S.D. Khare, J. - (1.) THIS is a Government Appeal against an order dated 17th November, 1962, passed by the learned Additional Session; Judge, Allahabad, acquitting all the three Respondents of the charge under Section 302 read with Section 34, IPC and Section 120 of the Indian Railways Act.
(2.) THE prosecution case, briefly stated, was that Brindaban Dube, aged about 100 years, was not on good terms with the Respondents, namely. Shiv Babu Singh, Hira Singh and Durga Saran. He had filed complaints under Section 218, IPG against Shiv Babu Singh and Durga Saran Lekhpal. It was alleged that Durga Saran Lekhpal had wrongly scored out the name of Brindaban and had entered the name of Hira Singh Respondent against that land. Hira Singh had appeared as a witness for Durga Saran Lekhpal and Shiv Babu Respondent had stood surety for him. A case for correction of papers was also going on between Brindaban on the one hand and Hira Singh on the other. On 28th December, 1960, Brindaban had gone to Allahabad to prosecute one of his cases. The same evening he travelled by Allahabad Mogal Sarai Passenger to reach his home. The three Respondents also boarded the same train and the same third class compartment at Allahabad. Two of the prosecution witnesses, namely, Ram Oudh (P.W. 6) and Shitla Prasad (P.W. 13) also boarded the same compartment. When the train was about to reach Naini railway station, which is the next stoppage alter Allahabad, the three Respondents started taunting Brindaban Dube. The latter took no notice of their taunt and they started filthily abusing him, and there after Hira Singh kicked him and Durga Saran started beating him with a stick. Shiv Babu Respondent sat on his chest and pressed it with both the knees. Shitla Prasad (P.W. 13) had worked as a clerk of the grandson of Brindaban Dube. Both Shitla Prasad and Ram Oudh rushed to rescue Brindaban Dube and saved him from further assault. As soon as the train stopped at Naini all the three Respondents made good their escape. Brindaban Dube was taken out from the compartment with the help of Shitla Prasad and others and the first information report of the occurrence, dictated by Brindaban Dube and scribed by Shitla Prasad (P.W. 13), was lodged at G. R. P. police station, Naini, at 9 -15 p.m., i.e. within half an hour of the arrival of the train at Naini. Giddumal constable (P.W. 4) had also reached near the compartment in which the occurrence had taken place and Brindaban Dube had been taken out of the compartment in his presence. A stick was found lying inside the compartment. Giddumal cor stable (P.W. 4) took that stick along with him and deposited the same at G.R.P. police station, Naini, at the time the first information report was lodged. Brindaban Dube was taken to the railway hospital at Naini. The medical officer of that railway hospital advised that he should be removed immediately to Moti Lal Nehru Hospital, Allahabad. Brindaban Dube was, therefore, removed to Moti Lal Nehru Hospital, Allahabad, and "admitted there as an indoor patient. His injuries were examined there by Dr. Verma (P.W. 14) the same night. Brindaban Dube succumbed to his injuries at 12 -10 p.m. on 29th December, 1960.
(3.) IT appears that nobody suspected that the end of Brindaban Dube was so near. No effort was, therefore, made to get his dying declaration recorded during the period he remained as an indoor patient of Moti Lal Nehru Hospital, Allahabad. Brindaban Dube had, however, sent word to his grandson Hari Saran Dube through Giddumal constable (P.W. 4). Hari Saran Dube received the information at about 10'30 a.m. and proceeded immediately from the bus station where he was working as a clerk to Moti Lal Nehru Hospital and there learnt the names of the assailants of Brindaban Dube from the victim himself. The prosecution case is that Brindaban Dube had also told Giddumal (P.W. 4) the names of the Respondents as his assailants.;