Kanta Bhatnagar, J.
1. This appeal is directed against the judgment dated November 26, J979 passed by the learned Sessions Judge, Merta by which appellants Harjiram, Rekharam and Birmaram were convicted for the murder of Shivkaran and sentenced to imprisonment for life under Section 302/34 IPC. Appellant Birmaram was also convicted for the offence under Section 323 IPC for causing injuries to Narsaram and was sentenced to six months RI for that charge with an order that his substantive sentences on both the counts shall run concurrently.
2. Succinctly narrated the prosecution case is as under : There was some dispute about a field between Narsaram (PW 6) and one Magnaram. Deceased Shivkaran was the supporter of Narsaram and the three appellants were supporting the cause of Magnaram. Deceased Shivkaran had given some cloth to tailor Joomarram (PW 6) at village Gachhipura for stitching a shirt for him. On December 6, 1978 Shivkaran went to Gachhipura with Narsaram to bring the shirt from the tailor. When after taking the shirt they were returning to their village Kuchipala and reached at a distance of about one & half miles from village Patti-Doberiya at about 8.00 p.m they met the three appellants armed with lathies coming from opposite direction. The appellants suddenly attacked Narsaram and Shivkaran. Narsaram received one lathi blow at the hands of Birmaram and managed to run away. The three appellants caused a number of injuries with the lathis they had to Shivkaran. Shivkaran fell down and the appellants went away. Kanaram (PW 7) was returning from village Degana and got down at the railway station Gachhipura. Therefrom he was going to village Kuchipala on foot Kanaram saw Shivkaran being belaboured by the appellants Hearing the cries of Shivkaran Kanaram went to his rescue but on being threatened of beating by the appellants he ran towards his village and informed Unkaram and Mohanram. Narsaram after seeing the beating to Shivkaran from behind a hedge went to the village. Kanaram and Narsaram informed the villagers. Narsaram also corroborated Kanaram and these two witnesses along with other villagers went to the place where Shivkaran was left by the witnesses. Meanwhile a Bus passed that way. Nensingh (PW 2) was the Driver and Prem Singh (PW 1) was the Conductor of the Bus. On seeing a person lying on the road the Driver stopped the Bus and saw the injuries on the body of the person lying there. Conductor Prem Singh went to village Patti. Doberiya and informed Sarpanch Sajjan Singh (PW 5). Sajjan Singh accompanied the Conductor to the place of incident. On enquiry made by the Sarpanch, he disclosed his name and residence and informed about the three appellants giving a beating to him. He also told him about Narsaram being with him at the time and then running away from there. The Sarpanch took the injured Shivkaran in that Bus to police station Gachhipura. Shivkaran lodged the report Ex. P/9 with Omprakash (PW 10) SHO of that police station. The SHO took Shivkaran to Gachhipura hospital and gave a requisition to Dr. Shivprakash Bohra (PW 9) who examined the injured. Dr. Bohra recorded the dying declaration of injured Shivkaran which is Ex. P/6. In view of the condition of the injured Shivkaran had at the advice of Dr. Bohra for X-ray, he was taken to Nagaur hospital but he breathed his last in the way and was taken back to Gachhipura hospital. Dr. Bohra conducted the post mortem examination of the dead body of Shivkaran on December 7, 1978 at 10.30 A.M. and prepared the postmortem examination report Ex. P/7. The Doctor noted following injuries on the dead body:
(1) Contusion 4' x 1' over upper 1/2 of left upper arm laterally;
(2) Lacerated wound with fracture of radius 1-1/2' x 1/2' x bone deep upper 1/3 of left forearm with fracture at the site of injury;
(3) Lacerated wound 4' x 1/2' x bone neep middly 1/3 of left leg;
(4) Lacerated wound 1-1/2' x 1/2' x bone deep 1-1/2' above the injury No. 3.
