1. The appeal has been filed by Chandrabhan and Ram Sajiwan against the order and judgment dated 3-2-1979 of the Addl. Sessions Judge, Kanpur in sessions trial No. 406 of 1978 convicting them under Section 302/149 I.P.C. and sentencing each of them to life imprisonment for committing the murder of Ashok. They have further been convicted under Section 307/149, I.P.C. and sentenced to seven years' R. I. each for making the murderous assault on Dr. Bhanchandra, They have also been convicted under Sections 452 and 148 I.P.C. and sentenced to two years: R. I. and one year's R. I. respectively. All the sentences have been directed to run concurrently. The revision has been filed by Dr. Bhanchandra, the injured against both the accused persons for enhancement of their sentences.
2. The prosecution story, as revealed in the first information report and by the prosecution evidence briefly stated, is as follows, There is a small town of Maitha within the police circle, P. S. Sheoli, District Kanpur, It has a railway station. Dr. Bhanchandra is a respectable citizen of that place. He is also a medical practitioner and was having good practice. He has a good residence there in the outer hall of which he was having his clinic. There was also a sub-post office in that very hall and Dr. Bhan Chandra was himself the sub-postmaster. Surya Bhushan Srivastava (P. W. 1) was the station master of the railway station Maitha. He war, posted there since August, 1976. The daughter of his real uncle was married to Dr. Bhan Chandra. His residence was at the railway station which was at a distance of about one hundred paces from the residence of Dr. Bhanchandra. Ram Sajiwan appellant was a constable there. About two and a half months prior to the occurrence, Ram Sajiwan had treated Sri Bhagwan Din Khushwaha an M. L. A. of that locality very badly at Maitha railway station. He had dragged him out of the train and had beaten him. Dr. Bhan Chandra had then gone to the railway station on getting that information and had reprimanded Ram Sajiwan. He being a public man had also publicly abused Ram Sajiwan strongly and a case was then brought against Ram Sajiwan with regard to that incident. When he was released on bail he went to Dr. Bhan Chandra about 25-30 days after that incident and had threatened him with dire consequences.
Chandra Bhan appellant was an associate of Ram Sajiwan. He retired from the military where he was a sepoy. He then became a contractor of country-made liquor. He had good relations with the local police and under their protection he used to commit crimes. Dr. Bhanchandra being a public worker used to abuse him openly. Chandra Bhan's brother Amritlal was also a doctor. But he was not proving successful while Dr. Bhan Chandra had a very good practice. There was thus professional rivalry between the two families. Chandrabhan's residence was at a distance of about 60 paces from that of Dr. Bhanchandra. Once there was a quarrel between Chandrabhan appellant and Surya Bhushan Srivastava (P. W. 1), who was related to Dr. Bhanchandra, Surya Bhushan Srivastava (P. W. 1) as Station Master had detained at the station four bags of manure which Chunnilal, real brother of Chandrabhan appellant had brought there without paying freight. Chandrabhan appellant then arrived there and abused the Station Master and also threatened to beat him. That incident took place on 8-11-1977. The Station Master had then lodged a report with the G. R. P. to the effect that Chandrabhan appellant was a bully and he had apprehensions to his life and property from him. This happening was elicited in the cross-examination of Surya Bhushan Srivastava (P. W. 1). It is thus clear that the relations between Chandrabhan Yadav on one side and Dr. Bhanchandra on the other side were much strained.
3. On 10-5-1978 at about 7 p. m. when Dr. Bhan Chandra was sitting in his hall in which there was a sub-post office as well as his clinic and some patients including Mahngoo (P. W. 2) and Bhikha Ram (P. W. 3) were also sitting on a bench in that hall, Chandrabhan appellant armed with a gun and Ram Sajiwan armed with a country-made pistol along with three strangers, two of whom were armed with country-made pistols and one of whom had a hockey stick in his hand arrived there. On seeing them, Dr. Bhanchandra all of a sudden got up and raised an alarm. Ashok Kumar deceased who was in the adjoining room also arrived there, on hearing the alarm. Both the appellants then fired with their weapons. Ashok Kumar received gun-shot injuries as a result of firing by Chandrabhan and Dr. Bhanchandra received injuries as a result of firing by Ram Sajiwan. He also received an injury with the hockey stick which one of the miscreants had with him. Mehngoo (P. W. 2), Bhikha Ram (P. W. 3) and Khiali (not examined) who were inside the hall, went out raising alarm. Dr. Bhan Chandra grappled with the appellants. Chandrabhan then struck him with the barrel of his gun on his head. At that very time Ram Sajiwan fired another shot with his country-made pistol causing grazing injury on the cheek of Dr. Bhanchandra. All the miscreants then went away. They also fired in the air while they were going away.
