JUDGMENT M. Chaudhary, J.
1. Since criminal appeal No. 2729 of 1981 Ashok v. State of U.P. Government Appeal No. 917 of 1982 State of U.P. v. Ashok and Ors. have arisen out of one and the same judgment and order dated 21st of November 1981 passed by Sessions Judge Jalaun at Orai in Sessions Trial No. 145 of 1981 State v. Ashok and Ors. acquitting accused Ashok under Section 302 IPC and convicting him under Section 326 IPC and sentencing to seven years rigorous imprisonment thereunder and acquitting accused Shanker. Mahesh and Kallu alias Jitendra under Section 302 read with Section 34 IPC. both the appeals have been heard together and are being disposed of by common judgment.
2. Brief facts giving rise to these appeals are that at about 1230 noon on 8th of April 1981 Kali Charan and his son Murat Singh were going from their house to the market, that Kali Charan was going a few paces ahead and as he reached in iron! of the Telies' Temple in the locality of Gandhi Nagar. Ashok alongwith one Shanker. Mahesh and Kallu alias Jitendra met him and immediately sighting Murat Singh, Kallu alias Jidendra shouted that be should be killed. Then Mahesh caught hold of Murat Singh, and Ashok, Shanker and Mahesh gave him knife blows with their respective knives and on hearing the hue and cry. raised by him and Mural Singh one Uma Charan Ram Prakash Yadav, Anjani Kumar and few others rushed to the scene of occurrence and sighting them the assailants took to their heels. Immediately injured Murat Singh wass rushed 10 the Civil Hospital Konch in a rickshaw by one Virendra who reached the spot just after the ocurrence, Kali Charan father of the injured also went to the Hospital following him. Injured, Murat Singh was medically examined by Dr V.K. Verma, Superintendent; Govenment Mule Hospital, Konch at about 12:50 the same noon. His medical examination revealed below noted injuries on his person:
1. Incised wound 1" x 2/10'' x bone deep on the left arm front placed transversely 5" beelow left shoulder top.
2. Incised wound 3/4 x 2/10" x bone deep on the left arm inner side 1 1/2" below the arm pit placed transversely.'
3. Incised wound 1" x 2/10" x depth not probed on the outer side of chest (left side) 3" below the arm pit placed obliquely.
4. Incised wound 1 1/2" x 4/10" x depth not probed on the right side of back ( outer lumbar region) placed obliquely.
5. Linear abrasion 3/4" x l/10" left wrist dorusum placed obliquely.
6. Linear abrasion 1" x 1/10" on the left side of abdomen 2 1/2" above umbilicus at 1 O'clock position.
3. The doctor opined that all the injuries were clean cut having sharp margins with tapering ends caused by sharp object and fresh in duration. It appears that the patient was admitted in the Hospital. After leaving his injured son Murat Singh in the Hospital Kali Charm weal to the police station situate at a distance, of some four furlongs from the place of occurrence banded over written report of the incident to the police there. On the basis of the written report handed over by Kali Charan at the police station HM Bhosla Prasad registered a crime against the accused wilder sections 307, 324 and 504 IPC and made entry regarding registration of the crime in the general diary (Exts. Ka 6 & Ka7). Investigation of the crime was entrusted to SI iZubair Ahmad.
4. In the meanwhile on receiving the information from Dr V K Verma. Medical Officer Civil Hospital Konch Sri Bhawani Deen Naib Teh. Max Konch reached the Hospital and recorded dying declaration of injured Marat Singh in presence of Dr V.K. Verma that very noon at 1:15 p.m. ( Ext. Ka 4).
5. Since the condition of injured Mural Singh was quite serious he was advised to be taken to Medical College Jhansi for treatment but it appears that Murat Singh succumbed Jo the injuries sustained by him in the said incident on the way.
6. At 6:00 p.m. on 8th of April 1981 information was received at police station Konch that injured Murat Singh succumbed to the injuries sustained on the way while being taken to Medical College Jhansi and his dead body was kept in the mortuary there, Then SI. Zubair Ahmad reached there on 9th of April 1981 and drew inquest proceedings on the dead body of Mural Siingh He prepared the inquest report (Ext Ka 12) and other necessary, papers (Exts Ka -19 to Ka 22) and handed over the dead body in sealed cover alongwith necessary papers to constables Sheo pal Singh and Ram Sewak Police Out Post Medical College Jhansi for its post mortem.
