P. Jaganmohan Reddy, J.
1. These two appeals are by special leave against the judgment and order of the High Court of Allahabad confirming the death sentence of Madan Patel under Section 302 I.P.C. but setting aside his con under Section 148 and also acquitting Nanak Chand of his conviction under Section 148 but confirming his conviction under weighed at the time of granting special leave was the averment that the orders of the Bench of the High Court of Allahabad having granted three applications by the accused for additional evidence by summoning and examining certain witnesses were completely ignored by the next Bench, that finally heard and disposed of the appeals; otherwise there was a concurrent finding by both the Sessions Judge Agra and the High Court which would not have entitled the appellants for the giant of special leave. But Mr. Nurddin Ahmed learned Counsel for Madan Patel and Mr. S.P. Sinha for the appellant Nanak Chand have however urged before us that the grant of special leave would entitle them to urge that the conviction cannot be sustained on the evidence. Before we deal with these points we may state the case against the accused briefly. It appears that on April 7, 1967 a meeting of the Executive Committee of Anterang Sabha of the Arya Samaj was to take place at 8.30 p.m. in the Navin Hall in the Free Gunj Mohalla in the City of Agra There had been an election in February 1967 at which Anand Sharma, Nanak Chand, Satyanarayan and Ramautar, four of the accused amongst others; did not participate, Chandra Dutt Tewari, the secretary of the Arya Pratinidhi Sabha of Lucknow intervened in March 1967 and reconstituted the Executive Committee making Anand Sharma the Vice President, Nanak Chand a member and Ram Autar, the auditor. Certain persons who had been elected including the deceased Sureshchand Bansal, Rajendra Prasad Singh, P.W. 3 and Puranchand Bharadwaj, P.W. 4 were excluded from reconstituted committee. Thereafter Dharampal Vidyarthi, P.W. 12 made representations to Chandra Dalt Tewari, P.W. 9 to, co-opt four more member which request was sanctioned. P.W. 12 then called a meeting for 7th April to concept the members and circulated an agenda was circulated accused 2 and 3 objected to the co-option. Rajendra Parshad Singhal, p w, 3, Pooran Chand Bharadwaj, P.W. 4 and Bhagwan Swarup, P.W. 1 were the special invitees to this meeting. On the date of the meeting all the six accused are alleged to have asserted that the meeting will not be held while other present asserted equally that they will hold the meeting. This led to excitement and confrontation between the rival factions. Among the persons who were remonstrating with the accused on the brick platform outside the hall that the meeting will be held was P.W. 1 the course of this altercation it is alleged that accused 6, Kedar Nath and Satya Narain, accused 5, seized Suresh Chandra Bansal, deceased, by the arms while Madan Patel drew out a knife and plunged it into his chest Similarly, accused 2, Anand Sharma and accused 1, Ram Awtar Sharma, held Bhagwan Swarup P.W. 1 while Nanak Chand Sharma, accused 3, took out a knife and tried to stab him in the chest but he twisted round with the result that the blow struck the upper part of his arm, piercing it right through. Thereafter all the accused ran away. P.W. 1 was taken to the emergency ward of the S.N. Hospital for treatment and his brother Anand Swaroop was picked up from his shop on the way He was medically examined at 9 10 p.m. Suresh Chandra Bansal who had collapsed on the ground was taken off to the District Hospital by Rajendra Prasad, P.W. 3 but by the time he reached there at 9.40 p.m. he was dead. It may not be out of place here to say that when the factions were altercating at the time when the meeting was to be held P.W. 12 immediately informed the flying squad who seem to have arrived at the spot. A report about the incident was, it is alleged, dictated by Bhagwat Swaroop in the S N. Hospital to Suresh Chander Gupta who however has not been examined. The postmortem report of the deceased is Ex-Ka-22 and the injury report is Ex-Ka-21. It was revealed in the postmortem report that the deceased died of shock and haemorrhage as a result of stab would 11/2' x1/2' on the front of the chest which pierced his left lung and heart. Bhagwat Swarup's injuries were penetrating wounds on the posterior and lateral aspect of the upper portion of the left arm measuring 2' x1' x 5' deep communicating with an exit wound on the medical side of the arm measuring 1/2' x1/2' together with another wound measuring 1/2' x1/2' x1/2' on the wall of the chest in the left axilla. According to the medical evidence, all the three wounds were caused by a single knife which pierced right through the arm and then penetrated the chest wall.
