Vishnu Sahai, J. - (1.) THROUGH these appeals Bhagwati Prasad (hereinafter also referred to Bhagwati) and Natthu Ram (hereinafter also referred to as 'Natthu') challenge the judgment and order dated 25.3.1981, passed by IInd Additional Sessions Judge, Lucknow, in Sessions Trial No. 283 of 1979 whereby they have been convicted and sentenced to undergo imprisonment for life for the offence punishable under Section 302/34, I.P.C. and appellant Bhagwati has been convicted and sentenced to undergo three months R.I. for the offence punishable under Section 323, I.P.C. The sentences of Bhagwati have been directed to run concurrently.
(2.) SHORTLY stated the prosecution case runs as under : "The deceased Babu Lal was the grandson of one Mst. Gurdei. At the time of the incident, he was living along with his grandmother Smt. Gurdei in Mohalla Barauliya within the limits of police station Hasanganj, district Lucknow. About two years prior to the incident, Gurdei, who had only three daughters (deceased was the son of her daughter Ram Piari), had sold her land to one Bachchan Singh. The outlet of this land was by the side of the house of appellant Natthu Ram alias Natthu. There was a dispute regarding passage between Bachchan Singh and Natthu. A panchayat was held but Natthu had not given passage to Bachahan Singh ; instead he had fixed his Chapper thereon. Since the deceased used to manage the property of Gurdei, appellant Natthu Ram alias Natthu and his cousin brother appellant Bhagwati nursed ill-will against him." On 18.7.1979 at about 10 a.m. when Babu Lal was proceeding towards his house and had reached in front of the door of Deep, appellant Natthu Ram alias Natthu armed with knife and appellant Bhagwati armed with a lathi, came from the side of the house of the latter. At that time, informant Jagannath Prasad, P.W. 1 was standing at the door of his house. Natthu Ram alias Natthu and Bhagwati instigated "Aaj Sala Mouke Se Mil Gaya Hai, Ise Maar Diya Jaye" (today we have found him, he should be killed). Thereafter, both of them assaulted Babu Lal with their weapons. Natthu inflicted a knife blow on the stomach of Babu Lal. In the meantime, one Lachchoo, who was present nearby, caught hold of the collar of Natthu and told him whether he would kill Babu Lal. Getting opportunity, Babu Lal ran and entered inside the house of Mehi Lal, (father of the informant Jagannath). Appellant Natthu also entered therein and with a knife started assaulting Babu Lal and appellant Bhagwati armed with a lathi stood at the door. When informant Jagannath Prasad tried to rescue Babu Lal, Bhagwati warned him that in case he proceeded further, he would meet the same fate. When the informant proceeded to save Babu Lal, Bhagwati inflicted a lathi blow, which struck him on his leg. Thereafter Babu Lal came out from inside the house. Natthu continued assaulting him. Hearing cries of the informant Jagannath, Shiv Prasad, P.W. 4, Chandra Bhushan Srivastava, P.W. 5, Munna P.W. 10 and some others came out and they also saw the incident. On being reprimanded by the witnesses, appellants ran away. Thereafter one Shashi-bhushan Pandey rushed Babu Lal, who was precariously injured, to Balrampur Hospital, Lucknow and informant Jagannath proceeded to police station Hasanganj, where he lodged his F.I.R." The evidence of constable Mohan Misra, P.W. 8 shows that on 18.7.1979, he was posted as constable moharir at police station Hasanganj, Lucknow and on the said date at 10.30 a.m. Jagannath came and lodged his written report Ext. Ka-1, on that basis of which he prepared the chik F.I.R. Ext. Ka-13. A perusal of the chik F.I.R. shows that the distance between the place of incident and police station Hasanganj was four furlongs and on its basis a case under Section 307/323, I.P.C. was registered against the appellants. The evidence of S.I., K. K. Singh, P.W. 11 shows : On 18.7.1979 at 10.30 a.m. F.I.R. was lodged in his presence. He recorded the statement of the informant and thereafter sent him for medical examination to Balrampur Hospital with Constable Chandra Shekhar. He then proceeded to the place of incident where he recorded the statement of Chandra Bhushan Srivastava, P.W. 5, Smt. Bhagtin and Smt. Lachchoo. He then prepared the site plan on the pointing out of the witnesses. From the place of incident, he recovered blood stained and plain earth, in separate containers, under recovery memos. At about 12.30 noon, he proceeded to the house of the appellant Natthu in the hope that the knife may be recovered from there. However, Natthu was not found in his house. He then recorded the statement of Bachchan Singh and some others. Thereafter he proceeded to Balrampur Hospital, where he met witness Shashibhushan Pandey, whose statement he recorded. He then recorded the statement of deceased Babu Lal Ext. Ka-18.
(3.) SINCE statement of Babu Lal is a dying declaration in terms of Section 32 Indian Evidence Act, we propose giving a gist of it. In his statement, he stated : From his childhood, he lived with his grandmother and used to look after her, as also her land. She sold her field situated in the eastern direction to Bachchan Singh and the way to the said field was from the side of the house of Natthu, who did not give him any passage and instead installed his Chapper there. SINCE, he was managing his grandmother's land, Natthu nursed ill-will against him and on the date of incident at 10.00 a.m., while he was going for work to the house of Mehi Lal Chaudhari and had reached near the house of Deep, Natthu with a knife and Bhagwati with a lathi surrounded him. Natthu instigated that he be killed and thereafter started inflicting knife blows on him. Lachchu, who was there, caught hold of his collar and said are you going to kill him. In the meantime, getting opportunity he ran and entered inside the house of Mehi Lal. Natthu and Bhagwati also reached there. The latter inflicted knife blows on him and when Mehi Lal's son Jagannath tried to save him, Bhagwati assaulted him with lathi and shouted that if any one came forward it would not be good for him. In the meantime, he came out from the house. Natthu and Bhagwati caught hold of him and former inflicted knife blows on him. Thereafter they ran away. Going back once again to the evidence of S.I., K. K. Singh, we find that it shows : After recording the statement of Babu Lal at 4.00 p.m. the same evening, he arrested appellant Bhagwati from the Ikka stand in Daliganj and at 6.35 p.m. lodged him in the Hawalat of police station Hasanganj. On 19.7.1979, Babu Lal succumbed to his injuries and thereafter the case was converted from one under Section 307, I.P.C. to that under Section 302, I.P.C. He asked the S.I., Gangabux Singh, P.W. 7, to perform the inquest. On 20.7.1979, he recorded the statement of the witnesses of the inquest. On the said date, Ram Piari, the mother of the deceased handed over the blood stained clothes of the deceased namely bushirt, baniyan and underwear to him. On 21.7.1979, appellant Natthu surrendered in the Court. On completion of the investigation he submitted charge-sheet against the appellants.;