State of U.P. vs Om Prakash and Others

Usha Kant Varma, J.—This is an appeal which the State of U.P. has filed against the acquittal of Vakil u/s 302 and of Om Prakash and Hira Lal u/s 302 read with Section 34 of the Indian Penal Code.

The first information report of the incident Ex. Ka-1 lodged by Chunni Lal at 10.30 p.m. on 13-8-74 in the Police Station Kotwali, Allahabad discloses that in the preceding night the deceased Sub-hash had gambled with the accused Vakil, Hira Lal, Om Prakash and one or two other persons on the roof of the Amjad Buildings. During the gambling there was a quarrel between Subhash and Hira Lal. They restarted quarrelling when they met during the day with Subhash. Hira Lal gave a threat to Subhash that he would teach him a lesson. The people residing in the vicinity intervened to pacify them. The clash was avoided but the accused carried venom in their hearts. At about 8 p.m. when Subhash was on his way to the market to purchase some Chatpata (spicy edible), the accused surrounded him. Hira Lal and Om Prakash caught hold of him and Vakil stabbed him with a knife. The witnesses Hira Lal Gupta, Baijnath Singh, Arun Kumar, Mahesh Bhujwa and others witnessed the entire incident in the torch and electric light and saved Subhash else they would have killed him. Hira Lal son of Asharfi Lal, the soribe of the FIR and Suresh took him to the Moti Lal Nehru Hospital. There the doctor having found his case to be sufficiently critical requiring expert attention directed him to be taken to the Swarap Rani Hospital. Subhash was admitted there at the time when the report was lodged by his father.

The Medical case sheet of Subhash is Ex. 5 on record. It shows that he was admitted in the Swarup Rani Hospital at 9.30 p.m. on 13-8-74 with the stab injury in the right side abdomen from which he was profusely bleeding at 10.45 p.m. His pulse had risen to 144 per minute and his blood pressure had fallen to 60 and he was continuously vomiting. At 11.00P.M. his pulse rate had become 160 per minute and he was still vomiting. Cathterization was tried but without success. At 11.30 P.M. his pulse rate was recorded to be 134 and blood pressure 90/50 and he was noted to be conscious. At 11.45 P.M. before taking him to the operation theatre when his dying declaration Ext. Ka-10 was recorded, his condition was shown to be as it was at 11.30 P.M. The dying declaration of Subhash Chandra recorded by Dr. S.C. Misra, Resident Surgeon of the Swarup Rani Hospital bearing the certificate of Dr. R.S, Dubey about the mental condition of the patient being fit to give the dying declaration and the signature of Dr. S.C. Atri, House Surgeon on call Unit No. 1 and Dr. Anil Kohili, House Surgeon on call Unit No. 2 as witnesses reads as follows:

My name is Subhash Chandra. My father''s name is Chunni Lal. I reside in Amjadganj Noorullah Road, Allahabad. I had gone to buy potato preparation for being able to eat Roti in the evening. During the day there was a minor quarrel with this very boy, while they were conversing with each other.

When I was returning with the cooked potato, Om son of Babu Lal, Hira Chamar, the name of whose father I do not know and Vakil surrounded me. Vakil assaulted me with knife. I started crying., The accused fled away. I fell down on the road. In the meantime a cyclist arrived. He rebuked them. Inspite of it he had assaulted me. The cyclist took me to the Moti Lal Nehrn Hospital. I do not know the name of the cyclist. I was brought to the Moti Lal Nehru Hospital by my father. I have nothing more to say.