7. Autopsy conducted on the dead body of Mural Singh by Dr P.C. Agrawal District Hospital Jhansi on 9th of April 1981 at 1:00 p.m. revealed below noted ante mortem injuries on the dead body:
1. An lincised wound 1 1/4" x 3/4" x boot deep over left side chest in posterior mid axillary line placed horiaontally 4 3/4" away from left nipple spindle shaped with margins regular, clean cut smooth and everted; coagulated blood present and blood staining present around the wound. Direction lateral to medial-
2. An incised' wound 1" x 3/4" x bone deep over left upper arm medial aspect 2" away from left axilla placed horizontally spindle shaped; coagulated blood present. Margins clean cut, regular and diverted. Direction lateral to medial.
3. An incised wound 1" x 3/4" x bone deep over left arm and third 5" away from left shoulder horizontally placed spindle shaped Margins clean cut, regular, smooth and everted Direction lateral to medial.
4. An abrasion 3/4" x 1/4" over left wrist extending to dorsum of left hand, obliquely placed and clotted blood present. 5. An incised wounnd 1 3/4" x 3/4" x cavity deep over humbar region obliquely placed spindle shaped, all the level of L 1 'vertebrae 3 1/4" away clotted blood present and blood staining also present. Margins regitiar smooth and everted, Direction lateral to medial.
8. On internal examination brain and its membranes, both the lungs, pericardium gall bladder, spleen and both the kidneys were found congested Right upper pole of kidney and right side large intestine under injury no, 5 were found cut. Peritoneum was also found cut. Huge amount of blood was found present in abdomen (internal). Stomach coatained semi digested food maternal. The doctor opined that the death was caused due to haemorrhage and shock as a result of ante mortem injuries within 24 hours.
9. On 11th of April 1981 investigation of the case was taken up by station officer Chandra Bhan Singh police station Konch in his hands. He visited the scene of occurrence, inspected the site and prepared its site plan map (Ext ka 10). He also recorded statements of the witnesses. After completing investigation he submitted charge sheet against the accused.
10. After framing of the charge against the accused the prosecution examined Kali Charan (PW 4) and Ram Prakash (PW 5) as eye witnesses of the occurrence. PW 1 Sri Bhawani Deen, Naib Tehsildar who recorded dying declaration of injured Murat Singh in Civil Hospital Konch in presence of Dr V.K.Verma has proved the dying declaration (Ext Ka 1). Testimony of res?, of the witnesses is more or less of formal nature. PW 2 constable Sheo Pa! Singh and PW 3 constable Ram Sewak to whom dead body of Murat Singh in a sealed cover alongwith necessary papers was entrusted for its post mortem have deposed the said fact. PW 6 Dr V K Verma Medical officer Civil Hospital Konch who medically examined injured Mural Singh on 8.4. 1981 at about 12: 15 noon and referred him for Medical College Jhansi has proved the injury report (Ext Ka 3) and reference slip (Ext Ka 5) PW 7 HC Bhola Prasad who check report on the basis of the written report handed over to him at the police station by Kali.Charan and. made entry regarding registration; of the crime in general dairy has proved these papers (Exits Ka 6 and Ka 7). He also proved GD entry regarding alteration of the crane under Section 302 UK' (Ext Ka 9). PW 8 Station officer Chandra Bhan Singh who investigated the crime in main and after completing the investigation submitted charge sheet against the accused has proved the police papers.
11. The accused examined DW 1 Naib TehsildarUjagar Singh who issued certificates to some persons including accused Mahesh to the effect that he was of the scheduled caste. The court examined one Ramadhar Jha Revenue clerk tehsil Konch. He stated that he issued the! certificate to accused Mahesh to the effect that 'he belonged to scheduled caste.
12. On a conspectus of parties' evidence on the record and hearing; the! ; parties' learned counsel the trial Judge passed the impugned judgment acquitting all She accused under Section 302 read with Section 34 IPC but convincting accused Ashok under Section 326 IPC and sentencing him to seven years rigorous imprisonment thereunder.
13. Feeling aggrieved by the impugned judgment the State preferred this appeal against all the accused for redress. Accused Ashok also filed an appeal from the impugned judgment.
14. We have heard learned AGA for the State appellant and learned counsel for the accused respondents in the government appeal and learned counsel for the accused appellant and learned AGA for the State respondent in both the appeals and have gone through the record.
15. It is well settled that in criminal case if two views are possible on the evidance adduced in the case one pointing to the guilt of the accused and the another to his innocence, the view which is fvourable to the accused should be adopted. On the basis of this very principle appeal from an order of acquittal should be interfered with only when there are compelling and substantial reasons therefor. After going through the impugned judgment and order and record of the case we find ourselves unable to agree with the findings recorded by the court below.
