Judgment:
N.N. Mathur, J.
1. The appellant Panna Ram has been convicted for offence under Section 302 IPC and sentenced to imprisonment for life on the charge of murder of his wife Mst. Teeja by the judgment of the Sessions Judge, Jalore Camp Bhinmal dated 24.07.1996.
2. Son of the appellant, PW-7 Gopal lodged a First Information Report exhibit P-9 at about 9.30 PM at Police Station, Bhinmal stating inter alia that after taking dinner he his father and mother went to sleep. In the night at about 11.30 PM. he heard the out cry of his mother. He woke up and found his mother lying wounded. Injuries were inflicted by his father with intention to kill her. He requested his father to leave his mother but he was threatened to face the same consequence on coming close to him. He uttered ^^ esjs firk dgus yxs bl jkaM+ dks tku ls [kRe djds gh jgwaxk rw utnhd vk;k rks rsjs dks tku ls ekj nwaxk A ^^ The out cry attracted neighbours including PW-4 Kishnaram. They intervened and got his mother released. Thereafter, his father ran away with Kulhari. On this report, police registered a case for offence under, Sections 307, 324, 323 IPC and proceeded with the investigation. Mst. Teeja was taken to the hospital at Bhinmal where she was examined by PW-10 Dr. Pramod Kumar Saxena at about 9.30 AM. He prepared the injury report exhibit P-17. On the same day, PW-9 Ramlal, S.H.O., Police Station, Bhinmal recorded the statement of Mst. Teeja under Section 161(3) Cr.P.C. He also prepared the injury report exhibit P-10. On the next day i.e., on 16.04.1994 Smt., Teeja was referred to M.G. Hospital, Jodhpur. On 22.04.1994, Smt. Teeja died in the hospital at about 10.25 PM. On 23.04.1994, PW-18 Dr. V.K. Malhotra conducted the autopsy of dead body. On the death of Smt. Teeja, police added offence under Section 302 IPC. After usual investigation, police laid chargesheet against the appellant for offence under Section 302 IPC.
3. The appellant denied the charges leveled against him and claimed trial. The prosecution in support of the case examined 18 witnesses and produced certain documents. Appellant in his statement under Section 313 Cr.P.C. denied the correctness of the prosecution evidence appearing against him. He also stated that a false report has been made at the instance of Kishnaram and Tarachand as he was having a dispute with respect of plot with them. He also stated that he had gone to lodge a report but the same was not received by the police as Kishnaram was present. He examined DW-1 Mohd. Razaq in his defence. The eye witness PW-7 Gopal did not support the prosecution case and as such he was declared hostile. PW-4 Kishnaram and PW-5 Tarachand who alleged to have reached on the spot after the incident also did not support the prosecution case and as such they were declared hostile. The brother-in-law of deceased PW-15 Dalaram and PW-16 Pratapa also did not support the prosecution case with respect to the ill treatment givey by the appellant to his wife and as such they were also declared hostile. The evidence of this recovery was discarded as F.S.L. Report was not produced. However, the learned Judge relying on the testimony of PW-4 Kishnaram with respect to the conduct of the appellant and the extra-judicial confession corroborated by the medical evidence and further the evidence of dying declaration exhibit P-14 found the appellant Pannaram guilty of the murder of his wife Smt. Teeja. Accordingly, he convicted and sentenced him as noticed above.
4. Assailing the conviction, it is contended by Mr. Doongar Singh, learned Counsel for the appellant that the learned Judge has committed error in relying on the testimony of PW-4 Kishnaram who is a hostile witness. He has also criticised the dying declaration exhibit P-14. It is submitted that inspite of the fact that there was sufficient opportunity, the dying declaration was not got recorded by the Magistrate. It is further submitted that even PW-9 Ramlal did not made any effort to obtain a certificate from the Doctor if the deceased Smt. Teeja was in a fit condition to give statement. In alternate, it is submitted that the fact that Smt. Teeja died after eight days of the incident leads to the inference that the appellant did not inflicted injuries with intention to commit the murder. Thus, the offence against him does not travel beyond 304(11) IPC. On the other hand, it is submitted by the learned Public Prosecutor that it is unfortunate that PW-7 Gopal who is none-else but the son of the deceased with a view to save his father from the punishment has betrayed and not supported the prosecution case. It is submitted that the statement of a hostile witness cannot be completely washed out. It is also submitted that PW-4 Kishnaram has stated that when he reached on the spot hearing the out cry of Smt. Teeja, he found Panna Ram standing with a Kulhari in his hand and Smt. Teeja was lying on the ground. This conduct of the appellant is relevant under Section 8 of the Evidence Act. It is also submitted that the appellant even did not attended the funeral of his wife and absconded is an important incriminating circumstance against him.
