- (1.) SAROJ Bala, J. The judgment and order dated September 21, 1982 passed by the Sessions Judge, Muzaffarnagar in S. T. No. 283 of 1980 whereby con victing the appellant for the offence under sections 302, 323 and 324 I. P. C. and sen tencing him to rigorous imprisonment for life under section 302 I. P. C. , rigorous im prisonment for three months under section 323 and rigorous imprisonment for one year under section 324 I. P. C. is under chal lenge in this appeal.
(2.) THE relevant facts are these: On May 20, 1978 at about 7 A. M. the accused-appellant came at the shop of Vijai Kumar Singh alias Vijai Pal (victim) and his brothers Bhopal (P. W. 3) and Shukpal (P. W. 4) situated in Mohalla Gajawali Muzafarnagar and ordered for a cup of tea. THE victim refused to supply tea unless the amount of Rs. 7. 25 outstanding for the previous purchase of tea was paid. At this the accused-appellant took out knife from his pocket and gave knife blow to Vijai Kumar. Bhopal (P. W. 3) and Kali Ram (P. W. 6) were subjected to assault by wielding of knife by accused-appellant when they tried to intervene and intercept him, Sukhpal (P. W. 4) got scribed the writ ten report of the incident by Ram Chandra (P. W. 10) and laid it P. S. Kotwali at 8. 05 A. M. on 20. 5. 1978. On the basis of written report chick F. I. R. (Ext. Ka-10) was pre pared by Shyam Raj Singh (P. W. 7) and crime was registered in G. D. (Ext. Ka 11) under section 324 I. P. C. After the death of victim crime was altered to section 304 I. P. C. THE victim Vijai Pal, then alive was rushed to the district hospital Muzafarnagar and was medically examined at 7. 25 A. M. on 20. 5. 1978 by Dr. Sant Saran Khanna (P. W. 11) and following injuries were found on his body as per injury report (Ext. Ka 16): 1. Stab incised wound on the left side chest in mid-maxillary line 3. 5" x 1" x cavity deep, omen rum was coming, tailing downward and medially, bleeding present 4" away to the umbilicus from 12. 0 O'clock to 3. 0 O'clock. 2. Incised wound 2" x 1. 5" x muscle in the back of left upper arm lower third, tailing medially down. Incised wound 1" x 1/4" x skin deep on the back of left upper arm medially third, tailing medially. According to the doctor G. C. was very low. B. P. was not recordable. The injuries were caused by sharp edged weapon. The victim was taken to the Medical College Meerut for higher treatment. He expired there on 28. 5. 1978 at 12. 30 A. M. The inquest on the dead body was conducted by S. I Razi Haidar then posted at police outpost Medical College Meerut. He prepared the inquest report (Ext. Ka-2), photolash (Ext. Ka-3), challanlash (Ext. Ka-4) and letters to C. M. O. Meerut (Ext. Ka-5 ). The sealed bundle containing the dead body was handed over to (P. W. 2) for transportation to the Mortuary for post-mortem. The autopsy on the dead body of Vijai Pal was conducted by Dr. Dilawar Singh (P. W. 1) on 28. 5. 1978 at 3. 40 P. M. and following ante-mortem injuries were found on his person: 1. Infected wound 2. 5 cm x 1 cm chest cavity deep on left side chest outer part in mid axillary line, 19 cm. below the axilla. 2. Infected wound 2. 5 cm x 1 cm x abdominal cavity deep on left side of abdomen middle part. 3. Stitched wound 17 cm. long on left side abdomen, 3 cm. away from umblicus. Stitched wound 11 cm. long on left side abdomen on outer and upper part. On internal examination pleura was found punctured. The death was caused due to septicemia as a result of severe peritoneous. The post-mortem report (Ext Ka-1) was prepared by the doctor (P. W. 1) at the time of autopsy. The injured Bhopal (P. W. 3) was medi cally examined by Dr. D. C. Mobar (P. W-5) on 20. 5. 1978 at about 8. 50 A. M. and follow ing injuries were found on his body as per injury report (Ext. Ka-7): 1. Incised wound 1/4" x 1/8" x mus cle deep left side angle of mandi ble. Bleeding present. 2. Abrasion 2" x 1/4" on the outer as pect of right arm, lower part in cluding elbow. 3. Incised wound 1-1/4" x 1/3" x skin deep on the inner aspect of right hand palmer aspect. Bleeding pre sent. The injuries No. 1 and 3 were caused by sharp edged weapon like knife whereas injury No. 2 was caused by friction. All the injuries were simple in nature. The injured Kali Ram was medically examined by the same doctor (P. W. 5) at 11. 