2. The defence was a denial and it was particularly urged before us that accused 4 was not even a member of the Arya Samaj and could not have been present there and therefore the case was a foisted one. The sessions Judge while convicting accused 1, 2, 5, and 6 under Section 147 I.P.C. Sentenced them to one year's rigorous imprisonment each but acquitted them of the charges under Section 302/149 and 307/149 I.P.C. Accused 4 was convicted under Section 302 read with Section 148 and he was awarded the sentence of death under Section 302 while accused No. 3 was convicted under Section 148 and 307 and was awarded five years' rigorous imprisonment for the latter offence. In appeal, as we have already observed, accused 3 and 4 were acquitted of offences under Section 148 while the death sentence on accused 4 Madan Patel as well as the sentence of imprisonment on accused 3, Nanak Chand, were confirmed. The other accused who were convicted under Section 148 were acquitted and the State appeal against their acquittal under Section 302/149 and 307-149 was dismissed. The appeal to the High Court was heard in part on May 21,. 1968 but without any further hearing on the day of following, it was directed to be heard afresh on the re-opening of the courts after the vacation. It appears that on the 23rd May before the some Division Bench three applications were prayed that permission be given to the appellant to take photographs of the different signatures (admitted and disputed) of Suresh Chander Bansal, deceased, on the agenda register Ex. Ka -3 and the signatures be sent to an expert to find out their genuineness. On this the Court gave permission to the applicant to take photographs of the signatures of the deceased on the Agenda Register as prayed for but the admissibility of any photographs taken or report obtained, it attempted to be filed in court, was to be considered by the court at the time of filing. By the second application a prayer, was made that summons for examination of(1) Suresh Chander Gupta, scribe of the report dated 7th April 1967 (2) Dr. S.S. Agarwal, P.W. 13 along with the Bed-Head-Ticket, Medicolegal Register and memo book of the relevant period, (3) Investigating Officers Ram Singh and Tej Pal Singh along with the General Diary of Police station of Hariparwat, Agra from 7-4-67 to 9-4-67 and Police Station Kotwali, Agra from 7-4-67 to 8-4-67; (4) Dr. R.R. Dixit, Medical Officer, S.N. Hospital Alleged to have granted a certificate in respect of the condition of Bhagwat Swarup Arya at the time of recording of the dying declaration and (5) Sri S. Prasad, the Magistrate who recorded the said dying declaration. On this application the court observed that Suresh Chand Gupta's evidence would not be helpful but that the other witnesses named in the application might be summoned through the District Magistrate Agra who was to inform the court when they i.e. the witnesses, would be able to attend after 8th July, 1969 and a date shall be fixed for examination of the witnesses in the case after the receipt of the report. The third application was another attempt to get Suresh Chand Gupta summoned as a defence witness for explaining a portion of the report scribed by him. On this the court ordered that the witness might be summond but the necessity and propriety of examining him would be considered by the bench at the time of hearing.