An amount of Rs. 296/- was kept on the table where Dr. Bhanchandra was sitting. That money was of the post office. That amount was found missing although there is no definite evidence that the same had been taken away by the miscreants. Many persons of the town then arrived there. Surya Bhushan Srivastava (P. W, 1) also received information that Dr. Bhanchandra and Ashok Kumar had received gun-shot injuries. At that very time 8 Dn. Toofan Express was to arrive. Maitha railway station was not the halting station for that train. The Station Master managed to detain that train. In the meantime, both the injured were brought to the railway station on cots. He took both the injured to Kanpur by that train. In the way he learnt some facts about the occurrence and also the names of the two appellants from Dr. Bhanchandra whenever he was in a state of consciousness and could speak, as both the injured had become unconscious. At Maitha railway station he had no time to enquire about the details of the occurrence. He took both the injured to U. H. M. Hospital, Kanpur where their injuries were examined by Dr. Girish Chandra Gupta (P. W. 5) on the same day, that is, 10-5-1978 at 9.35 p. m. and 9.50 p. m. The injury report of Ashok Kumar is Ext. Ka-2 while the injury report of Dr. Bhanchandra is Ext. Ka-3. The doctor found the following injuries on the person of Ashok Kumar:
1. Abrasion 3/4 cm x 1/2 cm near right angle of mouth.
2. gun-shot wound of entry 1 cm x 3/4 cm x depth under observation, 10 cm below right nipple,
3. 5 abrasions in an area of 13 cm x| 9 cm of right abdomen (upper).
4. Gun-shot wound of entry - 3 in an area of 9 cm x 5.5 cm each (1) size 3 cm x 1 cm x depth under ob.
(2) size 3 cm. x l/2cm x depth under observation.
(3) size 2 cm x 1/2 cm x depth under observation side abdomen and mid line.
5. Abrasion (9) in an area of 13 cm x 6 cm in front of right arm, 3 cm above elbow joint.
6. Lacerated wound 3 cm x 3/4 cm x muscle deep in front of right arm, just above elbow.
4. According to the doctor the injuries were fresh and injuries Nos. 1, 3 and 5 were caused by friction against hard object; injuries Nos. 2 & 4 by firearm and injury No. 6 by blunt object. According to the doctor injuries Nos. 2 and 4 were kept under observation and others were simple in nature.
5. On that very day at about 9.50 p.m. he examined the injuries of Dr. Bhanchandra and found the following injuries.
1. Lacerated wound 1/2 cm x 1/4 cm x bone deep in front of head, 13 cm above soft bridge of nose.
2. Lacerated wound 3/4 cm x l/4 cm x muscle deep on right side of face, 4.5 cm in front of right ear.
3. Linear abrasion 4 cm long on back of right forearm 10.5 cm below elbow joint.
4. Bleeding from both nostrils.
5. Lacerated wound 2.5 cm x 1/2 cm x bone deep on back of head (occipital region).
6. According to the doctor the duration of the injuries was fresh, and injuries Nos. 1, 2 and 5 were caused by blunt object and No. 3 by friction against hard object. According to him, injuries Nos. 1, 2, 4 and 5 were kept under observation. According to him, injury No. 2 could be caused by friction with the pellet, injury No. 1 could be caused by the gun-barrel, injuries Nos. 1, 3 and 5 of the injuries could be caused by friction against hard substance or by fall or by friction with the wall.
