ORDER N.S. Gupta, J.
1. Accused appellant Nagar Prasad was convicted under Section 352, IPC and was sentenced to undergo R.I. for a period of three months and accused appellant Bhagirath was convicted under Section 352, IPC read with Section 34, IPC as well as under Section 304(1) IPC and was sentenced to undergo R.I. for a period of two months under the first count and for a period of ten years R.I. under the second count, namely, under Section 304(1), IPC by Sri M. G. Godbole, the then District and Sessions Judge, Kanpur vide judgment and order dated 28-7-1983. Feeling aggrieved by the said order of conviction and sentence, the accused appellants have come up in appeal before this Court.
2. The prosecution story, briefly stated, is as follows :
The complainant Baleswar Tiwari was working as Chief Train Examiner of N.E.R. Railways, Anwarganj Kanpur while accused appellants Nagar Prasad and Bhagirathi were working as Khalasi under Sri Baleshwar Tiwari. Doodh Nath, brother of the accused appellant Nagar Prasad was also working as Khalasi under Sri Baleshwar Tiwari P.W. 1. Doodh Nath was transferred to Sitapur a few days prior to the occurrence of this case. On 29-5-1992, at about 7-30 a.m. Doodh Nath brought a suspension order of his transfer order from the office of D.R.M. Lucknow. He came to the office of Sri Bateshwar Tiwari P.W. 1 for resuming the duties. Sri Baleshwar Tiwari P.W. 1 did not permit Doodh Nath to resume the duties immediately on the ground that the order, which was produced by Doodhnath before him did not bear the seal of the office of the D.R.M. He asked him to resume the duties after verification of the said order. When Doodhnath insisted that the Order of suspension of his order was correct, Sri Baleshwar Tiwari asked him to come after two hours. When Doodh Nath went to Sri Baleshwar Tiwari after about two hours at about 9 a.m. along with his brother Nagar Prasad and accused appellant Bhagirathi, Nagar Prasad threatened Sri Baleshwar Tiwari with dire consequences and went away. Sri Baleshwar Tiwari allowed Doodh Nath to resume his duties after getting a writing from him that the order which was produced by him was a genuine one. It appears that on 26/27-5-1982, the accused appellants Nagar Prasad and hagirathi demanded leave from Sri Baleshwar wari which was. refused by him on the ground mat on 28th May, 1982, a superior officer was coming on inspection. The accused appellants Nagar Prasad and Bhagirathi were closely related to each other. They belonged to one and the same village. They ha feeling of hostility towards Sri Baleshwar Tiwari on the background that he was responsible for getting the brother of Nagar Prasad, namely, Doodh Nath, transferred.
3. The occurrence of this case took place on 30-5-1982 at about 7-20 p.m. At that time Sri Baleshwar Tiwari P.W. 1 along with Ram Awadh, deceased, who was working as Carriage Fitter under Sri Baleshwar Tiwari and Shiv Shankar P.W. 2, who was related to the deceas6d Ram Awadh as his brother in law, were going to market of Gomati No. 5 via plat-form No. 2 of Anwarganj, Kanpur. When they reached near the quarter of Arjun Prasad TRX, the accused appellant Nagar Prasad and Bhagirathi appeared there on platform No. 2. Nagar Prasad was armed with a Danda. He exhorted to assault Sri Baleshwar Tiwari, Chief Trains Examiner and wielded his Danda. The deceased Ram Awadh went ahead and asked the accused appellants as to why they were out to assault Sri Baleshwar Tiwari. The prosecution further claimed that the accused Bhagirathi then exhorted that they would first of all do away with Ram awadh and thereupon assaulted Ram Awadh by means of knife, and caused an incised punctured wound of left side chest of the deceased. Nagar Prasad again tried to wield his Danda which was snatched away by shiv Shankar, brother in law of the deceased Ram Awadh. The accused appellant Bhagirathi tried to assault Baleshwar Tiwari by means of knife. He cried & attracted a number of persons. Thereafter the accused appellants ran away towards south. Ram awadh after sustaining knife injuries at the hands of the. accused appellants Bhagirathi fell down towards railway line from the platform. He was thereafter, taken to Railway Hospital but before reaching the railway hospital, he succumbed to his injuries, Sri Baleshwar Tiwari leaving the dead body of the deceased Ram Awadh with his brother in law Shiv Shankar P.W. 2 went to police station G.R.P. Anwarganj Kanpur and there he lodged written report Ex. Ka-4 about this occurrence. After registration of the case by H.C. Raghunath Prasad P.W. 5, S. I. M. C. Dubey P.W. 6 who was then working at P.S. Anwarganj took up the investigation of the case. He prepared inquest report in respect of the deceased and sent the dead body for post mortem examination. He thereafter recorded the statement of Baleshwar Tiwari P.W. 1, Shiv Shankar P.W. 2. He prepared site plan of the place of occurrence Ex. Ka-11, recovered simple and blood stained earth from the scene of occurrence and prepared recovery memoes about the same.
