A. B. Srivastava, J. - (1.) THESE are two connected appeals arising out of a judgment and order dated 13-11-1.979 of Shri J. C. Gupta then VII Additional Sessions Judge, Etah, whereby he: convicted the appellant Mohd. Salim for an offence under section 302 IPC and sentenced him to imprisonment for life and convicted the appellant Babu Khan, of the offence punishable under section 326/34 IPC and sentenced to undergo RI for three years.
(2.) BOTH these appeals have been heard together and are being disposed of by a common judgment. The prosecution story, as unfolded in the First Information Report and the statement of the informant Jagdish Prasad (PW 1) is that the deceased Rajendra, also called as Rajju, was having a hotel for selling tea, snack, curd, etc. opposite the Payal Cinema Hall in, the Kasganj town. Hukum Singh (PW 6) was working as a servant in the said hotel. On the date of incident, 21-5-1978, at about 8.30 P.M. Hukum Singh was sitting inside the hotel, the owner Rajendra was sitting on a cot, nearby and his elder brother informant Jagdish Prasad was also present sitting on a wooden Takhat. The place was sufficiently lighted by an electric rod inside the hotel and a bulb outside its entrance. There was also available the light of bulb and rods fitted in the municipal poles in the vicinity. At that moment accused- appellant Salim came to the hotel and using abusive language asked Hakum Singh to give a glass of water. Hukum Singh retaliated and this resulted into a scuffle between the two and also hurling abuses at each other. At that stage deceased Rajendra got up from his cot and pushed aside Salim, who took out a knife from his 'gupti'. Seeing this Rajendra Physically pushed him away the said place and the accused left threatening Rajendra. However, after about 5-6 minutes accused Salim along with the accused-appellant Babu Khan came again to said hotel. While Salim had the knife which he had taken out from the 'Gupti' Babu Khan, had a steel 'pattl' meant for cutting tyres, in his hand. Abusing Rajendra, Salim asked him to get up. As soon as deceased Rajendra got up from his cot, Salim pierced the knife in his abdomen and appellant Babu Khan hit him with the iron 'Patti' resulting into injuries to Rajendra, who fell down. The incident was seen by the informant and Hukum Singh and also by Kallu, Roshan and Radhey. As the two assailants started running away, the informant Jagdish and others tried to apprehend them and threw brickbats but to no avail. In the mean time, Rajendra shouted in agony pleading for being taken to the hospital and the informant and others returned to take care of him. The injured Rajendra was taken to the Government Hospital Kasganj, where he was medically examined at 9.30 P.M. by Dr. K. S. Yadav (PW 5) and the following injuries were found. 1. Wound with clean cut margins 2 1/2 x 1 cm. x bone exposed just above left ear. 2. Stab wound 3 cm x 1 cm x abdomen 12 cm outer to amblicus left side abdomen going inwards. 3. Punctured wound 2 cm x 1/2 cm x chest cavity 5 cm inner to right nipple on right chest. Since the injured was crying in pain, his condition was serious and he was not in full senses after sending information to the police, the examination Doctor referred him to the Agra Medical College.
(3.) THE informant along with the others took the injured Rajendra on a truck to the S. N. Medical College, Agra, where he was admitted at 6.10 A.M. on 22-5-1978 and an emergency operation was performed by Dr. K. C. Gupta. Reader in the Medical College (PW 8)Rajendra, however, expired the same evening at 6 30 P.M. Information [regarding the death was sent to Police Station Kotwali, Agra and was recorded there at 7.10 P.M. on 22-5-1978. The inquest of the dead body was conducted by S. I. Shanker Pal Singh (PW 5) of Kotwali, Agra at 10.35 A.M. on 23-5-1978 in the mortuary of the Medical College. The post-mortem examination of the dead body was conducted by Dr. O. N. Khanna (PW 7) at 4.15 P.M. on 23-5-1978 and the following ante-mortem injuries were noted. 1. Stitched wound 1/2" x 1/2" con the front right side chest upper part inner side. 2. Stitched wound 7 1/2" long on the left side abdomen 3/4" away from amblicus left side. 3. Stitched wound with tube on the left side abdomen outer upper part. 4. Cut open on the right ankle part lateral aspect. Death of the deceased was found to have been a result of shock and haemorrhage due to ante-mortem injuries. After the dead body was handed over to the informant Jagdish Prasad and family in the evening on 23-5-1978, they took the same to Kasganj and cremated the body on 24-5-1978. Returning after cremation near about 3 P.M. the informant got the written report Exhibit Ka 1 typed and took the same to the Police Station but it was, not accepted by the Head constable on the ground of inordinate delay. He thereupon despatched the same with a note to the circle Officer, Kasganj by Registered Post where it was received on 25- 5-1978 and on. the direction of the circle officer the FIR was registered at 11 A.M. on 25-5-1978 vide chik report Exhibit Ka 12.;