The document Ex. Ka-3 which is a letter dated 13-8-74 sent by Dr. Shiv Nandan Pandey, Medical Officer, Moti Lal Nehru Hospital, Allahabad to the Station House Officer, Police Station Khuldabad shows that Subhash Chandra aged 15 years son of Chunni Lal resident of Amjadganj Noorullah Road, House No. 175, Police Station Kotwali Allahabad had been brought to the Moti Lal Nehru Hospital by Suresh Kumar son of Chiranji Lal, 20 Noorullah Road, Amjadganj, alone with stab wound and he had been transferred to the Swarup Rani Hospital for being admitted and for further treatment. The Station House Officer had been requested to. take necessary steps without delay. The document Ex. Ka-8 is the injury report of Subhash Chandra recorded at 9.10 P.M. in the Swarup Rani Hospital. It shows him to have sustained the following injury:

Incised wound 1 1/2" x 1" x cavity deep over the 9th right rib in mammary line 3 1/2" lateral to mid line. The duration of the injury was noted to be fresh and had been opined to have been caused by a sharp weapon. The general condition of the patient was recorded to be low.

Subhash Chandra died as a-result of the above injury on 24-8-1974 at 9.45 P.M. as is clear from his medical sheet and the post mortem report Ex Ka-2. This case which was initially registered u/s 307 IPC was changed into one u/s 302 IPC vide G.D. entry Ex Ka-6.

The prosecution in the trial court had examined Hira Lal PW 1 and Mahesh Prasad Gupta PW 2 as the witnesses of the occurrence. Hira Lal PW 1 stated that at about 8 P.M. on 13-8-1974 he was going towards the railway station bazar to buy Chatpata. He saw the Respondents near the Municipal School. The Respondents Hira Lal and Om Prakash were holding Subhash Chandra and the Respondent Vakil assaulted him with a knife. He challenged the Respondents. They fled away towards the railway station. He swathed his Aungauchha (light towel) around the injury of Subhash and put him on the rickshaw with the help of Suresh who had arrived in the meantime and took him to the Moti Lal Nehru Hospital. At the Moti Lal Nehru Hospital Subhash Chandra was given an injuction and the doctor sent him to the Swarup Rani Hospital on an ambulence tor his condition was becoming critical. He got Subhash admitted in the Swarup Rani Hospital at about 8.00 P.M. The doctor examined him there. The father of Subhash Chandra named Chunni Lal and his wife and others had also arrived by then. He told them the details of the incident. Chunni Lal thereafter dictated the first information report to him. It bore his signature and that of Chunni Lal. He took it to the Police Station Kotwali and handed it over to the Constable Moharrir there at 10.30 P.M. Besides him the incident had also been seen by Arun Kumar, Mahesh and Baijnath in the electric light and in the light of his torch which the Station Officer during investigation took into his custody and subsequently handed it to him in his supurdgi vide memo Ex 2. In the cross-examination, he gave out that he had not brought the torch as it had been lost. He pointed out that the Investigating Officer had not obtained his signature on the ''Supurdginama'' in respect of the torch. He denied that he was provided any copy of the chick report Ex Ka-3, although be visualized that it could have been handed over to Chunni Lal who accompanied him to the police station at the time when he went out to make water. He first stated in reply to a question put by the counsel for the accused that in case the torch would not have been with him, he might not have been able to recognise Subhash. He, however, later pointed that the lights of the electric poles on the street were on wherein he could see but for greater convenience he had also lighted his torch. The incident according to him, had taken place at a distance of five steps from the Municipal School and light there was reaching from the two electric poles. His attention had been invited to the fact that there was no mention in the first information report about the electric light; It was put to him that his mother was the sister of Chunni Lal and he had deposed without having seen the incident because of being a relative of Chunni Lal under his pressure. Chunni Lal according to the accused was ill disposed towards them as they were asking him and the injured Subhash not to arrange gambling on the roof of the Amjad Building for their gain and not to spread filth where they resided He denied that his clothes got smeared with blood when he lifted Subhash. He claimed, to have remained at the scene of the occurrence for about seven minutes after the incident. He did not tell any body to which hospital he was taking Subhash. Subhash did not become unconscious at the scene of the occurrence but he did not talk with him as he felt no need for it. Till he reached the medical college, it did not strike him that he should make a report. It was suggested to him that he was not at the scene of occurrence at the time of the incident and he lodged the first information report after he and Chunni Lal had met each other in the hospital.

