Delhi High Court
Dharampal And Ors. vs State Of Delhi on 24 September, 2004
Equivalent citations: 114(2004)DLT245, 2004(77)DRJ289
Author: J.P. Singh
Bench: T.S. Thakur, J.P. Singh
JUDGMENT J.P. Singh, J.
1. This criminal appeal has been preferred by Dharam Pal, Neeraj, Vijay, Sunder and Ajay Kumar against the judgment and order of sentence passed by learned Additional Sessions Judge, Karkardooma courts, Delhi vide judgment dated 16.5.2001 the above named appellants were held guilty for the offence punishable under section 302/34 IPC and vide order of sentence dated 17.5.2001 they were sentenced to undergo imprisonment for life and also to pay fine of Rs. 5000/- each and in default of payment of fine to undergo simple imprisonment for six months.
2. We have heard Mr. Rajender Kumar, Advocate, learned counsel for the appellants and Mr. Ravinder Chadha learned Additional Public Prosecutor for the State and have gone through the record.
3. Briefly stating the facts of the case are that an intimation (DD No. 29A) was received at P.S. Kalyan Puri on the night intervening 15-16.3.1998 from duty constable posted at Swami Dayanand Hospital (SDN Hospital) Shahdara, regarding admission of one Ram Kumar in injured condition at 2:30 A.M. on account of a ''quarrel''. He was brought to hospital by his brother-in-law Mahinder. On this intimation H.C. (Head Constable) Virpal along with Constable Rishi Kumar reached SDN Hospital and obtained MLC of injured Ram Kumar who had been declared fit, (as noted on the MLC) by the Doctor, for making statement. Accordingly, H.C. Virpal recorded the statement of the injured Ram Kumar who narrated that on 9.3.1998 Sunder and Ajay had borrowed Rs. 1000/- from him for 2 days but they did not refund the money. On 15.3.1998 at about 8 P.M. he went to Ajay and demanded money. Ajay took him to Sunder when some altercation started. At that time other appellants also came and were adamant to fight with him. Smt. Kranti, his aunt, came there and pacified them by suggesting that the matter could be settled later on. She brought him back to his jhuggi and laid him on the cot. Later at about 10 P.M. all the accused persons came to his jhuggi. Accused Neeraj and Sunder caught hold of his legs while Ajay and Vijay caught hold of his hands and Dharam Pal put a bottle of whiskey in his mouth. On his refusal Dharam Pal slapped him, gave fist blows and forcibly poured some whisky like liquid into his mouth which lasted like acid, with the result he started having burning sensation. He raised alarm and they all ran away. His brother-in-law Mahinder brought him to the hospital. On this statement H.C. Virpal Singh made endorsement at about 3:45 A.M. for registration of the case under Section 307/34 IPC and also requested for deputing some officer to investigate the matter. Accordingly, the FIR was registered at 4:20 A.M. and the investigation was entrusted to ASI Sobran Singh. Before investigation could be carried out the injured Ram Kumar expired at 5:20 A.M. Thereafter the case was converted to one under Section 302/34 IPC and the investigation was taken over by Inspector/SHO of the police station. The dead body was sent for post mortem, statement of the witnesses were recorded under section 161 Cr.P.C., accused persons were arrested, their disclosure statements were written and the case property was sent to CFSL for expert examination.
