JUDGMENT M. Chaudhary, J.
1. This is a government appeal filed on behalf of State of UP from the judgment and order dated 17th of March 1981 passed by III Additional Sessions Judge, Etah in Sessions Trial No. 192 of 1979 State v. Krishan Pal Singh @ Baba & others acquitting them of the charges levelled against them under Sections 147 and 148 IPC and Sections 302, 307 and 324 each read with Section 149 IPC.
2. State appeal against accused respondent No. 3 Ashraf stood abated vide order dated 2.5.05 as he was reported having died.
3. The facts giving rise to this appeal in nutshell are that Fateh Mohammad, Nazim, Mohd Tahir and Mohd Qasim were real brothers; that house of Fateh Mohammad and that of Ashraf son of Latafat Husain were situate adjacently at Mohalla Nawab; that Rs. 252. 00 were due from Ashraf to Nazim ; that at about 10:00 a.m. on 19th of March, 1978 Nazim went to the house of Ashraf for demanding money due from the latter; that at that time Krishan Pal Singh @ Baba, Abdul, Arshad, Shaukat, Iqbal and Zabbar were also present there; that immediately Iqbal, Zabbar and Krishan Pal Singh @ Baba shouted that they had killed his another brother and then he should also be put to an end and immediately Krishan pal Singh @ Baba gave a knife blow to Nazim hitting him at his abdomen; that Fateh Mohammad who also went with his brother Nazim tried to save him; that then accused Abdul, Arshad, Shaukat, Zabbar and Iqbal caught hold of Fateh Mohammad and Ashraf gave him knife blow hitting him at his hand. On hearing the hue and cry raised Mohd Tahir, elder brother of Fateh Mohammad, Matin, Khalil, Munney Khan, Mahmood Khan and few others rushed to the scene of occurrence and intervened. Immediately injured Fateh Mohammad and his seriously injured brother Nazim were taken to the police station and since the condition of Nazim was quite precarious they were immediately sent to PHC Kasganj for treatment. Injured Nazim was medically examined by Dr K.S. Yadav, Medical Officer in-charge Primary Health Centre Kasganj at 10: 30 a.m. the same forenoon. His medical examination revealed below noted injury on his person:
Stab wound 2 cm x 1 cm x chest cavity deep on left side just lateral lower aspect 15 cm outer to pit of stomach and 16 cm below and outer to left nipple spindle shaped. Blood was oozing from the wound. Margins clean cut.
The doctor opined that the injury was fresh and caused by sharp edged and pointed weapon. Blood pressure was very low, pulse feeble and face restless. The patient was in senses.
4. Then Dr K.S. Yadav medically examined injured Fateh Mohammad at 10: 45 a.m. His medical examination revealed below noted injuries:
1. Stab wound 4 cm x 2 cm x 9 cm going inwards on the back, mid, outer and above left forearm. Margins clean cut. Bleeding present.
2. Stab wound 2 cm x 1 cm x joining injury No. 1 on the front, mid and upper left forearm. Bleeding present.
3. Stab wound 1/2 cm x 1/4 cm x muscle deep on left abdomen.
5. The doctor opined that all the injuries were caused by sharp edged and pointed weapon and fresh in duration.
6. It appears that since the condition of injured Nazim was serious Dr K.S.Yadav recorded dying declaration of injured Nazim at 11:15 a.m. the same forenoon. Injured Nazim stated that he was behind his house gave him knife blow hitting him at his abdomen and that in the meanwhile several persons rushed to the scene of occurrence and took him in a rickshaw.
7. Thereafter injured Fateh Mohammad went to police station Kasganj and handed over written report of the occurrence to the police there at 11:30 a.m. the same forenoon mentioning the said facts also therein. The police registered a crime against the accused under Sections 147, 148, 324 and 307, IPC accordingly and made entry regarding registration of the crime in the GD.
8. Since the condition of injured Nazim was serious Dr K.S.Yadav referred him to Medical College AMU Aligarh. Then he was rushed to the Medical College, Aligarh the same noon and admitted there but he succumbed to the fatal injury sustained by him during the night between 19th and 20th of March, 1978 at 3:02 a.m.
9. SI Kalbey Ali to whom investigation of the crime was entrusted recorded statements of the witnesses, visited the scene of occurrence, inspected the site and prepared its site plan map (Ext Ka 5). He also collected blood stained and simple bricks from the scene of occurrence and prepared its memo (Ext Ka 6).
10. After receiving information regarding death of Mohd Nazim in Medical College, AMU Aligarh SI Ashok Kumar Sharma, police station Civil Lines, Aligarh went to the Medical Hospital and drew inquest proceedings on the dead body of Nazim, preparing inquest report (Ext Ka 8) and other necessary papers (Exts Ka 19 and Ka 20) and entrusted the dead body in sealed cover along with necessary papers to constables Shiv Raj Singh and Mohd. Idrish Khan for being taken for its post mortem.
11. Autopsy conducted on the dead body of Nazim by Dr N.K. Saxena, Medical officer District Hospital, Aligarh on 20th of March 78 at 4:00 p.m. revealed below noted ante mortem injuries on the dead body:
1. Stitched wound 1" long on left side chest lower part 6 inches below left nipple. On removing stitches wound was 1" x 1/2" x abdomen cavity deep and was directed towards right.
2. Stitched wound 6" long on left side of abdomen 1/2" left side from umbilicus on upper part. On removing stitches wound was found abdominal cavity deep and margins clean cut.
On internal examination left pleura was found punctured under injury No. 1 and pleural cavity contained about one pound of blood and left lung collapsed. Peritoneum was found cut under injury No. 2 and abdominal cavity contained about 2 pounds of blood Stomach was cut at two places under injury nos. 1 and 2 and was empty. Large intestine contained faecal matter. The doctor opined that the death was caused due to shock and haemorrhage as a result of ante mortem injuries.
12. Subsequently the crime was altered, inter alia, under Section 302 IPC
13. After completing the investigation the police submitted charge sheet against the accused accordingly.
14. After framing of the charge against the accused the prosecution examined Fateh Mohammad (PW 1) and Mohd Tahir (PW 2) as eye witnesses of the occurrence. PW3 Dr K.S. Yadav Medical Officer in-charge Primary Health Centre Kasganj who medically examined injured Nazim and Fateh Mohammad proved their injury reports (Exts Ka 2 and Ka 3). He also proved dying declaration of injured Nazim recorded by him stating that at the time his dying declaration was recorded by him he was in a fit mental state to make the statement (Ext Ka 4). PW 5 ASI Ram Charan Singh, the then HM police station Kasganj who prepared check report on t