Patil, J.
1. This appeal is directed against the judgment and order of conviction dated November 22, 1983, passed by the Sessions Judge, Chitradurga, in Sessions Case No. 17 of 1983, on his file.
2. The appellant Raghu yane Raghavendra (A-l) and his elder brother Murali (A-2) were jointly tried on the charge of the Commission of offence of murder punishable under Sections 302 R/W 34 IPC for having intentionally caused the death of one Ramesh. The appellant was also further separately charged with the commission of the offence of murder punishable under Section 302 IPC. Murali was held to be not guilty of the charge of the offence levelled against him. The appellant was also held to be not guilty of the offence of murder punishable under Section 302 or Section 302 R/W Section 34 IPC. He was. however, found to be guilty of the offence punishable under Section 304 Part II IPC and has been convicted and sentenced to suffer R.I. for a period of five years thereon, being aggrieved of which he has filed this appeal.
3. The facts of the case have elaborately been stated in the judgment of the Sessions Judge and briefly stated are as follows: On Friday March 25, 1983, deceased Ramesh went towards Santhepet Circle in Chitradurga town to purchase some fruits. PW-8 B. G. Swamy had accompanied him. Particular kind of fruits being not available, they together went to hotel of PW-14 Ramesh situated at Holalkere road, a little away from Santhepet Circle. It was about 9-00 or 9-30 p.m. They had some tiffin and then came out and found that Raghu (A-1) & Murali (A-2) were quarrelling with their mother Narasamma by the side of the hotel. When deceased Ramesh intervened advising them not to quarrel there and to go home, Raghu retorted him back saying 'who he was to tell him' and asked him to go his way. Thereupon, when deceased Ramesh asked Raghu to talk courteously, Raghu again retorted back himquestioning about his audacity to interfere with his affairs. On that there was some exchange of words. PW-8 who was all the while present there asked deceased Ramesh not to quarrel with them and took the deceased with him towards the Electrical Stores, but the accused Raghu went following and beat deceased Ramesh on his back. Deceased Ramesh stooped forward and fell down, as a result he sustained some minor injuries on his chin and forehead. As the deceased got up, Raghu picked up some dried stem of a plantain bunch and beat him again with the same. When deceased Ramesh started going away running away from there, Raghu (A-l)and Murali (A-2) went following him and on the way Raghu(A-l) picked up a bottle from a nearby shop, broke it and holding one broken piece in his hand went chasing deceased Ramesh, caught hold of him at Gayathri Circle and stabbed with the broken bottle in the abdomen. As a result when deceased Raghu having sustained bleeding injury cried out as 'AMMA' and fell down, the accused -ran away. PW - 8 got frightened and went towards going his house. PW - 9 Jayanna having seen the deceased running away followed by the accused, also went upto Gayathri Circle and saw the accused so stabbing the deceased with a bottle. One Thippeswamy was also present. Both of them thereafter went to the house of deceasedRamesh and informed about what had happened, to his wife and parents. While going running towards his house, PW-8 informed about what had happened, to his friend Suresh and both PW-8 and Suresh together went towards the police station. But, before they went to the police station, on coming to know that the deceased was lying injured, PW-21 Head Constable Devendra Reddy went to the place of incident and found the deceased so lying injured in front of Syndicate Bank near a tamarind tree. When PW-19 Police Constable Ramanjaneya came there on beat duty, PW-21 directed him to take the injured to the hospital. Accordingly, PW-19 removed the deceased Ramesh in an Auto rickshaw to the hospital. After PW-19 removed the deceased to the hospital, PW-21 went back to the police station. PW-2 Dr. M. Shankarappa was on duly in the casualty ward in the hospital. The deceased was unable to talk. He admitted him for treatment. PW-8 thereafter appeared in the police station with his friend Suresh and orally complained about what had happened. In the meanwhile, when PW-20 N.B. Nanjappa, P.S.I., came to the police station, PW-8 gave him written complaint as per Ex. P- 10. On the basis of the same PW-20 registered a case in Crime No. 21/83 for an offence under Section 