Malik Sharief-ud-Din, J.
1. One Mohan Lal, brother of the appellant and the appellant were tried by Additional Sessions Judge Delhi for an offence under Section 302 aided with Section 34 IPC and by his order dated 30th March 1982 he convicted the appellant and acquitted Mohan Lal. By his separate order dated 31-3-1982 the appellant was sentenced to imprisonment for life.
2. The appellant and his brother Mohan Lal according to prosecution were dealing in small general merchandise goods and used to spread their show case containing goods in front of the shop of one Kanheya Watch Company near Katra Nawab, Chandni Chowk, Delhi after 7 p.m. which was the closing hour of shops in Chandni Chowk. The deceased Pawan Kumar and the accused were residing in the same locality and it is said that the deceased and Mohan Lal were good acquaintances. The deceased Pawan Kumar was a broker in the Sarafa Market Chandni Chowk. Mohan Lal accused and the deceased used to borrow money from each other occasionally. On 4-10-1980 at about 7.30 p.m. deceased Pawan Kumar and one Shri Kishan, PW 2 were returning from the Sarafa Market and on their way to homes when they reached the place where Mohan Lal and the appellant used to spread their show case, the deceased demand Rs. 10/- from Mohan Lal as he wanted to go to see a movie that night. Mohan Lal, however, did not oblige and refused to pay on the pretext that he had not even displayed his goods for sale as yet. The deceased is said to have insisted and in that process they exchanged hot words and abuses and started grappling with each other. Ashok Kumar PW 1, brother of the deceased in the meantime had come there to inform the deceased to proceed to hospital where their father was admitted. He tried to intervene but Mohan Lal called his brother, Raju appellant saying 'bat sun'. On this Raju appellant rushed to the place with a small knife and inflicted an injury with that knife in the abdomen of Pawan Kumar. Raju appellant then escaped and Ashok Kumar PW 1 gave a chase but Raju disappeared in some street of Maliwara. On his return Ashok Kumar PW 1 learnt that his brother Pawan Kumar deceased and Mohan Lal have been taken to police station Kotwali. He goes to the police station where he finds Mohan Lal and was informed about Pawan Kumar having been removed to J.P.N. Hospital.
3. The prosecution case further is that at the time of incident constable Ram Sarup PW 4, who was on a surveillance duty in that area at that time, was standing nearby and he also witnessed the incident and say Raju appellant inflicting injury with a knife in the abdomen of the deceased. He is said to have overpowered Mohan Lal and on his way to the police station accompanied by Mohan Lal and the deceased, he met constable Satpal Singh PW 5 and asked him to take the deceased to the hospital. He himself along with Mohan Lal went to police station Kotwali. He had also seen one person trying to catch hold of the appellant and running after him. Satpal Singh PW 5 got Pawan Kumar deceased admitted in the hospital at 8 p.m. where he died on the operation table on the same evening at 9.30 p.m.
4. On their way to hospital, it is said that Pawan Kumar made a dying declaration about the circumstances in which the injury was inflicted on his person and named Raju as the one who had stabbed him. PW 8 Raghbir Singh constable immediately on arrival of the deceased at the hospital sent a telephonic message to the police station about the admission of Pawan Kumar in J.P.N. Hospital as he was then posted as duty constable in the hospital. The D.D. report No. 25-A at 8.20 p.m. was recorded by R.S. Yadav PW 10 at the police station in pursuance of which Shiv Raj Singh PW 15 went to the hospital where he recorded the statement of Ashok Kumar Ex. PW 1/A which formed the basis of FIR. He further procured MLC but since the patient was declared unfit for making the statement he could not enquire from Pawan Kumar. The matter was investigated by Shiv Raj singh who on his return from the hospital went to the place of incident and apart from fulfillling the usual and requisite formalities of seizure of blood etc. he also seized a pant of constable Ram Sarup PW 4 which was stained with blood of Pawan Kumar which he was taking him and Mohan Lal from the scene of incident.
5. The postmortem of the body of the deceased was conducted by Dr. B.N. Reddy PW 6 on 5-10-1980 at 12 noon and he found the following injury on the person of the deceased:
'1. An incised punctured stitched wound of 2.7 cm placed obliquely vertical on the right side upper front of abdomen just below the coastal margin in the right mid clavicle line. The lower inner angle was 9 cm from the mid line and 112 cm from the right heel. The upper outer angle was 10 cm. from the mid line. On removal of the sutures wound was grapping and measured 2.7 cm x 0.5 cm. Both margins were clear cut. The upper outer angle was wedge shaped and lower inner angle was acutely cut. The wound was abdominal cavity deep.'
He opined that injury was caused by pointed single edge penetrating weapon and it was sufficient to cause death in the ordinary course of nature. Death according to him was due to haemorrhage and shock as a result of stab injury in the abdomen and the injury was ante-mortem.
6. This feature of the case, however, is not in dispute, as admittedly the deceased breathed his last due to this injury.
7. Without reference to the other evidence which is mostly of formal nature we may at once state that the entire case depends upon the testimony of Ashok Kumar PW 1, Shri Kishan PW 2, Constable Ram Sarup PW 4 who were examined as eye witnesses and also on the testimony of constable Satpal Singh PW 5 before whom the deceased is stated to have made a dying declaration.
