Umesh Chandra - (1.) THIS appeal is directed against a judgment and order dated 11-3-1978, passed by V Additional District and Sessions Judge, Allahabad, in Sessions Trial No. A-476 of 1976, by which Sahebzade son of Akbar Ali, resident of village Manjhanpur was convicted and sentenced to ten years' rigorous imprisonment under Section 304 IPC and to six months' rigorous imprisonment under Section 323 IPC read with Section 34 IPC. The other appellant Chand Babu son of Bassan who is also a resident of village Manjhanpur was convicted and sentenced to 10 years' rigorous imprisonment under Section 304 IPC read with Section 34 IPC and to six months' rigorous imprisonment under Section 323 IPC. The sentences were ordered to run concurrently.
(2.) AKHTAR Husain complainant and the appellants are close neighbours. Both are residents of village Manjhanpur. Sibtain AKHTAR son of AKHTAR Husain was teaching some boys of his mohalla which was not liked by the appellants. Two days before the occurrence when Sibtain AKHTAR was in the grove of Mohd. Sadiq, both the appellants had asked him not to teach those boys and had threatened him with dire consequences. According to the prosecution when on 9-5-1975 at about 4.30 p. m. Sibtain AKHTAR was passing through the lane running in between the houses of Mashooq Ali and Ghulam Husain and was returning to his home from the houses or Dr. Ali Amzad, the two appellants detained him and asked him to give up the tuitions. Sibtain AKHTAR asserted that he would not give up the tuitions. Thereupon Chand Babu started giving him fist blows and Sahebzade gave him a knife blow on the left side of his chest. This incident was witnessed by Zaheer Hasan PW 2 and his son Bashir Hasan PW 3. These witnesses brought Sibtain AKHTAR to his house where he narrated the incident to his father who scribed a report Ext. ka 1 and brought him to the police station. A report of the occurrence was lodged at police station Manjhanpur the same day at 5.30 p. m. Injured Sibtain Akhtar was brought to the police station in an ekka. Lok Nath Misra PW 5 was the constable Moharrir at the police station. He received the written report. On the basis of this report he prepared a first information report Ext. ka 8 and registered a case in the general diary. Ext. ka 10 is a letter addressed to the Doctor of Primary Health Centre, Manjhanpur. Constable Rama Shanker took Sibtain Akhtar to the Primary Health Centre from where the complainant was directed to take the injured to the Hospital at Allahabad for treatment. The injured was brought to T. B. Sapru Hospital, Allahabad where Dr. J. K. Satsangi PW 6 examined his injuries at 8.30 p. m. Sibtain Akhtar had received one incised wound 1 1/4 " x 1/2 " on the left side chest 2 " below the left nipple. When the condition of Sibtain Akhtar became critical, he was sent to Swaroop Rani Medical Hospital. Sibtain Akhtar, however, died in Swaroop Rani Medical Hospital on 10-5-1975 at 11.50 a. m. On 11-5-1975. Dr. J. K, Satsangi PW 6 conducted the post-mortem examination. In the opinion of the Doctor death was caused due to shock and haemorrhage as a result of the injuries received by Sibtain Akhtar. Vishwanath Tripathi PW 7 was the A.S.I, attached to police statton Manjhanpur. He was not present at the police station when the case was registered. However, he started investigation and recorded the statements of the witnesses as also the statement of the deceased in Swaroop Rani Medical Hospital. After completing the investigation a charge-sheet was submitted against the appellants leading to their trial. In snpport of the prosecution story Akhtar Husain PW 1, Zaheer Hasan PW 2 and Bashir Hasan PW 3 were examined. The learned Additional Sessions Judge found that Zaheer Hasan and Bashir Hasan were not present at the time of the occurrence. The statement of the deceased recorded by the Investigating Officer under Section 161 CrPC on which the prosecution relied as dying declaration was also disbelieved by the learned Additional Sessions Judge who, however, found that the oral statement made by the deceased to his father Akhtar Husain was wholly reliable and believing this statement he convicted and sentenced the appellants as mentioned above. Aggrieved, the present appeal has been filed.
(3.) TO establish the charge against the appellants the prosecution relies (1) on the ocular testimony of Zaheer Hasan PW 2 and Bashir Hasan PW 3 alleged to be the eye-witnesses of the occurrence resulting in the death of Sibtain Akhtar, (2), the dying declaration recorded by the Investigating Officer under Section 161 CrPC and (3) the dying declaration alleged to have been made by deceased Sibtain Akhtar to his father Akhtar Husain, who lodged a report at police station Manjhanpur about an hour after the occurrence. The learned Additional Sessions Judge rejected the testimony of the two prosecution witnesses Zaheer Hasan PW 2 and Bashir Hasan PW 3 holding that both these witnesses were not present at the time of the occurrence. The learned Additional Sessions Judge also rejected the statement of the deceased alleged to have been recorded by the Investigating Officer in Swaroop Rani Medical Hospital, Allahabad. However, the Additional Sessions Judge relied on the statement made by the deceased to his father and held that as the deceased had named the appellants as assailants and there is nothing to taint this dying declaration, the same can be the basis for conviction. The oral testimony of the two witnesses Zaheer Hasan and Bashir Hasan was rightly rejected by the learned Additional Sessions Judge. Bashir Hasan is the son of Zaheer Hasan and both of them are related to Akhtar Husain It is admitted by Akhtar Husain PW 1 that his sister is married to Zaheer Hasan. He is also his cousin. Secondly, Zaheer Hasan at the time of the occurrence was a peon attached to Collection Amin Babu Lal Misra. Satish Chandra DW 1, A.W.B.N. Tahsil Manhanjpur had produced the register of collection and casual leave to show that Babu Lal Mishra along with Zaheer Hasan had come to the Tahsil on 8-5-1975 to deposit a sum of Rs. 2,299/- in the Treasury. The casual leave register of the year 1975, the earned leave register of the same year, the bill book and the acquittance roll were produced by Sri Ghulam Mohammad Farooq which shows that the statement of Zaheer Hasan that he was on leave that day is incorrect. The learned Additional Sessions Judge has rightly pointed out these documents which fully prove that the statement of Zaheer Hasan PW 2 that he was coming out of the mosque after his evening prayer at the time of the occurrence, cannot be believed. Thirdly, Sibtain Akhtar died on Friday when usually there is mass prayer in the mosque at about 1 p. m. These two witnesses had not attended this mass prayer. They tried to explain it by saying that both of them took sometime in getting ready for the noon prayers and as they could not go to the mosque in the noon prayer, therefore, they had gone to the mosque at about 4 p. m. This statement was also rightly rejected by the Additional Sessions Judge because according to Zaheer Hasan he was on casual leave on that day and according to Bashir Hasan he had closed his shop on Friday. Both these witnesses had, therefore, no valid reason not to attend the mass prayer at 1 p. m. Obviously the witnesses have taken this stand to prove their presence at the place of occurrence. For the reasons mentioned above, the findings of the learned Additional Sessions Judge that both these witnesses were not present at the time of the occurrence and have not witnessed the assault is confirmed.;