307 IPC and issued F.I.R. to the Court as per Ex. P-23. He sent the F.I.R. with the complaint to the Court with police constable PW-17 Parashuramappa. Thereafter PW-20 went to the hospital, found the condition of the deceased was serious and he was not in a position to make any statement. He returned back and searched for the accused, but they could not be found. At about 7 a.m, on March 26, 1983, he went to the hospital and having ascertained from PW-2 Dr. Shankarappa that the deceased was able to make statement, he recorded his statement as per Ex. P-3. He also thereafter seized the bloodstained pant, shirt and knicker (MOs-6,7 & 8) of the deceased under panchanama Ex. P 24. Later on, he went to the scene of offence and in the presence of PWs, 8 & 9 he prepared panchanama of the scene of offence as per Ex.P-11 and seized thereunder blood stained scrapping of the tar road, dried stem of plantain bunch and broken pieces of a bottle (MOs-2, 3 & 4). Later on PW-22 M. Ramaiah, C.P.I., took up investigation of the case. He requested the Magistrate to record dying declaration of the deceased. Accordingly, PW-11 Chandraiah J.M.F.C., Chitradurga, went to the hospital and having ascertained the condition of the deceased from the Medical Officer on duty, recorded the statement of deceased Ramesh as per Ex. P-15. Later on when deceased Ramesh died in the hospital while under treatment at about 2-45 PM, on March 26, 1983, PW-20 the P.S.I. sent another F.I.R. to the Court as per Ex. P-25 for the offence of murder. PW-22 the C.P.I., then went to the hospital, collected panchas including PW-15 Govindappa and held inquest proceedings over the dead body of the deceased as per Ex. P-20 and made over the dead body of the deceased to the Medical Officer for post-mortem examination.
4. PW-3 Dr. K.A. Jayasheela Reddy conducted post-mortem examination over the dead body of the deceased on the same day between 4-45 PM and 6-30PM and found the deceased had sustained the following external injuries.
(i) A sutured wound of size 2.5 cms in length over the chin.
(ii) An abrasion of size 2 cms. x 2 cms over the right cheek.
(iii) An abrasion of size 5 cms. x 2 cms. over the right shoulder, laterally.
(iv) A sutured wound of size 15 cms in length over the abdomen in the midline.
(v) A sutured wound in the right hypochondrium, 4 cms. in length.
(vi) A sutured wound with drainage tube of size 3 cms. in length in the right flank.
(vii) A sutured wound of size 2 mm. over left ankle on the medial aspect.
(viii) A sutured wound of size 2 cms. over the left foot at the base of great toc.
(ix) An abrasion of size 4 cms. x 3 cms. over the right chest, about 9 cms. below the right nipple.
On dissection, he also found there was a sutured wound present over the peritoneum as also another sutured wound over the stomach and the stomach contained blood clots. The cause ofdeath, in his opinion, was due to shock and haemorrhage, as a result of the injuries sustained by the deceased. He accordingly issued post-mortem report as per Ex. P-6.
5. On the same day when the accused were apprehended, brought and produced before PW-22, he arrested them and on the information furnished by the accused (A-l) as per Ex. P-27, he recovered the broken pieces of the bottle (MO 1) from his house under panchanama Ex. P-21. He later on sent the bloodstained articles to the C.E , Bangalore, and after completing the investigation, he placed the charge sheet against the accused.
6. The defence of the accused was one of total denial.
7. The learned Sessions Judge, after assessing both oral and documentary evidence adduced on behalf of theprosecution, held that not only the deceased died of the injuries sustained by him on the abdomen, but the accused-appellant Raghu was responsible for the injuries inflicted. As stated earlier, be however held that the incident having taken place all of a sudden during quarrel the accused had no such intention of causing the death of the deceased, but he could be attributed with the knowledge that by so doing he was likely to cause the death of the deceased and the offence made out was one punishable under S. 304 Part II IPC. Accordingly, he having convicted and sentenced him to suffer imprisonment as aforesaid, the accused has filed this appeal.
8. It may be mentioned here that the State has neither filed any appeal against the acquittal of the co-accused or any appeal against the acquittal of the appellant of the charge of the offence of murder levelled against him.