7. Suryabhushan Srivastava (P. W. 1) then went to P. S. Kotwali and lodged the first information report at 1.20 a. m. The report was taken down and a case under Section 307, I.P.C. against both the appellants and under Sections 148, 149 and 452 against three unknown persons was registered. It may be stated here that in this F. I. R. there was no mention of any dacoity having been committed. It was a case of simple murder. Suryabhushan Srivastava (P. W. 1) then left for Maitha railway station by early morning passenger train.
8. Papers were sent from P. S. Kotwali to P. S. Sheoli and were received there on 11-5-1978. An entry was made in the G.D. at 10.35 p. m. Investigation of the case was entrusted to S.O. Lallan Ram (P. W. 6).
9. In the meantime information was sent from the hospital to P.S. Kotwali about two persons having been admitted in the hospital with gun-shot injuries. Sri Nand Kumar Misra, Magistrate (P. W. 10) was deputed to record the dying declarations of both the injured persons. He recorded the dying declaration of Ashok Kumar on 11-5-1978 at 9.25 a. m. It is Ext. Ka-20. Dr. N. Hasan (P. W. 11) gave a certificate of fitness that he was in a fit mental condition to give a statement. It is a simple statement to the effect that on the previous evening, he was shot at by Chandrabhan son of Bhura Singh, Maitha station and that five persons had arrived there to commit dacoity at the post office and Maitha railway station. The post office and his residence are in the same building. His father was in the post-office. Those persons tried to grapple with his father. On hearing his voice, he came out. The miscreants then fired at him striking him. In reply to another question, whether he knew those miscreants, he replied that he knew only two of them, namely, Chandrabhan Yadav and Ram Sajiwan, that Chandrabhan was a resident of Maitha railway station while Ram Sajiwan was resident of Etampur. With regard to the remaining miscreants he said that he could identify them on seeing them. Dr. Hasan also proved his bed-head ticket which is to the effect that it was a case of gunshot injury. Dr. Girish Chandra Gupta also stated that 100 milligram of pethidrin was administered to Ashok Kumar in the night and its effect generally lasted for 5-6 hours.
10. The same Magistrate recorded the dying declaration of Dr. Bhanchandra as well on 11-5-1978 at 10.05 a. m. It cannot now be treated as a substantive piece of evidence as he had survived. It could be used only as the previous statement. The defence has made use of this statement for proving that he had stated in the dying declaration that the miscreants had made plans to loot him. He stated that he had made this statement as cash of Rs. 296/- was lying on the table. That amount was of the post office. That amount had been removed by the miscreants.
11. S.O. Lallan Ram (P. W. 6) of P. S. Sheoli took up the investigation of the case after the papers were sent to P. S. Sheoli, The case was registered there on 11-5-1978 at 10.40 p.m. He went to the site, inspected the site and prepared the site-plan (Ext. Ka-15). Earlier he had interrogated Suryabhushan Srivastava (P. W. 1), Mehngoo (P. W. 2) and Bhikha (P. W, 3) along with Rampal and some other witnesses. He found two empty cartridges at the site which he took into his possession. He also found two wads and one pellet. All these articles were handed over to him by Vijai Kumar another son of Dr. Bhanchandra. He also saw a lamp which was said to be burning in the hall at the time of the occurrence, although it was time of sunset. He prepared a memo in respect of the same. He then made a search for the accused persons but they were not available. On 13-5-1978 he came to the hospital. Ashok Kumar was not in a position to speak. He, therefore, did not interrogate him. He also found that Dr. Bhanchandra was sleeping and so he did not interrogate him also. The doctor-in-charge did not allow the patient to be interrogated as he was sleeping. He again made a search for the accused persons but they were not available. On 19-5-1978 he learned that Ashok Kumar had died. He was transferred on 20-5-1978. Investigation was then continued by his successor S.O. Randhir Singh Chauhan (P. W. 7). He interrogated the accused persons in jail on 27-5-1978. He interrogated Dr. Bhanchandra on 19-6-1978. After completing the investigation he submitted the charge-sheet against both the appellants.
12. Ashok Kumar died in the hospital on 16-5-1978 at 9.15 p. m. The usual inquest was prepared on the dead body. The post-mortem examination on the dead body was conducted by Dr. R. Prakash (P. W. 9) on 17-5-1978 at about 3 p. m. He found the following ante-mortem external injuries on the dead body.
