- (1.) PRAFULLA C. Pant, J. This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr. PC.), is directed against the judgment and order dated 13-08-1991, passed by II Addi tional Sessions Judge, Dehradun, in Ses sions trial No. 75 of 1989, whereby ac cused / appellants, Neeraj Kumar alias Lale alias Nate is convicted under Sec tion 302 of Indian Penal Code, 1860 (hereinafter referred as I. P. C.), and sen tenced to undergo imprisonment for life.
(2.) HEARD learned counsel for the parties and perused the lower court record. Prosecution story, in brief, is that on 01-02-1989, at about 12:30 noon accused / appellant Neeraj Kumar came to the house of Surat Singh Chauhan and objected why his land is being en croached upon. On this some quarrel took place between accused / appellant and Surat Singh Chauhan (deceased), where after he threatened him to see by the evening. Thereafter on the same day i. e. on 01-02-1989 at about 6. 30 PM. Surat Singh Chauhan (deceased) was at his house in Tarla Adhoiwala, Dehradun. He was suffering from headache and sent his minor son Raju alias Rajesh (P. W. 3) to bring some tablet (medicine) from shop of Mohan Singh Bist (P. W. 1 ). When Rajesh came back from the shop with medicine he told his father (Surat Singh Chauhan) that accused / appel lant Neeraj Kumar asked him to tell his father to come to the shop of Mohan Singh Bist. Being suspicious Surat Singh Chauhan firstly sent Bali Ram (P. W. 5), his nephew to see if he is really called by Mohan Singh Bist and if Neeraj Kumar is there. Bali Ram (P. W. 5) re turned back and told that Neeraj Kumar is not on the way. On this Surat Singh Chauhan proceeded for the shop of Mohan Singh Bist, who was followed by Bali Ram (P. W. 5), his nephew, so that no untoward incident takes place. Surat Singh Chauhan after meeting Sri Bist when started walking back to his house accused Neeraj Kumar along with his two associates met him and Neeraj Kumar stabbed with a knife in the ab domen of Surat Singh Chauhan. Surat Singh Chauhan fell down on the road and accused Neeraj Kumar along with his associates ran away towards a lane. Hearing cries of the deceased, Mohan Singh Bist (P. W. I) from his shop and Jaswant Singh (P. W. 2), who was sitting in the shop of Sri Bist, rushed towards the place of incident. Meanwhile, Bali Ram (PW-5) who followed Surat Singh Chauhan also reached towards the place of incident. Injured Surat Singh Chauhan was taken to the Hospital on a scooter by Mohan Singh Bist (P. W. I) with the assistance of Jaswant Singh (PW. 2 ). Bali Ram (P. W. 5) also followed them. The injured was admitted in Doon Hospital on 01-02-1989 at about 7. 35 RM. , where his injuries were recorded in injury report (Ext. A-3) by Dr. G. P Singh (PW. 7 ). Looking into the condition of the patient, Doctors advised recording of dying declaration of the injured as such Chandra Singh, Additional Tehsildar (P. W. 6) recorded dying declaration (Ext. A-2) on the very day i. e. 01-02-1989 at about 8. 35 P. M. in the presence of Dr. S. K. Nautiyal (P. W. 9), who certi fied that the patient is conscious and able to make statement. Bali Ram (P. W. 5) lodged First Information Report (Ext. A-1) at Police Station Raipur, Distrcit Dehradun at about 10. 30 P. M. on the same day. Three days after the incident on 4th February 1989 deceased succumbed to the injuries in the morn ing. As such the First Information Re port, which was registered initially as Crime No. 13 of 1989 relating to of fence punishable under Section 307 I. PC. against accused Neeraj Kumar was converted to one punishable under Sec tion 302 I. PC. The crime was investi gated initially by J. P. Bargoti (P. W. 12 ). After death of Surat Singh Chauhan his dead body was taken into possession by the Police on 04-02-1989 and inquest report (Ext. A-5) was prepared at 11. 45 A. M. Police further got prepared police form no. 13 (Ext. A-13), sketch of the dead body (Ext. A-14), sample seal (Ext. A-15) and other necessary papers and sent the dead body of the deceased for postmortem examination. Postmor tem examination was conducted on that very day i. e. 04-02-1989 at about 3. 