JUDGMENT
S.L. Kochar, J.
1. The appellant named above stands convicted under Section 302 of the Indian Penal Code and is sentenced to suffer imprisonment for life with fine of Rs. 500/-, in default of payment of fine to suffer additional RI for three months by judgment dated 28-9-1996 rendered in S.T. No. 312/1993 by the learned Vth Addl. Sessions Judge, Ujjain. Being aggrieved by the said judgment, the appellant has come up in appeal before this Court.
2. The prosecution case as unfurled before the Trial Court was that on 1 -8-1993 Abdul Hamid was in his house. At that moment Basru quarrelled with Ashiq s/o Hamid and assaulted him. This incident was intervened and pacified by Abdul Hamid. On account of this incident, Ashiq and Basru had gone to lodge report at P.S. Jivajiganj. Abdul Hamid had also gone to Police Station. At the police station, Abdul Hamid came to know that his son Ashiq was referred to the hospital for his medical examination, therefore, he also went to the hospital to see his son at about 12.15 in the night. At the cycle stand accused Chand Khan and Kamruddin met him and alleged him to ensue quarrel on which Abdul Hamid replied that he did not do so and merely pacified the quarrel. On this reply, Chand and Kamruddin abused Abdul Hamid and threatened to eliminate him. Thereafter Abdul Hamid proceeded from there and went upto the porch. At that time, accused Kamru and Chand caught hold of the hands of Abdul Hamid and accused Sharif came from inside the hospital and inflicted a knife blow at the right side of the abdomen of Abdul Hamid. Seeing this, people assembled there and the accused persons (led away from there. Deceased was assaulted on account of ill-will due to business of “Silavati”. A report of the incident was lodged by Abdul Hamid vide Exh. P-1, recorded by S.I. Shri Arvind Tambe (P.W. 15) in Civil Hospital compound. On the basis of this report, a Crime No. 0/93 under Section 307/34 of the Indian Penal Code was registered in police outpost. On the basis of Exh. P-1, Crime No. 255/1993 under Section 307/34 of the Indian Penal Code vide Exh. P-2, FIR was registered in Police Station, Kotwali, Ujjain. Abdul Hamid was medically examined by Dr. R.K. Dhawan, who is said to have expired. He gave injury report Exh. P-7. Statement of the injured was recorded under Section 161 of the Criminal Procedure Code vide Exh. P-25. During the course of treatment, Abdul Hamid died. His body was sent for post-mortem examination, which was conducted by Dr. Harish Rathore vide Exh. P-9, during investigation, clothes of the deceased and weapon of offence were seized by the police.
3. After due in,.immtigation, the accused persons were charge-sheeted for the offence under Section 302/34 of the Indian Penal Code. They pleaded not guilty and stated that they have been falsely implicated. They did not examine any witness in iheir defence. The prosecution, in order to establish its case, examined as many as 15 witnesses. After completion of trial and hearing the parties, the Trial Court did not find the accused Kamruddin and Chandkhan guilty of any offence and acquitted them from the offence charged. However, the Trial Court finding the appellant Sharif Ahmed guilty of the offence under Section 302 of the Indian Penal Code, convicted and sentenced him as indicated herein above.
4. We have heard Shri S.K. Vyas, Advocate for the appellant and Shri G. Desai, learned Dy. A.G. appearing for the State and gone through the entire evidential material available on record.
