- (1.) V. P. Mathur, J. These four appeals and the criminal revision all arise out of the judgement and order passed by Mr. J. P. Agarwal, the then District and Sessions Judge of Faizabad on 22-7-1982 in Criminal Sessions Trial No. 60 of 1982 - State v. Pappu alias Ashfaq and another. The learned Judge convicted Pappu alias Ashfaq on a charge under Section 302 of the Indian Penal Code but sentenced him to imprisonment for life under Section 302/34, I. P. C. He also convicted Ashok Kanaujiya on a charge under Section 326/34 of the Indian Penal Code and sentenced him to five years rigorous imprisonment. Through Criminal Appeal Nos. 581 of 1982 and 634 of 1982, Ashok Kanaujiya and Pappoo challenged the learned Judge's order dated 22-7- 1982 of their conviction and sen tence. Through Criminal Appeal No. 974 of 1982, the State of U. P. has challenged the Judge's order whereby has not found Ashok Kumar Kanaujiya guilty on a charge under Section 302/34 of the Indian Penal Code and has in terms acquitted him on that charge. Through Criminal Appeal No. 807 of 1982 the State prays for enhancement of the sentence awarded to Ashok Kumar Kanaujiya under Section 326/34, I. P. C.
(2.) RATAN Lal Kapoor who was the first informant in this case and at whose instance the criminal proceedings started, comes praying through Criminal Revision No. 411 of 1982 that the conviction of Ashok Kanaujiya be converted to one under Section 302/34, I. P. C. and he be awarded suitable punishment under the same provisions of the law. He also contends that the sentence of imprisonment for life awarded to Pappu alias Ashfaq should be under Section 302 of the Indian Penal Code and not under Section 302 read with Section 34, I. P. C. and even in this respect, there should be an enhancement in the sentence. The matter pertains to the town of Faizabad. There is an Hotel named Shalimar Hotel, which lies within the area of the police station Kotwali, Faizabad. Shah A. K. Azizul Haq was its owner. He had a servant by the name of Sajiwan. His son was Habibul Haq. It appears that the accused Pappu alias Ashfaq, who was a notorious bad character, was arrested by the police in the Shalimar Hotel and for that reasons Pappu alias Ashfaq started bearing ill-will against the Hotel owner and his family. On or about 9-4-1981, there was a quarrel between Pappu alias Ashfaq and Habibul Haq son of the deceased Shah A. K. Azizul Haq, Pappu gave a beating to Habibul Haq, as a result of which on 9-4-1981 a first information report was lodged against him, vide Ext. Ka-li. Subsequently on 18-9-1981 Sajiwan who was a servant of Shah. A. K. . Azizul Haq, was against beaten by Pappu and he lodged a report, vide Ext. Ka.- 13. It appears that there was bad blood between the accused Pappu alias Ashfaq and Shah A. K. Azizul Haq, because Pappu was all along under the impression that his arrest had been arranged by the Hotel owner and his son and servant. This occurrence took place on 24-10-1981 at about 7. 15 p. m. inside the Hotel near the counter. Shah A. K. Azizul Haq was standing by the counter. His friend Ratan Lal Kapoor (P. W. 1) had come to visit him as usual. But Azizul Haq was busy in booking a room for a tourist and sending his luggage to the room, thus booked. After getting free from this work, he had just started talking with Ratan Lal Kapoor, when Pappu alias Ashfaq with an open knife, Ashok Kanaujiya unarmed along with a third person, whose identity has not yet been fixed, entered the verandah of the Hotel and suddenly came up to the counter. At that time one Mohd. Akhthar (P. W. 2) who is the brother-in-law of Habibul Haq, was also sitting on the Bench near the counter and had come to make some enquiries about his sister. Suddenly the third unknown accused caught Azizul Haq from behind, Ashok Kumar Kanaujiya exhorted and accused Pappu plunged his knife in the stomach of Azizul Haq. Before the witnesses could collect their wits and try to apprehend the culprits, the entire a fair was over and they ran away from the spot. A handkerchief was placed on the wound of the injured to stop flowing of blood. Ratan Lal Kapoor sent M. A. Khan to get a rickshaw which took about 10 to 15 minutes to arrive and within this period Ratan Lal Kapoor wrote out the first informa tion Report (Ext. Ka-i ). With it he covered the distance of about half a kilometer along with the injured ami lodged the report in the Kotwali where it was taken down by Bans Bahadur Singh (P. W. 6 ). Chick-report (Ext, Ka-9) was prepaid. The Investigating Officer Sri Ram Gati Upadhaya (P. W. 9j was present and he took up the investigation at once. He interrogated the injured as well as Ratan Lal Kapoor and then arranged to send the injured to the District Hospital at Faizabad. At 10. 30 p. m. on 24- 10-1981 the injuries were examined by Dr. I. D. Mall (P. W. 3) and he found one liner abrasion 2. 5 cm long on the lower part of the left fore-arm and one incised wound 2. 5 cm X 0. 7 cm X abdominal cavity deep on the left hypochondirim. No probing could be done and the injury was directed to be kept under observation. In the opinion of the doctor, both the injuries were caused by some sharp pointed weapon and were fresh in duration. The patient was given first aid and was then directed to be taken to Lucknow for proper and elective treatment. Dr. Mall has, however, of the opinion that the injuries could have been caused on 24-10-1981 at about 7 p. m. The injury report is Ext. Ka-3.
(3.) MEANWHILE Mr. Ram Gati Upadhyaya (P. W. 9), who had already taken up the investigation and had recorded the statement of the injured (Ext. Ka-17) which is now being relied upon as dying-declaration proceeded for the scene of occurrence, where he reached at about 9-15 p. m. , took down the statements of some other witnesses and prepared site-plan (Ext. Ka-18 ). He searched for the accused persons on 25-10-1981 and arrested Ashok Kanaujiya on 26-10-1981. He was informed on 29-10-1981 that Pappu had already surrendered in Court. It was on 30-10-1981 that he interrogated Habibul Haq (P. W. 7 ). Then he completed the investigation and submitted charge-sheet. Shah A. K. Azizul Haq was brought to Lucknow, where he was admitted in the Balrampur Hospital on 25-10-1981. There he was treated but at 6 p. m. he succumbed to his injuries and the information about his death was communicated to the police station Kotwali at Faizabad on 28-10 1981 at 8 p. m. and the case which was originally registered as one under Section 307, I P. C. was altered to one under Section 302, I. P. C.;