4. The prosecution examined 29 witnesses. PW-1 Dinesh, PW-2 Mahender Kumar, PW-3 Smt. Kranti and PW-4 Ami Chand are near relatives of the deceased. PW-5 Dr. Pradosh Kumar Padhy, PW-6 Dr. R.V. Singh and PW-23 Dr. Surya Kant Pankaj are from SDN Hospital who attended to the injured at various stages of his treatment. PW-8 is Dr. Ashok Jaiswal, autopsy surgeon, who conducted the post mortem. PW-26 Dr. Mohd. Afzal, PW-27 Dr. A.K. Sharma and PW-28 Shri S. Sathyan are the experts from CFSL. PW-10 H. Rishi Pal, PW-14 H.C. Tej Pal Singh, PW-16 Constable Sanjeev Kumar, PW-17 Constable Krishan Kumar, PW-22 Constable Jitender are the police officials who dealt with the case property. PW-9 SI Mukesh Kumar is the draftsman who prepared the scaled site plan. The remaining witnesses PW-11 Constable Umesh, PW-12 Constable Rishi Kumar, PW-13 ASI Ram Kewal, PW-15 ASI Sobran Singh, PW-18 Constable Krishan Pal, PW-19 constable Dinesh Kumar, PW-20 Constable Satyapal Singh, PW-21 H.C. Jagdish Singh, PW-24 SI M.A. Khan, PW-25 H.C. Narender Singh and PW-29 Inspector Santosh Kumar are the police officials who were concerned with various aspects of the investigation of the case.
5. Learned Additional Sessions Judge after discussing the entire evidence treated statement of injured Ram Kumar (Ex. PW7/A) as dying declaration and finally opined that prosecution has proved beyond reasonable doubt that the accused persons had thrust acid mixed with liquor into the mouth of Ram Kumar leading to his death and that it was a case of homicidal death and all were accordingly convicted under Section 302/34 IPC.
6. Learned counsel for the appellants has argued on the following points :
Firstly, under the relevant rules a police official could not record dying declaration specially because it was neither witnessed by any public person nor by any doctor. Secondly, the statement purported to have been given by the injured Ram Kumar was fabricated by H.C. Virpal and there was no evidence on record to show that injured Ram Kumar was fit to make any such statement. Thirdly, the case property has been tampered with. Fourthly the statements recorded under section 313 Cr.P.C. were in a casual manner. Fifthly, the copy of the FIR was not sent immediately to the Metropolitan Magistrate in compliance with section 157 Cr.P.C. Sixthly, the near relatives of the deceased who appeared in the witness box had turned hostile and lastly it is emphasized that Dr. Bishnu Kumar (DW-1) was examined by the appellants but his testimony has not been taken into account by the learned Additional Sessions Judge. On the other hand, learned Additional Public Prosecutor has submitted that the evidence read as a hole leaves no doubt whatsoever that the statement of the injured was rightly treated as dying declaration and that the evidence of the doctors, the police officials and even the doctor produced by the accused persons in defense establish the prosecution case beyond an iota of doubt and minor contradictions here and there are quite natural and do not go to the root of main basis of the prosecution case.
7. The main argument on behalf of the appellants is that statement (dying declaration) of deceased Ram Kumar has been fabricated because Ram Kumar was not fit for making statement. Learned counsel for the appellants has drawn our attention to DD No. 25-A (Ex.PW13/A) which was received through PCR call at P.S. Kalyan Puri on 15.3.1998 at about 11.02 P.M. The wireless operator had informed that a quarrel was going on at 5/94 (not jhuggi No. of deceased) Kichri Pur and police may be sent there. It was entered in the Roznamcha and a copy thereof was sent to HC Virpal (PW-7) through Constable Raj Kumar. This shows that H.C. Virpal was already in the field inquiring into some other matter and thereafter he was sent another DD No. 29-A (Ex.PW13/B) according to which at 2:30 A.M. duty constable Umesh Kumar informed from SDN Hospital that Ram Kumar s/o Radhey Lal R/o Jhuggi 6/134, Kichri Pur, aged about 20 years had been admitted by his brother-in-law Mahinder Kumar s/o Nanua R/o 1101 Chelmsford Club, Rai Sinha Road, Delhi. Accordingly HC Virpal reached SDN Hospital and met injured Ram Kumar. It has been deposed by HC Virpal (PW-7) that the doctor had written on the MLC that the injured Ram Kumar was fit for making statement and thereafter he recorded the statement of Ram Kumar in his own hand which is Ex.PW7/A and obtained thumb impression of Ram Kumar at point A. He then made his endorsement Ex.PW7/B on the said statement and through Constable Rishi Pal sent the said document to the police station for registration of the case. The FIR was registered at 4:25 A.M. We may mention here that the well-known practice is that a duty officer remains stationed at the police station and if already a police official is in the field in the same are then copies of the subsequent DD entires