Mahesh Prasad Gupta PW 2 gave out that he and Baijnath (a witness named in the FIR) were going to the railway station from their house. When they reached near the medicine dispensing shop, they saw from a distance of twenty five to thirty steps Hira Lal and Om Prakash holding Subhash Chandra and Vakil inflicting the knife injury. They challenged them but the Respondent managed to make good their escape. Hira Lal draped his Aun-gbaucha around the seat of the injury and he and Suresh who had reached the scene of occurrence on hearing the furore took him to the hospital. He went to the father of Subhash Chandra named Chunni Lal and informed him about the incident which be had been able to see in the light of the electric poles on the road and the electric light coming from the nearby bungalow. In the cross-examination he stated that his father Sarju was also known as Surajdeen. He admitted that both he and Chunni Lal were Bhujwa by caste. The counsel for the Respondents in the cross-examination of this witness tried to show that he could not bear near the scene of the occurrence at the time of the incident as he had a hotel with which he was not likely to free himself till late in tbe night much less at about 8.00 in the evening when hotels due to dinner time are crowded. He was also confronted with his statement u/s 161 Code of Criminal Procedure wherein he had not specifically disclosed that he had seen the occurrence in the electric light coming from the house of Bisko Babu. He could not explain as to how in his statement u/s 161 Code of Criminal Procedure, it has been mentioned that the Respondents had surrounded and caught hold of Subhash for when he first saw the Respondents, Om Prakash and Hira Lal had caught hold of Subhash Chandra and Vakil inflicted the knife injury on him thereafter. He and Hira Lal pointed to have lifted Subhash but had not talked with him. He stated to have instructed Hira Lal to take Subhash to the hospital and himself pointed to have gone to Amjad Building to inform Chunni Lal about what had happened. He pointed that he did not remember whether he had seen any cooked potato at the scene of the occurrence or not. On reaching his house he stated to have washed his clothes which had got smeared with blood.

Chunni Lal PW 3 besides corroborating Hira Lal PW 1 in respect of the FIR and Mahesh Prasad regarding his having gone to inform him about the incident at his house, deposed that in the night previous to that of the incident there was a quarrel between the Respondent and Subhash Chandra while they were playing cards with stakes and he. had gone up stairs over the roof of the Amjad Building and had seen it. He also pointed that he had seen the other quarrel between them which took place between 10 and 10.30 A.M. on 13-8-1974 again when they played cards and Hira Lal threatened Subhash that he would see them in the evening. At the time of the second quarrel Ataullah and Kalloo were also shown to be present. In the cross-examination of Hira Lal it was suggested that Subhash had left his studies six months before the incident and was not doing any business. Chunni Lal did not dispute these suggestions. He admited that in the first information report he had not mentioned about the quarrel between the Respondents and Subhash Chandra on 12-8-1974 and 13-8-1974. He explained that he did not inform about it to the Investigating Officer on 13-8-1974 as he thought it to be unnecassary. He had also been questioned as to why in the first information report he had not indicated that Mahesh and Baijnath bad gone to his house to tell him about the incident. He denied that while taking Subhash to the Medical College he had asked him to implicate the three Respondents. He also refuted this fact that he and his son Subhash were making arrangements for gambling on the roof of the Amjad Building and they got annoyed with the Respondents as they had been opposing the same and also protesting when the children of his family had been making the lane in front of the Amjad Building dirty by easing there.

The learned Additional Sessions Judge had discarded the testimony of Hira Lal Gupta PW 1, Mahesh Prasad PW 2 and Chunni Lal PW 3 as unworthy. He had also rejected the alleged statement of Subhash Chandra u/s 161 Code of Criminal Procedure tendered before him as the second dying declaration. He did not place reliance on the dying declaration Ex Ka-10 recorded by Dr. S.C. Misra as-

It was not recorded after observing the instructions contained in paras 492(1) and 489(2) of the Manual of the Govt. Orders (VI Home Criminal Department),

The Investigating Officer Gopal Narain Singh PW 10 had not teen informed about it promptly.

Dr. S.C. Misra did not record the dying declaration in the question and answer form.