(5) Contusion 3' x 1' over middle 1/3 of left forearm;
(6) Contusion 2' x 1' over lateral melloelus of left leg;
(7) Contusion 3' x 1' over middle 1/3 left thing;
(8) Contusion 4' x 1' over left greater tranchanter;
(9) Contusion 3' x 1'--2' lateral to left grerter tranchanter;
(10) Lacerated wound 4' x 1/2' x bone deep over lower 1/2' of right leg;
(11) Lacerated wound 2' x 1/2' x bone deep 2' above the injury No. 10;
(12) Contusion 5' x 1' over the left gluteal region;
(13) Contusion 4' x 1' parallel to injury No. 12;
(14) Contusion 8' x 1' parallel to vertebral column 2' on left side;
(15) Contusion 4' x 1' below the angle of left scapula;
(16) Confusion 3-1/3' x 1' on left side of left scapula;
(17) Confusion 5' x 1' with fracture of ribs 7th, 8th and 9th over back 7' below the angle of left scapula.
3. On December 1-6, 1978 SHO Omprakash arrested the three appellants vide memo Ex. P 14 to Ex. P 16. The three appellants furnished information to the SHO to get recovered one lathi each vide memo Ex. P 20 to Ex. P 22 respectively. The lathis recovered from the three appellants are articles 7, 8 and 9. The lathis recovered from the three appellants were sent for Chemical Examination. The Chemical Examiner found blood on all the three lathies but none of them blood was not sufficient for Serological Test. Therefore, only two lathis were sent for Serological test. Out of those two the Serologist detected human blood on one only.
4. Upon completion of necessary investigation, chargesheet against the three appellants was filed in the court. The learned Magistrate committed the appellants to stand their trial in the Court of Sessions Judge, Merta. The learned Sessions Judge charge-sheeted the appellants for the offences Under Section 302, 302/34, 302/114, 325, 325/34, 323 & 323/34 IPC and recorded their plea. They denied the indictments and claimed to be tried. Prosecution examined 10 witnesses in all. In their statements under Section 313 of the Code of Criminal Procedure Birmaram and Rekharam pleaded alibi and stated that they were at village Modi on that day and were cutting 'Khejri' trees purchased from Shankersingh. Harjiram admitted the incident but not in the way prosecution alleged. He stated that on that day Ramdin, Siyaram, Motiram Shivkaran, Narsa. Kana etc. had given a beating to his brother Nimbaram. That, he had gone to police station Gachhipura at 11.00 A.M. to lodge the report. Shivkaran and Nasaram were already present there. The SHO asked him to stand outside. Shivkaran and Narsaram came out and hurled abuses to him and went away inside. When he went inside, the SHO told him that he would record his report in the evening. He, thereafter, left for the village. Shivkaran and Narsaram met him near Dobeliya and hurled abuses and quarrel ensured. One lathi blow was inflicted upon him which he warded off by his lathi. He then gave a lathi blow to Shivkaran and as he was alone he took to heels. Narsaram ran after him and apprehending an attack from Narsaram he gave lathi blow to Narsaram. He did not intend to kill Shivkaran nor he had any idea that he would die. He filed Ex. D/2 and Ex. D/3, the documents relating to the occurrence in Magnaram's field and farther staled that challan has been filed regarding the beating given to Nimbharam. He also slated that when Shivkaran and Narsaram met him in the way they were drinking wine. Shankersingh (DW 1) was examined to support the pica of alibi taken by Rekharam. Poosaram (DW 2) has been examined to support Hajiram on the point that the latter was going to Police Station Gachhipura to lodge the report about the beating gien to his brother. Nimbharam (DW 3) brother of Harji Ram has stated about his beating by Khinyaram, Ramdeen, Motiram, Shivkaran and Narsa. He also stated that Harjiram was his real brother, Birmaram his nephew and Rekharam his cousin. The learned Sessions Judge placed .reliance on the evidence of Narsaram, the dying declaration of Shivkaran and the recoveries of lathis from the appellants, one of which had human blood and passed the judgment under appeal.
5. We heard Mr. M.M. Singhvi, learned counsel for the appellants and Mr. L.S. Udawat, learned Public Prosecutor for the State and carefully examined the record of the case.
6. Learned counsel for the appellants strenuouly contended that the trial Court has not placed reliance on the statement of Kanaram and the conviction on the solitary testimony of Narsaram who falls within the category of partisan witness, cannot be justified. Mr. Singhvi assailed the value of Ex. P/6 recorded by Dr. Bohara on the ground that the Doctor had not ascertained whether the injured was in a fit position to give the statement. Regarding (he recovery of the alleged weapons of offence the contention of Mr. Singhvi is that it is not known on whose lathi the blood was detected by the Serologist and, therefore, this circumstance should not have been pressed into service by the learned trial Judge in convicting the appellants.