are sent to him to cover the subsequent occurrences also unless the subsequent intimations are of a serious nature in which any other available police official can be sent. DD No. 25A was regarding only a quarrel ''Jhagda''(not at the address of the deceased) and when copy of DD No. 29-A timed 2:30 A.M. was sent to HC Virpal, who was already in the field, he reached the hospital at 3:15 A.M. and after obtaining the MLC and fitness certificate on the MLC immediately recorded the statement of the injured and at once sent the same to the police station for registration of the case. Promptly the case was registered at 4:25 A.M. and a copy of the FIR was chalked out for further investigation. We, therefore, do not find any undue time gap in which any of the relatives of the accused, who are poor people, could have manoeuvred or influenced the investigation so much so that statement of injured Ram Kumar could be managed to be fabricated. In our view at that point of time it could not be preconceived or visualized that the said statement was going to become a dying declaration of injured Ram Kumar. The medical examination and treatment done by different doctors is recorded in MLC as Ex.PW5/A, Ex.PW6/A and Ex.PW2/A. Ex.PW5/A includes the endorsement ''patient is fit for statement'' given by the same doctor who examined the injured at the first instance. We may mention here that as per MLC the injured was admitted on 16.3.1998 at 2:30 A.M. by Mahinder s/o Nanua R/0 1101 Chelmsford Club, Rai Sinha Road, Delhi. At the time of admission, as per the MLC, the patient had injury marks on upper lip and was giving smell of alcohol. At 2:45 A.M. the general condition recorded is poor but the doctor has noted in his own hand writing (Ex.PW-23/A) that the patient is conscious and the patient says,''he has been forcibly pressed to take whisky mixed with acid''. At 3.00 A.M. another Doctor R.V. Singh examined him and prescribed some injections. This shows that injured' condition was gradually worsening. At 2:45 A.M. he was fully conscious and speaking, his general condition was poor and even at 3.00 A.M. he appears to be rather in the same condition because again it is noted by Dr. R.V. Singh that general condition is poor. We may mention here that HC Virpal (PW-7) was neither cross-examined nor suggested anything about DD No. 25A which evidently related to some other quarrel ''Jhagda''. H.C. Virpal Singh has deposed that immediately on reaching the hospital he received MLC and went to the Doctor who gave him permission to record the statement and accordingly he recorded the statement of injured Ram Kumar at about 3:15 A.M. We are, therefore, satisfied that injured was fit to make statement and his statement was not fabricated.
8. Learned counsel for the appellants has submitted that dying declaration ought to have been written by a Magistrate, it ought to have been in question-answer form and should also have been attested by a doctor. These contentions are refuted by learned Additional Public Prosecutor who has argued that the reliability of a dying declaration depends upon the facts and circumstances of each case and no hard and fast rules can be applicable qua recording of dying declaration. Learned counsel for the appellants as also learned Additional Public Prosecutor have cited rulings in support of their contentions on the dying declaration. Since the law on the dying declaration is well-settled and each dying declaration is to be tested on the facts and circumstances of that given case, we are referring to the following rulings :
1. Jai Prakash v. State of Haryana , 1998 JT (5) SC 308.
The appellants before the Supreme Court of India, were convicted by the trial court under section 302/34 IPC. The High Court confirmed the conviction. A lady was burnt to death by her relatives. There was no direct evidence. The prosecution had relied upon dying declaration which was accepted by the trial court as well as the High Court. The grounds urged on behalf of the appellant were that alleged dying declaration was recorded on 7.10.90. The injured lady survived till 11.10.90. No further attempt was made to record regular dying declaration by a Magistrate therefore the dying declaration should have been rejected. The Supreme Court of India opined that injured lady was taken to hospital with burns. The hospital authorities informed the police. The police reached the hospital and recoded her statement which was later treated as dying declaration, because of death of the lady. The statement of the lady was sent to the police station whereupon FIR was registered. The Apex Court opined that here was an erroneous assumption that what was recorded by the police official was a dying declaration. In fact the police official had recorded a complaint. It was not necessary for him to keep any doctor present or obtain any endorsement from him.