16. In the instant case PW4 Kali Charan, father of the deceased and the first informant and PW5 Ram Prakash appeared as eye witnesses of the occurrence. PW4 Kali Charan deposed that at about 12:00 or 12:30 noon the alleged day he abngwith his son Murat Singh was going from his house to the market; that Mural Singh was going a tew paces ahead from him as he started talking to some person for a little white on the way; that as they reached in front of the Telies temple at Mohalla Ashok Nagar they saw accused Ashok alongwith Mahesh, Shanker and Kallu @ Jitendra. Then sighting Murat Singh Kallu shouted that he should be killed ; that immediately Mahesh caught hold of Murat Singh and the remaining three Ashok, Shanker and Mahesh gave him knife blows and sustaining the said injuries Murat Singh fell down, that on bearing the hue and cry raped one Uma Saran, Ram Prakash and several other rushed to the scene of occurrence and that then the assailants bolted away. He further deposed that one Virendra who reached die scene of occrunrence immediately thereafter took injured Murat Singh in a rickshaw to the Civil Hospital Konch and he also followed him to the Hospital. It appears that since the condition of his son Murat Singh was quite serious he went for arranging a metador and after arranging the same he went to the police station Konch and on the way scribed the report of the occurrence after purchasing paper from a shop and then handed over written report of the occurrence to the police there. 'A perusal of the check report goes to show that he lodged FIR of the occurrence at the police station Konch situate at a distance of some four furlongs from the place of occurrence at 1:40 p.m. the same noon. Thus he gave such a graphic description of the occurrence and his statement is so natural and spontaneous and he withstood his cross - examination so firmly that his presence at the scene of occurrence cannot be doubted. He stated in his cross-examination that accused Shanker gave a knife blow to Murat Singh from behind hitting him on the back of his abdomen and Ashok also gave knife blows to him which he took on his hands in order to ward off PWS Ram Prakash, son of Jagannath corroborated him deposing that he was peon in SR Inter College in which Kali Charan was teacher, that the alleged day at about 11-12 noon he was returning hack to his house from the college and as he reached i near the Telies temple he saw that accused Mahesh was caching hold of Mural Singh and Shanker and Ashok were giving knife blows to him and Jitendra @ Kallu was exhorting to kill him shouting that be should not be left alive. He also stated that accused Shanker gave knife blows to Murat Singh hitting him at his back. However, he stated that after witnessing the incident he stayed these for a few minutes and went, away to his house as he was quite hungry. Presence of witness Ram Prakash (PWS) too at the scene of occurrence cannot be doubted. Since he was peon in S R Inter College and Board examinations were going on, it was quite natural that at about 12:00 noon he must be returning from the college to his house after his duty. His statement is quite natural and spontaneous and he appears to be an honest and! straight ¦forward witness. He too was subjected to rambling and gruelling cross-examination but nothing useful to the accused could be elicited therefrom.
17. However the trial judge discarded their testimony doubting their presence at the scene of occurrence on flimsy grounds. He doubled the presence of Kali Charan, al the scene of occurrence on the grounds : (i) being the father of the victim he did not make any effort to intervene and save his son Murat Singh, (ii) he did not take his injured son to the Civil Hospital, Konch as in the injury report name of Virendra is mentioned who brought the injured to the Hospital, (iii) Kali Charan, fether of the deceased adimitted that statement of injured Murat Singh was not recorded by Naib Tehsildar in the Hospital in his presence and (iv) the injured Murat Singh did not state in his dying declaration that his father Kali Charan was present at the time of assault at the scene of occurrence. In our opinion neither of these grounds is tenable for doubting presence of PW4 Kali Charan at the scene of occurrence. Because it all depends upon the personal capacity, stamina and mental faculties as one may be quite courageous and the other may be timid or coward. Since the three assailants were armed with knives he could not muster courage to go and intervene in order to save his son. Regarding the name of Virendra Mentioned in the injury report as the person who took the injured to the hospital there is nothing strange as it has come in evidence that the Civil Hospital, Konch was situate only at a distance of 40-50 paces from the place of ' Occurrence, Virendra also stated that he' took the injured in a rickshaw to the ' Hospital. May be that Kali Charan seeing his young soon injured seriously got perturbed and confounded and took 2-3 minutes time in getting himself composed He stated that soon thereafter he followed them to the Hospital and after getting the injured son admitted there he went for arranging a metador as he was to be rushed to the Medicai College. Jhansi. PW6 K. K. Verma. Medical Officer, Civil Hospital. Konch who medically examined injured Murat Singh, bandaged the injuries and administered glucose to him and referred him to Medial College, Jhansi deposed that at the time of referring the. injured to the Medical College, Jhansi his father Kali Charan was present there and he put his signature on the carbon copy of the reference slip in the injury Register. So far as the fact that Murat Singh, the injured did not state that his father Kali Charan was present at the scene of occurrence is concerned we have gone through his dying declaration and we find that his dying declaration is not detailed one as he had given only the names of the assailants naming two of them who gave him knife blows. As his condition was quite serious it is insignificant if he did not name the witnesses who were present mere and the details of the occurrence under the circumstances. The trial judge also doubted the presence of PW5 Ram Prakash son of Jagannath as his name was not mentioned as one of the witnesses in the FIR lodged by Kali Charan, father of the injured. We are of the view that if name of PW5 Ram Prakash son of Jagannath does not find place as one of the witnesses in the FIR of the occurrence that fact is,not sufficient in itself to discard his sworn testimony if his presence at the scene of occurrence is probable under the circumstances and his testimony appears to be trustworthy. As mentioned above PWS Ram Prakash stated in his examination-in-chief that it was 11-12 noon when'he' was returning from his college as he was peon there and as he reached near the Telies temple he saw that accused Mahesh was catching hold of Murai and Shunker and Ashok were giving knife blows to him, Kallu was shouting that he should be killed. He corroborated Charan on all material aspects of the prosecution version. However this witness admitted this much that he did not know accused Ashok by face since before the occurrence ami thai he saw him for the first time at the time of occurrence. His statement was records in the court! on 15 of October I981 near about six months after the occurence. He identified him in the court ami withstood his cross- examination so firmly that his presence can not be doubted at the scene of occurrence.
