V.N. Singh, J.@mdashAppeal has been filed against the judgment and order dated 21.11.1980 passed by Sri V. S. Kulshreshta, the then I Vth Additional Sessions Judge, Aligarh, in S.T. No. 26 of 1979, Case Crime Nos. 954 and 955 of 1978, P. S. Hathras, district Aligarh, by which he held Appellant guilty u/s 302, I.P.C. and convicted and sentenced him to undergo to life imprisonment, u/s 4/25, Indian Arms Act to undergo three years R.I. and u/s 27 of the Indian Arms Act to undergo three years R.I. with direction that sentences shall run concurrently.
2. Prosecution case, in brief, is that, Sri Hari Babu lodged a report on 27.10.1978 at 10.30 a.m. that today at about 10.00 a.m. while he was going to his house along with his younger brother Banwari Lal from Mahadeo temple of Chaube Wala and reached near Gaushala on Gaushala road, Appellant Vijay came with open knife and told that he had insulted him day before yesterday, that he will not keep him alive and with intention to kill, attacked with knife in the abdomen of Banwari Lal. At the time of occurrence, Rishi Kumar, Ram Babu, Kamal Singh and some villagers were present. They tried to catch hold accused/Appellant, but he ran away with open knife.
3. Banwari Lal was medically examined on 27.10.1978 at 10.40 a.m. by Dr. Arun Prakash and following injury was found on his body:
Incised wound 3 cm. ? 1/2 cm. ? peritoneal cavity on upper par of abdomen in the middle with omentum coming out of it.
Injury is caused by sharp edged weapon injury is grievous in nature.
4. Dying declaration of Banwari Lal was recorded on 27.10.1978 at 11.00 a.m. by Dr. Arun Prakash, Bagla Civil Hospital, Hathras.
5. Knife was handed over by Appellant to police at police station on 27.10.1978 and fard was prepared.
6. Statement of the injured Banwari Lal was recorded by the I.O. u/s 161, Cr. P.C., copy of which is Ext. Ka-13.
7. Banwari Lal died on 29.10.1978 at about 4.15 a.m. post-mortem of the deceased Banwari Lal was conducted on 29.10.1978 at 1.30 p.m.
8. Panchayatnama Ext. Ka-9, photolash Ext. Ka-10, police form No. 13 Ext. Ka-11, letter of post-mortem Ext. Ka-12 were prepared.
9. During investigation, blood stained T shirt of Banwari Lal was taken in his custody by the I.O. on 27.10.1978 and fard was prepared. The recovered knife and T shirt was sent to Chemical Examiner, who submitted his report.
10. After completing the investigation, a charge sheet was submitted against the accused/ Appellant.
11. Appellant was charged under Sections 302, I.P.C. and 4/25 and 27 of Indian Arms Act.
12. He denied the charge and claimed to be tried.
13. Prosecution examined complainant P.W. 1 Hari Babu, (an eye witness), P.W. 2 Kali Charan (witnesses of the fard of T shirt). P.W. 3 Ram Babu (an eye-witness), P.W. 4 Kamal Singh (an eye-witness) P.W. 5 Sri Surendra Pratap, Investigating Officer, who submitted the charge sheets Exts. Ka-4 and Ka-5, P.W. 6 S.I. Sri Baboo Ram, who recorded the statement of deceased Banwari Lal u/s 161, Cr. P.C. P.W. 7 Constable Naubat Singh, who carried injured Banwari Lal to the hospital and after his medical examination brought back to Malkhan Singh hospital, Aligarh. P.W. 8 Constable Rameshwar Singh, before whom, Appellant Vijai handed over the knife to the Police personnel in the police station, which was taken into possession and fard Ext. Ka-6 was prepared by Babu Ram Yadav Head Moharrir. Dr. Arun Prakash C.W. 1, who medically examined the deceased Banwari Lal and recorded his dying declaration and gave the certificate that he was medically fit.
14. Accused/Appellant stated in his statement u/s 313, Cr. P.C., that, Banwari Lal was a goonda. He used to tease his sister Sunita, regarding which, complaint was made by Sunita. He tried to persuade Banwari Lal. He assured that he will not tease his sister, but inspite of that assurance, he again teased his sister. On complaint, Banwari Lal attacked on him. He caught hand of Vijai in self-defence. During the scuffle knife of Banwari Lal entered into in his abdomen. He directed Ram Manohar, who was present there to carry Banwari Lal to the hospital through Rikshaw. He went to the police station also along with the knife of Banwari Lal and stated all the facts. They took the knife in possession and directed him to sit at the police station and did not lodge his report, inspite of his request and sent him to jail.
