S. K. Kaul, J. - (1.) FIVE persons; Neeraj (Rama Kant Srivastava) (18), living in Bhoosa Mandi, police circle Aminabad (Lucknow), Kishan Agarwal of Bhoosa Mandi, Irfan, living in Jangliganj, police circle Naka Hindola (Lucknow), Ashok Kumar Sharma of Bhoosa Mandi and Shishir Chand, resident of Khursheed Bagh, police circle Naka Hindola (Lucknow), were tried by the Ilnd Additional Sessions Judge, Lucknow, for various offences. Kishan, Irfan and Ashok were tried for offences under Sections 120-B and 302/34 Penal Code, and in the alternative under Section "302/109 Penal Code ; Shishir was tried for the offence under Section 120-B Penal Code and Neeraj was tried for the offence under Section 120-B Penal Code and Section 302 Penal Code simpliciter for having entered into a conspiracy to murder Ajay Tewari (15) at about 7.35 P. M. in the locality known as Khursheed Bagh. Out of the accused persons only Neeraj has been convicted and sentenced to a term of life imprisonment under Section 302 Penal Code simpliciter and the remaining of the accused were extended the benefit of the doubt and acquitted. The State of Uttar Pradesh directed an appeal against the order acquitting them whereas Neeraj has come up in appeal against his conviction under Section 302 Penal Code .
(2.) THE prosecution story, as it was set out at the trial, was this : Neeraj and Kishan were frequent visitors to Shishir. THEy used to roam about in Khursheed Bagh and at times they teased girls of the locality. Ajay Tewari resented this. Madhukar Misra (PW 1) had also expressed his indignation over their activity. About a fortnigh prior to this incident, the deceased had remonstrated with them. Shishir then took a defiant attitude and Ajay Tewari gave him a couple of slaps. THEreafter, on one occasion Madhukar Misra also rebuked Shishir about eve teasing. On this occasion Shishir told Madhukar Misra that he had been humiliated by Ajay Tewari also and that he would take revenge for the insult. At that time Shishir was accompanied by Ashok and Neeraj A day before the occurrence there was an exchange of hot words between Neeraj and Shishir on one hand and the deceased and Bishun Murari (PW 7) on the other. Shishir and Neeraj told them that Ajay Tewari should not interfere. Ajay Kumar Singh (PW 5) and others also intervened. Shishir and Neeraj then went away extending a threat to see Ajay Tewari, the neat day. Ajay Tewari used to go to the Stadium every day to play hockey. On 17th May, 1972, he and his elder brother Sanjay Tewari (PW 4) were returning together on separate cycles from the Stadium. Sanjay stopped in the way and Ajay Tewari rushed to his home. When he arrived in Khursheed Bagh near house No. 22, he saw at about 7 or 7.30 P. M. Madhukar, Vishnu Murari and Pankaj standing and talking there. Ajay joined them. It was about dusk time and one electric pole and two bulbs burning in the nearby were sheding light. At that time the accused except Shishir arrived there and exhorted their companions that Ajay be assaulted. Neeraj whipped out a knife and stabbed Ajay in the right side of his abdomen. Ajay fell down. Thereafter, the four accused ran away uncaught. San jay Tewari, who was coming back home, heard these four saying to Shishir standing by the peepal tree that "the work had been done". The witnesses at the spot then conveyed the information to the mother of Ajay and one B. P. Tewari brought his car and carried Ajay to the Medical College where he was declared dead. Madhukar Misra (PW 1), who lived in Khursheed Bagh, went to the police station and dictated the report of the occurrence at 8.15 p. m. Head Constable Jwala Prasad (PW 3) registered a case under Section 307 Penal Code in the general diary. Station Officer Jagdamba Prasad Misra (PW 14), who was present at the police station, rushed to the spot reaching there at 8.50 p. m. He examined fiiskun and Pankaj; he collected blood-stained earth lying on the spot. He had to stop his further investigation because on receipt of the information about the death of Ajay, he rushed to the Medical College where he performed the inquest on the dead body and in that very night he handed over the dead body to constable Deo Narain (PW 2) for being taken to the mortuary. The descriptive roll and other papers taken by the constable were handed over to the Doctor in the following morning at about 8 a. m. The autopsy on the dead body was performed by Dr. K. K. Singhal, Medical Officer, Mahanagar Dispensary, at 8.00 a. m. on 18th May, 1972. The case had been converted into one under Section 302 IPC. After performing the inquest the Station Officer went back to the spot and recovered the bloodstained earth (Ext. Ka-17).
(3.) SHISHIR was arrested on 19th May, 1972, and Neeraj on the 20th. Neeraj told him that the blood-stained knife (Ext. 1) had been given by him to Shamim. The Investigation Officer then went to Shamim and at his pointing out he recovered the knife from the house of Shamim and sealed it by the memo (Ext. Ka-18). Irfan was arrested on 21 st May and with a veiled face he was sent to jail with due precautions on 22nd May. Ashok surrendered in court on 26th May and was sent to jail with a veiled face. Thereafter, Irf an and Ashok were put up at test identification held under the suprevision of a Magistrate First Class, the identification memo, being Ext. Ka-10. The result of the test identification was that Ashok was correctly identified by Ganga and Irf an was correctly identified by Madhukar Misra and Bishun Murari. The recovered earth was found stained with human blood by the Chemical Examiner and the Serologist, but no human blood was found on the blade of the knife as the blood-stains had become disintegrated. After doing the necessary investigation the charge-sheet (Ext. Ka-25) was submitted against all the accused persons. The autopsy on the dead body revealed the presence of three antemortem injures : (1) Penetrating incised wound 2 cm. x 3/4 cm. x chest cavity deep on the right side of chest on the front and upper part; (2) Abrasion 1 cm x 3 cm on the upper outer and back sides of right shoulder ; and (3) Abrasion H cm x I cm on left side of back in the middle and outer side 8 cm below the left armpit. Underneath injury No. (1) the third rib in the lower part was injured and cut through and through and this wound went through the third and fourth ribs upto the lung on the right side which was injured in the front and middle outer parts. According to the Doctor, injury No. (1) was sufficient in the ordinary course of nature to cause death and it was caused by a sharp and pointed weapon, to instance, a knife.;