- (1.) THIS appeal, preferred under Section 374 (2) of the Code of Criminal Pro cedure, 1973 (hereinafter referred as Cr. P. C.), is directed against the judg ment and order dated 20-07-1985, passed in Sessions Trial No. 96 of 1984, by the then learned Sessions Judge, Nainital, whereby Bhupal (ap pellant No. 1) is convicted under Sec tion 302 of the Indian Penal Code, 1860 (hereinafter referred as I. P. C.), and Vinod Kumar (appellant No. 2) is convicted under Section 302 read with Section 34 of the I. P. C. , and each one of them is sentenced to im prisonment for life.
(2.) ACCORDING to the prosecution, facts of the case are that P. W. 1, Mangal Sen (informant) and both the accused appellants Bhupal and Vinod Kumar are residents of Mohalla Maheshpura of Kashipur. The de ceased Kallu was also resident of the same Mohalla. He was maternal un cle of Mangal Sen (P. W. 1 ). Appellants Bhupal and Vinod Kumar were friends, Accused appellant No. 1, Bhupal used to run a gambling den inside his house, to which Kallu (de ceased) had objection and he asked Bhupal to refrain from the activity as it leads the yo, uths of the locality to the path of misdeeds. On 13-3-1984, at about 8:30 P. M. , when Mangal Sen (P. W. 1) was standing outside the door of his house and his uncle Kallu was cleaning hands near water tank, ap pellant No. 1, Bhupal along with ap pellant No. 2, Vinod Kumar came there and started hurling abuses at Kallu. On being asked by Kallu not to hurl abuses at him, appellant No. 1, Bhupal asked appellant No. 2, Vinod Kumar to get hold of Kallu. Appellant Vinod Kumar caught and got hold of Kallu, then appellant No. 1, Bhupal took out his knife and stabbed Kallu. He gave two blows of knife to Kallu. The first blow could cut only the shirt and baniyan of the deceased, but the second blow struck deep in the stom ach. Immediately, Mangal Sen (P. W. 1) intervened and attempted to save Kallu but he also got knife injury on his left palm near the thumb. The in cident was also witnessed by Mahesh (P. W. 2), Chhotey (P. W. 3) and Chhamman (P. W. 4) and one Latif, all residents of same Mohalla. Thereaf ter, the witnesses and other persons made attempts to catch hold of the accused persons but they succeeded in escaping from the scene towards Jaspur Bus Stand. Due to injuries Kallu fell down on the spot. There was light of electric bulb of the elec tric pole at the scene of occurrence. Mangal Sen (P. W. 1) took Kallu immediately to Civil Hospital on a rick shaw and got him admitted there, but Kallu died in the Hospital (as a result of injuries received in the incident) at about 9:40 P. M. , on the same day. Before the death of the deceased, his dying declaration (Ext. A-15) was re corded by the Medical Officer attend ing him. Mangal Sen (P. W. 1) scribed report (Ext. A-1) and lodged the same with the police station Kashipur, at about 10:30 P. M. , on the same day i. e. 13-03-1984. On the basis of said report crime number 107 of 1984 was registered under Section 302 of the I. P. C. against both the appellants Bhupal and Vinod Kumar. Thereafter, in the next day morning i. e. 14-3-1984, at about 6:00 A. M. , the police took the dead body of Kallu in their custody from the L. D. Bhatt Civil Hospital, Kashipur and prepared in quest report (Ext. A-2 ). Also, police form No. 13 (Ext. A-3), photo sketch of the dead body (Ext. A-4), police form 33 (Ext. A-5) were got prepared by the Investigating Officer and the dead body was sent for postmortem examination. On 14-03-1984, at about 10:30 A. M. , Dr. R. N. Singhal (P. W. 8) conducted the autopsy on the dead body. The Investigating Officer (P. W. 11) prepared the site plan and recorded the statements of the wit nesses and submitted charge sheet (Ext. A-14) against both the accused Bhupal and Vinod Kumar. The con cerned Magistrate registered the charge sheet and after giving neces sary copies to the accused persons, as required under Section 207 of the Cr. P. C. , committed the case to the court of Sessions for trial. The learned Sessions Judge, after hearing both the prosecution and the defence, framed charge of offence punishable under Section 302 of the I. P. C. against appellant No. 1, Bhupal and the one punishable under Section 302 read with Section 34 of the I. P. C. against appellant No. 2, Vinod Kumar. Both of the appellants pleaded not guilty and claimed to be tried. The prosecution, thereafter, got examined P. W. 1, Mangal Sen (inform ant and injured eyewitness); P. W. 2, Mahesh (eyewitness); P. W. 3 Chhotey (eyewitness) and P. W. 4, Chhamman (eyewitness ). P. W. 5 Constable Dharampal Singh and P. W. 6, Consta ble Gulabi Ram filed their affidavits before the trial court regarding the preparation of inquest