1. Abrasion 2/5' x 1' near the right angle of mouth.
2. Stitched wound 2/5' in length on lower part of chest right side 4' below right nipple. On removing the stitches, the wound was abdominal cavity deep,
3. Multiple abrasions in an area of 41/2'x31/4' on right side of abdomen at upper part.
4. Stitched wound 2/5' in length on left side of abdomen l1/2' to the left and above umbilicus. On removing stitches the wound was abdominal cavity deep.
5. Multiple abrasions in an area of 6' x 2/5' on front of right arm 11/4' above right elbow.
6. Lacerated wound 11/4' x 1/2' muscle deep at front of right arm just above right elbow.
7. Surgical wound with corrugated tube 3/4' x 1/2' abdominal cavity at right tank of abdomen.
8. Surgical stitched wound 7' in length on right side of abdomen at right para-medial region,
9. Two abrasions 3/4' x l/2' and 1/2' x 1/2' situated 1/2' apart on left side of abdomen just left of umbilicus.
13. According to the doctor the death was due to shock and haemorrhage on account of gunshot injuries. On internal examination, below injury No. 2 and injury No. 4 the Jhilli was torn and there was 500 c.c clotted blood. There was one stitched wound on anterior and posterior side of stomach 1' x 3/4' respectively with 100 ml. clotted blood. The small intestines had four stitched wounds in small bowels under injury No. 4. The large intestines had two stitched wounds each 3/4' in length under injury No. 2. According to the doctor the gunshot injuries were sufficient in the ordinary course of nature to cause death.
14. Both the appellants were duly tried having been committed to the Court of Session. They denied the prosecution allegations and stated that they were falsely implicated in this case on account of enmity. Both the accused persons stated that the Station Master got them falsely implicated in this case as he was inimical to them. Ram Sajiwan further stated that the Station Master and Sri Kushwaha, M.L.A. were on friendly terms and they got him implicated in this case. He also stated that it was, in fact, a dacoity case. They did not examine any witness in defence. The learned Sessions Judge held them guilty and convicted and sentenced them as stated above. Feeling aggrieved they have filed the appeal.
15. In support of its case, the prosecution has examined Suryabhushan Sri-vastava (P. W. 1) who lodged the first information report. He himself was not an eye-witness. But he got information through Bhan Chand. The prosecution also examined Mehgoo (P. W. 2), Bhikha (P. W. 3) and Dr. Bhanchandra (P. W, 4) as eve-witnesses of the occurrence. Dr. Bhanchandra himself is an injured witness. His presence therefore cannot be doubted. It was, however, argued that he himself had not received gun-shot injuries as alleged by him and as such the occurrence did not take place in the manner as stated by him. Dr. Girish Chandra Gupta (P. W. 5) stated that injury No. 2 could have been caused as a result of the gun-shot and injury No. 3 too could have been caused as a result of grazing with the pellet. It is significant that the bed-head ticket too shows that this was treated as a case of gun-shot injury. The evidence of Mehngoo (P. W. 2) and Bhikha Ram (P. W. 3) has been criticised on the ground that admittedly they were residents of a place which was at a distance of about four furlongs from the place of occurrence and so they could not be present at the time of the occurrence. Both of them were residing on the other side of the station close to the station while the station was at a distance of one hundred paces from the residence of Dr. Bhanchandra. It was also argued that Bhikha (P. W. 3) was admittedly a marginal witness in the sale deed which was executed in favour of the deceased Ashok Kumar and his brother Vijai Kumar and as such he must have been very close to Dr. Bhan Chandra. In his cross-examination, it was also elicited that he was proceeded with under Section 107/117. Cr. P.C. along with Dr. Bhanchandra and others while on the other side there were Chandra-bhan accused and others. But these proceedings were brought after this incident and as such it has no bearing. No other enmity against the accused persons was suggested to him. The only suggestion was that he was friendly with Dr. Bhanchandra and that Dr. Bhanchandra was given a lease of the land when he was the Pradhan. Dr. Bhanchandra got a school also constructed on that land. As regards Mehngoo (P. W. 2), it was argued that he was a member of the land management committee and the land was given to Dr. Bhanchandra for constructing his house and the school by that land management committee. It was not suggested to him that he had any enmity with the accused persons. There is no doubt that Dr. Bhanchandra was an influential person of that locality. He even got a school built for the public. Obviously he had a roaring practice. Mehngoo (P. W. 2) and Bhikha Ram (P. W. 3) could have been present there at the time of the occurrence as they had gone to take medicine. They had no reason to implicate the accused persons falsely simply because they knew Dr, Bhanchandra well.