15 A. M. on May 20, 1978 and two simple injuries caused by friction against hard substance were found on his body. The injury report (Ext. Ka-8) was prepared at the time of medical examination. The crime was investigated by SI Hari Raj Singh (P. W. 8 ). The Investigating Office visited the venue of crime and prepared the site plan (Ext. Ka-12 ). He interrogated the injured Vijai Pal and recorded his statement under section 161 Cr. P. C. (Ext. Ka-14 ). After interrogation of other wit nesses and concluding the investigation he submitted the charge-sheet (Ext. Ka-15) against the accused-appellant. The case was committed to the Court of Sessions by the then C. J. M. Muzaffarnagar. The accused-appellant was charged for the offences punishable under sections 302 and 307 I. P. C. He pleaded not guilty to the charges and claimed to be tried. The prosecution in all examined twelve witnesses out of them Bhopal (P. W. 3), Sukhpal (P. W. 4), Kali Ram (P. W. 6) were eye-witnesses. Kali Ram (P. W. 6) turned hostile. Rest of the evidence related to the medical and investigation aspects, about which reference has been given above. On deep analysis of evidence, the trial Judge convicted the accused-appellant. We have heard Shri P. N. Mishra, learned Counsel for the appellant, learned A. G. A. appearing for the State and have scanned the Trial Court record. 3. The learned Counsel for the ac cused-appellant challenged the findings of conviction on the grounds: the appellant was medically examined by the same doc tor (P. W. 5) and as many as eight injuries were found on his body but his injuries were not explained; eye-witnesses are blood relations of deceased; the witness Sukhpal (P. W. 4) stated to have caused in juries to accused-appellant by wielding of stick but surprisingly no injuries were caused to him; the incident took place all of a sudden without premeditation and ac cused-appellant having sustained injuries during the course of same transaction, the offence does not travel beyond Part II of section 304 I. P. C; the evidence of Dr. Dila-war Singh (P. W. 1) is silent on the point that injuries were sufficient in the ordinary course of nature to cause death. In support of the submissions reliance has been placed on the decisions in Gurdial Singh v. State of Punjab, 1995 (32) ACC 637 (SC) Chila Mukur Nagai Reddy and others v. State of Andhra Pradesh, 1977 (14) ACC 281 (SC) and Nachittar Singh v. State of LIP. (1982) 1 SCC 609. 4. It is true that eye-witnesses Bho pal (P. W. 3) and Sukhpal (P. W. 4) are real brother of the deceased. Their testimony cannot be discarded merely because of their relationship with the deceased. It is not to be forgotten that witness Bhopal (P. W. 3) is an injured person and was medi cally examined the same day at 8. 50 A. M. The testimony of related witnesses is to be examined with care and caution and once it stands the test of such scrutiny there is no legal bar in acting upon their testimony. All the three brothers had a joint tea shop in Mohalla Gajawali. Their presence at the shop at about 7 A. M. was natural and probable.
(3.) THE witness Bhopal (P. W. 3) cate gorically stated that the accused-appellant came at the tea shop at 7 A. M. and asked his brother Vijai Pal to prepare tea for him. Vijai Pal demanded the outstanding pay ment of Rs. 7. 00 for the tea supplied earlier and refused to supply tea unless the pay ment was made. At this the accused-appellant got infuriated. He took out the knife and gave knife blow to Vijai Pal. THE accused-appellant subjected him to assault with knife when he tried to intervene. He deposed that accused-appellant also sus tained injuries in the scuffle. He denied the suggestion that Vijai Pal started the quarrel and caused knife injury to the accused-appellant. The witness Sukhpal (P. W. 4) is the first informant. According to him he was at his tea s, hop. His brother Bhopal was col lecting water at the tap and victim Vijai Pal was inside the shop. At about 7-7. 15 A. M. the accused-appellant came at their shop and ordered a cup of tea. His brother Vijai Pal (victim) refused to supply tea unless previous payment of Rs. 7. 25 was made. The accused-appellant saying that 'whosoever demands money from him loses his life', took out knife from his pant and gave knife blows to Vijai Pal. He deposed that he assaulted the accused-appellant with stick and Bhopal and Kali Ram gave kicks and fist blows.;