- (1.) A quadruple of appellants Ganga Saran(A-1), Kallu @ Tena( A-2), Joma (A-3), and Kailash (A-4), have preferred above two connected appeals, questioning the legality and sustainability of their conviction under sections 302/34 I.P.C. and 302 I.P.C. simplicitor, recorded by Special Judge, E.C. Act, Badaun in S.T. No. 383 of 1982, State Vs. Kailash and others. Learned Trial Judge has convicted appellant Kailash A-4, under section 302 I.P.C., whereas rest of the appellants have been convicted under section 302/34 I.P.C. All of them were sentenced to imprisonment for life for that crime.
(2.) ESCHEWING unnecessary details and stated laconically, incident in question occurred on 8.7.82 at 11.30 A.M., within the precinct of District Court, Badaun. It was alleged in the written FIR, Ext. Ka-1, by the informant Ibney Hasnain, that few days prior to the present incident, one Vimal Balmiki, brother of appellant Kailash (A-4), was murdered in which crime sons of Kadir Khan, injured/ deceased of the present incident, were the accused and by the time present incident had occurred they were not let off from jail. Informant was deceaseds' friend and he used to visit his house off and on. On the incident date 8.7.82, sons of Kadir Khan were to be remanded in the murder case and, therefore, informant Ibney Hasnain, accompanied by injured/ deceased Kadir Khan had gone to the district court to meet them. At 11.30 A.M., when both, the informant and the injured/deceased, were proceeding towards the police lock up, situated within court campus, then, all of a sudden, appellants accused appeared at the scene. Three of the accused appellants ( A-1), (A-2) and (A-3), Joma, Kallu @ Tena and Ganga Saran, instigated their fourth companion Kailash (A-4), for seeking revenge, on which, appellant Kailash (A-4), wielded a knife on the injured/deceased Kadir Khan. This incident was witnessed by the informant Dularey, Shamim, Amir Ahmad and many others, who were present at the spot. Albeit, witnesses had tried to rescue the injured/deceased after instigation was aired, but meanwhile, appellant Kailash (A-4), had already struck two knife blows on the deceased causing him two incised wounds. After the assault accused sprinted away from the incident scene, but were chased by the witnesses. Meanwhile two police constables arrived at the place of the incident and with their help appellant Kailash (A-4), was rounded up and apprehended along with the crime weapon knife, and was handed over to the constables. Injured Kadir Khan sustaining injuries, toddled up a nearby Verandah and sat there. He was transported to the hospital with the help of gathered crowd, where he was admitted at 12 noon in the emergency ward and his medical examination was conducted vide his medical examination report Ext. Ka-5. Dr. had detected following injuries on his person:- " Injuries:- (1) Incised wound 2.5cm x 1cm x muscle deep on right side of the chest, 3cm medial to right nipple at 2 'O' clock position. Probing not done. Referred to surgeon. (2) Vertical incised wound 4cm x 0.75cm x muscle deep on back of left scapular region 6cm outer to mid spine of T3 to T6. (3) Lacerated wound 1cm x 1cm on lower eye lid at outer angle of right eye. Injury no. 1 is kept under observation. Injury 2 and 3 are simple. Advised X-ray chest. Injury Nos. 1 and 2 caused by sharp object while injury no. 2 by blow object. Duration fresh." Informant Ibney Hasnain, scribed written FIR, Ext. Ka-1, about the crime, carried it to the police station Civil Lines, at a distance of one kilometer, and lodged it there at 12.10 P.M., same day, against the named accused, as crime No.175 of 82,u/s 307 I.P.C. On the basis of written FIR Ext. Ka-1, chik FIR Ext. Ka-8 and relevant GD entry were prepared. Kali Charan Sharma (P.W. 7) S.O. Civil Lines, District Badaun, in whose presence the crime was registered, commenced investigation into the offence, interrogated the informant and then came to the hospital. He had also prepared map of the incident place, Ext. Ka-9. Blood stained and plain earth, material Exts. 1 & 2, were also collected from the spot for which recovery memo Ext. Ka-10 was inked. Concluding investigation, I.O. had charge sheeted the accused on 17.7.1982. Perusal of the trial court record further informs us, that while the injured was admitted in the hospital, his statement, in the form of his dying declaration, Ext. Ka-6, was recorded by City Magistrate, Badaun, on 8.7.82 itself, which contains a certificate from Dr. V.P. Bhatnagar, that injured was in a fit state of mind and could have given a valid statement. This dying declaration contains RTI of the injured deceased. Same day at 1.35 p.m. injured expired in the