15. From the side of Appellant D.W. 1 Ram Manohar was examined, who deposed that on 26.10.1978 at about 9.45-10.00 a.m. a scuffle took place between Banwari Lal and Vijai. Banwari Lal had the knife in his hand and Vijai caught his hand. During scuffle knife of Banwari Lal entered into abdomen of Banwari Lal. This incident took place near the house of sannu Lal near water tap. The house of witness is situated at a distance of 20-25 paces from the place of occurrence. Vijai directed him to carry Banwari Lal to the hospital. He carried Banwari Lal by Rikshaw to the hospital. He further stated Vijai was going to lodge a report at Kotwali. Vijai carried the knife with him. They remained in the hospital for half an hour. No report was scribed at the place of occurrence. Hari Babu brother of the Banwari Lal was not present there. He identified Banwari Lal before the Doctor.
16. Accused/Appellant examined D.W. 2 Deo Dutt reader of the Court of S.D.M., Hathras. He deposed that, on 27.10.1978, he was reader of the Court of S.D.M., Hathras. He has brought the despatch register of the Court of S.D.M., Hathras for the period with effect from 27.10.1978 to 29.10.1978. No application of Babu Ram son of Jamuna Prasad resident of Wala Patti was entered in the said despatch register with effect from 27.10.1978 to 29.10.1978.
17. After hearing both parties, learned trial court convicted the Appellant, hence this appeal.
18. None appeared from the Appellant side.
19. According to the report of C.J.M., Aligarh, dated 28.5.2003 the Appellant is not traceable. One surety of the Appellant, wife of Brijmohan has deposited an amount of Rs. 7,000 in the Court, while another surety Chetram is also not traceable. He said his house 15 years back and left his village.
20. In this connection, the decision of Hon''ble Supreme Court in Bani Singh v. State of U. P. (33) 1996 ACC 677, is material, in which it has been held that:
It is the duty of the Appellant and his lawyer to remain present on the appointed date, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Sections 385-386 of Cr. P.C. The law does not enjoin that the Court shall adjourn the case if both, the Appellant and his lawyer are absent. It can dispose of the appeal after perusing the record and the judgment of the trial court.
21. In view of the Hon''ble Supreme Court decision (supra), we have heard learned A.G.A., who is present in the Court and perused the record.
22. From the perusal of the record, it appears that, complainant and eye-witness Hari Babu brother of the deceased has deposed that, blood stains were visible on the hand of complainant. But neither this fact was noticed by Head Moharrir at the Police Station nor blood stains were available on the paper of written report, which was written just after the incident and was signed by complainant.
23. From the perusal of the record, it appears that, blood might have dried at the time of writing of the written report. Moreover, naturally complainant would have rubbed blood stains, while writing and putting signature on it.
24. It further appears that, no question was put in this connection by the learned Counsel for Appellant, at the trial stage nor this fact was challenged and the deceased did not mention the name of father of accused Vijai at the time of recording of dying declaration recorded by Dr. Arun Prakash. He deposed that, he does not know the name of the father of the accused/Appellant, while complainant Hari Babu has deposed that name of the father of the accused/Appellant and his address was disclosed by his brother deceased Banwari Lal. He further deposed that he did not know. Vijai prior to the incident and he had seen for the first time at the time of occurrence.
25. From perusal of record it is clear that occurrence took place on 27.10.1978, while the statement of Hari Babu was recorded on 28.7.1979, it may be due to lapse of time. It is not material and does not affect the prosecution case.
26. From perusal of record, it appears that, accused/Appellant Vijai has stated in his statement u/s 313, Cr. P.C. that after incident, he himself sent injured Banwari Lal to the hospital through Ram Manohar Lal. His statement finds support from the medical report of the deceased in which, it has been mentioned that, injured Banwari Lal was brought by Ram Manohar Lal and Constable No. 862 Naubat Singh of P. S. Hathras.
27. From perusal of records, it is clear that, Constable No. 862 Naubat Singh P.W. 7 has specifically stated that, he had gone with injured Banwari Lal along with letter of P.S. Hathras, to Bagla Hospital, Aligarh and after his medical examination, he went to Malkhan Singh, Hospital, Aligarh. He deposed that, it is wrong to say that, he did not carry injured to the hospital. It is incorrect to say that, Ram Manohar Lal carried him to the Hospital. He further deposed that, he had gone to the hospital along with so many persons. It may be possible that, Ram Manohar Lal may be one of them.
28. From the perusal of the record, it appears that the injury report of Banwari Lal, in which, it has been written that, injured was brought by Ram Manohar Lal and Constable No. 862 Naubat Singh.
29. From the statement of Dr. Arun Prakash, it appears that, injured was brought by Ram Manohar Lal and constable Naubat Singh. On enquiry, as Ram Manohar was in front of him, hence he mentioned the name of Ram Manohar Lal first.