7. The learned Public Prosecutor justifying the conviction and sentences of the appellants submitted that Narsaram's presence at the time of the incident is admitted even by Harjiram and the plea of self defence of Harjiram has been rightly discarded by the trial Court. According to the learned Public Prosecutor, the dying declaration is in the form of questions and answers and tells of what had actually happened and therefore, it has been rightly taken help of by the learned trial Judge.
8. Prosecution has led direct as well as circumstantial evidence in the case. The direct evidence is that of Narsaram and Kanaram and the circumstances against the appellants are : (1) oral dying declaration of deceased Shivaram before PW 5 Sujansingh, Sarpanch, (2) the dying declaration Ex. P/6, recorded by the Doctor Bohra and (3) the recovery of blood stained lathis from each of the appellants in pursuance of the information furnished by them.
9. The prosecution case about the relations between Narsaram and Magnaram being strained has been proved by Narsaram. Narsaram has stated about the purchase of 36 bighas of land from Harjiram for Rs. 7000/-two years prior to the occurrence and there being litigation in that regard. Harjiram has produced document Exs D/2 and D/3 relating to the dispute in Magnaram's field.
10. Learned counsel for the appellants stressed that even if there was any quarrel it was between Narsaram and Magnaram and the appellants had no reason to give a beating to Shivkaran. It has come on record that the appellants were siding Magnaram and Shivkaran was siding Narsaram in that dispute. In that situation if the appellants in their attempt to cause injuries to Narsa and there after sustaining one blow ran away also caused injuries to Shivkaran. It is not surprising. The fact of Shivkarn & Narsa going to village Gachhipura on the day of the incident finds support in the statement of Jhoomarram (P.W. 2), the tailor who had stitched the shirt for Shivkaran and also from the fact that injured Shivkaran was putting on two shirts one of which according to prosecution was the shirt he had taken that day from Jhoomarram. Narsaram's presence at the time of the incident has not been disputed by Harjiram appellant even. Though he has given different version of the incident this fact is not denied that when the incident had taken place Shivkaran and Narsaram both were there. While discussing the plea of private defence to person taken by Harjiram we would probe into the matter whether it is a probable story or not, suffice it to say for the present that presence of Narsaram at the time of the occurrence stands duly established Narsaram's presence having been believed, the question would arise as to how he received only one lathi blow at the hands of Birmaram appellant whereas Shivkaran became the victim of a number of lathi blows and injured seriously. Narsaram has stated that after sustaining the lathi blow he ran away from the site and the assailants remained busy in causing injuries to Shivakaran. Narsaram has claimed to have seen the beating to Shivkaran while hiding behind a hedge. It was Narsaram who had rushed to the village after seeing the beating given to Shivkaran and brought the villagers to the site. In his lengthy cross-examination nothing could be elicited to shatter his testimony that he had accompanied Shivkaran on that day and received lathi blow at the hands of Birmaram & had seen that three appellants giving lathi blows and causing injuries to deceased Shivkaran.
11. Kanaram has claimed to have reached the site at the time of the incident and intervened. He has stated that on being threatened by the appellants he ran towards the village and he as well as Narsaram, who had reached there immediately, thereafter, narrated before the villagers what they had seen and took them to the site. The learned trial Judge has not placed reliance on this witness because Narsaram had not stated about his presence at the site and also because presence of Kanaram and his intervention does not find place in Ex. P 9, the First Information Report, filed by injured Shivkaran and in Ex. P/6 the dying declaration of Shivkaran recorded by the Doctor.
