JUDGMENT [ENTITY], J.
1. The appellant was indicted before the learned Additional Sessions Judge, Hindaun City in [CASE NUMBER] for having committed murder of [ENTITY] vide judgment dated January 22, 1999. He was convicted and sentenced under [SECTION] [ACT] to suffer life imprisonment and fine of Rs. 500/- in default to further suffer one month simple imprisonment. Against the said judgment present action for filing instant appeal has been resorted to by the appellant.
2. On the basis of [ENTITY] of injured [ENTITY] (since deceased) recorded on January 9, 1997, FIR No. 32/97 came to be registered at Police Station Hindaun City against the appellant and three others. It was interalia stated in the [ENTITY] that on that day around 9.00 a.m. while [ENTITY] was standing outside his residential house the appellant and three others namely [ENTITY], [ENTITY] and [ENTITY] came to the spot and appellant inflicted injury with [ENTITY] (a cutting instrument) on his head which resulted in profused bleeding. [ENTITY] was removed to Hospital by [ENTITY] and [ENTITY]. Initially a case under [SECTION] read with [SECTION] [ACT] was registered but after the death of [ENTITY] on January 21, 1997 the case was converted to [SECTION] [ACT]. Autopsy on the dead body of [ENTITY] was conducted and other necessary memos were drawn. The statements of the witnesses under [SECTION] [ACT] were recorded. The appellant and other accused persons were arrested. At the instance of the appellant [ENTITY] was recovered. On conclusion of the investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge Hindaun City. Charge under [SECTION] [ACT] was framed against the appellant who denied the charge and claimed to be tried. As many as 13 witnesses were examined in support of the prosecution case. In the statement recorded under [SECTION] [ACT] the appellant claimed innocence. One witness was examined in defence. The learned trial Court on hearing final submissions acquitted [ENTITY], [ENTITY] and [ENTITY] but convicted and sentenced the appellant as indicated hereinabove.
3. Mr. [ENTITY], learned Senior Counsel vehemently criticised the impugned judgment and canvassed that no offence as alleged is made out against the appellant from the material on record. While appreciating the evidence the learned trial court did not keep in view the two cardinal principles; that the guilt against the accused must be proved beyond reasonable doubt and that the burden on the accused is not so heavy to prove the plea taken by him as it lay on the prosecution. The burden can be discharged by the accused merely by showing the preponderance of probability in favour of the plea taken by him. It is further urged that [ENTITY] Ex. P. 13 was recorded by [ENTITY] ASI (PW. 11) in utter violation of the provisions of [SECTION] of the [ACT]. No plausible or reasonable explanation was given by [ENTITY] as to why the dying declaration was not got recorded by a Judicial Magistrate or Executive Magistrate despite the fact that the residential premises of the Magistrate was just infront of the hospital where the injured [ENTITY] was admitted. The learned counsel further contended that the injury on the person of [ENTITY] was examined by Dr. Shri [ENTITY] (PW.9) vide Ex.P. 10 on a request made by the police at 9.30 a.m. whereas the [ENTITY] Ex. P. 13 was recorded at 10.00 a.m. It is thus evident that the investigation had already commenced and the FIR is hit by [SECTION] [ACT]
4. It is next contended by Mr. [ENTITY], learned counsel that [ENTITY] (Ex.P. 13) suffers from many infirmities. It did not bear any endorsement of duty doctor that [ENTITY] was in a fit condition to give statement. Signatures of [ENTITY] on the [ENTITY] were not obtained whereas [ENTITY] just half an hour back put his signatures on his injury report (Ex.P.10).
5. Learned counsel further urged that no reliance can be placed on the testimony of [ENTITY] (PW.3) who is close relative of the deceased and a chance witness. The prosecution also could not establish beyond reasonable doubt that the incident occurred at the same spot shown in the site plan. No blood was found at the alleged place of occurrence. The prosecution has failed to give any explanation as to why the independent witness from the vicinity was not associated.
6. Mr. [ENTITY], learned counsel alternatively submitted that having regard to the genesis of the occurrence and the surrounding circumstances and the fact that one blow with [ENTITY] was given which happened to land on the head, it cannot be said with reasonable certainty that appellant intended to commit murder of deceased [ENTITY] or appellant intended to cause the particular injury. Reliance is placed on [PRECEDENT].
7. Per contra Mr. [ENTITY] learned Public Prosecutor and Mr. [ENTITY], learned counsel for the complainant urged that [ENTITY] is a reliable witness and the learned trial judge had rightly believed his evidence. The case of the appellant is covered under [SECTION] 1PC. In support of their contentions the learned counsel cited [PRECEDENT], and [PRECEDENT].