In the case before the Hon'ble Supreme Court the lady was not in a position to properly speak at the time of admission in the hospital at 7:30 A.M. and only after getting some treatment she was able to speak. Her statement recorded by the police official was treated as dying declaration and relied upon by all the courts. Another contention raised before the Supreme Court of India was that the dying declaration was not recorded in question-answer form. The Apex Court dismissed this argument also on the ground that the complaint became a dying declaration later on and a complaint need not be written in a question-answer form. This ruling appears to be on all fours in the facts and circumstances of the case before us rather the case before us is of a better footing for acceptance of the dying declaration than the one which was before the Supreme Court.
9. In the case titled Munnu Raja and Another vs. The State of Madhya Pradesh, inter alia one of the questions for consideration was that if the dying declaration was recorded by the investigating officer the same was suspect because the investigating officer was interested in success of the investigation. The Supreme Court observed in para 9 that the relevant dying declaration was not made before the investigating officer himself but was made to the Station House Officer who was not the investigating officer but was appointed investigating officer subsequently, therefore, the statement (dying declaration) recorded by a police official who was not the investigating officer was relied upon. In the case before us also HC Virpal was not the investigating officer.
10. The next ruling is State of Karnataka v. Shariff, . In that case a lady was set on fire after pouring kerosene oil. She gave three dying declarations, two recorded by the police officials. One of the questions that arose before the Court was as to whether dying declaration could be recorded by the police official. The Supreme Court opined that a dying declaration need not necessarily be recorded by a Magistrate and could be recorded by a police official and that this by itself was not sufficient to discard the dying declaration if the same was found to be otherwise trustworthy.
11. Learned counsel for the appellants has drawn our attention to the instructions given to the criminal courts in Delhi as reproduced in Delhi High Court Rules, Practice and Procedure, page 717 (Chapter-13A) by R.C. Khera. In the said instructions it has been mentioned that as far as possible the dying declaration should be recorded in the manner prescribed therein and in the event of death of the person making it, should be submitted at the enquiry or trial and if the dying declaration is to be recorded by a Magistrate due to apprehension of the investigating officer that the person is in danger of dying he may apply to the Magistrate for recording the dying declaration. Needless to say that the authors of these instructions have in their wisdom used the words ''AS FAR AS POSSIBLE'' knowing very well that it may not be possible to obtain the services of a Magistrate or even a Doctor before recording the statement of a dying person who may orally convey the names of the assailants or request a person to write regarding the facts and circumstances leading to his injuries.
12. Now in the case before us injured Ram Kumar had categorically told Doctor Surya Kant Pankaj (PW-23) that he (injured) has been forcibly pressed to take whisky mixed with acid. Obviously the doctor was not interested in knowing the details of the occurrence or the names of the assailants because his main duty was to give proper medical treatment and not to do investigation of the case but the words spoken by the injured when read as a whole with the statement recorded by H.C. Virpal and the postmortem conducted on the dead body leave no doubt that the statement given by Ram Kumar comprised true facts and there was no reason for him to leave the real culprits and implicate innocent persons.
13. The established law on dying declaration as umpteen times held in various rulings is that the injured should be in a fit state of mind and he should have had a clear opportunity of identifying his assailants and the statement should be without influence or rancour, it should be truthful and voluntary. In the case before us it has come on record that there was altercation and a near fight on the issue of return of Rs. 1000/- but the matter was pacified and later the assailants again went to the jhuggi of Ram Kumar and forcibly administered acid mixed with liquor to him. Deceased Ram Kumar knew all of them. They were not strangers to him. There was no history of any long standing animosity. His statement finds support from the medical evidence in the form of MLC and the post mortem report. Therefore, we have no hesitation in accepting this dying declaration as a true account of the occurrence as given by Ram Kumar and it needs no further corroboration from any witness.
