U. K. Varma, J. - (1.) THIS is an appeal which the State of U. P. has filed against the acquittal of Vakil under section 302 and of Om Prakash and Hira Lai under section 302 read with section 34 of the Indian Penal Code.
(2.) THE first information report of the incident Ex. K.a-1 lodged by Chunni Lal at 10.30 p.m. on 13-8-74 in the Police Station Kotwali, Allahabad discloses that in the preceding night the deceased Subhash had gambled with the accused Vakil, Hira Lal, Om Prakash and one or two other persons on the roof of the Amjad Buildings. During the gambling there was a quarrel between Subhash and Hira Lal. THEy restarted quarrelling when they met during the day with Subhash. Hira Lal gave a threat to Subhash that he would teach him a lesson. THE people residing in the vicinity intervened to pacify them. THE clash was avoided but the accused carried venom in their hearts. At about 8 p m. when Subhash was on his way to the market to purchase some Chatpata (spicy edible), the accused surrounded him. Hira Lal and Om Prakash caught hold of him and Vakil stabbed him with a knife. THE witnesses Hira Lal Gupta, Baijnath Singh, Arun Kumar, Mahesh Bhujwa and others witnessed the entire incident in the torch and electric light and saved Subhash else they would have killed him. Hira Lal son oi Asharfi Lal, the scribe of the FIR and Suresh took him to the Moti Lal Nehru Hospital. THEre the doctor having found his case to be sufficiently critical requiring expert attention directed him to be taken to the Swarap Rani Hospital. Subhash was admitted there at the time when the report was lodged by his father. The Medical case sheet of Subhash is Ex. 5 on record. It shows that he was admitted in the Swarup Rani Hospital at 9.30 p.m. on 13-8-74 with the stab injury in the right side abdomen from which he was profusely bleeding at 10.45 p.m. His pulse had risen to 144 per minute and his blood pressure had fallen to 60 and he was continuously vomiting. At 11.00 P.M. his pulse rate had become 160 per minute and he was still vomiting. Cathterization was tried but without success. At 11.30 P.M. his pulse rate was recorded to be 134 and blood pressure 90/50 and he was noted to be conscious. At 11.45 P.M. before taking him to the operation theatre when bis dying declaration Ext. Ka-10 was recorded, his condition was shown to be as it was at 11.30 P.M. The dying declaration of Subhash Chandra recorded by Dr. S. C. Misra, Resident Surgeon of the Swarup Rani Hospital bearing the certificate of Dr. Rl S. Dubey about the mental condition of the patient being fit to give the dying declaration and the signature of Dr. S. C. Atri, House Surgeon on call Unit No. 1 and Dr. Anil Kohili, House Surgeon on call Unit No. 2 as witnesses reads as follows : "My name is Subhash Chandra. My father's name is Chunni Lal. I reside in Amjadganj Noorullah Road, Allahabad. I had gone to buy potato preparation for being able to eat Roti in ,,the evening. During the day there was a minor quarrel with this very boy, while they were conversing with each other. When I was returning with the cooked potato, Om son of Babu Lal, Hira Chamar, the name of whose father I do not know and Vakil surrounded me. Vakil assaulted me with knife. I started crying. The accused fled away. I fell down on the road- In the meantime a cyclist arrived. He rebuked them. Inspite of it he had assaulted me. The cyclist took me to the Moti Lal Nehrn Hospital. I do not know the name of the cyclist. I was brought to the Moti Lal Nehru Hospital by my father. I have nothing more to say". The document Ex. Ka-3 which is a letter dated 13-8-74 sent by Dr. Shiv Nandan Pandey, Medical Officer, Moti Lal Nehru Hospital, Allahabad to the Station House Officer, Police Station Khuldabad shows that Subhash Chandra aged 15 years son of Chunni Lal resident of Amjadganj Noorullah Road, House No. 175, Police Station Kotwali Allahabad had been brought to the Moti Lal Nehru Hospital by Suresh Kumar son of Chiranji Lal, 20 Noorullah Road, Amjadganj,, alone with stab wound and he had been transferred to the Swarup Rani Hospital for being admitted and for further treatment. The Station House Officer had been requested to take necessary steps without delay. The document Ex. Ka-8 is the injury report of Subhash Chandra recorded at 9.10 P.M. in the Swarup Rani Hospital. It shows him to have sustained the following injury :- 1. Incised wound 1 1/2" x 1" x cavity deep over the 9th right rib in mammary line 3 1/2" lateral to mid line. The duration of the injury was noted to be fresh and had been opined to have been caused by a sharp weapon. The general condition of the patient was recorded to be low.