hospital regarding which a memo, Ext. Ka-7, was dispatched to P.S. Kotwali by the doctor at 1.40 p.m. After demise of the injured, inquest on his cadaver, vide inquest memo, Ext. Ka-11, was performed by S.I. K.D. Chaudhari of P.S. Kotwali. Simultaneously, the said S.I. had also prepared other relevant papers of photo-lash, impression seal, challan-lash, letters to CMO and RI, which all papers, have been proved by the I.O. Kali Charan Sharma, P.W.7, as Exts. Ka-12 to Ka-15. Autopsy on the cadaver of the deceased was conducted by Dr. R.K. Verma,P.W.4 on 8.7.82 at 1 P.M. in the District Hospital, Badaun vide postmortem examination report, Ext. Ka-2. According to the doctor, deceased was 55 years of age and he had an average built body. No decomposition of his corpse had started and rigor mortis was present in both, upper and lower, extremities. His eyes were partially open. Doctor had noted following external ante mortem injuries, which were detected by him on the deceased's corpse:- Ante Mortem Injuries:- "Bandaged wounds of Hospital Bandage removed+examined:- (1) Incised wound 2.5 cm x 1 cm x muscle deep on Rt side of the chest 3 cm medial to the Rt nipple at 2'0' clock position, (2) Vertical incised wound 4 cm x 0.75 cm muscle deep on back of left scapular region 6 cm outer to mid spine of T3 to T6. (3) Lacerated wound 1 cm x 1 cm on lower eye lid at the outer angle of the Rt Eye. On dissection of Injury No.1-SKin intercostal muscle and 4th rib cut and fractured at the stern costal bone 4th space. The pleura Rt lung at the level of injury wt. enhving IC. M deep on the lung his lung collapsed. All the great vessels collapsed. The Rt chest cartly contusion 2 pint of clotted blood on dissection Inj. No.2.- Muscle cut and damaged at the left scapular region mixed with blood the bone beneath it is normal+is not fractured on dissection of Injury No.3;- It is away from eye and the Rt eye is safe."
(3.) ACCORDING to the doctor's estimation, deceased had died due to shock and hemorrhage as a result of sustained ante mortem injuries. Charge sheeting of the accused resulted in registration of Criminal Case No. 1930 of 82, State versus Kailash and others, against them in the court of CJM, Badaun and accused were summoned u/s 302/307 IPC and, thereafter, finding their crime triable by Court of Session's, CJM, Badaun had committed their case to the Session's Court on 4.8.82, where it was registered as S.T. No. 383 of 82, State versus Kailash and 3 others. Learned Trial Judge charged accused appellant Kailash (A-4), under Section 302 I.P.C., whereas rest of the three appellants Kallu @ Tena, Joma and Ganga Saran, A1 to 3, were charged u/s 302/34 I.P.C. on 25.8.82. Both the charges were read out and explained to the respective accused, who denied the same and claimed to be tried and consequently, to establish their guilt, Session's Trial procedure was under taken. Prosecution in it's endeavour to succeed in the trial relied upon oral testimonies of seven witnesses, out of whom, Dularey Khan (P.W. 1), Shamim Ahmad (P.W. 2) and Ibney Hasnain (P.W. 3) were the fact witnesses. Formal witnesses examined included Dr. R.K. Verma (P.W.4), M.O. District Hospital, Badaun, who had conducted autopsy on the dead body of the deceased. Dr. V.P. Bhatnagar,(PW.5), is the Medical Officer of District Hospital, Badaun, who had examined injured/ deceased, and had prepared his medical examination report Ext. Ka-5. He had also appended certificate on the dying declaration, Ext. Ka-6. Shambhu Singh Yadav, City Magistrate, Badaun, (PW.6),who had recorded the dying declaration and I.O. Kali Charan Sharma, S.O., (PW.7). Besides oral testimonies of above witnesses, prosecution had also relied upon various documentary evidences in the form of written FIR, chik FIR, GD entry, postmortem examination report, injury report, site plan etc. It is noted here that apparels and spectacles of the deceased, knife, and soils seized during the course of investigation, were sent to forensic science laboratory for testing and it's reports dated 20.9.82, and 15.10.82, Ext. Ka 17 & 18, are on the record ,perusal of which indicates that on the attires of the injured deceased and on his spectacle, blood stains were present. In their statements under section 313 Cr.P.C., all the accused abjured incriminating circumstances appearing against them in the prosecution evidences and pleaded their false implication. Learned Trial Judge, vide impugned judgment and order dated 25.2.83, held that prosecution had successfully anointed accused guilt and, therefore, convicted and sentenced them, as has already been recorded in the opening paragraph of this judgment and hence are being eschewed from being repeated.;