There is conflict between the dying declarations Ex Ka-10 and Ex Ka-13 and also between the dying declaration Ex Ka-10 and the statements of the witnesses of the occurrence namely Hira Lal PW 1, Mahesh Prasad PW 2 and also Chunni Lal PW 3.

The motive for the crime had not been established.

An integral portion of the dying declaration appeared to him to be false.

He acquitted all the three Respondents-Vakil u/s 302 IPC and Om Prakash and Hira Lal u/s 302 read with Section 34 IPC. Since this appeal is against acquittal, it would have to be examined whether there are substantial grounds for interference as the view taken by the court below was not reasonably possible, but if the finding reached by the trial court cannot be said to be unreasonable, this Court will have to be slow in disturbing it, even if it is possible to reach a different conclusion. We, therefore, proceed to deal with the points which broadly guided the Sessions Judge in acquitting the Appellants of the charges against them The evidence adduced by the prosecution for bringing home the guilt of. the accused to them has been dealt with above. We can classify the evidence under two heads-

The evidence supporting the prosecution version contained in the first information report Ex Ka-1 lodged at 10.30 P.M. on 13-8-1974 and the statement of the deceased Ex Ka-13 given u/s 161 of the Code of Criminal Procedure which was tendered as the second dying declaration.

The first dying declaration Ex Ka-10 recorded by Dr. S.C. Misra, the injury report Ex Ka-8, the medical sheet of the deceased Ex 5 and the statement of the accused Vakil admitting the quarrel with Subhash deceased.

The dying declaration Ex. Ka-10 given by the deceased Subhash in the presence of Dr. S.C. Atri, Dr. Anil Kohili and Dr. Dubey to Dr. S.C. Misra and bearing his thumb impression does not show that the prosecution witnesses Hira Lal Gupta PW 1, Mahesh Prasad Gupta PW 2, Baijnath, Arun Kumar or any other person had been present at the time of the incident as indicated in the first information report Ex. Ka-1. The only person who has been shown to have arrived at the time of the incident was not known to the deceased. He was stated to have come with his cycle and had rebuked the accused Respondents and had taken the deceased to the Moti Lal Nehru Hospital In the dying declaration Ex. Ka-10 there are also no such allegations that the accused Om Prakash and Hiralal had caught Subhash at the time when the Respondent Vakil stabbed him with his knife or that there was any quarrel between Subhash and Hira Lal in connection with gambling and that Hira Lal had threatened Subhash and the residents of the Mohalla pacified them. There appears no good reason to believe that the deceased Subhash was not in a position to see the eye witnesses of the first information report Ex. Ka-1 or to know as to whom had taken him to the Moti Lal Nehru Hospital from the place of the incident, inspite of the fact that he had categorically stated that it was an unknown cyclist who bad taken him to the Moti Lal Nehru Hospital. The learned Additional Sessions Judge in view of the account of the dying declaration Ex. Ka-10 could have arrived at the conclusion that the prosecution witnesses of the occurrence Hira Lal Gupta PW 1 and Mahesh Prasad Gupta PW 2 were unworthy of credit for if they would have been present on the scene of occurrence, Subhash deceased would have noticed them. The second dying declaration recorded by the Investigating Officer, had been justifiably rejected by the Additional Sessions Judge as being only a reproduction of the FIR and a clear improvement upon the dying declaration Ex. Ka-10. The point which requires consideration in connection with this appeal is as to whether the court below had justifiably rejected the dying declaration Ex. Ka-10. The Additional Sessions Judge in para 25 of his judgment has observed that before recording this dying declaration, the instructions contained in paragraph 492(1) of the Manual of Govt. Orders had not been followed and Dr. S.C. Misra PW 9 had not testified that there was no time to call any Magistrate and as a result thereof he proceeded to record it. The Additional Sessions Judge besides on account of the non production of document in that regard was unable to conclude that Dr. S.C Misra had atleast done his part and had made a request to the Magistrate concerned to come to record the dying declaration. He further had found fault with the dying declaration as being not in question and answer form as enjoined by para. 489(2) of the Manual of Govt. Orders.