5. We have scanned, scrutinized and evaluated the prosecution evidence exhaustively and considered the rival contentions. Before we deal with the contentions of the parties, it would be appropriate to indicate the nature of the evidence laid by the prosecution in support of the case.
6. PW-10 Dr. Pramod Kumar Saxena has stated that on 15.04.1994 he examined Smt. Teeja and noticed the following injuries--
1. Incised wound 6-1/2' x 1-1/2' x bone deep left parieto occipital region.
2. Incised wound 4-1/2' x 1/2' x bone deep left parieto occipital region.
3. Incised wound 2-1/2' x 1/4' x bone deep left parieto occipital region.
4. Incised wound 1-1/2' x 1/4' x skin deep left parieto occipital region.
5. Incised wound 3-1/2' x 1/4' x bone deep left occipital region.
6. Incised wound 1-1/2' x 1/4' x bone deep right occipital region.
7. Incised wound 1' x 1/4' x bone deep right occipital region.
8. Incised wound 1/2' x 1/4' x skin deep left fore arm.
9. Incised wound 1-1/2' x 1/8' x skin deep left fore arm.
10. Abrasion 1-1/4' x 1/4' x skin deep right forearm.
He has also proved injury report exhibit P-17. He stated that injuries No. 1 to 3 were caused by sharp edged weapon and injury No. 10 by a blunt object. Injuries Nos. 8, 9 and 10 were simple in nature. Injuries No. 1 to 7 were found to be grievous. PW-18 Dr. V.K. Malhotra stated that he conducted the post mortem of the dead body of deceased Teeja and noticed following injuries:
1. Stitched wound 13 cm long on left fronto parietal region placed obliguely.
2. Stiched wound 3 cm long on left frontol region placed 2.5 cm medial to injury No. 1.
3. Stiched wound 4 cm long on left parietal region part placed obliguely.
4. Stiched wound 6.5 cm long on left parieto-occipital region placed obliguely near injury No. 3.
5. Stiched wound - 2 cm long on left occipital region near injury No. 4. -
6. Stiched wound - 4.5 cm long on left occipital region below injury No. 5.
7. Stiched wound - 4 cm long on mid occipital region.
8. Abrasion 2 cm x 0.3 cm on left mandibular region.
9. Lacerated wound - 2 cm x 0.3 cm x skin deep on right index finger palmier aspect.
10. Abrasion - 1 cm x 1 cm on left forearm L/3 lat.
11. Abrasion - 1.5 cm x 1 cm on left forearm M/3 lat.
12. Abrasion - 2 cm x 0.2 cm on left forearm M/3 part.
13. Abrasion - 2.5 cm x 1 cm on right forearm M/3 part.
14. Abrasion - 2 cm x 0.7 cm on left shoulder part.
He has proved the post mortem report exhibit P-24. In his opinion, the cause of death was head injury. He also stated that there was fracture of left fronto parietal and occipital bone. On opening the skull, he found 'There is contusion over superolat surface of left parietal lobe and right cemporo-parietal lobe of brain and its membrances. There is fracture of anti cranial fossa on left side intending to left middle cranial fossa.' In his opinion, injury No. 1 in itself was sufficient to cause death in ordinary course of nature.
7. PW-7 Gopal is the son of appellant. He stated that his mother Teeja died about 12 months prior to the date of recording of the statement. He stated that his father did not kill his mother. He pleaded ignorance as to who killed his mother. He denied the suggestion that his father killed his mother by Kulhari and on his intervention he asked him to remain away otherwise he will also be killed. The learned Public Prosecutor sought permission to cross-examine the witness after declaring him hostile. He denied to have lodged the First Information Report exhibit P-9. He also denied his signatures on exhibit P-9. He was confronted with his statement before police but he denied to had given such a statement. He even went to the extent that he was never interrogated by the police. He also denied the inspection of the site by the police in his presence. He also denied that FIR was prepared in his presence. He has also denied the suggestion that he was giving false statement with a view to protect his father. It is not in dispute that blood was found in the residential house of the appellant Panna Ram. In the same house PW-7 Gopal also resides. In such circumstance as to who caused injuries to his mother must be within the knowledge of this witness. Even if the injuries have been caused by some unknown person, as a son he was required to report the matter if not to the police at least to the neighbours. It is difficult to comprehend that his mother was severely injured which ultimately led to her death but he has nothing to say in the matter except pleading complete ignorance in the matter. He is a boy aged 17 years. It appears that he has not supported the prosecution case with heavy heart as he has already lost his mother and does not want to be deprived of the love, affection and protection of his father.