9. Mr. Suvarna, Learned Counsel appearing for the accused appellant, argued that the Learned Sessions Judge having rejected the evidence of eye witness to the incident, as given by PW-8 and 9, as not reliable, was not justified in finding the accused-appellant being responsible for the injuries inflicted on the deceased solely relying upon the statement in the nature of dying declaration recorded by the P.S.I, in Ex. P-3 and the evidence of dying declaration state-, ment as given by PW-11 and as recorded in Ex. P-15. He also submitted that what PW-2 has stated in his evidence in this behalf, of the deceased being in fit mental condition able to make statement and the entries, if any, to that effect made by him in the Accident Register Ex. P-5 are not free from doubt in as much as, as stated by PW-2 him-self, the deceased was not conscious not able to speak when he was first brought to the hospital and the constable who took the deceased to the hospital also did not know the deceased by his name and the entries at Ex. P-5 hadobviously been made subsequently and therefore they cannot have any evidentiary value and if they are excluded and the statement in the nature of dying declaration as recorded in. Ex. P-3 is also excluded as being inadmissible in evidence being a statement to the police, the evidence of dyingdeclaration in Ex. P-15 alone could not be made a basis for conviction of the accused ; because it was recorded long after the incident and hence there was every possibility of the deceased naming the accused as his assailant at the instance of someone ill-disposed towards the accused. He also further submitted that although the Medical Officer, who conducted the postmortem examination over the dead body of the deceased, had stated that the deceased died as a result of shock and haemorrhage due to the injuries sustained by him, but the possibility of the deceased dying due to transfusion of blood of wrong-group cannot be ruled out. Therefore, the accused could at best be held to be guilty of the offence punishable under Section 325 IPC and not under Section 304 IPC.
10. Learned High Court Government Pleader, on the other hand, argued supporting the order of conviction and sentence as passed by Learned Sessions Judge.
11. The contention that the deceased might have died due to wrong treatment, because of transfusion of wrong group of blood, it appears, cannot at all be sustained. No doubt as submitted by the Counsel it would appear from the papers forming part of the case-sheet, the deceased who was a person of blood group 'A', was given blood of group 'O' but neither any such contention has been advanced before the trial Judge nor any attempt has been made by cross-examining any of the Medical Officers that such transfusion pf blood of different group had any such effect of clumping together of red cells (RBCs) into large aggregates, i.e., of the agglutination of the blood resulting in thedeath deceased. Of course, if there is mixing of incompatible bloods, this takes place, because as stated in Starling And Lovatt Evans - Principles Of Human Physiology - 14th Edn. page 59 :-
'Presumably the red cells become coated with some material from the incompatible blood that favours their adhesion to each other in clumps, As to whether or not agglutination of a recipient's blood will occur will depend on the nature of his red cells and the nature of plasma of the donor! Similarly the agglutination, or otherwise, of the donor's blood will depend on the nature of his cells and the plasma of the recipient.'
Dealing with 'ABO' system of blood, group this is what has also been further stated:-
'Two main antigens, called A and B, may exist in human red cells, and these can react with two antibodies, called anti-A (or Alpha) and anti-B (or Beta), found in human plasma, or serum. Thus anti-A agglutinates A corpuscles and anti-B agglutinates B. The ceils of an individual may contain one or both antigens, or none at all, and similarly for the anti-bodies of the serum. Subjects thus fall into four groups, according as the cells are A,R, AB (i e. with both) or O (i.e. with neither). Blood with A cells cannot have a plasma with anti-A antibodies, nor can one with B cells have anti-B plasma, otherwise sera would agglutinate their owncorpuscles. The blood with A cells contains the anti-B plasma, that with B contains anti-A, that with AB contains neither antibody, and that with the O group of cells contains both anti-A and anti-B antibodies in the plasma.........
The corpuscles of Group O are not agglutinated by the plasma of any group, and Group O are accordingly called ''Universal Donors,', since their blood is relatively safe for transfusion into any person. In group AB the plasma is O, and does not agglutinate any corpuscles, so that people belonging to this group could probably receive blood from any healthy person............ Thus group B could act as a donor to Groups AB or B only.'