12. The dying declaration brought on record is oral as well as written. The witness to the oral dying declaration is Sajjansingh (PW 5) sarpanch who at the instance of the conductor Premsingh (PW 1) had gone to the site and had a talk with the injured. Sajjansingh has stated that on enquiry the injured disclosed that he was Shivkaran Jat of village Kuchipala. That on further interrogation regarding his injuries Shivkaran told him that three persons had given a beating to him. The witness stated that Shivkaran told the names of the three assilants but he had forgotten the names. The learned counsel for the appellants submitted that as Sajjansingh could not remember the names of the appellant said to have been told by injured Shivkaran, the dying declaration is of no worth. True it is that from the statement of Sajjansinsingh it cannot be known as to what were the names of the assailants disclosed by Shivkaran but this statement of Sajjansingh lends support to the prosecution case that after sustaining injuries Shivkaran was in a condition to talk. This fact assumes importance with regard to the written dying declaration for the reason that it indicates that Shivkaran had not become unconscious at the spot on account of the injuries sustained by him and there were chances and possibility of his narrating the incident before the Doctor.
13. Dr. Bohra is the witness to the written dying declaration Ex. P/6. According to Dr. Bohra he recorded Ex. P/6 at 9.15 p.m. on December 6, 1978. He has clearly stated that the injured was conscious through out the recording of the statement and was in a position to understand the questions put to him and give clear answers. The Doctor also clarified that when he recorded the dying declaration outsiders were not present. The criticism levelled against this written dying declaration is that it is in a very precise form. Another infirmity emphasized by Mr. Singhvi is that it does not contain the certificate or the endorsement by the Doctor that the injured was mentally and physically fit to give the statement. According to Mr. Singhvi in the absence of such a certificate it cannot be known whether the injured was fully conscious or semiconscious or mentally alert to understand the nature of the questions put to him to enable him to answer them properly.
14. The dying declaration being the version given by a person on the verge of death can be used as a substantive piece of evidence in case the deponent expires. The deponent not being put to cross Examination Courts are expected to apply strict test scrutiny to the statement before pressing it into service against the culprits named therein.
15. In the case of K. Ramchandra Reddy v. The Public Prosecutor : 1976CriLJ1548 their Lordships have been pleased to hold that the dying declaration recorded by a competent Magistrate in proper manner, that is to say in the form of questions and answers, and, as far as practicable in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character.
16. In the present case the statement has not been recorded by the Magistrate but the Doctor recording the same was cautious and vigilant to record it in a proper form. It is a precise narration of the incident. The names of the assailants and the weapons of offence are stated therein. The necessity of the certificate or verification by a Doctor regarding the physical and mental condition of the deponent is emphasized for the reason that many a times the deponent may appear to be in proper sense but his mental condition may not be such that he may recollect the clear picture of the incident and correctly narrate it. The expert opinion is required in cases where the statement is recorded by a Magistrate or a person other than medical expert. It is for the satisfaction of the person recording the statement that the deponent is mentally and physically fit to give the statement. Medical man is the best person to tell about the mental and physical fitness of a man in serious condition and therefore, Courts have emphasized upon the necessity of the medical opinion regarding the mental and physical condition of the deponent. The position would however be different when the statement is recorded by the Doctor. The Doctor satisfies himself regarding the mental and physical condition of the deponent before recording the statement. In the Supreme Court decision referred to above, their Lordships was pleased to observe that one of the important tests of the reliability of the dying declaration is that the person who recorded it must be satisfied that the deceased was in a fit slate of mind. If the Doctor himself records the statement and does not in so many words writes in the statement that he had satisfied himself regarding the mental and physical condition of the deponent it would not be an infirmity in recording the statement. The reason is that the Doctor may have a subjective satisfaction regarding the condition and proceed with the recording of the statement without observing the formality of making an endorsement to the effect. As stated earlier, the Doctor has deposed that he recorded the statement when the injured was conscious and in a position to understand the questions put to him and answer them properly.
17. Mr. Singhvi submitted that the dying declaration Ex. P/6 contains the perantage of the assailants which the deponent could not have given in that physical state. Ex. P/6 is in the form of questions & answers. It contains five questions put by the Doctor and answered by the injured. In the last question the Doctor has asked the perantage and residence of Harjiram, Rekharam and Birmaram whom the deponent named as assailants in answer to question No. 1. The answers to the questions put to the deponent are specific and direct. The disclosure of the perantage and residence of the assailants would not be infirmity of the dying declaration. In the case of Tahal Singh v. The State of Punjab : 1979CriLJ1031 their Lordships have been pleased to observe that wealth of detail does not necessarily lead to the inference of the declaration being fabricated.
