S.B.Sinha,J. - (1.) Khatima is a small town in the State of Uttaranchal. In a cinema theatre known as Sharda a movie Akhri Insaf was being exhibited at the relevant time. On or about 15.2.1981, Mohd. Saeed, the deceased, and his friend Shakeel Ahmad (PW 3) were watching the night show of the said movie in the said theatre. At about 10.30 p.m. Iqbal Ahmad (Iqbal, an associate of the appellant went inside the cinema hall and asked the deceased to come out therefrom. Meanwhile, the appellant waited outside. The deceased followed Iqbal and came out of the cinema hall. Iqbal and appellant started quarrelling with the deceased. There was some heated exchange of words. Both the accused took out knives which they were carrying. Iqbal caught hold the deceased and appellant struck a blow with the knife on the back of the deceased. PW 1-Kanhaiya Lal, a betel shopkeeper in the said theatre, PW-2 Hem Raj, gate-keeper of the cinema hall and PW-3 Shakeel Ahmad witnessed the said occurrence. Hearing the shouts and cries for help, PW-4 Constable Bachche Singh with another constable Bhishma Singh also reached the spot. Appellant was apprehended at the spot whereas Iqbal succeeded in running away. The knife used by the appellant was also recovered from him. The deceased was taken to a nearby hospital. He was referred to a hospital at Pilibhit. He died four days after the incident, i.e., on 20.2.1981.
(2.) A First Information Report (FIR) under Section 307 of the Indian Penal Code (IPC) was lodged on or about 16.2.1981. The case was subsequently converted to one under Section 302 of the IPC.
(3.) A dying declaration of the deceased was recorded by one Javed Usmani, Sub-Divisional Magistrate, Khatima on or about 15.2.1981, which reads as under : "About 1 - 1-1/2 hours before, I was watching night show of movie at Sharda Cinema, then Iqbal s/o unknown, Asif s/o unknown asked me to come out of the cinema hall. Iqbal had come to ask me to come out. I came outside. Iqbal started getting angry upon me, I said do not get angry upon me. There was hand-scuffle between me and Iqbal, and Iqbal drew out the knife. Asif was also scuffling with me and I was trying to keep myself away from them. Asif also drew out the knife and then Asif struck the knife blow at my back. Iqbal ran away from the spot after the knife blow was struck. Asif was apprehended by Shakeel s/o Farooq. Shakeel had come along with me to watch the movie. Beside Shakeel, there were two-three more persons who apprehended Asif, whom I do not know. There was no past enmity between me and Iqbal and Asif. Asif used to live at Mohalla Gotia near the Chakki in front of the house of Farooq Master. Iqbal used to live at Potters locality. I had no past enmity with Asif but 3-4 days before there was some altercation between Asif and me at Gotia Mohalla. It may be possible that because of this, todays incident took place.";