JUDGMENT Palok Basu, J.
1. Both these appeals arise out of the Judgment and order dated 18-6-1993 passed by the Additional Sessions Judge, Dchradun in S. T. No. 148 of 1988 whereby both the appellants stand convicted under Section 302/34 1PC and appellant Sumer Chand stands sentenced to death while appellant Moti Ram stands sentenced to imprisonment for life thereunder.
2. The charge against the appellant Sumer Singh was that on 28-8-1988 at about 1 p.m. in the Military Dairy Farm, police-station-Rajpur, district-Dehradun he committed murder by intentionally causing the death of his wife Smt. Anita and thereby committed an offence punishable under Section 302, IPC. The charge against the appellant Moti Ram was that in furtherance of the common intention he along with co-accused Sumer Chand committed the murder of Smt. Anita and thereby committed an offence punishable under Section 302/32, IPC.
3. The prosecution case in short is that Rishi Pal, PW 1, Cyan Singh, PW 2, Km. Rekha, PW 3 and Km. Kala, PW 4 along with some others were engaged in cleaning the Military Dairy Farm, Barighat district Dehradun and were harvesting the maize crop since morning.
4. According to the prosecution case Rati Ram, father of appellant Moti Ram had taken on contract a shop for cleaning the dairy farm which had maze crop. On 28-8-1988 the work had begun since morning and PW 1 Rishi Pal, PW 2 Gyan Singh, PW 3, Km. Rekha and PW 4 Km. Kala were engaged as labourers along with Smt. Anita, deceased who was the wife of appellant Sumer Chand. It is said that at about 1 p.m. the two appellants suddenly came when others were having lunch and at the instigation of appellant Moti Ram, who also later on caught hold of Smt. Anita, the appellant Sumer Chand started giving blows by Pathal, a sharp cutting weapon used for cutting crops.
5. Smt. Anita sustained about ten injuries whereafter the two appellants ran away. She was immediately rushed to the Doon Hospital by Rati Ram where she was medically examined by PW 6 Dr. R. C. Nautiyal on 28-8-1988 at 1.30 p.m. Bed head ticket was duly prepared and since the condition of Smt. Anita was serious a report was sent to the Tehsildar for recording dying declaration.
6. PW 5, D. S. Bhandari was then posted as tehsildar in the area and he rushed to the hospital and recorded the dying declaration of Smt. Anita on 28-8-1988 at 4.55 p.m.
7. PW 9 Dr. B. C. Ramola was another doctor attached to the Doon Hospital and was the medical officer on duty after the admission of Srnt. Anita in the hospital. He has proved the fitness certificate recorded by him before dying declaration was written out and he has further said that after Srnt. Anita had finished her dying declaration, he appended yet another certificate that she was fully capable of having made the said dying declaration.
8. Further case of the prosecution is that PW 1, Rishipal thereafter rushed to the police-station-Rajpur and lodged an FIR on 28-8-1988 at 3-15 p.m. which was taken down under Section 307, IPC against both the appellants. It is said that Smt. Anita died around 6-20 p.m. whereafter the case was converted into Section 302, IPC, PW 7, Bhopal Singh, S. I. has proved registration of the case which was done by Head-Moharrir and has further said that he was asked by S. O. PW 8 Vinod Kumar, to whom investigation of the case was entrusted, to conduct the panchayatnama (Inquest report). It has come in the statement of PW 7, S. I. Bhopal Singh that he prepared the said inquest report in accordance with law and also the allied documents necessary for getting post mortem examination done on the dead body of Smt. Anita.
9. PW 6 Dr. R. C. Nautiyal was entrusted also with the job of conducting post mortem examination report on the dead body which he did on 29-8-1988 at 4 30 p.m. and noted the following injuries in detail --
1. Stitched wound 10 cms in size on the palmer aspect of hand from root of right thumb extending to root of right index finger in the fracture of 1st matacarpul bone, muscle lenden cut, margins are clear cut.
2. Stitched wound on the palmer aspect measuring 10 cms, extending from wrist to middle finger, margins clear cut.
3. Incised wound with crushed injury extending from wrist joint left hand to root of little finger, bones muscle seems out and exposed, margins clear out.