18. In the present case there are no irrelevant details in the deposition so as to lead to the inference that the injured could not have stated all that. The evidence of Dr. Bohra regarding Ex. P/6 inspires confidence and the learned trial Judge has rightly considered it an important circumstance against the appellants.
19. Regarding the recoveries of the lathis in pursuance of the information of the appellants suffice it to say that, that circumstance does not provide a connecting link to the prosecution case because it is not clear as to whose lathi it was on which human blood was found.
20. From the above discussion, we concluded that prosecution has established by cogent, convincing evidence of Narsaram that the three appellants were the assailants and Shivkaran had sustained injuries at their hands and Birmaram caused injury to Narsaram. The statement of Narsaram stands corrborated by the dying declaration Ex. P/6. The learned trial Judge has therefore rightly held the appellants guilty for the crime of causing injuries to Shivkaran and to Narasaram.
21. The pertinent question raised by the learned counsel for the appellants is that the case of the appellants does not fall within the definition of murder and therefore, the conviction under Section 302 IPC deserves to be set aside. To substantiate his argument Mr. Singhvi drewour attention to the nature of injuries sustained by Shivkaran and argued that though the number of injuries is 17, that were not of serious nature. That, the fracture of the ribs in itself could not have proved fatal if lung would not have collapsed. According to Mr. Singhvi the weapon said to have been used and the parts of the body affected by the injuries clearly indicate that the intention of the assailants at the most would have been to cause grevious injuries and therefore, the case does not travel beyond Section 325 I.P.C. That, there being no specific evidence as to who caused the fatal injuries, the appellants at the most can be convicted under Section 325/34 IPC. To substantiate his argument Mr. Singhvi referred to the case of Lalchand v. The State of Rajasthan where in the head injury caused by lathi proved fatal but it not being proved as to who was the author of the fatal blow out of the accused persons, the intention was held to give a severe beating and the case was taken to fall under Section 325/34 IPC and not under Section 302/34 IPC Mr. Singhvi contended that in that case there were 11 injuries and the fatal injury was on the head which exposed the scalp but despite that the case was considered to be one under Section 325 IPC. In that case their Lordships had drawn the conclusion in view of the peculiar facts and circumstances of the case that out of the two accused one was the real brother of the father of the deceased and other two were his nephews. The quarrel was regarding the marriage of the daughters of the victim. The motive alleged was not considered to be sufficient for committing the murder. Looking to the close relationship between the victim and the assailants and the motive advanced, their Lordships found themselves unable to conceive that the appellants wanted to finish the victim for ever. As such, the prosecution case regarding the common intention to cause murder was not believed.
22. Another case relied on by Mr. Singhvi is Narain v. The State of Rajasthan 1985 Cr. LR (Raj) 69. In the case there were six injuries, one of which being defussed swelling on the left parietal and temporal region proved fatal, Rest of the injuries were simple in nature. The conviction of the accused appellant under Section 302 IPC was altered to one under Section 325/34 IPC by this Court. The reasons for that finding were that the quarrel was between the members of the family and both parties had taken law in their hands.
23. The principles enunciated in the two cases just referred to above do not help the appellants. Here there is evidence that Magnaram and Narsaram were on inimical terms and Shivkaran was siding Narsaram and the appellants were siding Magnaram. From the documents produced by Harjiram in his statement it is proved that there was long enmity regarding the field of Magnaram. True it is that out of the 17 injuries 11 were contusions five were lacerated wounds, and one was abrasion. Injury No. 2, the fracture of the fore arm was grevious. None of the injuries was on any vital part of the body. Injury No. 17 a contusion 5' x 1' with facture of 7th, 8th and 9th ribs over back 7' below the angle of left scapula caused collapse of lungs and sever haema-thorax and proved fatal for the injured. Ordinarily the assailants giving a beating with intention to commit murder would not spare the vital part of the body but cases are not rare where assailants spare the vital parts of the body but give such a merciless beating causing injuries on non vital parts that there remains no chance of survival of the injured. Mr. Singhvi vehementely argued that in the present case none of the injuries is on any vital part. The blow causing injury No. 17 must have been inflicted with force so as to cause the collapse of the lung. How ever, 15 injuries being simple in nature and injury No. 2 though grevious being on forearm, not a vital part of the body, the intention of murder cannot be attributed to the appellants.