4. After needful investigation into the matter, he submitted the chargesheet against the accused appellants.
5. The accused appellants pleaded not guilty to the charges framed against them under Section 323/302/34, IPC and claimed trial. Accused appellant Nagar Prasad pleaded that he had fixed up posters against the misconduct of Baleshwar Tiwari and had given a call for fasting at the latter's office. He was a member of Carriage council Employees, of which his brother Doodh Nath was the Secretary.
6. Accused Bhagirathi also pleaded that he was Deputy Secretary of his Union. Baleshwar Tiwari bore enmity with on that score because he Baleshwar used to commit theft of the railway properties.
7. The accused appellants examined five witnesses in their defence. They were Dr. R. N. Srivastava, Medical Officer he Railways who was then posted at Railway Station Anwarganj, Kanpur as D.W.I, D.W. 2 Purshottam Lal who succeeded as Chief Train Examiner in place of Baleshwar Tiwari, as D.W. 2.D.W. 3 Sri P. N. Bhargava was Rail Path Nirikshyak D.W. 4 Sri Vishnu Dayal Trivedi was the compounder of Railway Hospital, Kanpur. D.W. 5 was Jahoor Ahmad who was secretary of All India Carriage and Wagon Staff Council, N.E. Railway, 'Anwarganj, Kanpur.
8. The prosecution examined six witnesses, of whom Baleshwar Tiwari P.W. 1 and Shiv Shankar P.W. 2 wife the witnesses of fact. P.W. 3 Dr. B. R. Sharma was the medical officer, who had conducted the post mortem examination on the dead body of the deceased on 31-5-1982 at 2-50 p.m. and had found the position as under:
The deceased was of average built. He was aged about 35 years. Rigor mortus was present, decomposition set in, bluish discolouration present on on lower part of abdomen, back and buttocks. Dr. Singh found the following injuries as ante mortem injury :
Incised punctured wound 2 cm x 1 cm x chest cavity on the left side of chest 4 cm below the apex of axilla in below middle posterior axillary lines.
He further found that pleura was punctured on left side under injury No. 1. There was clotted and fluid blood about one LB presne 5 in left pleural cavity. Left lung was punctured through and through' under injury No. 1. The doctor opined that the deceased had died due to shock and haemorrhage, which resulted from the aforesaid injury.
9. P.W. 4 constable Raghunath took away the dead body of the deceased for post mortem examination and was a formal witness. Similarly constable Raghunath was also the formal witness in as much as that he made G.D. entry and had made the chik report on the basis of the report which was lodged by Sri Baleshwar Tiwari. P.W. 6 S.I. Sri M. C. Dubey was the investigating officer.
10. Placing reliance upon the prosecution witnesses and the witnesses of fact and in particular Sri Baleshwar Tiwari P.W. 1 and Shiv Shankar P.W. 2, the learned Trial Judge convicted and sentenced the accused appellants as aforesaid; hence this appeal.
11. I have heard Sri J. S. Kashyap, learned counsel for the appellant and Sri V. B. Singh, learned A.G.A. for the state, considered their contentions and have gone through the record of the case.
