on a bicycle PW 14 Ashok Rai deposed that at about 12.30 P.M. on the day of occurrence when he saw returning to his house situate nearby that of the victim, he saw the accused hurriedly running away on a bicycle. Just after that he heard that the victim Smt. Manjula Was lying in a severely wounded condition. This witness has no bias against the appellant so as to falsely depose against him. The accused's hurriedly running away on a bicycle just after the occurrence is a serious circumstances speaking against him and cannot be lightly passed over. This circumstances affords a material corroboration to the dying declarations.
14. The discovery of knife in consequence of the disclosure statement made by the accused while under police custody affords yet another incriminating material against him. The accused was arrested on June 18, 1976 vide arrest memo Ex. P. 20. On June 20, 1976 he made disclosure statement Ex. P. 21 before the Investigating Officer that he had placed the knife on the Bukhari of his house which he would get recovered. Thereafter on the same day he took the Motbirs and the Investigating Officer Hanumansingh (P W 11) to his house and got the knife (Article 7) recovered from there. It was seized and sealed. As per report Ex. P. 15 of the Serologist, human blood was found on it. The recovery of the knife with human blood on it affords a very valuable corroboration to the dying declarations.
15. The last set of evidence is the extra judicial confession alleged to have been made by the accused before PW 8 Om Prakash. The learned Sessions Judge was of the opinion that the accused made the extra judicial confession before this witness. He was also of the opinion that even if this extra judicial confession is excluded from consideration, the other sets of circumstantial evidence were in themselves sufficient to seek the conviction of the accused. I have gone through the testimony of PW 8 Om Prakash. Though he is closely related to the P W 1 Gokul Prasad, his testimony cannot be discarded on this count alone. No reasons were subscribed in the trial court nor have been subscribed before me that the testimony of PW 8 Om Prakash is not true and should not be accepted. PW 8 Om Prakash has no reasons to falsely implicate the accused. The extra judicial confession made by the accused before this witness again affords a very material help to the prosecution case. It may be that this extra judicial confession in itself may not be sufficient to seek the conviction of the accused but if taken into consideration along with other sets of evidence, it speaks heavilv against him.
16. Thus, taking all these four sets of circumstantial evidence into consideration, there is no room for doubt that the accused and the accused alone was the perpetrator of the crime. It was he who made an assault on the victim and inflicted injuries with knife to her in her abdomen and lower parts. The contention of the learned Counsel that accused was convicted on nil or suspicious evidence holds no ground.
17. It was next contended that the offence made out is not covered by Section 304 Part I but falls within the ambit of Section 304 Part II, IPC. It was argued that the cause of death according to Dr. Dayal was shock as a result of peritenitis. Reliance in support of the contention was placed on H A. Chilanukar Nagireddy and Ors v. State of Andhra Pradesh AIR 1977 SC 1968 and Chand and Ors v. State of Uttar Pradesh AIR 1972 SC 955. The first authority it of no help to the appellant because according to medical evidence, the injury caused to the victim was not found sufficient in the ordinary course of nature to cause the death. Here in the instant case the position is otherwise. According to Dr. Prakashdayal (PW 6) injury No. 4 which ult mately resulted in peritencitis was sufficient in the ordinary course of nature to cause death. In the case of Chand and others, there was a riot and the intention to commit the murder was missing. Here in the instant case this is not the situation. Here the accused made an assult on the victim and inflicted injuries to her on her abdomen and lower parts by a knife. The abdmen is a vital part of the body. As such, the case does not fall within the ambit of Section 304 Part II which only speaks about the knowledge and the offence made out has rightly been taken to be that under Section 304, Part I, IPC.
18. It was lastly contended that the sentence awarded is heavy and harsh. The accused is a younmen with a family to support. As such a lenient view in the matter of sentence should be taken. The prayer was vehemently opposed by the learned Public Prosecutor. The question of sentence is a baffling one. It all depends on the nature of the offence and the circumstance in which it is committed as to what sentence would be appropriate. Here in the instant case the accused had won the confidence of the husband of the deceased-victim. Gokul Prasad (PW 1) was treating the appellant as his younger brother. The accused misused this confidence. He went in the mid of the day to the victim's house and finding her alone, sought the surrender before him. When the victim resisted the invasion on her honour and chastity which are the most precious possessions of an Indian woman, she was fatally stabbed which ultimately resulted in her death. The manner in which the offence was committed, the cause for which it was committed and the weapon used do not permit me to take a lenient view in the matter of sentence. It is alarming that the accused put the victim to death because she opposed his moves. Leniency in the matter of sentence in such case would not be wise.
19. In the result, I find no force in this appeal. The accused was rightly convicted and sentenced under Section 304 Part I, and 450, IPC.
20. The appeal of accused Anant Ram is consequently dismissed. He was on bail during the pendency of appeal and is absent today. He is allowed onn month's time to surrender before the learned Sessions Judge, Jodhpur. In case be fails to do so, the learned Sessions Judge will cause him arrested and send him to jail to serve out the unexpired portion of his sentence.