16. Learned counsel for the appellants laid great stress on the fact. According to Suryabhushan Srivastava (P.W. 1), nobody had given the names of the assailants to him at the station and he learnt their names only from Dr. Bhanchandra in the way. It was argued that in case the witnesses had seen the accused persons they would certainly have given him their names also while giving him information about Dr. Bhanchandra and his son Ashok Kumar being shot at. He did not remember the name of the person who had actually given him the information. At that time it was the time for the parcel Express to arrive. He obviously rang the control room for detaining the parcel train. He himself could not have left the station at that time even though his relations had received gun-shot injuries. He had obviously no time to make detailed enquiries about the occurrence. It was elicited in the cross-examination of Bhikha Ram (P. W. 3) that on that day 8 Dn. Express had come at the station at quarter to eight and they had reached the station along with the injured persons only one and a half or two minutes before. He also stated that after the occurrence he and others had remained at the house of Dr. Bhanchandra for about half an hour and that during this period about 20-25 persons had collected there. Obviously he had no time to talk to the Station Master. Mehngoo (P. W. 2) also stated that he had gone to the station with the injured persons. He did not know if any body had gone there from the station to take the injured persons. Obviously, these two witnesses were not the persons who had gone and informed the Station Master. Some other persons who were there might have informed the Station Master. No adverse inference can, therefore, be drawn against these witnesses that they had not given the names of the assailants to the Station Master who learnt their names for the first time from Dr. Bhanchandra. It was also argued that these witnesses stated that they had no talk with Dr. Bhanchandra after that incident which would mean that the doctor had also not given the names of the assailants. So far as these witnesses are concerned, there was no question of asking Dr. Bhanchandra about the names of the assailants when they themselves were the eye-witnesses of the occurrence.
Suryabhushan Srivastava (P. W. 1) stated that Dr. Bhanchandra too had become unconscious and could speak only when he gained consciousness. It was argued that the injuries were not such that he should have become unconscious. There can be no doubt that he must have been in a state of extreme shock when the occurrence took place all of a sudden in such a manner and his son had received such serious injuries. He too had a feeling that he had also received gun-shot injuries.
17. We, therefore, see no reason to disbelieve the evidence of the witnesses Mehngoo (P.W.2) and Bhikha Ram (P.W. 3) although in a case like this, we are of the opinion that even the evidence of the injured witness Dr. Bhanchandra corroborated by the dying declaration of Ashok Kumar deceased and by the medical evidence is sufficient for purposes of conviction.
18. The dying declaration of Ashok Kumar has been challenged on the ground that it was a tutored statement as Suryabhushan Srivastava (P.W. 1) and Dr. Bhanchandra both were near him throughout the journey and also throughout the night and so they had ample opportunity for tutoring Ashok Kumar who had given the names of their enemies on being tutored. We find that the witnesses and Dr. Bhanchandra were not at all cross-examined on the point as to what was the condition of Ashok Kumar throughout the night and whether he was allowed to be surrounded by his relations and friends throughout the night. The evidence is that he was unconscious. The bed-head ticket -also shows that his condition was serious. Dr. Girish Chandra Gupta (P. W. 5) stated that he was given 100 ml. pethidrin which had its effect for 5-6 hours. Obviously, he must be in a drowsy condition and no one could have been allowed to talk to him during this period. Suryabhushan Srivastava (P. W. 1) left for Maitha station early in the morning. There is thus nothing to show that Ashok Kumar made the dying declaration on being tutored by his father or Suryabhushan Srivastava (P.W. 1). Moreover in the first information report which was lodged at 1.20 a. m. a simple case of murder was given out, while in his dying declaration Ashok Kumar also gave his impression that the miscreants had come to commit dacoity. Even Dr. Bhanchandra got the impression that the miscreants had made a plan to commit dacoity at his place, as was elicited in his cross-examination. Learned counsel for the appellants had argued that, in fact, it was a case of dacoity which was changed into a case of murder; and Suryabhushan Srivastava (P. W. 1) in collusion with Kushwaha M. L. A. was responsible for naming the two accused persons and giving the shape, to be a case of simple murder. If it was really so, the argument of the learned Counsel that the dying declaration was a tutored statement falls to the ground. In case Suryabhushan Srivastava (P. W. 1) was interested in converting the case into a simple case of murder and he had deliberately lodged the first information report, having this point in view, Ashok Kumar would not have made any mention of dacoity in his dying declaration nor Dr. Bhanchandra would have made any mention of dacoity in his statement, if all these statements were actually made after deliberations and consultations and on being tutored by Suryabhushan Srivastava (P. W. 1). This circumstance itself shows that all the three statements were made wholly independently.