5. The earned Counsel for appellant submitted that conviction of the appellant is based on FIR lodged by deceased (Exh. P-1), his MLC report (Exh. P-7) containing history of the patient bearing name of the accused and statement of deceased recorded during the course of investigation under Section 161 of the Criminal Procedure Code by SHO, Arvind Tambe (P.W. 15) of P.S. Central Kotwali, Ujjain treating all these documents as dying declaration. The earned Counsel has criticised all these documents categorically that while recording Exh. P-1, the FIR in the hospital, the scribe, Sub Inspector Shri Arvind Tambe (P.W. 15) did not secure the presence of Doctor and obtained certificate of mental fitness of deceased to give his statement. FIR (Exh. P-1) is not containing full description to establish the identity of the appellant. He further contended that in MLC report (Exh. P-7) also the full particulars of the appellant is not mentioned and Exh. P-7 was written by Dr. R.K. Dhawan who could not be examined in the Court to prove this document as he had died and therefore Exh. P-7 was got proved by prosecution from Dr. Harish Rathore (P.W. 3) who proved the signature of Dr. Dhawan, but he does not say that handwriting is of Dr. Dhawan, therefore, contents of MLC report (Exh. P-7) could not be considered against the appellant. So far as the Exh. P-25, statement of the deceased recorded under Section 161 of the Criminal Procedure Code by Arvind Tambe, Sub Inspector (P.W. 15) is concerned, the earned Counsel submitted that same was not recorded in conformity with para/Clause 742 of the M.P. Police Regulations, Clause (c) sub-para 1 (2) which says that the statement of the deceased could be recorded in presence of two or more credible witnesses unconnected with the police department. If such credible witnesses cannot be obtained without risk of such person’s death before his statement can be recorded, it will be recorded in the presence of one or more police officers. According to learned Counsel, Shri Tambe (P.W. 15), while recording the statement of deceased (Exh. P-25), did not secure the presence of two independent witnesses and if same were not available, in presence of one or more police officers, therefore, contents of Exh. P-25 could not be considered against the appellant. He further submitted that in all the three documents which have been considered as dying declaration of the deceased by the Trial Court, there is inconsistency, therefore, conviction of the appellant, relying on these documents is unsustainable.
6. On the other hand the learned Dy. A.G. Shri G. Desai has submitted that all the three documents (Exhs. P-1, P-7 and P-25) were not recorded at the initial stage as dying declaration. Exh. P-1 was FIR, at the instance of deceased and recorded as per provision under Section 154 of the Criminal Procedure Code, therefore, principles and provisions regarding recording of dying declaration would not be applicable in the instant case. Same are with document Exh. P-7, MLC report, written by Doctor and Exh. P-25 statement recorded by police as per provision under Section 161 of the Criminal Procedure Code. Therefore, according to learned Dy. A.G., the non-compliance of M.P. Police Regulation No. 742, Clause (c) sub-para 1(2) would not be attracted in the instant case. He has also submitted that part of the dying declaration can be relied upon while rejecting other part and all the three dying declarations are consistent so far as causing injury to deceased by the appellant and identity of the appellant has also been fully established. The earned Counsel for State has strongly supported the judgment and finding arrived at by the Trial Court.
7. Having heard the earned Counsel for parties and after perusing the entire record, we are of the considered view that the learned Trial Court has not committed any illegality in relying upon Exh. P-1, FIR, Exh. P-7, MLC Report and Exh. P-25, statement of the deceased as dying declarations of the deceased because the contents of all these three documents are admissible under Section 32(1) of the Evidence Act, which reads as under:
(1) When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
8. In view of the aforesaid provision, since statements of the deceased mentioned in all the three documents are relating to cause of his death and the circumstances of the transaction which resulted in his death, therefore, these documents have been rightly considered as dying declaration of the deceased.
9. We are not impressed by the argument advanced by the earned Counsel for appellant that at the time of recording of FIR (Exh. P-1), Investigating Officer Shri Tambe (P.W. 15) should have obtained certificate of fit state of mind of the deceased as the FIR was recorded in the hospital. For recording FIR, the provisions of Section 154 of the Criminal Procedure Code are applicable, which nowhere prescribed that when the FIR is recorded at the instance of the injured person, the police officer must obtain certificate of mental fitness of the author, to lodge FIR. It is crystal clear that Exh. P-1, FIR was not recorded as a dying declaration. The principle of confirmation of mental fitness of the deceased before recording dying declaration by police officer or by Magistrate and securing presence of two independent witnesses when dying declaration was recorded by police officer would be applicable only when the statement was recorded as dying declaration. In the instant case, none of the documents (Eixhs. P-1, P-7, P-25) were recorded as a dying declaration Exh. P-1, FIR, was recorded in conformity with the provisions under Section 154 of Criminal Procedure Code, Exh. P-7, MLC report was prepared by Dr. R.K. Dhawan who could not be examined because of his death during the course of trial, and his signature and document Exh. P-7 is fully proved by Dr. Harish Ralhore (P.W. 3). Dr. Rathore, in his statement, has specifically stated that on 1-8-1993 he and Dr. R.K. Dhawan were serving in Government District Hospital, Ujjain. Dr. Dhawan died and he identified his signature on Exh. P-7. This statement of Dr. Rathore goes without saying that he proved the complete report Exh. P-7 as written by Dr. Rathore. In cross-examination, there is no challenge to the contents of document Exh. P-7 by the defence. No question was put or suggestion was given to Doctor Rathore that contents of MLC report Exh. P-7 were not written by Dr. Dhawan. Therefore, learned Trial Court has rightly placed reliance on this document which contains the mention of fact regarding history of patient that “SHARIF NAAM KA AADMI NE CHAKU MAR D1YA HAI”. This document is specifically disclosing that deceased himself reached in the hospital as mentioned at the top of the document, after mention of time and date of examination B/B-Self (Brought By Self). Because of this, the history as mentioned must have been given by the deceased Abdul Hamid and none else that he was assaulted by knife by a man named Sharif.