12. The factum of death of the deceased was not disputed before this Court nor the same was disputed before the Court below, rather it is clearly established from the defence evidence of Dr. R. N. Srivastava, Railway Medical Officer that at about 7-30 or 7-45 p.m. when he was at his house, he received a telephonic call that some member of the staff has assaulted another member by means of knife and that he should rush up to the hospital. When he went to the hospital, he found that the deceased Ram Awadh who was a carriage fitter was already dead. Thus the fact that the deceased was done to death by means of knife by some member of the staff was very much proved on record by the defence evidence of the accused appellants themselves. That apart, it was clearly averred by Baleshwar Tiwari P.W. 1 as also by Shiv Shankar P.W. 2, who were eye witnesses of the occurrence that the deceased Ram Awadh who was working as Carriage Fitter in the Railways was done to death by inflicting knife injuries on his chest by the accused appellant Bhagirathi. Soon after the occurrence, Sri Baleshwar Tiwari P.W. 1, Chief Train Examiner, under whom the accused appellants were working as Khalasis had lodged a written report ex. Ka-4 at P.S. Anwarganj, Kanpur, which reads as under:
udy rgjhj fgUnh oknh Jheku pkSdh bUpktZ th-vkj-ih- vuojxat] dkuiqj lsok esa lfou; fuosnu gS fd eSa ,u-bZ-vkj- jsyos LVs'ku esa eq[; xkMh ijh{kd ¼lh-Vh bZ½ jsyos vuojxat esa dk;Zjr gwa vkSj ukxj izlkn o HkkxhjFkh esjs v/khuLFk [kyklh gS A ukxj izlkn ds HkkbZ nw/kukFk tks gekjs ;gkW ls rcknyk lhrkiqj gqvk Fkk A dy fnukad 29&5&82 dks djhc 7-30 cts lqcg nw/kukFk vius rcknys dk LFkxu vkns'k Mh- vkj- ,e- y[kuÅ ls ysdj esjs nQ~rj esa vk;k Fkk A eSus mls i<k vkSj mlls dgk fd ml vkns'k ij Mh- vkj- ,e- lkgc ds dk;kZy; dh eqgj ugha gS vxj lgh vkns'k gS rks rLnhd djus ds ckn gh M;wVh nawxk Abl ij nw/kukFk us dk vkns'k lgh gS tks pkgs fy[kk ys fd vkns'k lgh gS A eSus nks ?kaVs ds ckn vkus dks dgk nw/kukFk djhc 9 cts esjs ikl fQj vk;k A mlds lkFk mldk HkkbZ ukxj izlkn vkSj HkkxhjFkh Hkh Fks esjs nQ~rj esa ukxj izlkn us dgk fd rqe esjs HkkbZ dh M;wVh vkns'k ugha ns jgs gks rks rqEgkjh e`R;q fudV gS vksj pys x, eSus muls dqN ugha dgk vksj :Vhu esa ml ckr dks fnekx esa Hkh ugh j[kk vkSj nw/kukFk dks mlls fy[kkus ds ckn M;wVh ns nh A blls ifgys 26 ;k 27 ebZ 1982 dks ukxj izlkn o HkkxhjFkh us eq>ls NqVVh ekaxh Fkh eSus ;g dg dj euk dj fn;k Fkk fd 28 ebZ dks eqvkbuk gS blds ckn NqVVh nwaxk bl ckr dks Hkh nksuks fnekx esa j[ks Fks rFkk ukxj izlkn o HkkxhjFkh tks vkil esa iVVhnkj crk,s tkrs gSa fd fnekx esa ;g Hkh [kVd Fkh fd nw/kukFk dk rcknyk eSus gh djk fn;k gS A vkt djhc 19-20 cts eS o esjs lkFk jke vo/k dSfjt fQVj o mldk lkyk f'ko'kadj IysV QkeZ ua- 2 ls gksdj xqeVh ua- 5 dh rjQ cktkj tk jgk Fkk fQj tc ge vtqZu izlkn Vh- vkj ds DokVZj ds utnhd igwWps fd ,dne mRrj dh rjQ ls ukxj izlkn o HkkxhjFkh rsth ls gekjs lkeus IysV QkeZ ua- 2 ij vk x, A ukxj izlkn us dgk fd ekjks lkys phQ Vh- ,l- vkj- dks vkSj esjs mij ,dne ukxj izlkn us MaMk pyk;k fd vkxs c<dj jke vo/k dSfjt fQVj us ;g dgrs gq, fd D;ksa ekj jg gks eS ,slk ugha gksus nwaxk rks og MaMk esjs u yxdj jke vo/k dks yxk vksj HkkxhjFkh us ;g dgrs gq, fd lkys ifgys rsjk [kkRek dj ns ckn esa bldk djsaxs A jke vo/k ds ck,a xky ds ikl pkdw Hkksax fn;k A ukxj izlkn us Hkh nqckjk eq>ij MaMk pyk;k exj eSus o jke vo/k ds lkys f'ko 'kadj us mldk MaMk pykus ls ifgys Nhu fy;k vkSj HkkxhjFkh us pkdw esjh rjQ rkuk eS