8. PW-5 Tarachand is a neighbour of the appellant. He stated that appellant Pannaram used to beat his wife in the night. While he was sleeping he heard the out cry of the wife of Pannaram. He alongwith Kishanlal and Achlaram went to the house of Pannaram. There was darkness at that time. Pannaram's wife was lying near near the wall. They questioned Panaram the cause for assault to his wife. He asserted that such things happens in every house. In his words ^^ geus dgk fd iUukjke ifRu dks D;ks ekjrk gS rks mlus dgk fd lcds ?kj es ,slk gh gksrk gS ^^ He also stated that he did not see anything in the hand of Pannaram, he also did not see the injuries on the body of Smt. Teeja. He also stated that Gopal had ran away from the house. When they reached he was not there. He was declared hostile. The learned Public Prosecutor sought permission to cross-examined the witness. He denied to have given the statement that Pannaram gave a Kulhari blow on the head of his wife. He was confronted with his earlier police statement but he denied to have given such statement. Though, this witness has been declared hostile, but he has definitely stated that appellant Pannaram used to beat his wife Smt. Teeja and according to him there was nothing wrong in causing injuries to his deceased wife.
9. PW-4 Kishnaram is another neighbour of the appellant Pannaram. He has stated that in the night at about 11.00 PM, on hearing the out cry of Smt. Teeja, he rushed to the house of Pannaram. He found Smt. Teeja, wife of appellant Pannaram lying on the ground and weeping. The appellant was standing nearby her with a stick in hand. He advised appellant not to misbehave with his wife. On which the appellant retorted saying 'If he has given one or two blows what was wrong in it'. He also stated that he reached alone at the house of appellant and found Mst. Teeja lying on the ground. There was bleeding from the wounds on the head. On second visit there were number of persons from neighbourhood and appellant had escaped. She could not be taken to hospital in the night as no vehicle could be arranged. In the morning she was taken to the hospital. In the morning appellant's son, on enquiry, disclosed that his mother was killed by his father. ^^Ekqyfte ds csVs xksikyjke dks ?kj ls Hkxrs gq, ns[kk eSus dgk fd rw Hkkx D;ks jgk gS rsjh ekW fpYYkk jgh gS rks mlus dgk fd Fkk fd esjk cki esjh ekW dks ekj jgk gS ^^ He also stated that after five to six days Smt. Teeja died in the hospital at Jodhpur. This witness has also been declared hostile by the prosecution. Though, this witness has been declared hostile, he has spoken about the conduct of appellant. Firstly, that he heard the out cry of the deceased Smt. Teeja and when he reached to the spot, he found that Smt. Teeja was lying injured and appellant Pannaram standing nearby armed with a weapon. Secondly, the appellant confessed before him that he was responsible for causing injuries to Smt. Teeja, inasmuch as, he stated that there was nothing wrong if he had given one or two blows. It is now well established by catena of decision of the Apex Court that evidence of prosecution witness cannot be rejected wholesale, merely on the ground that prosecution has dubbed the witness hostile and has cross-examined him. It is for the court to consider in which case whether as a result of cross-examination or contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. In the instant case, we find that the testimony of this witness is not such which is to be discarded wholesale. The testimony of this witness on material point is unshaken. Therefore, the trial court was justified in not brushing side the entire testimony of this witness. Distress call of deceased Mst. Teeja in the mid night from the appellant's house, found lying seriously wounded and appellant's presence with a danda in hand is a most important incriminating circumstance against the appellant. The conduct of the appellant is admissible under Section 8 of the Evidence Act. Not only this an extra judicial confession has also been made by the appellant before this witness, saying that there was nothing wrong if he had inflicted one or two injuries.