30. From the perusal of the records, it is clear that constable Naubat Singh deposed that, he had gone along with the Majroobi letter, but Dr. Arun Prakash deposed that, on enquiry, Constable told him that, he has not brought Majroobi Chitthi from the police station.
31. From the perusal of copy of the G.D. Ext. Ka-16, it is clear that the said G.D., it has been mentioned that, injured has been sent along with Chitthi Majroobi through Constable No. 862 Naubat Singh.
32. From the perusal of the record and in view of the G.D. entry Ext. Ka-16 and as per the statement of Constable No. 862 Naubat Singh that, he had gone along with Chitthi Majroobi, it appears that Dr. Arun Prakash has by mistake, due to lapse of time has stated that constable Naubat Singh has not brought Chitthi Majroobi.
33. From the perusal of the records, it is clear that, D.W. 1 Ram Manohar Lal had supported the statement of accused Vijai recorded u/s 313, Cr. P.C. that during scuffle, knife of the injured Banwari Lal entered into his abdomen.
34. Witness D.W. 1 Ram Manohar Lal also deposed that injured used to tease the sister of accused. He deposed in the cross-examination that, 2-3 days prior to the incident deceased teased sister of the accused Sunita aged about 15-16 years. D.W. 1 Ram Manohar Lal also supported the statement of accused recorded u/s 313, Cr. P.C. that Vijai directed him to carry injured Banwari Lal to the hospital, then he went to the hospital along with injured Banwari Lal.
35. From the perusal of the record, it appears that, witness Ram Manohar Lal has admitted that, accused/Appellant Vijai resides in Mohalla Chandpuri and his house is situated at a distance of 30-35 steps.
36. Ram Manohar Lal has supported the contention of the accused Vijai, he is so much interested witness that on direction of accused/ Appellant Vijai, he had gone along with injured Banwari Lal to Bagla hospital, Aligarh, but this fact was not disclosed by him to any body, no reliance can be placed on the statement of Ram Manohar Lal.
37. It has to be seen that, P.W. 3 Ram Babu is a chance witness and had no occasion to reach there.
38. From the perusal of the records, it is clear that D.W. 2 Sri Deo Dutt, reader of the Court of S.D.M., Hathras, has stated that there is no entry regarding any application with effect from 27.10.1978 to 29.10.1978.
39. From the perusal of the record, it appears that, Ram Babu has admitted that, he was going to Tahsil with Shiv Kumar, his class fellow in connection with mutation of the name of his mother, who had purchased a land from his cousin brother on 9.6.1966. Although, mutation orders were passed in 1966, but name of his mother was not recorded in the revenue record, therefore, he had moved an application.
40. It has to be seen whether the contention of Ram Babu is not correct.
41. From the perusal of the record, it appears that, the statement of Ram Babu has not been challenged in the cross-examination. Moreover, specific date, regarding moving application has not been stated by this witness. Therefore, the statement of Sri Deo Dutt, reader of the S.D.M., Hathras does not contradict the statement of Ram Babu and it is not helpful to the Appellant.
42. In this case, date, time and place of occurrence weapon by which, offence was committed, death of deceased Banwari Lal, involvement of accused/Appellant, handing over the knife (weapon of assault) by the accused/Appellant to the police is admitted.
43. Contention of accused/ Appellant in his statement u/s 313, Cr. P.C. is that, when he made complaint to the deceased regarding teasing of her sister, Banwari Lal became annoyed and attacked on him. He caught hands of the deceased. During scuffle, the knife of the deceased entered into the abdomen of the deceased.
44. Now it has to be seen, whether knife of the deceased Banwari entered into his abdomen or whether accused Appellant attacked on Banwari Lal by knife, which entered into the abdomen of Banwari Lal and whether contention of the prosecution is true or whether contention of the Appellant is true.
45. In this connection, statement of complainant Hari Babu is material. He deposed that on 27.10.1978 at about 10.00 a.m. he was going along with his brother Banwari Lal, accused/Appellant Vijai met him at Gaushala Road. He had a knife in his hand. He stated that he insulted him day before yesterday, therefore, he will kill him. Accused/Appellant attacked by knife on Banwari Lal, which entered into abdomen of Banwari Lal. At that time, Kamal, Ram Babu, Rishi Kumar and several other persons were present. He scribed a report at the place of occurrence, took injured Banwari Lal to the police station on a rickshaw and lodged a report. In the meantime, accused/Appellant, who was armed with knife came at the police station and told that he attacked Banwari Lal by this knife. The police of Police Station took the knife in his possession. Banwari Lal injured has gone along with the police to the hospital. The Doctor recorded dying declaration of Banwari Lal. On 29.10.1978 Banwari Lal died due to the injuries caused by accused/ Appellant.