14. The next submission by learned counsel for the appellants is that the case property has been tampered with because it reached the CFSL office after 9 months. At first blush, it is astonishing but the record shows that case property was first taken by Constable Sanjeev Kumar to CFSL Chandigarh but it was not accepted, then on 22.5.98 Constable Krishan Kumar took it to CFSL Hyderabad and there too it was not accepted and again on 9.6.1998 it was taken by Constable Jitender (PW-22) to CFSL Calcutta here also it was not accepted (due to large pendency of earlier submitted case properties for expert opinion). All these witnesses have categorically stated that the case property so long as it remained in their respective possessions was not tampered with in any manner whatsoever. None of these witnesses has been cross examined on behalf of the appellants. No suggestion was ever put to the said witnesses that the case property was tampered with. It is apparent from the record that H.C. Tejpal Sing (PW-14) then sent the case property on 29.1.99 to CFSL Calcutta through Constable Kailash Yadav. Doctor Mohd. Afzal (PW-26) Senior Scientific Officer Toxicology from the CFSL Calcutta has deposed in the Court that on 29.1.99 one sealed wooden box, new sealed poly-packet, one sealed paper bag and two sealed small bottles were received in the office of CFSL Calcutta and were marked to him for analysis. The ''pulandas'' were sealed with the seal of KLS and mortuary Subzi Mandi and one bottle was sealed with the seal of CMO, SDN Hospital. He tallied the specimen samples of the seal marked on the ''pulandas'' and found them to be correct and after Chemical analysis gave the report Ex.PW26/A. This leaves no doubt that the case property was not tampered with as the seals were intact and no reason has been pointed out as to why the police officials who were to discharge their duties in the normal course would have tampered with the case property to change the blood or viscera etc. Since these witnessed were not cross examined, so this argument of learned counsel for the appellants in our view holds no water. We have been informed that now there is a Forensic Science Laboratory in Delhi also.
15. The next contention of learned counsel for the appellants is that statements of the accused persons under section 313 Cr.P.C. were recorded in a casual manner. The purpose of recording statements of the accused persons under section 313 Cr.P.C. is to put the entire incriminating evidence to the accused persons to enable them to explain the facts and circumstances appearing against them in the evidence. Many of the questions are common questions. It seems the learned Additional Sessions Judge has therefore used carbon copies and the said common questions have been typed in one go (may be to save time) but still all the accused persons have been given opportunity to give replies to the said questions. In our view, because some portions of the statements under section 313 Cr.P.C. are carbon copies this by itself will not wipe out the entire evidence but we put it on record that statements under section 313 Cr.P.C. of each accused should be recorded separately and the practice of making carbon copies of common questions should preferably be avoided.
16. The next point raised by learned counsel for the appellants is that there was inordinate delay in sending the copy of the FIR to the ''Ilaqa'' Magistrate and, therefore, there was possibility of fabricating evidence in consultation with the complainant or the relatives of the complainant. This point was not raised before the trial court and is being raised in this court for the first time nor any question or suggestion was put to the I.O. in this aspect. Our attention has been drawn to the un-exhibited copy of the FIR which was received by the ''Ilaqa'' Magistrate at 10.00 A.M. on 17.3.98. The occurrence had taken place at 10 P.M. On 15.3.98. The FIR was recorded on 16.3.98 at 4:25 A.M. and at the bottom of the FIR it is mentioned that copies vide dak be sent to the concerned officers. These copies/reports are sent in compliance with the provisions of section 157 Cr.P.C. Learned counsel for the appellants has contended that this inordinate delay is fatal to the case. There is no doubt that depending upon the facts and circumstances of the case if there is inordinate delay in sending the copy of the FIR/report to the concerned Magistrate it may be fatal specially if the names of the assailants are not disclosed by the complainant at the firs instance to the police but in the case before us the injured at the very first instance disclosed names of all the assailants to HC Virpal. On this point learned Additional Public Prosecutor has cited the case titled Sushil and others vs. State of U.P reported in (1995) 1 C.C. Cases 118 (SC). In the said case the appellants before the Supreme Court were sentenced to life imprisonment by the trial court. The conviction was upheld by the High Court of Allahabad. The facts are that a murder was committed at about 6:30 A.M. on 15.8.1980. The FIR was registered at 8:10 A.M. but its copy was dispatched on 16.8.80 and no explanation for delay had been offered by the prosecution which provided a legitimate basis for suspicion that the FIR was recorded much later than the stated time with a view to introduce improvements with distorted version of the occurrence. The Supreme Court of India opined in para 7 as under :
''It is no doubt true that section 157 Cr.P.C. requires the sending of report forthwith to the Magistrate empowered to take cognizance of the offence but every delay in sending FIR is not fatal to the prosecution case unless some prejudice is shown to have been caused to the accused by such delay''.
