- (1.) O. P. Pradhan, J. This is a regular appeal under Section 379, Cr, P. C. by appellant Shyam Kumar Singh alias Pappi. The appellant together with his father, Vishnu Saran was tried for the murder of Amar Nath Agrawal by the learned Sessions Judge, Kanpur who by means of his judgment and order dated 12-7-1979 convicted the appellant under Section 302, 1. P. C. and sentenced him to life imprisonment but acquitted Vishnu Saran of the offence under Section 302 read with Section 34,1. P. C.
(2.) THE prosecution case is a follows : THE appellant is the son of accused Vishnu Saran, since acquitted. Vishnu Saran owned building No. 43/38 at Chowk Sarrafa, Kanpur. A shop on the ground-floor of this building was in the tenancy of Ram Swaroop Agrawal (PW 2) who is the complainant of this case and father of the deceased Amar Nath Agrawal. THE upper por tion of this building was occupied by the appellant and his father, Vishnu Saran. This shop was in the tenancy of Ram Swaroop Agrawal since 1969 and its rent was increased from time to time and it was Ks. 125 per month about 3 year before the occurrence which took placa on 6-4-1978. THE land-lord, Vishnu Saran wanted to get this shop vacated but the tenant, namely. Ram Swaroop Agrawal was not willing to vacate the same. THE appellant gave a beating to Ram Swaroop Agrawal on 25-2-1978 at 4. 30 p. m. and the latter lodged a report about the incident at Police Station, Kotwali, Kanpur the same day at 6. 45 p. m. Likewise, the appellant had Beaten Amarnath Agrawal about 12 or 13 days prior to 25-2-1978 and Ram Swaroop Agrawal had sent a written report on 26-2-1978 to the Incharge of Police Station, Kotwali. Infuriated, the appellant threatened Ram Swaroop Agrawal who again sent a written complaint dated 28-2-1978 to the lacharge, Police Station, Kotwali and copies to higher authorities by post. THE landlord, Vishnu Saran had also given notice of eviction dated 10-3-1978 to the tenant. Ram Swaroop Agrawal who sent a reply dated 6-4-1978 through his counsel, Sri R. B. Mathur, Advocate who had been instructed for the purpose on 5-4-1978. On 6-4-1978 at about 9. 30 a,m. Ram Swaroop Agrawal (PW 2) and his son, Amarnath Agrawal who lived at 81/85, Dbankutti, Kanpur were proceeding to their shop situated at 43/38, Chowk Sarrafa, Kanpur. Amarnath Agrawal was ten paces ahead of his father, Ram Swaroop Agrawal. When they reached the road on which the said shop existed, the appellant together with his father, Vishnu Saran came from the side of their house, Vishnu Saran caught hold of Amarnath Agrawal by his neck and the appellant gave a knife blow which landed on the right side of the abdomen of Amar nath Agrawal. Ram Swaroop Agrawal raised an alarm whereupon several persons reached the place of occurrence. The assailants then fled from the scene of occurrence. Ram Swaroop Agrawal lost his nerves on seeing this occurrence and the victim Amarnath Agrawal was, therefore, picked up by Sushil Kumar Gaur and taken on a rickshw to Ursula Hospital, Kanpur. Virendra Kumar Agrawal (PW 8) also followed the rickshaw upto the hospital. While Sushil Kumar Gaur got busy in paying off the rickshaw charges, it was Virendra Kumar Agrawal who took the victim, Amarnath Agrawal to the Emergency Unit of the said hospital. Dr. Nafisul Hasan (PW 5) who was a Medical Officer on the Emergency duty examined the injuries of Amarnath Agrawal and admitted him for treatment in the hospital. Following injuries were noticed by Dr. Nafisul Hasan (PW 5) at 9. 55 a. m. on 6-4-1978, when he examined the victim Amarnath Agrawal: (1) Incised wound 2. 5 cm X 1 cm X abdominal cavity deep. Omen-turn coming out, 7. 5 cm outward and upward from umbilicus on right side. (2) Abraded contusion 1 cm X 3/4 cm, left arm, upper and outer part. Injury No. 1 was pronounced grievious while injury No. 2 as simple. Dr. Nafisul Hasan (PW 5) also sent a note to Police Station, Kotwali about this medico-legal case and for arranging the recording of dying declara tion of the victim, Amarnath Agrawal.
(3.) AFTER Ram Swaroop Agrawal had regained his composure, he reached the hospital and found the doctors attending his injured son. He waited in the hospital for about half an hour and thereafter prepared a written-report of the occurrence and carried it to Police Station, Kotwali, Kanpur where it was lodged at 11 a. m. on the same day. On the basis of this written-report, a case under Section 307, I. P. C. was registered at the Police Station and the investigation followed. The Investigating Officer inter rogated the complainant, Ram Swaroop Agrawal and thereafter went to the hospital where he was told by the doctors that the injured was not in a fit condition to make a statement to him. Het therefore, reached the scene of occurrence and interrogated the other prosecution witnesses. He also prepared a site-plan of the place of occurrence and went out in search of the culprit. The dying declaration of Amarnath Agrawal was recorded by Sri Nand Kishore Mkhraipw 4> at about 1. 30 p. m. at the hospital on 6-4-1978. However, Amarnath Agrawal on 7-4-1978 at 9. 55 a. m. succumbed to the fatal injury received on his abdomen. On the death of Amarnath Agrawal, the case was altered from 307,1. P. C. to Section 302,1. P. C. on 7-4-1978. Autopsy of the dead body was conducted by Dr. R. B. Verma (PW 1) on 7-4-1978 at 4. 10 p. m. The accused surrendered in Court on 14-4-1978. After completing the investigation, the chargesheet was submitted for prosecution of the aforesaid two accused persons.;