46. The statement of the complainant regarding causing of the injuries by accused/Appellant to the deceased Banwari Lal, have been corroborated by the witnesses Ram Babu and Kamal Singh.
47. From the perusal of the record, it appears that, two witnesses, namely Ram Babu and Kamal Singh are independent witnesses and they had no motive or enmity to falsely implicate the accused-Appellant.
48. It further appears that, even P.W. 1 Hari Babu had no enmity with the accused/Appellant, nor had any motive to falsely implicate him. It has also been argued that, no suggestion has been made to the witness for false implication of the accused/Appellant.
49. From the perusal of the record, it appears that, dying declaration was recorded by Dr. Arun Prakash on 27.10.1978 at 11.00 a.m. According to him, Vijai accused/ Appellant, who resided at Gaushala road caused injuries to Banwari Lal deceased in his abdomen by knife. Dr. Arun Prakash, who deposed that, he recorded dying declaration of injured Banwari Lal on 27.10.1978 at 11 a.m. He further deposed that, at the time of recording dying declaration except Nand Kumar and Dr. Rizvi, none was present in the room. He proved the dying declaration. He also deposed that, before taking thumb impression of the injured, it was read over to him. He further deposed that, at the time of recording of dying declaration, injured was medically fit to answer.
50. From the perusal of the record, it appears that, Dr. Arun Prakash has no motive to give false statement against accused/Appellant. It has also been argued that, Dr. Arun Prakash has specifically deposed that, at the time of recording of dying declaration injured Banwari Lal was mentally fit.
51. In this connection, decision of Apex Court in
52. From the perusal of the record, it appears that, according to Dr. Arun Prakash the patient was mentally fit and Dr. Arun Prakash has no motive to give false statement. There is nothing to disbelieve the statement of Doctor.
53. From the perusal of the statement of S.I. Sri Babu Ram P.W. 6, who stated on 21.5.1981, it appears that, after recording of dying declaration of the injured he took the statement of injured Banwari Lal. What was stated by Banwari Lal was recorded by him in the case diary. The witness was recalled on the application of the prosecution and was examined on 13.11.1980 S.I. Sri Babu Ram further deposed that statement of injured Banwari Lal was recorded by him in the case diary. He proved the copy of statement of Banwari Lal recorded by him as Ext. Ka-13.
54. According to the statement of injured Banwari Lal recorded by the Investigating Officer when injured was going along with his brother towards the house after Darshan of Mahadev Temple of Chaube Wala, Vijai accused met in Gaushala road and told him that he had insulted him a day before yesterday. He will not spare him and attacked on him with a knife in his abdomen and ran away.
55. From the perusal of the copy of the G.D. dated 27.10.1978 of 10.30 a.m., which is Ext. Ka-16, it appears that entry has been made regarding occurrence. In this document it has been mentioned that accused Vijai, son of Chet Ram resident of Gaushala road P.S. Hathras, district Aligarh came from the back of the police station along with blood stained knife and handed over that knife to the police station that, he had attacked with intention to kill Banwari Lal by knife in the abdomen.
56. From the perusal of the statement of P.W. 8 Constable No. 21 Rameshwar Singh, it appears that, on 27.10.1978 accused Vijai came at the police station and handed over the knife to the police regarding which, fard Ext. Ka-6 was prepared by Head Moharrir Babu Ram.
57. From the perusal of the report of chemical examiner. It appears that on the knife and T. Shirt human blood was found.
58. In view of the above discussions, as date, time and place of occurrence, weapon by which offence was committed, death of deceased Banwari Lal, involvement of accused/Appellant, handing over the knife (weapon of assault) by the accused/Appellant to the police is admitted and there is nothing to disbelieve the statement of P.W. 1 Hari Babu, P.W. 3 Ram Babu and P.W. 4 Kamal Singh, being the eye-witnesses and in view of the dying declaration recorded by Dr. Arun Prakash and there is nothing to disbelieve the statement of injured Banwari Lal recorded by the I.O. u/s 161, Cr. P.C. Ext. Ka-13 and in view of the entry of G.D. Ext. Ka-16 and in view of the fact that no reliance can be placed on the statement of D.W. 1 Ram Manohar Lal and after perusal of the record, we are of the opinion that there is no justification to interfere with the judgment of the learned trial court. The appeal deserves to be dismissed.
59. The criminal appeal is dismissed.
60. The accused/Appellant Vijai is on bail. His bail bonds are cancelled and sureties are discharged. C.J.M., Aligarh is directed to get the Appellant arrested and to send jail to serve out the sentence awarded to him.
