JUDGMENT Mukteshwar Prasad, J.
1. This criminal appeal by the accused has been filed against the judgment and order-dated 29.7.1981 passed by Sri K.S. Dubey, the then Additional Sessions Judge, Kanpur in S.T. No. 171/M of 1981 whereby he convicted the appellant under Section 326 of the Penal Code and sentenced him to suffer rigorous imprisonment for a term of five years.
2. Briefly stated, the facts of the prosecution case were as under:
An F.I.R was lodged on 17.9.80 at 00,40 A.M. at Police Station Raipurwa, Kanpur by late Satya Narain, son of Ambika Prasad The informant alleged in his report that he resided in House No. 86/9 Deputy Ka Parao, Kanpur as a tenant. P.W.2 Raj Dev Lal, uncle of the informant, also lived in the same house. The appellant is brother-in-law (Behnoi) of Pritam Singh who was also a tenant in House No. 86/9 Deputy Ka Parao and the appellant also lived alongwith his brother-in-law and thus, parties were well known to each other.
3. On 16.9.80 at about 11.15 P.M., Satya Narain was lying on his cot in front of his house P.W.2 Raj Deo Lal and P.W.1 Mohan Lal were also sitting and talking there. In the meantime, the appellant armed with a knife arrived there and with a view to teach a lesson to Satya Narain stabbed him. He inflicted two knife blows on the abdomen. Satya Narain raised alarm and the assailant ran away with knife The assailant was identified correctly by the injured and the witnesses in the light of tube light burning on the road.
4. The injured got prepared a report of the incident by Ram Prasad, son of P.W.2 Raj Deo Lal and lodged F.I.R. The local police registered a case under Section 326 I.P.C. and sent the injured to U.H.M. Hospital for medical examination.
5. On 28.9.80 Satya Narain expired in the hospital. Before his death. C.W.2 Kashi Narain Tandon, the then Additional City Magistrate, recorded dying declaration on 22.9.80 at 9-45 P.M. After his death. autopsy was done by P.W.4 Dr. S.C. Pandey and the doctor found the following ante mortem injuries:
1 Stitched wound 17 cm. long with 7 stitches, 2 cm. to the right of umbilicus. Pus was coming out.
2. Horizontal stitched wound 7 cm. long with 4 stitches at 3 cm. from mid line, 9 cm. below the chest bone.
3. Incised wound right side of abdomen 2.5 cm. x 1 cm. x cavity deep. 8 cm. away from mid line and 5 times above the iliac crest.
6. The case was investigated by P.W.6 S.I. Ram Saran Lal He completed investigation as usual and after completing investigation submitted charge sheet against the accused' under Section 304 I.P.C.
7. Accused Kamlesh was charged under Section 302 I.P.C. on 17.6.81 He pleaded not guilty to the charge and claimed to be tried.
8. In order to prove its allegations, the prosecution examined P.W 1 Mohan Lal and PW.2 Raj Deo Lal who were talking to the deceased at the time of alleged incident and are said to be eyewitnesses, P.W.3 Constable Dina Nath Pandey prepared chick report and made entry in the G.D. P.W.4 Dr. S.C. Pandey had conducted autopsy on the dead body of Satya Narain on 29.9.80, P.W 5 Constable Shesh Nath Singh took a bundle of clothes of the deceased to Chemical Examiner, Agra, P.W.6 S.I. R.S. Lal is the I.O. of the case, P.W.7 Constable Ram Chandra Mishra took the dead body to mortuary and identified the dead body at the time of post-mortem examination.
9. Accused Kamlesh Singh in his statement given under Section 313 Cr.P.C totally denied all accusations and pleaded his false implication in the case on account of enmity. No evidence was led in defence.
10. After having considered the entire material on record as well as the arguments advanced on behalf of the parties, learned trial Judge found the accused guilty under Section 326 of the Penal Code and convicted and sentenced him as mentioned above. The learned Judge further recorded a finding that in fact death was caused due to septicemia
11. During pendency of this appeal, the record was sent to the court below with a direction to record additional evidence of the Magistrate Sri K.N. Tandon who recorded dying declaration as well as the doctor who gave a certificate regarding mental condition of Satya Narain in exercise of its powers under Section 391 Cr.P.C. The court below recorded the statement of the doctor and the Magistrate.
12. I have heard Sri Daya Shankar Tiwari, learned counsel for the appellant and learned A.G.A. and have gone through the record carefully.
13. Learned counsel for the appellant has assailed the judgment under appeal mainly on the grounds that the deceased himself lodged F.I.R. at the Police Station and handed over his written report to the police Subsequently, his dying declaration was recorded by the learned Magistrate and both written report and dying declaration are full of material contradictions creating serious doubt regarding complicity of the appellant in the crime in question. According to F.I.R. P.W.I Mohan Lal and P.W.2 Raj Deo Lal were also sitting near the cot of the deceased and all were talking on the fateful night at the time of alleged incident. However they have contradicted each other. The scribe of the written report (Ram Prasad) was not examined for the reasons best known to the prosecution. Therefore, in view of contradictions in the evidence on record led by the prosecution, the prosecution failed to establish its case beyond all shadow of doubt and the court below was not justified in convicting the appellant.
14. On the other hand, learned A.G.A. has supported the impugned judgment and contended that it was the appellant who caused injuries in the abdomen of Satya Narain and the appellant could be convicted on the basis of dying declaration itself. Besides, two witnesses fully supported the prosecution version and the court below rightly convicted the appellant.