4. Incised wound 8 cms x 0.5cms bone deep muscle tender cut, shoulder joint exposed on the top of left shoulder.
5. Stitched wound 15 cms muscle deep from back of left shoulder top to downwards upper arm, poster lateral.
6. Incised wound 3cms, x 0.5 cm on the left side neck 9 cms below left ear.
7. Incised wound stitched 12cms on the left side neck 3cms below left ear.
8. Stitched wound 6 cms (incised in nature) 3 cms below injury No. 7.
9. Incised wound 5 cms x 5 cms on left side head 3 cms behind left ear.
10. Lacerated wound 1cm x. 5 cm on the left side head, panital region 9 cms behind the left ear.
11. Abraided contusion in the area of 8 cms 5 cms on the top of right shoulder and upper 1/3rd of right upper arm.
10. After completing the investigation PW 8 Vinod Kumar filed a charge-sheet against the appellants.
11. It may be stated here that the injury report prepared at the time of medical examination contained practically all the injuries which were subsequently noted in the post-mortem examination report. Four stitched wounds indicate that Smt. Anita was immediately attended and frantic efforts were made to save her life but in vain. The trial court has given a comparative date of the injuries and there is nothing on the record to take a different view on this subject.
12. Sri L. Doval, learned Counsel for the appellant Sumer Chand, Sri Dilip Kumar, learned Counsel for the appellant Moti Ram and Sri V. S. Misra, learned A. G. A. for the State have been heard at length and the entire record has been thoroughly scrutinised.
13. Four eye witnesses have been examined in the instant case. PW 1, Rishipal, PW 2 Cyan Singh, PW 3 Km. Rekha and PW 4 Km. Kala have testified to the aforesaid story and there is absolutely nothing in their statements to discredit their testimony. They have been subjected to lengthy cross-examination but nothing material has come out which may throw any doubt whatsoever on their testimony and each one of them is wholly reliable witness except for the offence which may be said to have been made out as against the appellant Moti Ram.
14. The only attempt made on behalf of learned Counsel for the appellants was to challenge the dying declaration and its authenticity. As stated above, their is no infirmity whatsoever in recording of the contents of the dying declaration which came into existence on 28-8-1988 at 4.55 P.M. It was an absolutely free and voluntary statement when the patient was capable of giving out the same. Certificates given by the doctors and recording of the statement made by PW 5 D. S. Bhandari leaves no manner of doubt about the genuineness and the authenticity of the said document and the statement contained therein.
15. There was an attempt on the part of learned Counsel for the appellants to challenge also the eye witnesses account but since there is absolutely nothing on the basis of which the character of these four eye-witnesses could be assailed, the trial Judge has rightly placed reliance on the testimony of those four eye witnesses and there is nothing on the record to enable taking a different view.
16. It was then vehemently argued on behalf of Sumer Chand that in his statement he has admitted that he had noticed his wife Smt. Anita in compromising position with PW 1 Rishipal on the day of incident and, therefore, he lost balance and gave beating to Smt. Anita upon which Rishipal, informant had a fight with him. Then the pathal was brought by the wife but the appellant kicked her as a result of which she fell down on the pathal and he (the appellant) beat his wife with the pathal because his wife had pressed his testicles and thus he did so in order to save his life. On the strength of this statement it was argued that there was a reason behind the appellant causing injuries and losing balance which should be taken as grave and sudden provocation.
17. Similarly on behalf of the appellant Mod Ram it was argued that he has also admitted in his statement that he had gone to save Smt. Anita and in that process caught hold of her so that blows may not fall upon her and on the strength of this statement it was argued that a charge under Section 302/34, IPC. is not made out as against this appellant also.
18. In this connection it may be mentioned here that the appellants had examined two witnesses in defence, DW 1 is Dr. Gurpal Singh who had examined the injuries of Moti Ram appellant on 28-8-1988 and extended first aid. He has admitted that simple injuries on the appellant Moti Ram could have been caused during his arrest. It may just be mentioned here that according to the prosecution case this appellant was arrested by the Investigating Officer on 28-8-1988 at about 10 p.m. alongwith appellant Sumer Chand. the other witness examined on behalf of defence is DW 2 Dr. R. B. Gupta who had tried to give an opinion against Expert's opinions furnished by PW 6, Dr. R. C. Nautiyal and PW 9, Dr. B. C. Ramola. The view expressed by this defence witness is that the dying declaration does not appear to be voluntary statement of the deceased Smt. Anita. In his opinion, after receiving the injuries noted in the bed-head ticket and the injury report it was not possible for her to speak out the dying declaration.
19. It was rightly argued on behalf of the State that this witness in defence had neither examined Smt. Anita nor had seen her injuries even after death. His opinion, therefore, is not based upon physical verification and is an opinion without any data. Therefore, the learned trial Judge has rightly rejected the testimony of this defence witness.
20. The discussion about two defence witnesses, therefore, indicates that the testimony of neither of them is available to the defence to push ahead any of the arguments advanced either for rejecting the dying declaration or for doubting the prosecution case in any manner.
