Manmohan, J.

While Crl.A.No.1075/2017 has been filed by the appellant-accused challenging the judgment dated 29th November, 2016 convicting him under Sections 452 and 302 IPC as also the order on sentence dated 26th September, 2017 by which the appellant-accused had been directed to undergo R.I. for three years for offence committed under Section 452 IPC along with a fine of Rs.10,000/- and to undergo R.I. for offence under Section 302 IPC along with a fine of Rs.5,00,000/-, Crl.A.No.292/2018 and Crl.A.No.31/2018 have been filed by the State as well as by the father of the deceased-victim respectively seeking enhancement of the sentence.

FINDINGS OF THE TRIAL COURT

2. The relevant findings in the impugned judgment are reproduced hereinbelow:-

"13. Admission of Shivani in the hospital and preparation of her MLC:-

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(c) ....... The matter written in MLC Ex. PW10/A does not exhibit any word or sentence having been incorporated therein subsequently. No question about subsequent addition of last line in the history of injuries in MLC Ex. PW10/A was put either to PW-2 Leelawati or PW-10 Dr. Ajay Kumar. When there is no interpolation manifest in the document, the content, the contention raised by way of an after thought has to be repelled.

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(d) The related contention of Ld. Defence counsel that the name of accused was not disclosed when the incident was informed to Police Control Room reflects that PW-2 Leelawati, who claimed to have informed at no.100 from hospital was not aware of the assailant and had subsequently got the name of the accused added in the MLC. It is true that PW-2 Leelawati had stated that she had informed the Police at No.100 from the hospital in her examination-in-chief. She had however corrected herself when related questions were put to her in cross-examination and stated that she had not reported the matter to the Police. The call at no.100 was made by her husband in her presence. Even otherwise, the SOS call to Police Control Room are made by people in distress calling for immediate help / assistance. The information is generally short, may be one or two liner so that precious time is not lost in detailing the entire events, which can be appropriately collected by the local Police subsequently. The PCR call of the incident was, thus, meant for alerting the Police and triggering necessary proceedings. Non-mention of name of accused therein, even if, the caller PW-4 Hori Lal may have been informed of his involvement by his wife, PW-2 Leelawati, is inconsequential.

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15. Non-recording of statement of deceased by Magistrate:-

(a) It has vehemently been argued by Sh. Gupta that despite the availability and opportunity, IO did not call the Sub-Divisional / Executive Magistrate for recording statement of injured. The statement Ex. PW2/A now being projected as dying declaration of deceased Shivani, cannot be taken into consideration for want of adequate explanation. It has been stressed that the lapse is also in breach of the instructions circulated by Commissioner of Police to all investigation agencies, prosecution under him vide no.2251-2350/Record Branch/PHQ, dated 19.04.2011. Reliance in this behalf has been placed on the ratio in Jagdish Lal Malhotra V. State, (1984) 1 RCR(Cri) 332, that dying declaration recorded by I though he had time and facility to fetch the Magistrate, as the victim survived for 24 days, should be excluded from evidence. In 'State (Delhi Administration) V. Laxman Kumar, (1986) 1 RCR(Cri) 184 SC', it was held that dying declaration recorded by the IO without explaining the non-availability of magistrate and doctor and further the declaration not recorded in question answer from nor signed by the deponent was held unacceptable. Further reliance on the same lines is placed on 'Kaushalya V. State, (1988) 1 RCR(Cri) 475 Where dying declaration of deceased wi