BHUPAL Vs. STATE OF UTTARANCHAL

JUDGEMENT

(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 tne 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.j 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 Kallu (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 13.03.1984, 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, Vinod 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 Kalu. 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 (P.W. 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 (P.W. 2), Chhotey (P.W. 3) and Chhamman (P.W. 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 (P.W. 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 (P.W. 1) scribed report (Ext. A-1) and lodged the same with the police station Kashipur, at about 10:30 P.M., on the same day i.e. 13.03.1984. 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. 14.03.1984, 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 14.03.1984, at about 10:30 A.M., Dr. R.N. Singhal (P.W. 8) conducted the autopsy on the dead body. The Investigating Officer (P.W. 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 Sessions 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 eyewitness); P.W. 2, Mahesh (eyewitness); P.W.3, Chhotey (eyewitness) and P.W.4, Chhamman (eyewitness). 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 cloths 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 cloths 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 -1, Ext. B - 2 and Ext. B -3, were produced to show that witnesses Chhotey (P.W. 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. Re-organization Act, 2000. for its disposal.