fpYyk;k vkSj MaMk ls mldks jksdk A esjh fpYy iqdkj ij ,dne cgqr ls vkneh vk x, A HkkxhjFkh eq>s pkdw ugh ekj ldk vksj nksuks nf{k.k dh rjQ Hkkx x, A Mj dh otg ls fdlh us mudk fiNk ugha fd;k A jke vo/k pkdw dh pksV [kkdj rMirk gqvk IysV QkeZ ls ykbu dh rjQ fxj iMk A ge yksx jke vo/k dks mBkdj jsyos vLirky ys x, tgkW igqaprs igqaprs og ej pqdk Fkk A yk'k ds ikl e`rd dk lkyk f'ko'kadj ekStwn gS A Ñi;k fjiksVZ fy[kdj mfpr dk;Zokgh dh tk; A ;g MaMk Hkh eSa nkf[ky dj jgk gwa tks eaSus ukxj izlkn ls Nhuk Fkk A izkFkhZ okys'oj frokjh eq[; xkMh fujh{kd ,u-
bZ- vkj- jsyos jsyos LVs'ku vuojxat dkuiqj fnukad 30&5&82 uksV eS gs- dk- rLnhd djrk gwa fd rgjhj oknh 'kCn o 'kCn vafdr dh xbZ dqN Hkh ?kVk;k c<k;k ugha x;k gS A g- j?kqukFk pkScs gs- dk-
13. A perusal of the said report reveals that full details regarding the motive which was very much stated by Baleshwar Tiwari before the Court below that the accused appellants who were colleagues together and who belonged to one and the same village and who were working under him bore enmity with him regarding the transfer of Doodh Nath, brother of the accused appellant Nagar Prasad and that further that they bore enmity with him because be had refused to grant leave to these accused appellants just two or three days before the date of occurrence of this case on the ground that the Additional Chief Mechanical Engineer was likely to come on inspection on 28 7-1982, that is, about two days before the occurrence. This was the own case of the accused appellants themselves before the Court below that both the accused appellants were member of the trade Union. According to the examination of Nagar Prasad himself, he was a member of Carriage Council. His brother Doodhnath who succeeded in obtaining the suspension of his transfer order at the level of D.R.M. was the Secretary of the said Union. The accused appellant Bhagirathi stated that he was Deputy Secretary of his Union and had complained against Sri Baleshwar Tiwari, Chief Train Examiner regarding theft of the railway properties and that they have been falsely booked in this case by Sri Baleshwar Tiwari on that score.
14. I am of the opinion that the defence taken up by the accused appellants had no legs to stand and was rightly discarded by the Court below. It is clearly established from the direct evidence of Sri Baleshwar Tiwari P.W. 1 and Shiv Shankar P. W. 2 who was closely related with the deceased Ram Awadh as brother in law that on the date and time of the occurrence of this case, they were going with the deceased Ram Awadh to Gumati No. 5 via plat-form No. 2 of Anwarganj Kanpur and when they reached near the quarter of one Arjun Prasad, they were way laid by accused appellant Nagar Prasad and Bhagirathi. Both these witnesses clearly stated that Nagar Prasad was carrying a Danda which he wielded in the direction of Baleshwar Tiwari P.W. 1 but the said Danda did not hit him as the deceased Ram Awadh averted it and caught hold of the same. Sri Baleshwar Tiwari clearly stated that then the accused appellant Bhagirathi exclaimed 'Pahile Is sale ko hi khatam Karo' and thereafter he inflicted knife injury on the person of the deceased Ram Awadh because of which he succumbed and had died. The promptness of the FIR adds to the credence of the statement of Baleshwar Tiwari P.W. 1 notwithstanding the fact that he may have been unhappy with the performance of the accused appellants as their superior officer.
