Judgment:
Prafulla C. Pant, J.
1. This appeal, preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr. P.C), is directed against the judgment and order dated 20-7-1985, passed in Sessions trial No. 96 of 1984, by the then, learned Sessions Judge. Nainital, whereby Bhupal (appellant No. 1) is convicted under Section 302 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.) and Vinod Kumar (appellant No. 2) is convicted under Section 302 read with Section 34 of the I.P.C., and each one of them is sentenced to imprisonment for life.
2. According to the prosecution, facts of the case are that P.W. 1, Mangal Sen (informant) and both the accused appellants Bhupal and Vinod Kumar are residents of Mohalla Maheshpura of Kashipur. The deceased Kallu was also resident of the same Mohalla. He was maternal uncle of Mangal Sen (P.W. 1). Appellants Bhupal and Vinod Kumar were friends. Accused appellant No. 1, 'Bhupal used to run a gambling den inside his house, to which Kailu (deceased) had objection and he asked Bhupal to refrain from the activity as it leads the youths of the locality to the path of misdeeds. On 13-3-1984, at about 8.30 p.m., when Mangal Sen (P.W. 1) was standing outside the door of his house and his uncle Kallu was cleaning hands near water tank, appellant No. 1, Bhupal along with appellant No. 2, Viriod Kumar came there and started hurling abuses at Kallu. On being asked by Kallu not to hurl abuses at him, appellant No. 1, Bhupal asked appellant No. 2, Vinod Kumar to get hold of Kallu. Appellant Vinod Kumar caught and got hold of Kallu, then appellant No. 1, Bhupal took out his knife and stabbed Kallu. He gave two blows of knife to Kallu. The first blow could cut only the shirt and baniyan of the deceased, but the second blow struck deep in the stomach. Immediately, Mangal Sen (PW 1) intervened and attempted to save Kallu but he also got knife injury on his left palm near the thumb. The incident was also witnessed by Mahesh (PW 2), Chhotey (PW 3) and Chhamman (PW 4) and one Latif, all residents of same Mohalla. Thereafter, the witnesses and other persons made attempts to catch hold of the accused persons but they succeeded in escaping from the scene towards Jaspur Bus Stand. Due to injuries Kallu fell down on the spot. There was light of electric bulb of the electric pole at the scene of occurrence. Mangal Sen (PW 1) took Kallu immediately to Civil Hospital on a rickshaw and got him admitted there, but Kallu died in the Hospital (as a result of injuries received in the incident) at about 9.40 p.m., on the same day. Before the death of the deceased, his dying declaration (Ext. A-15) was recorded by the Medical Officer attending him. Mangal Sen (PW 1) scribed report (Ext. A-l) and lodged the same with the police station Kashipur, at about 10.30 p.m., on the same day i.e. 13-3-1984. On the basis of said report crime number 107 of 1984 was registered under Section 302 of the I.P.C. against both the appellants Bhupal and Vinod Kumar. Thereafter, in the next day morning i.e. 14-3-1984, at about 6.00 a.m., the police took the dead body of Kallu in their custody from the L.D. Bhatt Civil Hospital, Kashipur and prepared inquest report (Ext. A-2). Also, police form No. 13 (Ext. A-3), photo sketch of the dead body (Ext. A-4), police form No. 33 (Ext. A-5) were got prepared by the Investigating Officer and the dead body was sent for postmortem examination, On 14-3-1984, at about 10.30 a.m., Dr. R.N. Singhal (PW 8) conducted the autopsy on the dead body. The Invest! gating Officer (PW 11) prepared the site plan and recorded the statements of the witnesses and submitted charge sheet (Ext. A-14) against both the accused Bhupal and Vinod Kumar. The concerned Magistrate registered the charge sheet and after giving necessary copies to the accused persons, as required under Section 207 of the Cr. P.C, committed the case to the Court of Session for trial.