8. We have reflected over the rival submissions and scanned the record.
9. On a close scrutiny of injury report (Ex.P. 10) of [ENTITY] it appears that on the request of Police Station Hindaun City, Dr. Shri [ENTITY] (PW.9) examined the injury sustained by [ENTITY] on January 9, 1997 at 9.30 a.m. As per the Injury report [ENTITY] had one incised wound measuring 5" x 1" x Bone separating whitish material bulging on right fronto Parietal region curved margin clear everted. Dr. Shri [ENTITY] put a note on the report thus:
"Patient comes in conscious condition responding to command-Pulse 100 Mt.B.P. 120/80 MM Hg. respiration 20 Mt.-Pupils semidilated and reacting light."
A look at the Post Mortem report (Ex.P.15) goes to show that the deceased had sustained wound over right Parito Temporal area of Right Cerebral hemisphere and Brain tissue was Oedematous and Gyasi and suki were partially fretted. The cause of death was coma as a result of antemortem head and brain injury.
It is thus evident that the deceased had received severe injury as a result of which whitish material bulged and brain tissue was lying out of the would. In a similar situation their Lordships of the Supreme Court in [PRECEDENT] (supra), indicated that where medical evidence showing that brain function of the injured would have impaired due to brain injury, even if the injured was able to speak out something after sustaining such injuries, it is unsafe to place reliance on such dying declaration.
10. In the instant case we find more than one reasons for not placing reliance on the alleged dying declaration (Ex.P.13) of the deceased. The reasons are these-
(i) It did not bear any endorsement of duty doctor that [ENTITY] was in a fit condition to give statement.
(ii) It did not bear the signatures of [ENTITY].
(iii) It was allegedly recorded by [ENTITY] ASI (PW.11) in utter violation of [SECTION] of the [ACT]. No independent person was associated while it was recorded.
(iv) No reasonable explanation was offered as to why it was not got recorded by the Magistrate, when the Magistrate was available at the residential premises situated just infront of the Hospital when [ENTITY] was admitted.
(v) Dr. [ENTITY] (PW.12) in his deposition stated that the injury sustained by [ENTITY] could cause unconsciousness within half an hour.
11. That takes us to the deposition of [ENTITY] (PW.3) who stated that there was altercation between the deceased and the appellant before the incident. The deceased asked the appellant that he did ignore the theft committed by him but if he would repeat the theft, the matter shall be reported to police. The appellant then brought [ENTITY] from his shop and inflicted a blow with it on the head of deceased. From the cross examination although it is established that [ENTITY] is the cousin of the deceased and he had disowned some parts of his earlier statement (Ex. D.2) yet on scanning his testimony from the point of view of trustworthiness we find his presence at the time of incident, quite natural and [ENTITY] in our considered opinion is a wholly reliable witness.
12. It is thus evident that appellant gave only one blow with [ENTITY]. No malice has been alleged to have been entertained by the appellant towards the deceased. The incident occurred on the spur of the moment. It appears that the house of the deceased was somewhere near the house of the appellant. There arose a situation in which appellant probably misguided by his own egocentric nature objected as to why deceased should make allegation of theft against him and in this back ground he gave one blow with a [ENTITY], the cutting instrument readily available at his meat shop, which landed on the head of the deceased and proved fatal. Could the appellant be said to have committed murder? Whether [SECTION] [ACT] would be attracted in the facts of this case? Submission of Mr. [ENTITY] learned P.P. and Mr. [ENTITY] learned counsel for the complainant was that at any rate the appellant when he wielded a weapon like a knife and gave a blow on the head, a vital part of the body must have intended to cause that particular injury and this injury was objectively found by the medical evidence to be fatal and therefore [SECTION] [ACT] would be attracted. Reliance is placed on.[PRECEDENT] (supra) and [PRECEDENT] (supra), wherein their Lordships of the Supreme Court propounded that when the ingredient of 'intention' is established, the offence would be murder and the intentional injury is found to be sufficient in the ordinary course of nature to cause death.
13. Having regard to the facts of this case we are satisfied that even if Exception I is not attracted, the requisite intention cannot be attributed to the appellant. But in the circumstances herein discussed he wielded a weapon like a [ENTITY] and therefore he can be attributed with the knowledge that he was likely to cause an injury which was likely to cause death. In such a situation, he would be guilty of committing an offence under [SECTION] [ACT]. The appellant has been in the custody for more than five years. The ends of justice would be met in sentencing him to the period already undergone by him in detention and to enhance the fine part of sentence.
14. In view of the above discussions, we allow the appeal in part, while setting aside the conviction and sentence under [SECTION] [ACT], we convict the appellant under [SECTION] [ACT] and sentence him to the period already undergone by him in detention but in the facts and circumstances of the case we direct the appellant to pay a fine of Rs. 50,000/- (fifty thousand). In default he has to further undergo two years rigorous imprisonment. The amount of fine shall be deposited with the Deputy Registrar (Judicial). On depositing the amount of fine the same shall be paid to the wife of the deceased and the appellant shall be set at liberty if not required in any other case.