15. It is important to note here that P.W. 2 Shiv Shankar, who has fully supported the prosecution story as deposed by Sri Baleshwar Tiwari before the Court below regarding assault made by the accused appellants Nagar Prasad by means of Danda and Bhagirathi by menas of knife and caused fatal injury to the deceased by accused appellant Bhagirathi has been fully corroborated by Shiv Shankar P.W. 2 who was the brother in law of the deceased Ram Awadh.
16. It has been rightly observed by the Court below that Shiv Shankar being the brother in law of the deceased Ram Awadh could not have falsely implicated the accused appellants in this case had it not been a fact and I find myself in foil agreement with the approach of the Court below on this point.
17. It was argued by the learned counsel for the defence that the' place of occurrence has not been properly established and that the bloodstained earth which was recovered from the place of occurrence was not sent for chemical examination and that there was no occasion for Baleshwar Tiwari, deceased and Shiv Shankar to go to the market at odd hours of night. I am unable to agree. Night of the occurrence was evening time of leisure and pleasure. The occurrence of this case had taken place right on platform of Railway station Anwarganj Kanpur where there should have been sufficient light. The accused appellants were known to the complainant and Shiv Shankar since before in asmuch as that they were working as Khalasis under the complainant himself. There was, therefore, no occasion for the complainant to have falsely roped in the accused appellants in this case.
18. Thus to me the finding of fact recorded by the Court below regarding that guilt of the accused appellant Nagar Prasad under Section 352, IPC and that of Bhagirathi under Section 352/34, IPC and 304 (I) IPC appears to be quite correct and is accordingly sustained it warrants no interference by this Court.
19. Coming on the point of sentence. I find that the accused appellant Nagar Prasad was sentenced to three months R.I. under Section 352, IPC. The occurrence of this case had taken place about 15 years back on 30-5-1992. At that time the accused appellant must have been a young lad of 32 years and the age of Bhagirathi was about 35 years. Keeping in view the long period of occurrence and the age of the accused appellants at that time, I am of the opinion that it will meet the ends of justice if instead of substantive sentence of three months R.I. a fine of Rs. 3000/ - (three thousands only) is imposed on Nagar Prasad appellant and in default of the payment of the same to undergo R.I. for three months.
20. As regards accused appellant Bhagirathi he being a young man of 35 years at the time of the occurrence and he having assaulted by means of knife on the chest of the deceased, which was vital organ, it is obvious that the deceased was assaulted by Bhagirathi with the intention of causing such bodily injuries as were likely to cause death. He was awarded maximum sentence often years. Keeping in view the facts and circumstances of the case and the conduct of the accused appellant Bhagirathi, the sentence awarded to him warrants no leniency.
21. Thus the appeal in so far as it relates to the accused appellant Nagar Prasad, his conviction under Section 352, IPC is maintained but his sentence is modified from the substantive sentence of three months R.I. to a fine of Rs. 3000/- to be paid within one month from today and default of the same to undergo R.I. for a period of three months.
22. As regards accused appellant Bhagirathi his conviction and sentence under Section 352/34, IPC for two months R.I. and ten years R.I. under Section 304(1) IPC are accordingly maintained. His appeal is accordingly dismissed. He is on bail. His bail bonds are cancelled. The C.M.M. Kanpur is directed to issue non-bailable warrants of arrest against the accused appellant Bhagirathi and to commit him to prison forthwith and send compliance report to this Court within two months.
23. Let the record of this case along with the copy of this judgment be sent to the Court below for needful compliance.