JUDGMENT
Shyam Sunder Byas, J.
1. This appeal is directed against the judgment of the learned Additional Sessions Judge, Rajsamand, dated March 6, 1982 by which the appellants Ambalal, Bhagwanlal and Motilal were convicted under Section 302/34 IPC and each was sentenced to imprisonment for life with a fine of Rs. 100/-, in default of the payment of fine to further undergo one month’s rigorous imprisonment.
2. Brifly stated, the prosecution case is that the deceased vitcim Ambalal aged about 55 years was a resident of village Sundercha, Police Station Rajnagar, District Udaipur. The appellants are also residents of the same village. The fileds of the deceased and the appellants are situate adjacent to each others as shown in site plan Ex. P. 6. At about 6.30 a.m. on 14-3-1981, deceased Ambalal went to his field to collect the green grass. The appellants also reached there. Accused Moti Lal had an axe while the remaining two Ambalal and Bhagwan Lal were armed with lathis. They made an assault on Ambalal (deceased) and inflicted injuries to him with the weapons they were armed with. As a result Ambalal fell down. There was profuse bleeding from his wounds, His son Satyanarain PW 5 on being apprised of the incident rushed to the field and found his father lying in an injured condition. Ambalal was taken in a bullock cart to the hospital Rajsamand. PW 5 Satya Narain went to Police Station. Rajsamand and submitted a written report Ex. P. 4 of the occurrence at about 9 a.m. on the same day. The police registered a case under Sections 307, 324, 325 and 447 IPC. The Investigating Officer requested the Additional Munsif and Judicial Magistrate, Rajsamand to record the dying declaration of Amba Lal. The learned Magistrate went to the hospital and recorded the dying declaration Ex. P. 17 of Ambalal, The injuries of Ambalal were examined by PW 1 Dr. Surendra Kumar the then Medical Officer Incharge, Primary Health Centre, Rajsamand. He found the following injuries on his person:
1. Swelling 2″ in diameter on right parital bone of skull;
2. Bruise 1 1/2″ x 1″ on right side of forehead;
3. Bruise swelling 1″ x 1/2″ on back of neck;
4. Abrasion two in number 1/2″xl/2″ and 1″x1/2″ on right forearm;
5. Lacerated wound and dislocation size not demarcated on back of right wrist joint;
6. Incised wound on index middle and Ring finger of Right hand 1/2 x 1/2 x 1/4 cm;
7. Abrasion swelling 3″ x 1/2″ on left side of chest;
8. Abrasion 3 in No. 1/2″ x 3/4″ to 1/4 x 1/2″ on left knee joint;
9. Abrasion swelling 4″ x 2″ on left arm;
10. Abrasion seven in number on back of left forearm and palm;
11. Incised wound 2″ x 1″ x 3/4″ on Right leg 1 1/2″ above the Right ankle joint;
12. Lacerated wound with compound fracture 3″ x 1 1/2″ x 1″ on Right leg 2″ below right knee;
13. Abrasion 2 1/2″ x 1 1/2″ on middle part of back;
14. Abrasion 1/2″ x 3/4″ Ilia creast;
15. Bruise swelling 3/4″ in diameter on lower part of back on lumber region area.
Despite medical treatment, Ambalal did not survive and passed away at about 1.45 pm on 14-3-1981. Dr. Surendra Kumar conducted his post-mortem examination. He was of the opinion that the cause of death of the victim was massive internal and external haemorrhage due to multiple injuries and fractures. The post mortem examination report prepared by him is Ex.P. 2. Due to the death of Ambalal the police added Section 302 IPC during investigation. The SHO PW 18 Mahendra Singh arrived on the scene of occurrence, inspected the site and prepared the site plan. He thereafter went to the hospital and prepared the inquest report of the victim’s dead body. The accused persons were arrested and in consequence of the information furnished by them axe and Lathis were recovered. The blood stained clothes of the deceased were also seized and sealed and were sent for chemical examination. On examination they were found stained with human blood. On the completion of investigation the police submitted a challan against the appellants in the court of Munsif and Judicial Magistrate, Rajsamand, who in his turn committed the case for trial to the court of Sessions. The learned Sessions Judge framed charges under Section 302/34 IPC against all of them to which they pleaded not guilty and claimed to be tried. They denounced the whole prosecution story and claimed absolute innocence. According to their statements recorded under Section 313 Cr.PC they were not in village Sundercha on the day of incident but were at Bombay. They thus pleaded alibi in their defence. In support of its case the prosecution examined 18 witnesses and filed some documents. In defence the accused examined five witnesses. On the conclusion of trial the learned Sessions Judge found the charge duly brought home to the accused and found no substance in the defence plea of alibi. The appellants were consequently convicted and sentenced as mentioned on the very outset. Aggrieved against their conviction, the accused have come up in appeal.
3. We have heard Shri Doonger Singh, learned Counsel for the appellants and Shri N.D. Khan, the learned Public Prosecutor. We have also gone through the case file carefully.
4. Before proceeding further, it may be mentioned that the appellants were convicted solely on the basis of the written dying declaration Ex. P 17 recorded by the Judicial Magistrate, Jagdish Singh PW 14. The learned Sessions Judge found the dying declaration Ex. P 17 truthful. Accepting the dying declaration Ex. P 17 as true and the substantial piece of evidence, he convicted the appellants.