18. Learned counsel for the accused respondents also argued that several persons used to reside in the vicinity of the place of occurrence but no independent witness has come forward to support the prosecution case Learned counsel for the respondents also argued that since PW5 Ram Prakash is a peon in the same college in which Kali Charan is a teacher, he cannot be. treated to be an independent and impartial witness. Both the eye witnesses PW4 Kali Charan and PW5 Ram Prakash have given truthful and honest account of the occurrence witnessed by them and once these two witnesses are believed non-examination of independent witness would not go to demolish or introduce any element of doubt in the prosecution case Otherwise too it is a matter of common experience that normally persons of the locality who witness the occurrence remain reliaciant to appear as witnessin the court unless it is inevitable for them because they do not want to incite trouble themselves by appearing in the court' as witnesses and miscreants. The said argument advanced by the learned counsel for the respondents and accused appellant Ashok is fallacious.
19. Testimony of two eye witnesses stands! corroborated occurrence lodged proimptly at the police station by kali charan (PW 1) father of the victim. Medical evidence also lent support to version as to the weapons used in the assault, time injuries inflicted upon the victim. Testimoney of further strengthbened by the dying declaration of the injured Murat Singh [recorded by P Wl Sri Unaware Deen Naib Tehsildar in the Civil hospital at1:15 p.m. soon after the occurrence. A perusal of the dying declaration goes to shok that injured Murat Singh stilted that that very noon at about 11:00 p.m. Ashok alongwith Shanker, Mahesh and Kallu assaulted him near Telies temple and Ashok and Mahesh gave knife blows to him and then they rail away. Dying declaration was recorded in presence of PW6 Dr. K-K Verma who certified that at that time the patient was in a fit mental state to give statement.
20. PW4 Kali Charan stated in his examination-in-chief that accused- Ashok was being prosecuted for causing knife injury to Murat Singh earlier also in the year 1980 and that case was:pending in the court at that time.
21. Since the order of acquittal of accused Mahesh,Shanker and Kallu suffers from illegality and manifest error in evaluation of evidence and the grounds on which order of acquittal is based are unreasonable it cannot be sustained in law. Since it has not come in evidence that the injuries sustained by the victim were sufficient to cause his death in ordinary course we find that the accused Ashok, Shanker and Mahesh are guilty of offence punishable under Section 304 Part I read with Section 34 IPC. Therefore accused Mahesh, Shanker and Kallu are convicted under Section 304 Part read with Section 34 IPC and each of them is sentenced to seven years rigoious imprisonment thereunder.
22. Government Appeal against accused [email protected] Jitendra stood abated as he was reported having died.
23. Thus Government Appeal No. 917 of 1982 State of UP v. Ashok and Ors. is allowed and acquittal of accused respondents Shanker and Mahesh is hereby set aside. Accused Shanker, Mahesh and Ashok are convicted under Section 304 Part I read with Section 34 IPC and each of them is sentenced to undergo seven years' rigorous imprisonment thereunder. Criminal appeal No. 2729 of 1981 Ashok v. State of U.P. is dismissed with the modification that accused Ashok is convicted under Section 304 Part I read with Section 34 IPC instead of Section 326 IPC.
24. All the three accused respondents namely Shanker, Mahesh and Ashok are on bail- CJM, JaJaun at Orai is directed to get all the three accused respoodents arrested and Sent them to jail to serve out the sentence imposed upon them.
25. Office is directed to send copy of the judgment alongwith record of the case to the court concerned immediately to ensure compliance under intimation to this court within two months from today.