Although in view of the report of the Chemical Analyser there arises a doubt if in fact the deceased was a person of blood group A or B, in as much as the report of the Chemical Analyser showed that the clothes of the deceased as also the weapon used in the commission of the offence were stained with blood of group B, yet it cannot be said there was any transfusion of incompatible blood in as much as deceased was given blood of group O which, as stated above, is 'Universal Donor' and it is safe for transfusion into any person. Therefore, it is difficult to hold that the deceased had died of wrong transfusion of blood and not due to the injury itself. Regard being had to the nature of the injuries sustained by the deceased on the abdominal region, the possibility of profuse bleeding from the injuries resulting in the loss of blood and consequently leading to shock, as stated by the Medical Officer, cannot be ruled out. Therefore, it may safely be concluded that the deceased died of the injuries sustained by him.
12. Of course the Learned Sessions Judge has rejected the evidence of occurrence as given by PWs-8 and 9 as notreliable; firstly because although the place of incident Holalkere Road happened to be a very busy place, many shops and hotels were nearby, but both of them denied any other person being present at the time of incident; secondly because they were not residents of the locality where the incident took place ; and thirdly because they had exhibited unusual and unnatural conduct by not informing the police immediately although the police station was hardly 100 yards away from the place of incident. None of these grounds is sufficient to outright reject the evidence of the occurrence as given by them. While PW-8 has stated in detail from the commencement of the quarrelling incident at the tea shop of Ramesh to the culmination of the incident at Gayathri Circle, PW-9 who claims to have gone up to the Gayathri Circle on seeing the deceased going chased by the accused, has also stated of his having seen the accused actually stabbing the deceased by means of broken bottle. Although PW-8 had not gone to the police station to inform about the happening immediately after seeing the assault on the deceased, but there is no denial of the fact and it cannot be disputed having regard to the evidence given by the PSI him-self that at about 10-30 pm he appeared in the police station and gave a written complaint of the incident as per Ex. P-10. If he did not go to the police station immediately after the assault on the deceased, it was because, as explained by PW-8 himself, he got frightened when the accused asked to catch hold of him and he went running towards his house and thereafter he went to the police station, took a paper and lodged the written complaint. Although PW-21 Devendra Reddy, Head Constable, does not specifically mention about PW-8 appearing in the police station and taking of paper from him, but he does say that when he went back to the police station two persons came and one of them told him that he wanted to lodge a complaint and he took a paper from him and thereafter the P.S.I, also came to the police station. The incident had taken place round about 9-30 pm and the written complaint came to be lodged in the police station at about 10-30 pm. Although PW-8 is not a resident of the locality where the incident took place, but he claims to have been accompanying the deceased on that night of the incident and the fact that he was so accompanying the deceased also in a way finds corroboration from the evidence given by PW-9. Although having regard to the place of incident and the surroundings some other person could also be expected to be present, but there is nothing in the evidence to show that in fact there were many others also when the incident took place. TheSessions Judge, it appears, in the circumstances was not justified in rejecting the evidence of the occurrence as given by the witnesses, particularly that of PW-8 who claims to have been accompanying the deceased and present when the assault took place, because the version of the incident spoken to by him before the Court is broadly consistent with the to suffer from all the infirmities of human memory and human character. Keeping in view these principles, if, on a close and proper scrutiny of dying declaration, the Court is satisfied about the truthfulness of the evidence of dying declaration, then such evidence of dying declaration alone can form a basis for conviction.
13. Here in the case on hand, although it may not be safe to place implicit reliance on the entries made in the accident register in so far as they relate to the statement in nature of dying declaration said to have been made by the deceased before PW-2, not so much because of the unreliability of the evidence given by PW-2 but as a matter of abundant caution, by his own showing, when the deceased was first brought to the hospital, he was not in a position to speak. The evidence given by the Medical Officer does not disclose that the constable, who brought the deceased and got him admitted for treatment of the injuries, told him who the deceased was or what had happened. That gives an indication to the direction that the entry in the accident register including the statement in the nature of dying declaration as recorded therein had been made not at the time when the deceased was brought, but later on. May be, as stated by the Medical Officer himself, after the P.S.I. came to the hospital and questioned and recorded the statement of the deceased, he also made entries in the accident register. But, even if these entries in the accident register are excluded from consideration, the evidence of dying declaration as given by the PSI PW-20, as recorded in Ex. P-3, and the evidence of dying declaration given by the Magistrate PW-11, as recorded in Ex P-15, as found by the Court below appears to be quite truthful version of the happening and the cause of injury, resulting in the death of the deceased. The fact that Ex. P-3 has been recorded by the P.S.I, may not by itself be sufficient to exclude it from evidence as being hit under to suffer from all the infirmities of human memory and human character. Keeping in view these principles, if, on a close and proper scrutiny of dying declaration, the Court is satisfied about the truthfulness of the evidence of dying declaration, then such evidence of dying declaration alone can form a basis for conviction.