10. The earned Counsel for appellant has also argued that Exh. P-1 (FIR) is a concocted piece of evidence. His argument is based on comparison of Exh. P-1 with Exh. P-2. Both are the FIR and in printed form as per provision under Section 154 of the Criminal Procedure Code. On Exh. P-1 at the top, figure 22 is printed whereas on Exh. P-2, figure 15 is mentioned. We have carefully perused both the documents and find ourselves unable to accede the submission of the earned Counsel for appellant. Contents of Exh. P-1 right from first page to second page are clearly disclosing that this was recorded in outpost of Police Station, Kotwali, in hospital by Sub Inspector Shri Tambe (P.W. 15) on 0/93 number for the offence under Section 307/34 of the Indian Penal Code. This was recorded at the instance of deceased Abdul Hamid s/o Ahmed Khan, aged 50 years, resident of Chand Ka Kua, situated in front of Shrine (Dargah), House No. 36, Jivajiganj. In Exh. P-1, Column No. 5, the complete description of lodger of FIR is mentioned and in Column No. 7, names of all the three accused persons with their father’s name and address, i.e., Meli Gali, Lal Masjid are mentioned. After recording of FIR on “0” Number (Exh. P-1), Shri Tambe (P.W. 15) on the basis of this FIR, registered the Crime in Police Station, Central Kotwali, on the same day, i.e., 1-8-1993 and in this FIR (Exh. P-2), registered crime number is mentioned 255/1993. Sub Inspector Arvind Tambe (P.W. 15) has deposed in Court that on 1 -84993 he was posted in P.S. Kotwali, Ujjain. When he was on patrolling duty, he received information about quarrel upon which he reached in Civil Hospital, Ujjain and at the instance of Abdul Hamid (deceased) recorded FIR (Exh. P-1). He proved his own signature at place “A to A” and signature of deceased at place “B to B”. He has also stated that he recorded the statement of prosecution witnesses as well as the statement of deceased Abdul Hamid under Section 161 of the Criminal Procedure Code (Exh. P-25). In cross-examination, Para five the say of this witness is that he was competent to take action in the matter and in Civil Hospital campus, there was police outpost, but he expressed his inability to disclose the names of police officials posted in chowky on the date of incident. The incident occurred on 1-8-1993 and this witness was examined in Court on 26-8-1996 after about three years. Therefore, it could not be possible for him to remember and disclose the presence of police officials in outpost, Civil Hospital. In crossexamination, Para four, he has specifically stated that Exh. P-1 was not the copy of FIR registered, kept in police station and Exh. P-1 is clearly disclosing the fact that it was recorded in police outpost, Civil Hospital compound on “0” number. This shows that in police outpost the separate register of FIR must be kept. That is why Exh. P-1 is containing printed Number 22 whereas Exh. P-2, registration of the FIR in police station, Kotwali is containing Number 15. In this view of the matter, we do not find anything to hold that FIR Exh. P-1 was a concocted piece of document.