15. I have given my anxious consideration to the arguments advanced on behalf of the parties and have perused the evidence on record carefully. After having considered the entire material on record, I find that contention of appellant's learned counsel is well founded and has to be accepted.
16. There is sufficient and reliable evidence on record to the effect that late Satya Narain, P.W.1 Mohan Lal, P.W.2 Raj Deo Lal and his son Ram Prasad, scribe of the written report and the appellant resided in House No, 86/9 Deputy Ka Parao. The house in question was double storied and all resided therein as tenants. Therefore, the deceased, the prosecution witnesses and the appellant were all well known to each other from before the incident. Besides, there is reliable evidence on record that tube light was burning on the road and the witnesses identified the appellant at the time of incident. I however find that there are material contradictions in the evidence led by the prosecution and the deceased himself gave a" death blow to the entire prosecution case.
17. On perusal of the written report (Ext. ka-1) lodged by the deceased himself, I find that he was lying on his cot on the platform of his house and was talking to Mohan Lal and Raj Deo Lal. The appellant is said to have arrived there with a knife in his hand and stabbed Satya Narain twice in the abdomen. C.W.2 K.N. Tandon, City Magistrate, who recorded dying declaration of Satya Narain on 22.9.80, testified that after obtaining a certificate of doctor that mental condition of Satya Narain was fit, he made enquires and recorded dying declaration. The dying declaration of Satya Narain is reproduced below for proper appreciation: -
^^lR; ukjk;.k mez djhc 23 lky us o;ku fd;k fd fiNys eaxy dk okD;k gS eS vius ?kj ds okgj [kqys esa jkr dh djhc [email protected] cts lks jgk Fkk A eq>s lksrs esa pkdw ekjk rks eS tkx x;k vkSj eSus ns[kk fd deys'k flag iq= ukekywHk tks gekjs gh edku ds ,d fgLls esa jgrs gSa us eq>s pkdw ekjk gS A eSus deys'k flag dk gkFk idM+ fy;k ysfdu og NqM+k dj Hkkx x;k A deys'k flag ds lkFk nks vkneh vkSj Fks ftUgs eS ugh tkurk vkSj u ifgpkurk gwW A eSus 'kksj epk;k ysfdu dksbZ ugh vk;k vkSj eS ?kj ds vUnj Hkkx x;k A esjs vkSj ?kj okys lc ?kj ds vUnj Fks A eS vdssyk okgj Fkk A eSus deys'k dks [email protected]& :i;k m/kkj fn;s Fks rdknk fd;k rks gedks /kedh nh vksj :i;k ugh fn;k A eSus deys'k dks :i;k nks lky ifgys fn;k Fkk A vkSj dqN ugha dguk gS A
18. On perusal of the dying deceleration, I find that the deceased was sleeping at the time of alleged incident and he woke up after being stabbed for the first time and saw the incident. He caught hand of the assailant (Kamlesh) but he got himself freed from his clutches. Satya Narain disclosed to the Magistrate in very clear words that besides the appellant, two more persons joined him but they could not be identified. He further added fuel to the fire by saying that on his alarm, none came to his rescue and he took shelter inside his house. All members of the family were inside the house and he was sleeping alone outside the house. According to Satya Narain, he had advanced Rs. 250/- to Kamlesh Singh about two years prior to the incident. Thus, it is crystal clear that the deceased himself gave contradictory statement regarding number of assailants and number of blows allegedly given by the appellant. According to written report, the deceased was talking to Mohan Lal and Raj Deo Lal at the time of alleged incident. Contrary to this, he gave out in his dying declaration that he was sleeping and there was none outside the house and none reached there on his alarm. Thus, he ruled out the presence of P.W.1 Mohan Lal and P.W.2 Raj Deo Lal at the scene of incident.
19. P.W.1 Mohan Lal tried to support the prosecution version but he did not succeed. He was not sure as to how many knife blows were given by the appellant.
20. P.W.2 Raj Deo Lal, being uncle of the deceased, is highly interested witness. According to him, he was also sleeping on the platform of the house alongwith Satya Narain who was lying on his cot at a distance of about 20 steps. After being attacked by the appellant, Satya Narain raised alarm and then the witness rushed towards him.
21. From the aforesaid discussion and scrutiny of the evidence on record, it is crystal clear that there is no consistency in the evidence of eyewitnesses, written report and dying declaration of the deceased and there are material contradictions in the evidence. The written report (Ext.ka-1) was not duly proved. The deceased was an educated man. He however affixed his thumb impression. There is no explanation as to why and under what circumstances his thumb impression was affixed. The I.O. has been highly negligent in this case. Both eyewitnesses were disbelieved by the learned trial Judge and their presence at the scene of incident was found to be doubtful. However, the trial court believing the dying declaration to be correct convicted the appellant. In my opinion, the learned Judge was not justified at all in basing the conviction of the appellant on the dying declaration. As mentioned above, there are material contradictions in the dying declaration as well as in the written report regarding number of assailants and number of blows. In this view of the matter, I am not at all inclined to uphold the conviction of the appellant as recorded by the court below. In my considered opinion, the prosecution failed to prove its case beyond all shadow of doubt. Consequently, I hold that this appeal has merits and it must succeed.
22. The appeal is allowed. The conviction and sentence recorded against the appellant are hereby set aside and he is acquitted. He is on bail. He need not surrender. His bail bonds are discharged.