14. Here in the case on hand, although it may not be safe to place implicit reliance on the entries made in the accident register in so far as they relate to the statement in nature of dying declaration said to have been made by the deceased before PW-2, not so much because of the unreliability of the evidence given by PW-2 but as a matter of abundant caution, by his own showing, when the deceased was first brought to the hospital, he was not in a position to speak. The evidence given by the Medical Officer does not disclose that the constable, who brought the deceased and got him admitted for treatment of the injuries, told him who the deceased was or what had happened. That gives an indication to the direction that the entry in the accident register including the statement in the nature of dying declaration as recorded therein had been made not at the time when the deceased was brought, but later on. May be, as stated by the Medical Officer himself, after the P.S.I. came to the hospital and questioned and recorded the statement of the deceased, he also made entries in the accident register. But, even if these entries in the accident register are excluded from consideration, the evidence of dying declaration as given by the PSI PW-20, as recorded in Ex. P-3, and the evidence of dying declaration given by the Magistrate PW-11, as recorded in Ex P-15, as found by the Court below appears to be quite truthful version ofthe happening and the cause of injury, resulting in the death of the deceased. The fact that Ex.P-3 has been recorded by the P.S.I. may not by itself be sufficient to exclude it from evidence as being hit under Section 162 of Cr.P.C. As pointed out by their lordships of the Supreme Court in the case of Dilip Singh -v.-State of Punjab, AIR 1979 SC 1173 although the practice of Investigating Officer himself recording dying declaration ought not be encouraged, the dying declaration recorded by the police officer during the course of investigation is admissible in evidence under Section 32 of the Evidence Act. Similar is the view taken by the Supreme Court in a recent decision in the Case of Ramawati Devi -v.- State of Bihar, : 1983CriLJ221 . Distinguishing the earlier decisions in the case of Keshav Ganga Ram Navge -v.- State of Maharashtra, : 1971CriLJ798 and K.R. Reddy -v.- The Public Prosecutor, : 1976CriLJ1548 their Lordships observed :
'A statement, written or oral, made by a person who is dead 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, becomes admissible under Section 32 of the Evidence Act. Such statement made by the deceased is commonly termed as dying declaration. There is no requirement of law that such astatement must necessarily be made to a Magistrate. What evidentiary value or weight has to be attached to such statement, must necessarily depend on the facts and circumstances of each particular case. In a proper case, it may be permissible to convict a person only on the basis of a dying declaration in the light of the facts and circumstances of the case.'
In the said case, the dying declaration statement was recorded by the Assistant Sub Inspector of Police and the statement so recorded by the Police Officer was held admissible in evidence under Section 32 of the Evidence Act to base a conviction on the accused.
