Sitori vs The State of Rajasthan

C.M. Lodha, J.—The appellant Sitori has been convicted by the learned Additional Sessions Judge, Gangapur city, u/s 302, I. P. C, by his judgment dated 22nd October, 1971, and sentenced to imprisonment for life.

The prosecution case is that Sitori suspected illicit connections between his wife Smt. Jugro P.W. 5 and the deceased Ramphool. It is alleged that on the night intervening 2nd and 3rd September, 1968 Ramphool''s cry was heard from his house situated in village Kotri that Sitori had fatally wounded him. P.W. 1 Sanwalia and P.W. 2 Parma who are neighbours of Ramphool were attracted to the spot. Parma reached the spot first and saw the accused Sitori coming out from Ramphool''s house with a knife about 12" long in his hand. Sanwalia arrived a little later and before both of them the deceased Ramphool declared that Sitori had fatally struck him. Both of them then took Ramphool to the Ayurvedic Hospital where P.W. 4 Vaidya Jagdish Narayan bandaged the wound and asked them to take the injured to the hospital at Hindaun. Consequently Sanwalia and Parma along with the injured Ramphool left for Hindaun but on the way Ramphool breathed his last at about 10 a. m. on 3rd September, 1968. They, therefore, returned to the house of Ramphool and placed the dead body there. P.W. 1 Sanwalia, then, orally lodged a First Information Report of the occurrence at the Police Station Hindaun situated at a distance of about 12 miles from village Kotri. In the course of investigation, P.W. 7 Dr. Narayanlal per:-formed post-mortem examination on the dead body on 3rd September, 1968. The accused was not found at his house and was arrested on 4th June, 1971.

In the course of trial, the accused denied having committed the offence, The case against the accused rests on the evidence of two witnesses namely, P.W. 1 Sanwalia and P.W. 2 Parma. P.W. 1 Sanwalia has stated that there are only two houses between his house and the house of the deceased Ramphool � one is of Parma and the other is of Ramcharan Nai. The house of Ramcharan was vacant in those days. He states that he was sleeping on his Patore and he heard the voice of Ramphool that Sitori had hurt him and thereupon he went towards Ramphool''s house and saw Sitori running away from Ramphool''s house. There he also saw Parma who had reached at the spot before him and in the presence, of both of them Ramphool stated that Sitori had inflicted blows to him with a dagger. Thereupon, both of them went to Sitori''s house, but Sitori was not there. learned Counsel has criticized the evidence of this witness on the ground that in the F. I. R. lodged by him (Ex. P-l) he had stated that only Parma had seen the accused coming out from Ramphool''s house and in the trial Court the witness has stated that he had also seen Sitori coming out of Ramphool''s house and, therefore, the witness is not reliable. It appears to us that Sanwalia has, no doubt, improved his statement to the extent that he had stated that he had also seen Sitori coming out of Ramphool''s house. But he fully corroborates the F. I. R. as regards the rest of its contents. He is a neighbour of Ramphool and it is very natural that the cries of Ramphool must have attracted him to the scene of occurrence. He has also stated in a forthright manner that he heard the cries of Ramphool in the first instance that Sitoria had struck him and later on Ramphool made a dying declaration also in his presence as well as that of Parma that the accused Sitori had struck him. learned Counsel has also criticised the testimony of this witness on the ground that this witness states that Ramphool had stated that Sitori had struck him with a ''Katar'', whereas P.W. 2 Parma states that Ramphool simply stated that he had been struck by Sitori. We do not see any material contradiction in this respect and we are satisfied that both these witnesses have given a truthful version that Ramphool had made a dying declaration before them that Sitoria had inflicted injuries to him. The statement of P.W. 1 Sanwalia has been corroborated in all material particulars by P.W. 2 Parma, who in addition to the evidence given by Sanwalia, also deposes that he clearly identified the person coming out of the house of Ramphool as the accused Sitori who had a knife-like article in his hand measuring about 12". The evidence of these witnesses is further corroborated by the fact that Sanwalia lodged the F. I. R. quite promptly in the afternoon of 3rd September, 1968 at 3.30 p.m. The evidence of these witnesses is further corroborated by the statement of P.W. 4 Jagdish Narayan Vaidya of the Ayurvedic Hospital at Kotri. He has stated that on the night between 2nd and 3rd September, 1968 at about 2 to 3 a. m. Sanwalia brought the injured Ramphool to his house and the witness gave first-aid and bandaged the wound and asked him to take the injured to the Hindaun Hospital. We do not see any reason to reject the testimony of P.W. 1 Sanwalia and P.W. 2 Parma and hold that prosecution has succeeded in proving that the accused had caused injuries to the deceased Ramphool by a sharp weapon like knife or dagger.