21. No other material and evidence having been brought on the record and the eye witness account furnished by PW 1, Rishipal, PW2,Gyan Singh, PW 3, Km. Rekha and PW 4 Km. Kala being above board and wholly reliable, the only inference that can be drawn is that the appellant Sumer Chand had mercilessly attacked his wife. It may be that Sumer Chand was having some doubt regarding fidelity of his wife. Appellant Sumer Chand is also aged about 26 years. It is admitted that his wife left his company and was living with her parents. There may be some force in the argument of the learned Counsel for the appellant Sumer Chand that he was doubting the character of Smt. Anita and thus chose this extreme act. Taking all the facts and circumstances into consideration, it is not a fit case in which death sentence should be awarded though the charge under Section 302, IPC simpliciter stands fully established against the appellant. However, the trial Judge was not justified in recording the conviction of the appellant Sumer Chand under Section 302/34, IPC. Having believed the prosecution case, he should have convicted the appellant under Section 302, IPC simpliciter. However, since the appellant Sumer Chand was charged with Section 302, IPC simpliciter he can and should be convicted under that section right now but the sentence of death has to be set aside and he has to undergo imprisonment for life thereunder.
22. Coming to the case of appellant Moti Ram it may be stated here that in the dying declaration it is not mentioned that Moti Ram had incited Sumer Chand to commit the murder. Even in the statement of PW 1 Rishipal it has come that when three or four blows had already been given by Sumer Chand appellant on Smt. Anita then the appellant Moti Ram came and caught hold of her. Similarly, in the statement of PW 3 Km. Rekha it has come that both the appellants had appeared suddenly and after Smt. Anita was beaten then she started shouting and both the appellants had come from behind. She also, therefore, does not speak specifically of any incitement being given by appellant Moti Ram. Likewise PW 2, Cyan Singh has specifically said in the cross examination (paras Nos. 8, 9 and 10) that "when the girl shouted we looked towards her. When Sumer Chand had given three or four blows then Moti Ram came and caught hold of her. I cannot say whether Moti Ram was trying to release her or he had come as Sumer's helper....
I did not see Moti Ram saying that Anita was of bad character.... " In view of the aforesaid evidence or the lack of it, the most that can be said is that Moti Ram had caught hold of Smt. Anita a little later than the initial beating had started and, therefore, the most that can be said is that he was having knowledge that Smt. Anita may receive injuries by the sharp edged weapon, and, therefore he can not escape from the liability under Section 324/34, IPC.
23. A word has to be said about the statement of appellant Moti Ram made under Section 313, Cr. P.C. which has already been noted above and is to the effect that he had come to save Smt. Anita from being assaulted. This statement is not only false but is also demonstrated to be so. The evidence discloses that this appellant had come along with co-appellant Sumer Chand. If he was making an attempt to save the life of Smt. Anita, he should have caught hold of the co-accused Sumer Chand so that blows could have been warded off. He did not do that and instead held Smt. Anita making her helpess. Even in the end he did not take any step to take Smt. Anita to hospital or to extend any help to her after she had fallen down as a result of the injuries but just opted to flee along with co-appellant Sumer Chand. He was, as has been noted above, arrested alongwith appellant Sumer Chand in the same night by the Investigating Officer. All this conduct shows the criminal intention of the appellant Moti Ram also. But from the evidence and the discussion, particularly, keeping in view the fact that FIR. was initially lodged under Section 307 IPC, the appellant Moti Ram cannot be saddled with vicarious liability for murderous assault of Smt. Anita.
24. In this connection the record reveals that this appellant was in jail right upto 12-12-1988 and was released on bail sometimes in January 1989. Even after conviction was recorded by the trial Judge it has taken about a fortnight for him to get out from Jail. In other words nearly six months incarceration has already been undergone by this witness as undertrial or convict. The said period can and should be adjusted as sufficient imprisonment under Section 324/34, IPC. So far as appellant Moti Ram is concerned who need not thus be sent to Jail again.
25. In view of the aforesaid discussion these appeals are allowed in part. The conviction of Sumer Chand appellant under Section 302/34, IPC is altered to Section 302, IPC simpliciter but his sentence of death is set aside and accordingly the reference made by the trial Judge is rejected. Instead, he is sentenced to undergo imprisonment for life under Section 302, IPC. He is in jail. He will serve out the sentence awarded by this Court.
26. Appellant Moti Ram is acquitted of the charge under Section 302/34, IPC and his sentence for life imprisonment thereunder is also set aside. Instead, he is convicted under Section 324/34, IPC and sentenced to the period already undergone. He is on bail. He need not surrender. His bail bonds are discharged.