19. Dr. Bhanchandra has given a good explanation as to why he considered this to be a case of dacoity as the amount of Rs. 296/- was found missing. Ashok Kumar who was a boy of 16-18 years' of age and who was studying outside might not have been fully aware of the local politics and might have just thought that the object of the miscreants could be only to commit dacoity. But there can be no doubt that the real intention of the miscreants was to wreak vengeance on Dr. Bhanchandra. It was for this reason that they at once started shooting at Dr. Bhanchandra and his son. In case the miscreants had gone there with the main object of committing dacoity, they could not have left that place so soon after inflicting such serious injuries on Ashok Kumar and Dr. Bhanchandra. They would have tried to ransack the entire post-office and the house of Dr. Bhanchandra. It if also in evidence that Dr. Bhanchandra had a licenced gun. They might have tried to take away that gun after shooting both of them. It has also come in evidence that Dr. Bhanchandra was a man of some means. The miscreants, therefore, would have made some attempt to enter the residence and ransack the same when they were so well-armed. After considering all these circumstances, we are satisfied that the appellants along with their associates had gone there mainly with the object of committing the murder of Dr. Bhanchandra and for wreaking vengeance on him and not for committing dacoity. It is a different matter that some of the miscreants might have taken away the money also which was found lying on the table. It is, therefore, not such a case in which it can be said that actually a dacoity was committed at the house of Dr Bhanchandra and Ashok Kumar received fatal injuries during the commission of that dacoity. But out of enmity the names of two known persons were also introduced, who would ordinarily not go to commit dacoity without taking care of concealing their faces. Even in that case there is no such hard and fast rule that known Dersons would not go to commit dacoity without taking care of concealing their faces. It depends on the temperament of a person. There can be hardened criminals. When a known person is desperate and very much inimical, he can go to commit dacoity without taking the usual precaution of covering his face. It was so held by Hon. the Supreme Court in the case of Siyaram v. State of Bihar 1973 UJ (SC) 210 : 1973 Cri LJ 155.
20. After considering the entire evidence on the record and the circumstances of the case, we are satisfied that the occurrence did take place in the manner as stated by the prosecution. The only point that remains to be considered is for which offence each accused can be held liable. So far Chandrabhan is concerned, it is clearly stated by Dr, Bhanchandra that the shot fired by him struck Ashok Kumar. That shot proved fatal. From the dying declaration of Ashok Kumar, it is clear that he received injuries from the shots fired by Chandrabhan. Chandrabhan appellant is, therefore, liable for his individual act of killing Ashok Kumar. So far Ram Sajiwan is concerned, there is nothing to show that he shared the common intention of committing the murder of Ashok Kumar. He had come along with Chandrabhan and other associates with the common intention of committing the murder of Dr. Bhanchandra. He also fired shots causing injuries to Dr. Bhanchandra. He can, therefore, be liable under Section 307/149 I.P.C.
21. Learned counsel for the complainant, however, argued that the liability of Ram Sajiwan will be under the second part of Section 149 I.P.C. as it can be presumed that the members of the unlawful assembly knew that murder of other persons who intervened too was likely to be caused in prosecution of the