report of the dead body. Prosecution also got ex amined P. W. 7, Constable Sureshpal Singh (who adduced evidence regarding taking blood stained cloths for chemical examination); P. W. 8, Dr. R. N. Singhal (who conducted post mortem examination); P. W. 9, Dr. P. K. Joshi (who recorded injuries found on the person of injured witness Mangal Sen); P. W. 10, Ram Lai (witness of the recovery of blood stained cloths of accused appellant Bhupal); P. W. 11, Sub Inspector Ram Asre Singh (Inves tigating Officer); P. W. 12, Dr. R. P. Rastogi (who recorded the dying dec laration of the deceased in this hos pital) and P. W. 13, Sub Inspector Rajendra Prasad Sharma (who arrested accused appellant Bhupal ). The court witness, Dr. S. P. Gupta was also examined before the trial court. The oral as well as documentary evi dence was put to the accused persons including the chemical examiner's re port (Ext. A-17 ). Accused persons al leged prosecution evidence to be wrong and further alleged that they have been falsely implicated in the case. In the defence, on behalf of the accused persons copies of the three charge sheets Ext. B-1, Ext. B-2 and Ext. B-3, were produced to show that witnesses Chhotey (P. W. 3) had a criminal history. After hearing the ar guments of prosecution and that of the defence, learned Sessions Judge found both the appellants guilty of the offence of which charge was framed against them and convicted accused Bhupal under Section 302 of the I. P. C. and accused Vinod Kumar under Section 302 read with Section 34 of the I. P. C. and sentenced each of them to imprisonment for life. Ag grieved by the same, the appellants filed this appeal before the Allahabad High Court. Subsequently, this ap peal has been received by this Court under Section 35 of the U. P. Re-or ganization Act, 2000, for its disposal. We heard learned counsel for the parties and perused the entire evidence on record.
(3.) BEFORE further discussion, it is pertinent to mention here, the ante mortem injuries found on the person of the deceased at the time of post mortem examination. Statement of Dr. R. N. Singhal (P. W. 8) read with postmortem report (Ext. A-6) establishes the fact that following ante mortem injuries were found on the person of the deceased Kallu on 14-03-1984, at about 10:30 A. M. : Incised wound 4 cm x 2 cm x cav ity deep over front of abdomen near the mid line, oblique, 1 cm above umbilicus tailing towards right iliac fossa, loops of small intestines were coming out from the wound and at one place there was incised wound upon the intestine in the size of 2 cm x 1 cm x 1cm. Mesenteric vessels were cut under the ante mortem injury. In the opinion of the Medical Of ficer, who conducted the postmortem examination the cause of death was shock and haemorrhage, which was the result of above mentioned ante mortem injury. According to the aforesaid Medical Officer, the ante mortem injury could have been caused by a knife. He further opined that ante mortem injury was sufficient to cause death in the ordinary course of nature. P. W. 1, Mangal Sen, an injured eyewitness, has stated before the trial court on oath that the deceased Kallu was his maternal uncle. The witness has further stated that appellant Bhupal, who lives at a distance of 50 to 60 steps from his house, is friend of appellant Vinod Kumar. According to this witness on 13-03-1984, at about 8:30 P. M. , when he was stand ing outside the door of his house and Kallu was cleaning his hands near water tank, appellant Bhupal started hurling abuses at Kallu. Mangal Sen (P. W. 1) has further stated that Kallu had earlier raised objection and asked Bhupal not to run a gambling den in his house. It is also stated by this witness that appellant Vinod was also standing with appellant Bhupal. Appellant Bhupal asked appellant Vinod Kumar to get hold of Kallu and Vinod Kumar caught and got hold of him. Thereafter, according to this wit ness appellant Bhupal took out a knife and stabbed twice at Kallu. The first blow could only cut the shirt and Baniyan of the deceased but the sec ond blow hit him in his stomach. Mangal Sen (P. W. 1) states that when he moved ahead to intervene and save Kallu he also got a cut on his left hand. He says he and other witnesses made efforts to apprehend the culprits but they ran away from the scene towards Jaspur Bus Stand. Mangal Sen (P. W. 1) further states that there was light of electric bulb of the electric pole at the time of the incident. Thereafter, the witness says that he immediately took injured Kallu to the Hospital where he later suc cumbed to the injuries. Lastly, the witness states that he then got the first information report (Ext. A-1) lodged with the police station Kashipur.;