Mr. Tikku, Amicus Curiae, has argued, in the alternative, that it was on account of giving milk to Ramphool after he had been injured that his death was caused and, therefore, the appellant should not have been convicted u/s 302. I. P.C. In support of his contention he has relied upon Manajar Allabux Vs. State, , wherein it was observed that the Courts have to distinguish between two types of cases; first, where the intervening cause of death, like peritonitis, is only a remote and a rather improbable consequence of the injury, then it can be said that the injury is one which may in particular circumstances, result in death, but which may not in ordinary course of nature be likely to lead to it. Secondly, there is the type where the so-called complication which is the intervening cause of death is itself a practically inevitable sequence to the injury. In that event, the probability is very high indeed, amounting to practical certainty; that is, death is a result in due course of natural events. It is true that in the present case, as stated by P.W. 1 Sanwalia, Ramphool had been given milk after he had been injured. P.W. 7 Dr. Narayanlal who performed the post-mortem examination has deposed that the following injuries were found on the person of the deceased :

Stabbed wound margins clean cut 1"X1/5"X depth. In the abdomen watery fluid was coming out of the wound which was situated on the left hypochondrium.

Stabbed wound 3/4" X1/3" X1/3" on the right side of the chest six inches below the nipple. It was placed transversely in the 8th intercostal space.

Vertical incised wound l"Xl/5" Xl/5" with an abrasion 4"Xl/10" at its upper end. Both were situated at the dorsal aspect of right thigh, at its lower l/3rd.

He has further deposed that peritoneal cavity was found full of liquid food material from the stomach wound which was also communicating with the left hypochondrium. Mouth, pharynx and oesophagus were found full of vomitus. There was an incised wound 1/3"Xl/5" piercing the stomach wall cutting all its coats situated on the inferior border of the stomach interior to the attachment of the omentum. The cause of death, according to the doctor, was shock due to peritonitis as a result of extra-vasation of stomach contents in the peritoneal cavity. He has further opined that the injuries found on the person of the deceased were sufficient in the ordinary course of nature to cause death. In answer to the Court question, the witness has stated that if milk and water had been given to the injured, that could have also caused the death, because the stomach contents had collected in the peritoneal cavity. On the basis of this statement, learned Counsel has argued that the death of the injured was caused on account of this intervening circumstance of feeding milk to the injured. We are, however, unable to accept this contention of the learned Counsel. It may be noticed that the stabbed wound in the abdomen was l"Xl/5". He has further stated that there was an incised wound 1/3" X1/5" X depth throughout piercing the stomach wall cutting all its coats situated on the inferior border of the stomach interior to the attachment of the omentum. Thus, peritonitis was clearly the result of the stabbed wound and the feeding of milk to the injured did not contribute to the death of the deceased. A deep abdominal thrust by a weapon like knife or dagger followed by an injury to the internal organ was certain to result in acute peritonitis causing death of the injured.

learned Counsel also urged that the statement of the doctor recorded before the committing Magistrate is not admissible u/s 509, Criminal P. C (old) as compliance was not made of Rule 39 of the General Rules (Criminal) 1952 framed for Criminal Courts subordinate to the High Court, inasmuch as a certificate in the form indicated in the rule was not appended et the foot of the deposition by the Magistrate. In this connection reliance has been placed on Isher Dass v. The State AIR 1954 J & K 19:1954 Cri LJ 505). It may be pointed out that the purpose behind Rule 39 is that the deposition of the doctor must be taken in the presence of the accused who should have an opportunity of cross examining him end should be attested by the Presiding Officer of the Court in the presence of the accused It is true that a certificate has not been appended to the deposition by the doctor in the present case by the Magistrate in the form and in the language required by Rule 39 of the said Rules. But we find from the order sheet of the committing Court that on 15th July, 1971 the doctor was examined by the learned Magistrate in presence of the accused. It is also clear from the statement itself that an opportunity was given to the accused to cross-examine the doctor and on his having failed to do so, the Magistrate himself put certain Questions to the witness. Thus we are of opinion that no prejudice has been caused to the accused. Although we feel that it would have been much better if a certificate as required by Rule 39 had been appended to the deposition, but, in the present case the absence of such a certificate is no ground for ex-j eluding the statement of the doctor from consideration.

The last argument advanced by the learned Counsel is that Dr. Narayan-lal P.W. 7 has not stated anything in his statement to snow that he is a medical graduate and, therefore, his evidence is inadmissible. This argument is stated only to be rejected. Reliance has been placed on certain observation in Raj Kishore Rabidas Vs. The State, . It was observed in that case that the doctor had not stated that he is a medical graduate, far less he mentioned his qualifications and experience in Anatomy, Physiology or Surgery. We may, here, point out that the question that arose for decision before the Court in that case was whether there was any element of cadaveric rigidity or spasm present in what was being described as rigor mortis. The Court found that cadaveric spasm occurs in cases in which death was immediately preceded by a state of great nervous tension or excitement caused either by terror or struggle

In the present case P.W. 7 Dr. Narayanlal has stated that he was in-charge Medical Officer, Hindaun. He has not given his deposition on any complicated Question, of any branch of medical science such as Anatomy, Physiology or Surgery which may require any specialisation and, therefore, it was, in our opinion, not necessary for the prosecution to prove the qualifications or the specialities of the doctor in any particular branch of science. Consequently, the observations made in the above case relied upon by the learned Counsel have no application to the facts and circumstances of the present case.

Looking to the nature of the injuries which, we are satisfied, were caused by the accused to the deceased, we agree to the opinion given by the doctor that they were sufficient in the ordinary course of nature to cause death and the accused has been rightly convicted and sentenced u/s 302, I. P.C.

The result is that we do not see any force in this appeal and hereby dismiss it.