3. It is the case of the learned advocates for the appellants that when the matter came up before Broome and Parekh, JJ. in July 1968 the previous orders were ignored and no witnesses were summoned, nor were they examined as a result of which, it is strenuously con-tended, the accused were prejudice d. It may be stated that when the Bench of the High Court at Allahabad rejected the special leave application for leave to appeal they observed in respect of this very allegation that when the case came up before them on 8th July 1968 they had directed inter alia that 'the question of whether any witnesses are to be examined in this Court will be decided afresh after arguments have been heard'. But at the time of arguments before them learned Counsel appearing for the appellants did not choose to press for the calling and examination of witnesses in question. This statement of the Bench was contested before this Court at the time of the special leave petition through an affidavit of P.C. Chaturvedi of the Allahabad High Court who appeared in that case. It would appear from this affidavit that the deponent had not stated anything in respect of the second and the third applications, namely, for recording additional evidence and summoning magistrate etc. and the application to summon Suresh Chander as a defence witness. The deponant confined himself only to the first application for the non-summoning of the handwriting expert to compare the signatures of Suresh Chander Bansai on the Agenda Register. There is, in our view; justification for the contention of the learned advocate for the State, Shri Rana, that there is no discrepancy between the observations of the learned judges and the affidavit of Chaturvedi. The Bench however in so far as the grievance relating to the non-summoning of the defence witnesses which is the subject matter of his second application, in their judgment remarked that having regard to the finding that the evidence established beyond doubt the presence of the two witnesses it renders it unnecessary for them to go into the next question, whether the entry in the agenda (Ex-KA-9) showing Rajendra Prasad Singhal and Puran Chand Bharadwaj as special invitees was a forged interpolation or not. There is nothing to show from the record that the learned advocate had pressed his second and third applications for adducing additional evidence of the Magistrate etc. and Suresh Chand, the scribe of the F.I.R. No doubt after the special leave application was dismissed by the High Court, an application was made on 16th September 1968 for ascertaining whether any order has been passed on the three applications dated May 23, 1968 after the heading of the appeal on July 19, 1968 as they were pressed after the arguments to which the reply was 'No'. The question was a rolled up one and it is difficult to hold that the negative reply covered both. In our view, it is only covered by the first part of the question, namely, whether any order had been passed on the three applications after the hearing of the appeal on 19th July, 1968. There was no need for any further order because if it was pressed, the Bench would have considered it having regard to the previous order on the applications. In our view no prejudice has been caused to the accused and it was unnecessary to go into the question of the forged insertion in the F.I.R. of the two eye witnesses as it had been held on the other evidence that they were present. In the above-mentioned application by Mr. Chaturvedi to question No. 2 'whether there is any indication or order by the Bench which decided the appeals regarding the photograph of the signature of the deceased, Suresh Chandra Bansal and the Expert's opinion which were given by Sri P.C. Chaturvedi, counsel for the appellant on 17th July 1968 to the Bench hearing the appeal for perusal and necessary orders' the answer was that after perusal the Court returned them to Sri P.C. Chaturvedi, advocate. This clearly shows that the photostatic copies of the alleged forged signatures were in fact examined by the Court but they might not have considered it necessary to examine the expert. In fact the admissibility of this evidence was clearly reserved by the Court on the previous occasion and if the advocate has insisted, we are sure that the learned Judges would have given a finding thereon.
4. Now there remains the other question whether the convections are sustainable on the evidence. The case of the accused is that one Dau Dayal who had previously injured the deceased Suresh Chander Bansal and was on bail was seen near about the place of the incident about 150 paces from the scene of the occurrence and it is he who could have injured the deceased as he had enmity with him. P.W. 1 no doubt, admitted that Suresh Chander Bansal had pointed out Dau Dayal who was standing at a distance of 150 paces but he denied that he had seen him inside the Arya Samaj at the time of the incident. This defence, in our view, is ared herring drawn across the case to create a doubt but there is no evidence to show that this man was actually present at the place of the occurrence inside the Arya Samaj Hall or near the Chabutra. We have been taken through the evidence of the eye witnesses P W.s. 1, 3 and 4 and in the light of the comments made by the learned advocates but find that the conclusion drawn by the trial court and the appeal court on the evidence is fully justified. No doubt accused 4 was not a member of the Arya Samaj but he was supporting his brothers in their dispute. The trial court observed that accused 4 was a bully. This conclusion was drawn on the evidence of Dharam Pal