We have while dealing with the facts of the case referred to the condition of Subhash deceased during the few hours before his dying declaration was recorded. It cannot be doubted that his state was critical. His pulse rate was very high. His blood pressure was very low. He was bleeding from the wound in the abdomen and at the same time was vomiting. He was being prepared for the operation which was difficult. It appears that Dr. S.C. Misra proceeded to record the dying declaration as he rightly felt that in case Subhash was to die during operation, his account would not be available which in view of the vomiting of Subhash" having stopped about half an hour back and he being in a conscious state could be recorded. Dr. S.C. Misra had taken the added precaution of getting the dying declaration signed by the three other doctors of whom one had testified about the mental fitness of Subhash. It is not expected nor was it shown that the above doctors could be interested in making out a case against the accused at the behest of Chunni Lal PW 3 or any other person. The mere fact that the dying declaration Ex. Ka-10 is not in question and answer form, can also not lead to the inference that Subhash had made the above statement due to the leading forms of the questions. On thfr other hand the lack of coherence in the narrative shows that Dr. S.C. Misra had faithfully recorded what had been stated by Subhash without making any effort to change the sequence of the words uttered by systematic questions. Subhash bad first stated that the Respondent surrounded him and thereafter the Respondent Vakil stabbed him with knife and when he cried, the Respondents fled away. It was after completing the story that he again recalled and narrated that before the assault he had fallen down and it was then that an unknown cyclist had rebuked them but inspire of it, the knife injury was inflicted severely by Vakil. If Subhash would have .been tutored by any one, he would have not stated that an unknown cyclist had brought him and that the incident in question was a sequel to a very minor quarrel arid instead would have narrated the motive for the crime contained in the FIR and the alleged threat given by Hira Lal accused about which the dying declaration Ex. Ka-10 is absolutely silent. It has been laid down in Jaswant Singh Vs. State (Delhi Administration), , Dalip Singh v. State of Punjab AIR 1979 SC 1173 , Habib Usman Vs. State of Gujarat, , Ashok Kumar v. State 1983 CriLJ 147, that there is no such requirement of law that the dying declaration must be recorded by a Magistrate. The Supreme Court in the case of Pamavati Devi V. State of Bihar 1983 CriLJ 160 SC observed that in Keshav Gangaram Navge and Another Vs. State of Maharashtra, and Ram Chandra Reddy v. The Public Prosecutor AIR 1976 SC 1194 it bas not been laid down as it possibly cannot be done that dying declaration sot made before a Magistrate cannot be used in evidence. The Supreme Court in the case of Assam Railways and Trading Co. Ltd. Vs. The Collector of Lakhimpur and Another, , has observed that the doctor has the obligation to record the dying declaration, if the Magistrate cannot be called in time. The Additional Sessions Judge as such was not justified in discarding the dying declaration Ex. Ka-10 on the ground that it was not recorded by the Magistrate. The circumstance that the Investigating Officer Gopal Narain Singh PW 10 was not informed about the dying declaration Ex. Ka-10 can also not be little its worth. In fact after the letter Ex. Ka-3 had been sent by Dr. Shiv Nandan Pandey Medical Officer of the Moti Lal Nehru Hospital about the deceased Subhash having been sent to the Swarup Rani Hospital for treatment on account of a stab injury in the chest at 8.30 P.M., the Investigating Officer should have proceeded there to ascertain facts about it. If he did not do so and we find that Dr. S.C. Misra and the three other doctors who have signed the dying declaration had no ulterior motive to keep it secret from the Investigating Officer and the competent Magistrate, the evidentiary value of the dying declaration Ex. Ka-10 will not be impared. In fact it was on account of the lack of due care on the part of the Investigating Officer to follow up the case promptly that a wrong direction was given to it by him after broadly satisfying himself about the stab incident. The Additional Sessions Judge, however, was expected to separate the chaff from the grain as laid down in Bhe Ram Vs. State of Haryana, and not to have given less weight to the dying declaration Ex. Ka-10, than what it deserved because of the conduct of the Investigating Officer and the infirmities in the statements of the eye witnesses.