In the case before Supreme Court there was no material to indicate that there was deliberate delay on the part of the IO in dispatching the report and no prejudice was shown to have been caused to the accused persons specially because the FIR was recorded by the police Inspector. Immediately he proceeded to the place of occurrence along with other police officials to prepare punchnama of the dead body; sent the dead body for post mortem; recorded statements of the witnesses and completed all other process as also searched for the accused persons.
17. A similar question arose in the case titled State of U.P. vs. Gokaran and others where the Supreme Court of India opined that if the steps in investigation by way of drawing inquest report and other punchnamas started soon which could only follow the handing over of the FIR, the delayed receipt of special report by District Magistrate would not enable the court to dub the investigation as tainted one nor could FIR be regarded as ante-timed and antedated. In that case, the occurrence had taken place on the night between 27-28.3.1972 but copy of the FIR was received by the District Magistrate on 29.3.1972. It is further opined that the relevant provision contained in Section 157 Cr.P.C. is really designed to keep the Magistrate informed of the investigation of a cognizable offence so as to be able to control the investigation and if necessary to give appropriate directions under section 159 Cr.P.C. But if in a case it is found that the FIR was recorded without delay an the investigation started on that FIR then however improper or objectionable the delayed receipt of the report by the Magistrate concerned is that cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable.
18. In the case before us also Inspector Santosh Kumar (PW-29) immediately after receiving the copy of the FIR from ASI Sobran Singh at SDN Hospital obtained the sealed parcels containing the blood sample of the deceased and sample seal etc, recorded the statements of the witnesses, sent the dead body for post mortem from the hospital. Thereafter, he reached the spot of occurrence, prepared the site plan, recorded the supplementary statements and deposited the case property in Malkhana, arrested accused dharam Pal on 16.3.98, prepared inquest papers, obtained post mortem report and handed over dead body of the deceased to his relatives. This shows that the investigation commenced and continued without any hitch or deliberations. We are, therefore, of the view that in the facts and circumstances of this case the delay in dispatch of the copy of the FIR or delay in receipt of the copy of the FIR by the ''Ilaqa'' Metropolitan Magistrate is not fatal to the prosecution case.
