R. P. Shukla, J. - (1.) CRIMINAL Appeal Mo. 318 of 1977 is directed against the judgment and order, dated 3-2-1977, passed by Sri S. C. Tyagi, the then Sessions Judge, Gorakhpur, in Sessions Trial No. 356-A of 1975, convicting the appellant under section 302 IPC, and sentencing him to life imprisonment. Another accused Budhai in the said Sessions Trial was acquitted by the Sessions Judge and the State of U. P. has also preferred an appeal which is Government Appeal No. 943 of 1977 against the said judgment. The order disposing of the above noted CRIMINAL Appeal shall also govern the said Government Appeal,
(2.) THE prosecution story, in brief, is that appellant Kapildeo Prasad and the acquitted accused Budhai and the deceased Chandrika Prasad were the employees of Signal Workshop, North Eastern Railway, Gorakhpur. THEy were friends amongst themselves and they often used to assemble in one road shop- cum- residence of appellant Kapildeo Prasad situate in the city of Gorakhpur by the side of Gorakhpur-Pipraich Road near and to the north of Asuran road crossing. Adjacent to its north was the one room tea stall of Janardan Rai PW 2. About 50 paces to its south was the grocery shop of Anant Prasad PW 1. Some other shops and houses also existed either side of the road in the locality at the relevant time. On August 17, 1975, at about 5.00 p. m., when Anant Prasad PW 1 was taking tea at the shop of Janardan Rai PW 2, heard noise of the deceased and appellant Kapildeo Prasad and that of the acquitted accused Budhai. THEy were abusing each other inside the shop of Kapildeo Prasad. Both Anant Prasad and Janardan Rai rushed to the hut of Kapildeo Prasad out of curiousity. THEy saw Kapildeo Prasad striking Chandrika Prasad with a Rapi (a sharp edged instrument used by cobblers) on his chest saying " Sale sau ki pahti note bhi jeb mem rakh liya ". THEy also saw that the acquitted accused Budhai held one of the hands of Chandrika Prasad. Chandrika Prasad fell down bleeding after the receipt of the Rapi injury. THE appellant and the acquitted accused Budhai went out of the hut and ran on the road to wards south to make good their escape. Anant Prasad PW 1 and Janardan Rai PW 2 along with Barku, who had a house in the vicinity, chased them shouting. Constables Narsingh Ojha PW 3 and Rajpati Yadav, who were coming from the opposite direction, succeeded in arresting both Kapildeo Prasad and budhai with the help of the witnesses. THE constables asked Anant Prasad to take Chandrika Prasad to the hospital and the two constables followed him with Kapildeo Prasad and Budhai in custody. Anant Prasad took Chandrika Prasad on a rickshaw to the Railway Hospital situate at a distance of about one furlong. Chandrika Prasad succumbed to his injury when his rickshaw reached the hospital. Anant Prasad scribed the report of the incident Ext. Ka-1 and handed over the same at the Police-station Cantt. at 5.30 p. m. the same evening. On the basis of this report, Head Constable Harihar Singh PW 5 scribed the first information report Ext, Ka-5 and registered a case in the General Diary Ext. Ka-6. Sub-Inspector, Ram Adhin Singh PW 8, took up the investigation and he rushed on a jeep to the Railway Hospital alongwith S. I. Jharkandey Rai and S. I. Ram Asis Misra PW 6. There in the hospital, he found the dead body of Chandrika Prasad in the portico and the appellant and the acquitted accused Budhai in the custody of the two constables. He interrogated the two accused. On a statement made by Kapildeo Prasad that he could produce the Rapi he was entrusted to the custody of S. I. Ram Ashish Misra who proceeded along with the appellant to effect the recovery. The Investigating Officer then held an inquest on the dead body of Chandrika Prasad and sent it duly sealed for post mortem examination. He also recovered a blood stained hundred rupee torn currency note Ext. 2 from the pocket of the bush-shirt of the deceased and prepared the recovery memo Ext. Ka-11. Appellant Kapildeo took S. I. Misra to his shop and from inside a box kept therein produced Rapi Ext. 1 in the presence of the witnesses. The Rapi was blood stained. It was sealed and recovery memo was prepared. The Investigating Officer had also reached there and he directed, the accused and the recovered Rapi to be taken to the police station The Investigating Officer interrogated Anant Prasad who had by then returned from the police station, prepared the site-plan Ext. Ka-16 took blood stained and plain earth from inside the shop of appellant Kapildeo Prasasd in his possession and sealed the same. Thereafter, he interrogated PWs Janardan Rai, Constable Narsingh Ojha, Rajpati Yadav and other witnesses.
(3.) DR. B. G. Mathur PW 4 performed the post-mortem examination on the dead body of Chandrika Prasad at 12.00 noon on August 18, 1975. The age of the deceased was about 32 years and the time since death was about one day. Rigor-mortis was present on the upper and lower extrimities and the following ante-mortem injury was found on the dead body :- 1. Incised and penetrating would left side chest 1 1/4 " x 1 " x bone upper cavity deep going backwards with fracture of sternum underneath. On internal examination, he found a stab wound in 1 " x 1/4 " x ventricle deep on the heart. Blood was also present in the pericardium and 4 ounces of semi-digested food material was present in the stomach. The death, in the opinion of the doctor, was due to shock and haemorrhage resulting from the injury aforesaid, which, in his opinion, was sufficient in the ordinary course of nature to cause death. The doctor further said that the injury could be caused by a Rapi Ext. 1 and the deceased could survive upto about half an hour after receipt of the said injury.;