(3.) SUBHASH Chandra died as a result of the above injury on 24-8-1974 at 9.45 P.M. as is clear from his medical sheet and the post mortem report Ex Ka-2. This case which was initially registered under section 307 IPC was changed into one under section 302 IPC vide G. D. entry Ex Ka-6. The prosecution in the trial court had examined Hira Lal PW 1 and Mahesh Prasad Gupta PW 2 as the witnesses of the occurrence. Hira Lal PW 1 stated that at about 8 P.M. on 13-8-1974 he was going towards the railway station bazar to buy Chatpata. He saw the respondents near the Municipal School. The respondents Hira Lal and Om Prakash were holding Subhash Chandra and the respondent Vakil assaulted him with a knife. He challenged the respondents. They fled away towards the railway station. He swathed his Aungauchha (light towel) around the injury of Subhash and put him on the rickshaw with the help of Suresh who had arrived in the meantime and took him to the Moti Lal Nehru Hospital. At the Moti Lal Nehru Hospital Subhash Chandra was given an injunction and the doctor sent him to the Swarup Rani Hospital on an ambulence for his condition was becoming critical. He got Subhash admitted in the Swarup Rani Hospital at about 8.00 P.M. The doctor examined him there. The father of Subhash Chandra named Chunni Lal and his wife and others had also arrived by then. He told them the details of the incident. Chunni Lal thereafter dictated the first information report to him. It bore his signature and that of Chunni Lal. He took it to the Police Station Kotwali and handed it over to the Constable Moharrir there at 10.30 P.M. Besides him the incident had also been seen by Arun Kumar, Mahesh and Baijnath in the electric light and in the light of his torch which the Station Officer during investigation took into his custody and subsequently handed it to him in his supurdgi vide memo Ex 2. In the cross-examination, he gave out that he had not brought the torch as it had been lost. He pointed out that the Investigating Officer had not obtained his signature on the 'Supurdginama' in respect of the torch. He denied that he was provided any copy of the chick report Ex Ka-3, although he visualized that it could have been handed over to Chunni Lal who accompanied him to the police station at the time when he went out to make water. He first slated in reply to a question put by the counsel for the accused that in case the torch would not have been with him, he might not have been able to recognise Subhash. He, however, later pointed that the lights of the electric poles on the street were on wherein he could see but for greater convenience he had also lighted his torch. The incident according to him, had taken place at a distance of five steps from the Municipal School and light there was reaching from the two electric poles. His attention had been invited to the fact that there was no mention in the first information report about the electric light; It was put to him that his mother was the sister of Chunni Lal and he had deposed without having seen the incident because of being a relative of Chunni Lal under his pressure. Chunni Lal according to the accused was ill disposed towards them as they were asking him and the injured Subhash not to arrange gambling on the roof of the Amjad Building for their gain and not to spread filth where they resided. He denied that his clothes got smeared with blood when he lifted Subhash. He claimed to have remained at the scene of the occurrence for about seven minutes after the incident. He did not tell any body to which hospital he was taking Subhash. Subhash did not become unconscious at the scene of the occurrence but he did not talk with him as he felt no need for it. Till he reached the medical college, it did not strike him that he should make a report. It was suggested to him that he was not at the scene of occurrence at the time of the incident and he lodged the first information report after he and Chunni Lal had met each other in the hospital.;