24. In the case of State of Andhra Pradesh v. Royavarapu-Punnayya : 1979CriLJ1031 their Lordships were pleased to lay down broad guide lines for the courts to draw the distinction between Clause (b) of Section 299(3) of Section 300 IPC and were pleased to observe that it is one of the degree of probability of death resulting from the intended bodily injury. That it is the degree of probability of death' which determines whether a culpable homicide is of gravest, medium of lowest degree. It was further held that the word 'likely' in Clause (b) Section 289 conveys the sense of 'probable' as distinguished from a mere possibility. The words 'bodily injury' sufficient in the ordinary course of nature to cause death mean that death will be the 'most probable' result of the injury, having regard to the ordinary course of 'nature. Their Lordships made it clear that the guide lines laid down in the decision were only broad guide lines and not case iron imperatives.
25. The nature of injuries, chances of survival or the probability of death are the circumstances, Courts are to keep in mind while determining whether the crime amounts to murder or culpable homicide not amounting to murder. Cases may fall under Clause III of Section 300 IPC despite assailant confining the beating to the legs and arms and none of the injury being individually sufficient in the ordinary course of nature to cause death. Injuries in many a cases indicate the intention of the assailant. Similarly, the weapon used and the force applied in using that weapon are also important factors to be taken into consideration.
26. It is not in all cases where beating is given to a person and vital organs of the body of the victims are not affected that the intention to commit murder may be eliminated. There may be cases in which because of the assailants not having proper opportunity to injure the vital organs of the body on account of interference by somebody such organs are not effected. The present case does not fall in that category. Here, the three assailants inflicted lathi blows to Shivkaran. Narsaram had already taken to heels and had seen the occurrence hiding himself behind a bush and was not visible to the assailants. There was thus no hurdle or obstacle on for the assailants to cause injuries to the vital organs of Shivkaran to make such of his death. The parts of the body affected by the blows of the assailants show that the assailants felt content by causing injuries to non-vital parts of the body of Shivkaran. There was sufficient opportunity for them to ensure whether the victim is done away with or not and if not to cause fatal blows on vital parts of this body, but they did not do so. This leads to the conclusion that the assailant had not committed the crime with the intention to commit the murder of Shivkaran. Reference may be made to the statement of Doctor Bohra in this concern. The Doctor has categorically stated that injuries Nos. 1 to 16 cumulatively were not sufficient in the ordinary course of nature to cause death. It was injury No. 17 i.e. fracture of 7th, 8th and 9th ribs over the back, 7th below the angle of left scapula, leading to the pleura which proved fatal for Shivkaran. However, we are of the opinion that there may not be any intention to commit the murder on the part of the assailants, the force of the blow on the ribs was such that the fractured ribs ruptured the pleura. As such the intention to cause such bodily injury which may be likely to cause death can well be imputed to the assailants. The case therefore, does not fall within the ambit of murder rather offence of culpable homicide not amounting to murder under Section 304 Part-I is made out.
27. Rekharam appellant, on the bail, had died on December 30, 1984 and therefore, his appeal abates. Harjiram and Birmaram had been arrested on December 6, 1978. The case being considered to fall under Section 304 Part-I the question arising for consideration would be as to what would be adequate punishment to be awarded to appellants Harjiram and Birmaram. In the facts and circumstances of the case, we consider RI for eight years and a fine of Rs. 300/- in default of payment of fine to undergo three months RI as the adequate punishment for appellants Harjiram and Birmaram.
28. Consequently, the appeal filed by appellant Rekharam abates on account of his death. The appeal filed by Harjiram and Birmaram is partly allowed and their conviction and sentence for the charge of murder Under Section 302 IPC are set aside. They are instead of convicted under Section 304 Part-1, IPC and sentenced to eight years RI and a fine of Rs. 300/- each in default to undergo three months RI each for that offence. Conviction and sentence of appellant Birmaram under Section 323 IPC are maintained with an order that the substantive sentences on the two counts shall run concurrently.