The Additional Sessions Judge in paragraph 30 of his judgment has quoted from the In Re: Narayanaswami, "That the crucial test in all cases of plurality of dying declaration is whether the deceased''s version is proved to be false in respect of the integral portion of the case. The test whether he has given a true version, is not to be judged with reference to any dying declaration but in the light of several declarations made by him, it is only in extreme cases that the Court can safely convict, relying upon the first dying declaration provided there is convincing and adequate corroborative evidence." The so called second dying declaration to us does not appear to have been made at all. It appears to have been scribed as the statement of the injured in consonance with the FIR. It, therefore, remains only to be examined whether any integral portion of the dying declaration Ex. Ka-10 is unreliable remembering at the same time that even if part of it is not found to be correct, it cannot be rejected necessarily as a whole unless the part which is incorrect is so indissolubly linked with the other part wherein reliance is sought to be placed as laid down in Godu v. State of Rajasthan AIR 1974 SC 1500. We have reproduced the dying declaration Ex. Ka-10 above, the broad features of which are (1) that Subhash Chandra had gone to buy cooked potato (2) that when he was returning he was surrounded by the Respondents (3) that there was a minor quarrel during the day and as a result of it he had been assaulted by Vakil (4) that he had been taken by an unknown cyclist to the Moti Lal Nehru Hospital from the scene of the occurrence where he had arrived at the time of the incident and (5) that his father had brought him from the Moti Lal Nehru Hospital to the Swarup Rani Hospital. The incident having taken place between 8 and 8.30 P.M., there was no improbability in Subhash going to buy-cooked potato and the accused surrounding him, while he was returning. Subhash does not say that there had been any big quarrel. Vakil accused in his statement in the trial court gave out that Chunni Lal and Subhash were arranging gambling and on account of it there used to be quarrel between him and others. Hira Lal gave out that there used to be quarrel between him and Chunni Lal on account of gambling. Om Prakash denied that he had been participating in the gambling or that there was any quarrel. The Respondent Vakil alone has stated about his quarrel with Subhash. There is, thus, nothing to doubt about the minor quarrel to which Subhash has referred to in the dying declaration. In view of the fact that the quarrel was minor, Subhash was not expected to[ lodge a first information report about it in the Police Station. The account of Subhash in the dying declaration Ex. Ka-10 in respect of the quarrel on account of which he had been stabbed, is quite natural.