10. The another incriminating evidence against the appellant is dying declaration exhibit P-14. PW-9 Ramlal has stated that at about 9.00 AM Gopal submitted a written F.I.R. exhibit P-9 before him. He also stated that on the same day he recorded the statement of Smt. Teeja vide exhibit P-14 wherein she stated that after marriage she used to stay with her husband. She was staying in the house for long period alongwith her childern and her husband. Her husband was a drunkard. She was subjected to assault many times. On the preceding night after taking dinner, she alongwith her husband went to sleep. His son Gopal was sleeping in the compound. Her husband got up and went outside and returned after about an hour. He was carrying a khoot having a sharp edged iron base. He stated that he will kill her, on which she questioned as to why he will kill her? He gave a khoot blow on head with an intention to kill her. She gave a discress call. Hearing the out cry, Gopal arrived and intervened. However, her husband gave repeated blows by the Khoot to her. He inflicted about seven to eight injuries. Hearing the out cry, large number of neighbours collected and got her released. The neighbours who arrived included Kishnaram, Tararam etc. She was taken to the hospital. PW-9 Ram Lal admitted in the cross-examination that when he recorded the statement of Mst. Teeja, she was in fit condition. He also stated that he did not considered it appropriate to get her statement recorded before the Magistrate as the condition of Smt. Teeja was not serious. He also did not obtained the certificate from the Doctor. He himself satisfied that she was in a fit condition to give statement. He denied the suggestion that he did not recorded statement of the Mst. Teeja. He also denied the suggestion that the dying declaration was prepared on his own. The statement of this witness has been criticised on the ground that no efforts were made to get her statement recorded by the Magistrate or at least to obtain a certificate from the Doctor that deceased was in a fit condition to give statement. We are unable to agree with the submission made by the learned Counsel. In fact, the Investigation Officer did not record the statement of Smt. Teeja as a dying declaration but as a statement under Section 161(3) Cr.P.C. However, when she died after eight days the said statement is now being used as a dying declaration. The Investigating Officer has given an explanation that the condition of Smt. Teeja was not that serious, calling for the recording of dying declaration. On the next day she was shifted to Jodhpur and, therefore, there was no occasion to get the dying declaration recorded. It is significant to notice that there was not even a slightest suggestion in the cross-examination that deceased Smt. Teeja was tutored. She was being brought from the house to the hospital in an injured condition. On receiving the information from her own son, police reached on the spot and recorded her statement. The Apex Court in Pabmaben Shamalbhai Patel v. State of Gujarat reported in 1991 SCC 744 has held as follows:
in order to form the sole basis for conviction without the need for independent corroboration it must be shown that the person making it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish.
The Court further observed:
in the facts and circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the court on strict scrutiny finds it to be reliable there is no rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated.
The Court further held that:
A dying declaration is an independent piece of evidence like any other piece of evidence neither extra strong nor weak and can be acted upon without corroboration if it is found to be otherwise true and reliable
11. In Betal Singh v. State of M.P. reported in : (1996)4SCC203 a teenaged wife of the appellant was burnt to death by her husband. Before her death she was taken to a nearby hospital. FIR was registered on the strength of a statement given by a neighbour. The police officer went to the hospital and recorded a statement of the deceased under Section 161(3) Cr.P.C. which later turned not to be a dying declaration of her death. The Apex Court after referring to its earlier judgment in the case of Munna Raja v. State of M.P. reported in : 1976CriLJ1718 and Dalip Singh and Ors. v. State of Punjab reported in AIR 1979 SC 113 held that Investigating Officer can considered to be interested of the success of the investigation and as such the dying declaration recorded by him should be discouraged but this does not mean to suggest that such dying declarations are always untrustworthy.
12. In the instant case, we find that there was no reason for PW-9 Ramlal to concoct the statement exhibit P-14. The statement exhibit P-14 finds corroboration from the medical evidence. The injury report as well as the post mortem report clearly shows that deceased Mst. Teeja sustained seven injuries caused by sharp edged weapon. The version also find support from the statement of PW-4 Kishnaram. Thus, the trial court has rightly relied upon the dying declaration exhibit P-14.
13. Another incriminating circumstance of absconding is against the appellant. The appellant has not given any reasonable cause for his being away from the house after the murder of his wife. The incident took place on 14.04.1994. Inspite of the fact that his wife died he neither attended the funeral nor returned to the house. The defence taken by him that he had gone to the police to lodge the report does not inspire confidence. The defence witness produced by him i.e., PW-1 Mohd. Razaq is wholly unreliable witness.
14. Lastly, it is contented by the learned Counsel that as the deceased Smt. Teeja died after eight days of the incident, it cannot be inferred that the appellant inflicted injuries with an intention to commit murder and as such it is a case of culpable homicide not amounting to murder punishable under Section 304(11) IPC. After due consideration of the evidence on record particularly the medical evidence we are unable to persuade ourselves to convince with the submissions made by the learned Counsel. We have already discussed the evidence as to how in what cruel manner the appellant caused injuries to the deceased Smt. Teeja. She sustained as many as seven injuries grievous in nature caused by sharp edged weapon which leads to only inference that he inflicted injuries with intention to commit murder. Thus, the last contention is also rejected.
15. Consequently, in view of the aforesaid, we find no merit in this appeal and the same is dismissed. The conviction and sentence awarded by the trial Court is Upheld. The appellant is in jail. He will serve out the remaining part of the sentence.