15. It does not appear from the evidence that there was any scope for tutoring. On the other hand, it would appear, nobody had any opportunity to speak with the deceased before the P.S.I. questioned and recorded his statement. There is not even a suggestion in the cross-examination of the P.S.I. that any of the friends or relatives of the deceased was present by the side of the deceased in the hospital when he went there and recorded the statement of the deceased. What is however tried to be made out is that the deceased made no such statement and the P.S.I. himself had briefed the deceased to say so. But for the suggestion put to the P.S.I. in this behalf and denied by him stoutly, there is absolutely no other material to probabilise the same. In this statement before the P.S.I. recorded in Ex. P-3, the deceased has stated clearly and without any ambiguity how the incident started and how when he was going towards the house with B. G. Swamy, the accused held by his neck by his left hand and stabbed him with the broken bottle and how thereafter when he was going towards the police station to inform the police, holding bleeding injury by his hands, he fell down near tamarind tree. Other evidence collected and produced on behalf of the prosecution like the panchanama of the scene of offence, seizure of broken piece of bottle, bloodstained earth both from the place of incidence and from the place near tamarind tree where the deceased was found lying, including the stem of plantain bunch go a long way to show that what the deceased had stated naming the accused Raghu as his assailant was a truthful version. The evidence given by the Medial Officer showed that his ability to remember and make statement was in no way impaired when the deceased made that statement. In fact, the evidence showed that the deceased was quite conscious and able to speak even long thereafter. This being the earliest record of the statement of dying declaration made by the deceased is a very valuable piece of evidence and must receive due credence. The learned Sessions Judge, it appears, was therefore right in accepting and relying upon this piece of evidence.
16. Now, coming to the evidence of dying declaration as given by PW-1l, the JMFC., and as recorded in Ex.P-15, on 26-3-1983; although it would appear the deceased had become considerably weak and had no strength even to subscribe his signature, the evidence given by the Magistrate PW-11 and the Medical Officer Dr. R. R. Setty PW-12 showed that the deceased was in a fit condition to give statement and in fact it would appear, as stated by the Magistrate, he having put some questions to the deceased satisfied himself that the deceased was quite conscious and able to makestatement. In the statement Ex. P-15 also the deceased, after giving the details of the happening almost consistent with the version as recorded in Ex. P-3, has stated that the accused Raghu was responsible for inflicting the injuries sustained by him. As recorded in Ex. P 15, before the Magistrate also he has stated: Raghu came running from behind and having broken the bottle hitting on the ground and holding one end of the bottle stabbed him in the abdomen. But for pointing out that Magistrate had obtained thumb impression of the deceased below the statement and it was not signed by the deceased, there is no other infirmity in this evidence of dying declaration made by the deceased before the Magistrate and as recorded in Ex. P-15. If the Magistrate had obtained thumb impression, it was because, as explained by him, the deceased had no strength to subscribe his signature. May be because he had sustained injury on the right hand and was not able to lift his hand. Whatever may be the reasons for his not being able to sign, the fact still remains that the deceased made the statement as to the cause of injuries, which ultimately resulted in his death, and the accused - appellant was responsibleto inflicting those injuries by means of broken part of the bottle. There is other ample circumstantial evidence to which a reference has already been made above which corroborates the say of the deceased in this behalf. The fact that the deceased had on two occasions made consistently the same statement implicating the accused as his assailant leaves no room for doubt that the accused was the assailant of the deceased.
17. Now, what next requires to be considered in view of the contention advanced by Learned Counsel for the appellant is : whether the Sessions Judge was not right in finding the accused guilty of the offence punishable under Section 304 Part-II I.P.C. According to Mr. Suvarna, Learned Counsel for appellant, the offence committed was punishable under Section 325 and not under Section 304 I.P.C. According to him, the accused might not have even distantly anticipated of the deceased dying of such injuries. Although the evidence given by P.Ws-8 and 9 would go to show that the accused gave only one blow with the broken bottle on the abdominal part of the body and soon thereafter he ran away from there with the broken bottle in his band, but with the one blow given as many as three injuries were caused on the abdominal part of the body of the deceased, may be due to multi-pronged edges of the broken bottle coming in contact with the body of the deceased.Nevertheless, the nature of injuries sustained by the deceased showed that the accused had also used sufficient force and as stated by the Medical Officer, the injuries were also sufficient in the ordinary course of nature to cause the death of the deceased. From the manner in which the accused had inflicted the blow on the abdominal part, with the broken part of the bottle, he can very well be attributed with the knowledge that he was thereby likely to cause the death of the deceased. Learned Sessions Judge, it appears, was therefore justified in holding that the accused was guilty of the offence punishable under Section 304 Part-II I.P.C. In the circumstances of the case, the sentence of R.I. for live years as awarded by the Sessions Judge also cannot be said to be harsh.
In the result and for the reasons stated above, the appeal fails and it is accordingly dismissed.