Subhash, it next is to be noted, had given out that an unknown cyclist had rebuked the accused and inspite of.it Vakil assaulted him with a knife when he bad fallen down and that thereafter the cyclist brought him to the Moti Lal Nehru Hospital. If any person known to Subhash had really been present, there was every chance of Subhash being saved and not receiving serious injury for it follows from his dying declaration that he bad not been assaulted with knife immediately and was inflicted the knife injury only after he had fallen wherefrom it implies that at first there was a scuffle between Subhash and Vakil in the course whereof Vakil assaulted him with knife after Subhash bad fallen. This version of Subhash also does not seem to suffer from any blemish. Subhash in view of the scuffle or due to the conduct of the accused in first surrounding him to seek his explanation, was in a position to identify his assailant Vakil at least even though the light might have been dim for which inference too there is no really good basis because there are electric poles in the lane and there is electricity in the adjoining house and there is no good ground to infer that'' the lights must not have been on. Subhash besides had no reason to exonerate his real assailant if he was other than Vakil. It last of all is to be seen whether his father Chunni Lal could have tutored him while he was being brought from the Moti Lal Nehru Hospital to tbe Swarup Rani Hospital It is clear from the letter of Dr. Sbiv Nandan Pandey and the Medical Sheet of Subhash that he had reached the Swarup Rani Hospital in a critical condition as dealt with above. It is highly improbable that in such a state, Chunni Lal could have tutored Subhash. If he would have done so, his version would not have been so very different from what we find in the dying declaration. The dying declaration Ex. Ka-10 could very safely be relied upon as the true account of the cause of the death of Subhash. it has been consistently held ever since the decision in Khushal Rao Vs. The State of Bombay, that a dying declaration can form the sole basis of conviction and it is incorrect as a general proposition that it is a weaker piece of evidence. The dying declaration stands on the same footing as any other piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence. If the dying man had the capacity to remember facts and there is nothing on the basis of which it could be reasonably doubted that he could observe the facts about which he had stated, the dying declaration could be acted upon. In Lallu-bhai Deve Chand Shah v. State of Gujarat AIR 1976 SC 1776 , Kusa and Others Vs. State of Orissa, and State of U.P. v. Ram Sagtt Yadav 1985 (1) Crimes 344 SC the same position of law has been reiterated and it has been held that if the dying declaration is totally acceptable, conviction on its basis alone would be justified and corroboration has to be looked for only when the dying declaration is found to suffer from any infirmity as laid down in Rasheed Beg and Others Vs. State of Madhya Pradesh, . The Additional Sessions Judge while examining the dying declaration Ex. Ka-10 committed illegality when he in ascertaining that its integral facts were correct looked for consistency between it and the FIR and the statements of the P Ws although in the State of U.P. v. Moti Lal 1907 ACC307 it has been held that dying declaration is not to be tested on the crucible evidence of witnesses but has to be judged on its own in the light of surrounding circumstances on which it stands squarely and cannot be dislodged.

It now is to be seen as to what offence has been committed by the accused on the basis of the FIR fix. Ka-10. So far as the accused Om Prakash and Heera Lal are concerned they are merely alleged in it to have surrounded Subhash. They had not caught hold of him or played any role in the scuffle. They had not instigated Vakil to assault. The assault with knife had been made by Vakil on Subhash after he had fallen. If the incident bad been pre-planned Subhash would not have been inflicted just one injury and that too after he had fallen and not immediately when he bad met Vakil, Heera and Om Prakash. In this appeal against acquittal it will not be justified to bold Om Prakash and Heera guilty of any offence because Subhash had been assaulted by Vakil who was accompanying them. Similar was the inference drawn on nearly a kin facts in Rangaswami Vs. State of Tamil Nadu, . In this case too the Appellant had accompanied the accused persons who committed murder, but there was no evidence that they had gone with such intent or uttered instigatory words. In Maiku and Others Vs. State of U.P., it was held that conviction for overtact or acts of one or more was justified only when there was material to show that the overt acts were done in furtherance of the common intention of all the accused or in prosecution of the common object of the members of the unlawful assembly.

It is to be examined at the end as to what offence had been committed by Vakil. He had as evident from the above discussion not come with the intention of causing the death of Subhash. The quarrel which lead to the incident was also a minor one as given out by subhash in the dying declaration and was not ordinarily sufficient to lead Vakil to murder him. It appears that it was only during the scuffle that Vakil got enraged and stabbed Subhash in the abdomen. Dr. R.B. Singh PW 4 deposed that Subhash died as a result of bleeding and shock from the stab wound. If Vakil, however, had intended to cause his death, he was likely to give another blow. The injury inflicted by Vakil on the vital part, however, was to be presumed to have been caused with the knowledge that it was likely to cause death. Vakil thus is guilty under part (2) of Section 304 of the IPC and not u/s 302 IPC for which offence he was charged.

ORDER

This appeal against acquittal so far as Om Prakash and Hira Lal Respondents are concerned is dismissed. The appeal in respect of Vakil is partly allowed. The order of his acquittal is set aside. He, however, instead of Section 302 of the Indian Penal Code is convicted under part 2 of Section 304 of the Indian Penal Code. He is on bail. His bail bonds are cancelled. He be taken into custody to serve the sentence to be awarded to him under part (2) of Section 304 IPC. He is given an opportunity to make his sub-missions with regard to the question of sentence as laid down in Suryamoorthi and Another Vs. Govindaswamy and Others, after a month.