3. The learned Sessions Judge, after hearing both the prosecution and the defence, framed charge of offence punishable under Section 302 of the I.P.C. against appellant No. 1, Bhupal and the one punishable under Section 302 read with Section 34 of the I.P.C. against appellant No. 2, Vinod Kumar. Both of the appellants pleaded not guilty and claimed to be tried. The prosecution, thereafter, got examined P.W. 1, Mangal Sen (informant and injured eye-witness); P.W. 2, Mahesh (eye-witness); P.W. 3, Chhotey (eye-witness) and P.W. 4, Chhamman (eye-witness). P.W. 5 Constable Dharampal Singh and P.W. 6, 'Constable Gulabi Ram filed their affidavits before the trial Court regarding the preparation of inquest report of the dead body. Prosecution also got examined P.W. 7, Constable Sureshpal Singh (who adduced evidence regarding taking blood stained clothes for chemical examination); P.W. 8, Dr. R.N. Singhal (who conducted postmortem examination); P.W. 9, Dr. P.K. Joshi (who recorded injuries found on the person of injured witness Mangal Sen); P.W. 10, Ram Lal (witness of the recovery of blood stained clothes of accused appellant Bhupal); P.W. 11, Sub-Inspector Ram Asre Singh (Investigating Officer); P.W. 12, Dr. R.P. Rastogi (who recorded the dying declaration of the deceased in this hospital) and P.W. 13, Sub-Inspector Rajendra Prasad Sharma (who arrested accused appellant Bhupal). The Court witness, Dr. S.P. Gupta was also examined before the trial Court. The oral as well as documentary evidence was put to the accused persons including the chemical examiner's report (Ext. A-17). Accused persons alleged prosecution evidence to be wrong and further alleged that they have been falsely implicated in the case. In the defence, on behalf of the accused persons copies of the three charge sheets Ext. B-l, Ext. B-2 and Ext. B-3, were produced to show that witnesses Chhotey (PW 3) had a criminal history. After hearing the arguments of prosecution and that of the defence, learned Sessions Judge found both the appellants guilty of the offence of which charge was framed against them and convicted accused Bhupal under Section 302 of the I.P.C. and accused Vinod Kumar under Section 302 read with Section 34 of the I.P.C. and sentenced each of them to imprisonment for life. Aggrieved by the same, the appellants filed this appeal before the Allahabad High Court. Subsequently, this appeal has been received by this Court under Section 35 of the U.P. Reorganization Act. 2000, for its disposal.
4. We heard learned Counsel for the parties and perused the entire evidence on record.
5. Before further discussion, it is pertinent to mention here, the ante mortem injuries found on the person of the deceased at the time of post-mortem examination. Statement of Dr. R.N. Singhal (PW 8) read with post-mortem report (Ext. A-6) establishes the fact that following ante mortem Injuries were found on the person of the deceased Kallu on 14-3-1984, at about 10.30 a.m.:
Incised wound 4 cm x 2 cm x cavity deep over front of abdomen near the mid line, oblique, 1 cm above umbilicus tailing towards right iliac fossa, loops of small intestines were coming out from the wound and at one place there was incised wound upon the intestine in the size of 2 cm x 1 cm x 1 cm.
Mesenteric vessels were cut under the ante mortem injury.
In the opinion of the Medical Officer, who conducted the post-mortem examination the cause of death was shock and haemorrhage, which was the result of above-mentioned ante mortem injury. According to the aforesaid Medical Officer, the ante mortem injury could have been caused by a knife. He further opined that ante mortem injury was sufficient to cause death in the ordinary course of nature.
6. P.W. 1, Mangal, Sen, an injured eyewitness, has stated before the trial Court on oath that the deceased-Kallu was his maternal uncle. The witness has further stated that appellant-Bhupal. who lives at a distance of 50 to 60 steps from his house, is friend of appellant-Vinod Kumar. According to this witness on 13-3-1984, at about 8.30 p.m., when he was standing outside the door of his house and Kallu was cleaning his hands near water tank, appellant-Bhupal started hurling abuses at Kallu. Mangal Sen (PW 1) has further stated that Kallu had earlier raised objection and asked Bhupal not to run a gambling den in his house. It is also stated by this witness that appellant-Vinod was also standing with appellant-Bhupal. Appellant Bhupal asked appellant-Vinod Kumar to get hold of Kallu and Vinod Kumar caught and got hold of him. Thereafter, according to this witness appellant-Bhupal took out a kinfe and stabbed twice at Kallu. The first blow could only cut the shirt and baniyan of the deceased but the second blow hit him in his stomach. Mangal Sen (PW 1) states that when he moved ahead to intervene and save Kallu he also got a cut on his left hand. He says he and other witnesses made efforts to apprehend the culprits but they ran away from the scene towards Jaspur Bus Stand. Mangal Sen (PW 1) further states that there was light of electric bulb of the electric pole at the time of the incident. Thereafter, the witness says that he immediately took injured Kallu to the Hospital where he later succumbed to the injuries. Lastly, the witness states that he then got the first information report (Ext. A-l) lodged with the police station, Kashipur.