Vidyarthi, P.W. 12 who said that on 7th April 1967 at 2-45 p.m. Anand Sharma, accused 2, had telephoned to him and asked him to desist from effecting co-option. The witness replied that the sanction of the secretary of the Arya Pratinidhi Sabha, U P was given and for this reason it was necessary to effect co-option in the meeting. Accused 2 however said that it was not right and that he may have a talk with his brother Madan Patel who then spoke to him. Madan Patel said, 'Do not effect co-option; otherwise I shall come at your Gaddi (seat) and beat you with shoes'. To this threat the witness did not give any reply and put down the receiver. Thereafter he went to the place of Babu Lal Singhal whose shop is near his gaddi. Babu Lal Singhal and he had to attend the meeting of the National Chamber of Commerce and Industries at Balanganj which was to start at 4 p.m. Seeing the witness looking and, Babu Lal Singhal asked him what the matter was and why he was looking sad. The witness told him that Madan Patel had threatened to beat him with shoes. Babu Lal asked him to inform the S.S.P. on telephone as a precautionary measure. Babu Lal Singhal confirm this statement and further states that P.W. 12 had told him on his advice that he should inform the S.S.P. that it is the habit of Madan Patel to give abuses in this manner. He further said, 'Let us attend the meeting of the chamber. We will consider it lateron'. Babu Lal Singhal then said that they would proceed on foot and they would come across Anand Sharma and Madan Patel and if they met them he would talk with Madan that this was not proper. When they reached the house of Anand Sharma and Madan Patel they found that, they were not in the house. In respect of this statement there was hardly any cross-examination except to elicit that there is a telephone in his gadi and he could have used the same to contact Madan Patel. In our view, this evidence justifices the trial Judge's conclusion that Madan Patel was an aggressive sort of person who would not hesitate to give threats of the kind. In this case his brothers were deeply involved in the controversy at out the cooption and therefore it is not unnatural, having regard to the threats administered by Madan Patel earlier, that he was present at the Arya Samaj Hall as spoken to be the eye witnesses.
5. It is again contended that in dying declaration Ex-KS-1, Bhagwat Swaroop. P.W. 1 had stated that Narain Sharma, Madan Patel and Kedar had stabbed him. The comment of the learned advocate Shri Nuruddin Ahmed was that the High Court was not justified in explaining away the statement by saying that P.W. 1 was not in a fully conscious state or that he may have been given sedatives when in fact the doctor has certified that he was conscious. P.W. 1 in cross-examination stated that he was becoming unconscious and did not know as to how the doctor gave a certificate that he was fully conscious. He asserted that Satya Narain and Kedar did not knife him and did not know how the statement that Satya Narain Sharma, Madan Patel and Kedar gave him knife blows came to be written While this statement can be used to contradict the witnesses as to the veracity, it cannot be used as a substantive evidence.
6. On the next contention that in the dying declaration he had stated that a brick was thrown on him, the explanation of the witness was that that was not his case. The explanation of the witness was that Suresh Bansal received a knife blow on his chest and fell clown on the chabutra and became unconscious. It perhaps this statement that made the learned judges say that the injury was given on a brick chabutra. Whatever the discrepancy, as we have said the dying declaration is not substantive evidence and even if there are certain contradictions the version of this witness viewed as a whole cannot be declared to be unreliable. P.W. 13 Dr. Agarwal in his evidence clearly stated that when P.W. 1 was brought to the hospital by Anand Swaroop, he had stated to him that Nanak Chand, teacher of Agarwal Inter College, Duliagunj had stabbed him with a knife half an hour before. This statement further corroborates P.W. 1 as to the person who stabbed him.
7. It was again contended that Raghuber Prasad who was one of the eye witnesses was not examined by learned advocate for the State pointed out that Raghubar Prasad was present in court but had refused to give evidence because he was threatened. The letter written by him was shown to us in which he said that as he was threatened he could not tell the truth and if he was asked to give evidence he would not support the prosecution case. The prosecution had to give him up and since the defence also did not want to examine him he was discharged. Therefore the comment that he was not examined would be justified. The witness was an advocate and it was rather strange that he had taken up this attitude.
8. From the evidence we have not the least doubt that Madan Patel had given the stab wound on the deceased as alleged and Nanak Chand on P.W. 1. The entire incident took place within a matter of minutes and not more than one blow was given by each of these accused. We have therefore no hesitation in confirming the convictions. But so far as sentence of death on Madan Patel is concerted, though we do not ordinarily interfere with the sentence awarded by the trial court, in this case we do not think there are aggravating circumstances to justify the extreme penalty and in that view of the matter, alter the sentence of madan Patel from death to life imprisonment Criminal Appeal No. 45 of 1969 is allowed to that extent. Criminal Appeal No. 44 of 1969 is dismissed.