11. On consideration, we are also not finding any force in the submission of the earned Counsel for appellant that the identify of the appellant is not established by the prosecution on the basis of contents of all the three documents (supra) because in Exh. P-1, at column number seven, the name of appellant Sharif, his father name Ahmed Khan, resident of Meli Gali, Lal Masjid is mentioned specifically and his FIR was recorded at the instance of the deceased Abdul Hamid whose name and full address is mentioned at column No. 6. The facts relating to the incident are mentioned in column No. 12 and in this para there appear no need of again mentioning the full name, father name and address of the author of FIR as well as the accused persons. In Exh. P-7, deceased Abdul Hamid has disclosed the name of author of his injury, i.e., Sharif and in statement (Exh. P-25) recorded under Section 161 of the Criminal Procedure Code by Sub Inspector Arvind Tambe (P.W. 15), he disclosed about the incident and mentioned the name of the appellant. Once he has given full name and address of appellant in FIR (Exh. P-1), there appear no necessity to mention the same in police statement (Exh. P-25) which has been considered as dying declaration after the death of deceased as discussed hereinabove. Supreme Court in case of Patel Hiralal Joitram v. State of Gujarat , has ruled in Para 29 as under:
The above provision relates to the statement made by a person before his death. Two categories of statements are made admissible in evidence and further made them as substantive evidence. They are: (1) his statement as to the cause of his death; (2) his statement as to any of the circumstances of the transaction which resulted in his death. The second category can envelop a far wide amplitude than the first category. The words “statement as to any of the circumstances” are by themselves capable of expanding the width and contours of the scope of admissibility. When the word “circumstances’ is linked to “transaction which resulted in his death” the Sub-section casts the net in a very wide dimension. Anything which has a nexus with his death, proximate or distant, direct or indirect, can also fall within the purview of the Sub-section. As the possibility of getting the maker of the statements in flesh and blood has been closed once and for all the endeavour should be how to include the statement of a dead person within the sweep of the Sub-section and not how to exclude it therefrom. Admissibility is the first step and once it is admitted the Court has to consider how far it is reliable. Once that test of reliability is found positive the Court has to consider the utility of that statement in the particular case.
Supreme Court has further observed in Para 32 as follows:
Looking at Exh. 67 from the above perspective we have no doubt that the said statement would fall within the ambit of Section 32(1) of the Evidence Act.
12. In view of the provision under Section 32(1) of the Evidence Act (supra) and the observation of the Supreme Court mentioned hereinabove, there is no room for doubt that the statement of the deceased (Exh. P-25) would fall within the category of written dying declaration of the deceased. Also see Kulvant Singh and Ors. v. Slate of Punjab .
13. It is trite law that there is no legal bar to act on a part of dying declaration. Therefore, the learned Trial Court has not committed any illegality to acquit the co-accused Kamruddin and Chand Khan. Apart from this, on the basis of the contents of Exh. P-1 and Exh. P-25, it would be very difficult to discern that both the acquitted co-accused persons acted in furtherance of common intention of committing murder of deceased by appellant. According to the contents, the hands of deceased were caught by the acquitted co-accused persons. At that time, appellant was not present on the scene of occurrence and appellant came thereafter from inside the hospital and dealt a solitary blow of knife which fell at the right side of abdomen of deceased. There is no evidence on record that acquitted co-accused persons were having pre-meeting of mind, pre-meditation and pre-plan with the appellant to cause injury by knife to deceased and there is also no evidence that appellant reached near the deceased having open knife in his hand. In this factual background, as a matter of fact there is no inconsistency about part played by the appellant in all the three dying declarations.
14. The next facet of the argument of earned Counsel for appellant is that even if the complete prosecution case is accepted case would fall under Section 304-11 of the Indian Penal Code since the appellant dealt a solitary blow without aiming any particular part of the body and he did not try to cause further blow and there was no bitter enmity or ill-will between them. The incident occurred suddenly when all met in the hospital and on trivial dispute between the son of the deceased Ashiq and one Basru, the brother of the appellant on the same day, therefore, the offence would be short of punishable under Section 302 of the Indian Penal Code.
15. Having considered this aspect of the case and in absence of any concrete evidence led by the prosecution to establish previous enmity or bad blood between two families we find substance in this argument of the earned Counsel for appellant that appellant could not be attributed intention to commit murder of deceased, but at the same time he was having knowledge that his act would likely to cause death falling under Section 304-11 of the Indian Penal Code, culpable homicide not amounting to murder. See , Hemraj v. Delhi Administration and , Han Ram v. State of Haryana. W
16. From the above conspectus of the case, this appeal is allowed in part. Conviction and sentence of the appellant under Section 302 of the Indian Penal Code are hereby set aside, instead thereof he is convicted under Section 304-11 of the Indian Penal Code and sentenced to RI for five years and fine of Rs. 15,000/- (Rupees fifteen thousand), in default of payment of fine, he shall further suffer RI for two years. Out of realisation of fine, amount, Rs. 14,000/-(Rupees forteen thousand) shall be paid as compensation to the wife or legal heirs of the deceased Hamid. The appellant is on bail. He is directed to surrender his bail bond before the Trial Court on 29th September, 2006. Upon surrender of the appellant, the learned Trial Court is directed to send him to serve out remainder part of the jail sentence. If appellants does not surrender on the given date, the learned Trial Court is directed to take suitable legal action against him under intimation to this Court.