7. The statement of Mangal Sen (PW 1) gets corroboration from statement of Dr. P.K. Joshi (PW 9), who examined the injury received by this witness, at about 9.45 p.m. on 13-3-1984. Ext. A-7 prepared by Dr. P.K. Joshi (PW 9). discloses following injury, found on the person of Mangal Sen (PW 1):
Incised wound 4 cm x 1/2 cm x skin deep, vertical in direction on the palm of the left hand, 3 cm below the base of the thumb. Fresh bleeding present.
8. Not only the evidence of Mangal Sen (PW 1) corroborated from above medical report (Ext. A-7) but also from the prosecution story narrated by eye-witnesses Mahesh (PW 2), Chhotey (PW 3) and Chhamman (PW 4). These three witnesses have stated that the incident occurred in their presence on 13-3-1984, at about 8.30 p.m., and they saw appellant-Bhupal hurling abuses at Kallu. They have corroborated the fact that appellant-Bhupal asked Vinod Kumar to get hold of Kallu, who caught him. These witnesses further state that appellant-Bhupal took out a knife and stabbed Kallu twice, who received the injury in his stomach. The witnesses have also corroborated that Mangal Sen, when intervened to save Kallu he also received knife injury on the palm of his left hand. All these three witnesses have corroborated the statement of Mangal Sen (PW 1) also on the point that at the time of incident there was light of electric bulb of electric pole.
9. The above clinching evidence of eyewitnesses read with the post-mortem report of the deceased and the injury report of injured eye-witness PW 1, Mangal Sen, is sufficient to prove that accused-appellant-Bhupal committed murder of Kallu. Apart from above evidence, there is yet another documentary evidence in support of prosecution which further supports and corroborates the truthfulness of the prosecution story as against appellant-Bhupal and that document is dying declaration (Ext. A-151 recorded by the doctors attending Kallu after he was admitted in L.D. Bhatt Civil Hospital, Kashipur, where he later succumbed to his injuries. The dying declaration, Ext. A-15 shows that it was recorded at 9.15 p.m. on 13-3-1984 by Dr. R.P. Rastogi (PW 12). In the dying declaration, Kallu (deceased) has stated that his friend's son Ram Singh was gambling in the house of Bhupal, on which he (deceased) objected to Bhupal. When he (deceased) came out of his house accused-Vinod Kumar caught him from behind and accused-Bhupal gave knife blow on his (deceased's) stomach. Dr. R.P. Rastogi (PW 12) has stated that Kallu was admitted in an injured condition in the Hospital on 13-3-1984, at about 9.00 p.m. The witness further states that the general condition of the injured was low. After he was given oxygen, coramene, glucose and dekedron, condition of the injured improved for a while, to some extent. Dr. R. P. Rastogi (PW 12) referred to the bed -head ticket of the deceased on which the condition of the deceased was entered till he died at 9.40 p.m. According to this Medical Officer, as stated in cross-examination, though he has not separately mentioned in the dying declaration that the patient was fit to give the statement but as to his general condition he has recorded the same In the bed-head ticket, which he filed before the trial Court. In the cross-examination, the witness further clarifies that the residence of the Sub-Divisional Magistrate was at a distance of 21/2 k.ms. from the Hospital and there was no sufficient time to call the Magistrate in the Hospital. Court witness No. 1, Dr. S.P. Gupta, who is also Medical Officer of the same Hospital has also corroborated the evidence of Dr. R.P. Rastogi (PW 12) and stated that the patient was in a fit condition to give the dying declaration. This witness has also signed the dying declaration of Kallu, as such, there is no reason to disbelieve the dying declaration of the deceased in the present case. In the circumstances, we are of the view, that the prosecution has been successful in proving charge under Section 302 of the I.P.C. as against appellant No. 1, Bhupal.
10 On behalf of the defence it is argued that the first Information report is delayed one. But in our opinion, the argument has no force, for the reason that the first information report was lodged within two hours of the incident with the police outpost, which was at a distance of four furlongs from the place of incident. It is also to be kept in mind that the first information report was lodged by PW 1, Mangal Sen, who himself was injured and who took Kallu (deceased) to Hospital to save his life before lodging the first information report. The incident has taken place at 8.30 p.m. and the first information report was recorded at 10.30 p.m. on the same day. As such, in the above circumstances, it cannot be said that the first information report is delayed one.