30 P. M. by Dr. D. P. Bahuguna (P. W. 10), who prepared autopsy report (Ext. A-4) and opined that cause of death was shock and hemorrhage as a result of ante mortem injury. J. P. Bargoti (P. W. 12), meanwhile interrogated the witnesses, arrested the accused Neeraj Kumar, recovered knife used in crime and after spot inspection prepared the site plans Ext. A-7, relating to place of incident and Ext. A-8, relating to the place of recovery of knife at the point ing out of the accused / appellant Neeraj Kumar. After transfer of Investigating Officer further investigation was taken by Ravindra Kumar Tomar (PW. 14), who after completion of investigating submit ted the charge sheet (Ext. A-10) against accused / appellant Neeraj Kumar and his two associates, namely, Roni George and Rajesh @ Babu for their trial relat ing to offences punishable under Sec tions 302/34/120b I. PC. The Magistrate on receipt of the charge sheet after giving necessary cop ies to the accused as required under Sec tion 207 of Cr. P. C. , appears to have committed the case to the court of Ses sions for trial. Learned Additional Ses sions Judge on 30-11-1989, after hear ing the parties framed charge of offences punishable under Sections 120-B and 302 of I. P. C. against all the three ac cused. A separate charge was framed against accused / appellant Neeraj Kumar @ Lale @ Nate, relating to of fence punishable under Section 302 I. P. C. All the three accused pleaded not guilty of the charge framed against them and claimed to be tried. On this pros ecution got examined P. W. I Mohan Singh Bist, the chemist from whose shop deceased was returning, P. W. 2 Jaswant Singh, P. W. 3 Rajesh, minor son of the deceased, P. W. 4 Jaggo Devi, widow of deceased, P. W. 5 Bali Ram, complainant and eyewitness (nephew of the de ceased), PW. 6 Chandra Singh, Addi tional Tehsildar, who recorded the dying declaration, P. W. 7 Dr. G. R Singh, who medically examined the injuries of de ceased at the time of admitting him in the hospital, P. W. 8 Constable Rajendra Prasad, who took the dead body in sealed condition for postmortem exami nation, P. W. 9 Dr. S. K. Nautiyal, who certified that the deceased was in a fit condition to make the dying declara tion, P. W. 10 Dr. D. R Bahuguna, who conducted the post mortem examina tion, P. W. 11 Sub Inspector Bhopal Singh, who prepared the inquest report of the dead body of the deceased, P. W. 12 J. R Bargoti, who initially inves tigated the crime, P. W. 13 Constable Sukhbir Singh in whose presence knife used in the crime was recovered at the pointing out of the accused and P. W. 14 Ravindra Kumar Tomar, who concluded the investigation. The oral and docu mentary evidence was put to the ac cused under Section 313 Cr. P. C. in re ply to which they alleged the same to be false. In defence D. W. I Abdul Rajjak, D. W. 2 Satish Verma and D. W. 3 Suresh Chandra Gupta, were got exam ined. . After hearing the partie the trial court found that the prosecution has not been successful in proving the charge against accused Roni George and Rajesh @ Babu and acquitted them. However, the trial court found that charge of of fence punishable under Section 302 I. P. C. has been proved as against ac cused Neeraj Kumar @ Lale @ Nate. After hearing him on sentence he was sentenced to imprisonment for life. Ag grieved by said judgment and order dated 13-08-1991, passed in Sessions Trial No. 75 of 1989, by learned II Ad ditional Sessions Judge, Dehradun, this appeal was filed before Allahabad High Court by convict on 1 9-08-1991, which was admitted there on 20-08-1991. The appeal is received by this Court by trans fer under Section 35 of U. P Reorgani sation Act, 2000, for its disposal.
(3.) BEFORE further discussions it is per tinent to mention here the injury men tioned in medical injury report (Ext. A-3), prepared by Dr. G. R Singh (P. W. 7) on'01-02-1989 at the time Surat Singh Chauhan (deceased) was admitted in the emergency ward of Doon Hospital. The same is be ing reproduced below : "incised wound 6cm x 2 cm x peri toneum deep amentum coming out on left side abdomen 15cm away from G. P. Stesurem bone. The gen eral condition of the patient was found very low. Patient conscious. His pulse feeble and not recordable. B. P. not recordable. " The Medical -Officer who prepared the injury re port (Ext. A-3) opined that the injury was caused by sharp edged weapon. X-ray was advised. It appears that after Surat Singh Chauhan was admitted in Doon Hospi tal, Dehradun, he underwent surgery (as also apparent from stitched wounds) and thereafter he died on 04-02-1989. On postmortem examination, on 04-02-1989 at about 3. 30 RM. , D. R Bahuguna (P. W. 10), who prepared the autopsy re port (Ext. A-A-4) recorded following ante mortem injuries : (I) Stitched wound 17cm long on the left para umbilical region 3cm away from the umblicous having 12 stitches. Stomach deep. (ii) Incised would 5cm long on the left side abdomen lower part x cavity deep 6cm away and lower to the injury no. 1 with rubber sheeth coming out from the wound. (Hi) Stitched wound 5cm long on the left abdomen. Middle part 7cm away from the injury no. 1. In the opinion of the Doctor cause of death was shock and hemorrhage as a result of ante mortem injury in the stomach.;