Full Judgment
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] dkuiqjlsok esa lfou; fuosnu gS fd eSa ,u-bZ-vkj- jsyos LVs'ku esa eq[; xkMh ijh{kdlh-Vh bZ 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 gqvkFkk A dy fnukad 29&5&82 dks djhc 7-30 cts lqcg nw/kukFk vius rcknys dkLFkxu vkns'k Mh- vkj- ,e- y[ku ls ysdj esjs nQ~rj esa vk;k Fkk A eSus mls i uksV eS gs- dk- rLnhd djrk gwa fd rgjhj oknh 'kCno 'kCn vafdr dh xbZ dqN Hkh ?kVk;k c