19. The next point raised by learned counsel for the appellants is that all the public witnesses have turned hostile and there is no independent evidence in support of the prosecution case. PW-Kranti has not supported the prosecution version but she was present only at the time of the first quarrel at about 8.00 P.M. when all the accused persons wanted to beat up Ram Kumar because he was demanding his money back. She is not a witness to the subsequent actual occurrence when whiskey mixed with acid as poured into the mouth of Ram Kumar. As regards the first incident Ram Kumar has mentioned so in the dying declaration. The second witness who has denied any knowledge of the case and has turned ''hostile'' is Mahinder Kumar. He was not an eye witness to the main occurrence but had come all the way from Rai Sinha Road to Khichri Pur to remove his injured brother-in-law to hospital. There was no reason why the doctor would have mentioned his name and address in the MLC had he not been present. Version to be given by this witness to the police was to be what was told to him by the injured but he even denied his presence. The record shows that the accused persons moved two applications to recall this witness for ascertaining from him mental and physical condition of injured Ram Kumar which implies that even the accused persons accept the presence of Mahinder Kumar at the hospital but he was not present at the place of occurrence, so his turning ''hostile'' is immaterial. The third public witness Dinesh joined the investigation only at the time of preparation of the site plan. We may say that all these witnesses belong to the same community and their having been won over, as suggested by the learned Additional Public Prosecutor to the witnesses, cannot be ruled out but even in the absence of their statements in our view the dying declaration remains authentic and reliable. The dying declaration firmly stands on its own legs, in the facts and circumstances of this case, as discussed above.
20. The learned counsel for the appellants has then referred to the the opinion of defense witness Dr. Bishnu Kumar. The relevant facts in this regard are that The CFSL report Ex.PW6-A proved on record shows that sulphuric acid was found in viscera which establishes that acid mixed with whiskey was forcibly poured down the throat of Ram Kumar. Post-mortem report Ex.PW8/A given by the autopsy surgeon also supports the prosecution case about pouring of whiskey and acid into the mouth of Ram Kumar because it also shows injuries on temporal region, bruises abrasion below right eye, both upper and lower lips and death was due to shock and perforation of stomach consequent to corrosive poison (acid). The injuries on the lips and forehead of the deceased also point towards forcible shoving of bottle containing whiskey and acid into the mouth of Ram Kumar. The defense witness Dr. Bishnu Kumar is Retired Medical Superintendent of LNJP hospital. He has a good experience of conducting post-mortems. He deposed that with such injuries the voice of the patient would be hoarse if he remains conscious and it will not be possible to ''clearly decipher'' what he speaks and that patient would be in great pain. He admitted that acid was one of the common poisons.
In cross examination by the learned Additional Public Prosecutor he also admitted that it was not universal that in case of consumption of acid a person would not be able to speak as it all depends upon the concentration of the acid consumed and the injuries sustained. His testimony is based on examination of the postmortem report only. Needless to say that at the time of postmortem the maximum damaging effect of the acid has already occurred and what is being recorded by the autopsy surgeon is the most deteriorated stage after the complete effect of the acid and natural decay. The said doctor had not examined the MLC the material portions of which were recorded when the patient was alive and was speaking. The doctors examining and treating him in the emergency ward had no personal interest to record something which was not spoken by injured Ram Kumar that is the words ''he has been forcibly pressed to take whisky mixed with acid''. We are, therefore, of the view that statement of DW-1, Dr. vishnu Kumar has not made any dent in the prosecution case.
21. Considering all the facts and circumstances of the case, we have come to the conclusion that the appellants had a quarrel with the deceased (Ram Kumar) on the issue of return of Rs. 1,000/- which was, however, pacified and Ram Kumar was taken back to his jhuggi by his aunt. The appellants thereafter in furtherance of their common intention mixed acid with liquor and they all went to the jhuggi of Ram Kumar and participated in the act of forcibly thrusting the bottle into the mouth of Ram Kumar and poured the mixture down his throat which ultimately perforated his stomach and resulted in his death.
22. Now, the question is whether it was a case of culpable homicide amounting to murder or culpable homicide not amounting to murder. Considering the totality of the facts and circumstances, we are of the view that the appellants after administering the acid mixture ran away leaving him in pain. May be they had no intention of cause his death but they did have knowledge that acid mixed with liquor would result in such injuries to the stomach as are likely to cause death. We, therefore, alter the offence and conviction from Section 302/34 IPC to Section 304 II/34 IPC.
23. Keeping in view the facts and circumstances of the case, we award a sentence of rigourous imprisonment for 7 (seven) years to each appellant. The sentence of fine along with the default clause as awarded by the trial court is confirmed. The period of sentence already undergone and the period under Section 428 Cr.P.C. shall be deducted.