5. In assailing their conviction Shri Doonger Singh advanced two contentions, viz., (i) the trial court was in error in putting implicit faith on the dying declaration Ex. P 17. It was argued that the wife, son and other close relatives of the deceased Ambalal had met him before the dyiny declaration Ex. P 17 was recorded. As such Ex. P 17 cannot be said to be a spontaneous outcome of the deceaed victim, and (ii) even if the dying declaration Ex. P-17 is taken as true and genuine, the offence made out does not fall under Section 302 IPC. It was urged that as per medical evidence of Dr. Surendra Kumar, the injuries found on the victim’s dead body were not sufficient in the ordinary course of nature to cause death. The offence made out at the worst does not travel beyond the second part of Section 304 IPC.
6. It was on the other hand contended by the learned Public Prosecutor that the conviction can safely be passed on a dying declaration without any corroboration provided it is found true and genuine. In the instant case the deceased had no animus against the appellant and it is, therefore, inconcievable that he was making a false declaration against them. It was further submitted by the learned Public Prosecutor that the deceased sustained as many as 15 injuries on the different parts of his body. The number of injuries points out that the appellants intended to cause his death. We have taken the submissions into consideration.
7. Admittedly there is no direct evidence about the incident and the entire prosecution cases rests squarely on the written dying declaration Ex P 17. The question therefore arises is whether a conviction can be passed on the basis of dying declaration alone The dying declaration was recorded at about 10 30 a.m. on 14-3-1981 in the presence of a doctor. There is nothing on record to show that Ambalal was not in a fit mental condition to make any declaration. There is again no material on record to show that the deceased Ambalal had any enmity against the appellants and, therefore, wanted to falsely implicate them. It is true that before the dying declaration Ex.P 17 was recorded, the son, wife and the other close relatives of Ambalal had met him. But there is nothing on record to show that they had induced him to make a false declaration against the appellants.
8. The dying declaration has its own significance. It is out of sheer necessity that at times the convictions are made on the sole basis of a dying declaration. It is not uncommon that at times the only principal eye witness to the crime is the deceased victim. If his dying declaration is excluded from consideration, it would defeat the ends of justice. Since a dying declaration is made in the expectation of death, it is presumed that the deceased would not falsely implicate anybody. The law is well settled that in case a dying declaration is found trust worthy and reliable, conviction can be passed thereon without any corroboration Here in the instant case as discussed above, Ambalal had no animus against the appellants. It is, therefore, inconcievable that he had falsely implicated the accused for no apparent reasons. The learned Sessions Junde placed reliance on the written dying declaration Ex. P 17 and after a careful scrutiny of the entire matter and the attending circumstances, we are unable to take a view different from that taken by him. It is true that there is no other evidence in corroboration of this dying declaration Ex.P 17. But that is no reason not to accept the dying declaration Ex.P 17. The dying declaration Ex.P 17 appears to be true and genuine and no reasons are there to discard it. The first contention therefore, fails.
9. As regards the nature of offence, it was argued by Shri Doongar Singh that relations between the deceased and the appellants were not inimical or strained before the incident. The genesis of the occurrence is not known as to how the appellants happened to reach the place of incident. It was further urged that according to the testimony of PW 1 Dr. Surender Kumar the injuries of the victim were not sufficient in the ordinary course of nature to cause death.
10. We have examined the contention carefully, and are of the opinion that the contention has considerable force. None of the injuries of the victim were of serious or grave nature. PW 1 Dr. Surender no doubt stated in his examination-in-chief that the injuries of the victim were sufficient in the ordinary course of nature to cause death. But he could not maintain this position in his cross examination. In his cross examination he admitted that the injuries of the victim were not sufficient to cause his death. In order to attract clause thirdly of Section 300 IPC it is necessary that the injury caused to the victim must be sufficient in the ordinary course of nature to cause death. Since the injuries caused to the deceased Ambalal were neither individually nor collectively sufficient to cause his death. The clause thirdly cannot be pressed into service. The emphasis in clause thirdly is on sufficiency of the bodily injury in the ordinary course of nature to cause death and by that sufficency is meant high probability of death in the ordinary course of nature. If the injury caused is likely to cause death, but is not sufficient in the ordinary course of nature to cause death, the offence is not murder but merely culpable homicide not amounting to murder. As such we are unable to agree with the learned Sessions Judge that the case is covered by clause thirdly of Section 300 IPC.
11. The case also does not fall under clause firstly of Section 300 IPC There was no bad blood between the deceased victim and appellants before the occurrence. There is nothing on record to suggest that the appellants intended to cause the death of the victim. However, as death has been caused due to the infliction of the injuries by the appellants, they can be atleast imputed with the knowledge that their act of beating was likely to cause death though without any intention to cause death or to cause such bodily injury as is likely to cause death. The accused are, therefore, guilty under Section 304-II IPC.
12. In the result the appeal of appellants Ambalal, Bhagwanlal and Motilal is partly allowed. Their conviction and sentence under Section 302/34 IPC are set aside and instead they are convicted under Section 304-II IPC and each is sentenced to six years rigorous imprisonment. In case they have served out the full sentence they shall be immediately released. The appeal shall stand accordingly disposed of.