11. Mrs. Pushpa Joshi and Mr. Kurban Ali, learned Counsel for the appellants argued that there is no mention in the dying declaration that appellant-Bhupal stabbed Kallu twice with the knife, but the witnesses have alleged that Bhupal gave two blows with the knife. Considering the condition of Kallu, whatever brief statement he could give before his death, the Medical Officer recorded the same. It is possible that since no one asked Kallu that how many blows were given by Bhupal, as such, he had no occasion to answer the same. Even otherwise, leaving aside the dying declaration, there Is sufficient evidence of four eye-witnesses including one injured, which is sufficient to prove charge of murder against Bhupal.
12. It is also submitted by the defence counsel that all the eye-witnesses are chance witnesses. The submission, in our opinion, is misconceived. In the present case, none of the eye-witnesses can be said to be chance witnesses. All the four eye-witnesses are of same locality of Maheshpura, Kashipur, where the incident had taken place. Not only this, had the incident been inside the house it could have been said that only the family members of the house are the natural witnesses, but when the incident had taken place in an open place, the presence of wit-' nesses of the same locality at the scene of occurrence, is natural one and they cannot be said to be chance witnesses.
13. It is also contended on behalf of the appellants that P.W. 3, Chhotey has a criminal history as is clear from the copies of charge-sheets Ext. 0 1 and Ext. B-2. Assuming for the moment that Chhotey {PW 3) has a criminal history but the clinching and natural evidence given by PW 1, Mangal Sen, an eye-witness and PW 2, Mahesh, also an eye-witness, read with the dying declaration of deceased, the mere character of Chhotey (PW 3) is not sufficient to create any reasonable doubt as to the truthfulness of the prosecution story.
14. Now, this Court has to examine whether appellant No. 2, Vinod Kumar had common intention with appellant No. 1, Bhupal in the commission of murder of Kallu, or not? From the statements of witnesses it appears that appellant-Bhupal asked appellant-Vinod Kumar to get hold of Kallu and he caught him, but it is not clear from the evidence on record that when appellant No. 2. Vinod Kumar caught and got hold of Kallu, he knew that appellant-Bhupal had knife with him and he would cause fatal injuries to Kallu. Though, name of Vinod Kumar also figures in the dying declaration, but it does not make it clear If Vlnod Kumar had knowledge that Bhupal Is going to kill Kallu. Apart from this, from the evidence adduced by the prosecution witnesses, there appears no enmity or motive on the part of the appellant-Vinod Kumar to have common Intention to commit murder of Kallu. It is true, that from the evidence on record, It is established that appellant-Vinod Kumar Is friend of appellant-Bhupal and it is also established that he caught and got hold of Kallu, whereafter, Bhupal stabbed Kallu in his stomach, but there is missing link of having prior meeting of mind between appellant-Bhupal and appellant-Vinod Kumar. Appellant No. 2, Vinod Kumar is not said to have been armed with any weapon. To gather common intention, the inference drawn from the facts and circumstances of the case must be a necessary inference. In the present circumstances, it cannot be said beyond reasonable doubt that the appellant No. 2, Vinod Kumar had common intention with appellant No. 1, Bhupal to commit murder of Kallu. Since, sufficient evidence of prior meeting of mind on the part of the appellant Vinod Kumar with appellant-Bhupal is lacking on the record, as such, appellant-Vinod Kumar is entitled to the benefit of reasonable doubt.
15. For the reasons as discussed above, while the appeal of Bhupal (appellant No. 1) is liable to be dismissed, the appeal of Vinod Kumar (appellant No. 2) deserves to be allowed giving him benefit of reasonable doubt as to his prior meeting of mind with the assailant Bhupal for the same cannot be said to have been established beyond reasonable doubt. Accordingly, appeal of only Vinod Kumar (appellant No. 2) is allowed and he is acquitted of the charge under Section 302 read with Section 34 of the I.P.C., giving him benefit of doubt. To that extent the impugned judgment and order dated 20-7-1985 is set aside. However, appeal of appellant-Bhupal (appellant No. 1) Is dismissed. His conviction and sentence is maintained. He is on bail. His bail bonds are cancelled. Appellant No. 1, Bhupal shall be taken into custody, forthwith by the Court concerned to serve out the sentence of imprisonment for life, awarded against him.