8. Learned counsel for the appellant Mr. B.B. Lal was at pains to persuade us to disbelieve the testimony of PW 1 Ashok Kumar and Constable Ram Sarup PW 4 on the ground that their presence at the scene of incident at the time of incident cannot be believed. The reason he has advanced is that even though both these PWs had gone to the police station immediately after the incident, they have not disclosed the facts as FIR came to be recorded late at 9.30 p.m. only after PW 15 Shiv Raj Singh investigating officer went to the hospital and recorded statement Ex. PW 1/A of Ashok Kumar PW 1, Mr. Lal has invited our attention to the testimony of PW 4 constable Ram Sarup that immediately after handing over the inured for removal to hospital to PW 5 constable Satpal Singh he took Mohan Lal to the police station he has also invited our attention to the testimony of Ashok Kumar PW 1 stating that after giving a chase to the appellant he returned to the scene of incident but on learning that the injured has been taken to police station Kotwali he sent to police station where he saw Mohan Lal and learnt that injured has been removed to hospital. Mr. Lal believes that this testimony goes to show that even though immediately after the incident both these witnesses have been to police station they have not disclosed the circumstances leading to the commission of this offence and thereforee they should not be believed. We are of the view that in the light of over-all circumstances of this case we cannot give much importance to this contention. Ashok Kumar PW 1 would not normally and ordinarily have stopped at police station as he naturally must have been keen to reach hospital to find out the condition of his injured brother. It is difficult to believe that constable Ram Sarup PW 4 has not disclosed that events leading to the commission of this offence but unfortunately it appears that FIR was not registered on the information he had given and the SHO in his wisdom somehow thought to register it otherwise. This is really unfortunate. We are not sitting to enquire into the incompetence and misconduct of the police but we are dealing with a criminal case in which a person has lost his valuable life and everything in a case of this nature would depend upon the fact as to whether eye witness account is credible and trustworthy or not.
9. Mr. Lal further contended that constable Ram Sarup PW 4 could not be present at the scene of incident as his duty admittedly was at 'Ghant Ghar'. We, however, do accept the contention because even Shri Kishan PW 2, who has not supported the prosecution in respect of the most material particular such as who inflicted injury, has admitted that one constable in plain clothes was present and he removed the injured and Mohan Lal to police station. Apart from that fact there is clinching evidence about the presence of constable Ram Sarup PW 4 at the scene of incident in as much as the pant seized from constable Ram Sarup was found stained with blood of group 'AB' which is that of the deceased. These stains of blood he got only while he was taking the deceased and Mohan Lal to the police station.
10. Ashok Kumar PW 1 is the brother of the deceased and indeed he will be the last person to screen the real culprit and involve a person like Mohan Lal with whom his deceased brother was quite friendly. He has given satisfactory Explanationn about his presence while saying that he had come to inform his deceased brother to go to hospital to see his ailing father where he was admitted Constable Ram Sarup PW 4 lends support to his version by saying that he did notice one person chasing the appellant when he was running away from the scene of the commission of the offence. Ashok Kumar PW 1's presence at the scene of incident is further strengthened by the fact that immediately after the incident he went to the police station and thereafter to hospital where his statement was recorded by PW 15 SI Shiv Raj Singh. Both PW 1 and PW 4 have lent complete support to the prosecution case and have fully described the manner in which the incident took place. Unfortunately, one of the witnesses Shri Kishan PW 2 has only partly supported the prosecution case in as much as he did notice Mohan Lal and deceased Pawan Kumar exchanging hot words and abuses and grappling with each other but he refused to subscribe to the fact that on the call of Mohan Lal, Raju came and inflicted the injury on the person of the deceased with knife. He, however, admits that when he lifted Pawan Kumar and separated him from Mohan Lal he had noticed the deceased bleeding from abdomen and also found his clothes soaked with blood. He has also admitted that the clothes of constable Ram Sarup PW 4 had got blood stains when he lifted Pawan Kumar. The fact that he has not lent complete support to the prosecution case is understandable because it would appear from his evidence that an application signed by him had gone to police station on 9-10-1980 in which he (SIC) expressed his apprehension of danger to his person at the hands of the accused if he deposed against them. It is a different matter that he has said that he has never made this application but the very fact that it bears his signature goes to show that he has withheld the truth.
11. We find no reason as to why Ashok Kumar PW 1 constable Ram Sarup PW 4 or even constable Satpal Singh PW 5 should falsely implied the accused. It would be seen that none of the aforesaid two eye witnesses have assigned any serious role to Mohan Lal who has been acquitted. The mere fact that one of the witnesses Ram Sarup PW 4 is a police official (SIC) the fact that PW 1 is the brother of the deceased by itself is no ground (SIC) discard their testimony. It would be seen that even Mohan Lal, who has been acquitted, in his statement under Section 313 CrPC has admitted that at the scene and time of incident did grapple with deceased Pawan Kumar when the latter insisted to have Rs. 10/- from him. From all that goes before us we find that both these eye witnesses PW 1 and PW 4 are (SIC) witnesses. The fact that Shri Kishan PW 2 has partly supported the prosecution case makes no difference.
12. Apart from this, one of the most important pieces of evidence the testimony tendered by Satpal Singh PW 5. Indeed he too is a (SIC) official but considering the fact that he has no enmity with the appellant (SIC) considering the circumstances of the case and also the fact that he happened to remove the deceased to the hospital, there is no reason to say that the testimony should be rejected. On his way to the hospital the deceased stated to have made a dying declaration before him and told him that Pawan Kumar has stabbed him with a knife. The statement of this witness as (SIC) that of other witnesses was recorded immediately after the incident and he (SIC) lost no time to divulge this important fact. The fact that this declaration was made by the deceased to the Constable Satpal PW 5 immediately after the incident and at a time when he was in a fit condition goes to show that (SIC) is clinching evidence against the appellant. We are, thereforee, of the view that the prosecution has sufficiently established its case.
13. Mr. Lal has, however, in the alternative urged before us to considering all the circumstances of this case this can hardly be characterized to be an offence under Section 302 IPC and it is at the most an offence under Section 304 Part II. We have given our careful and anxious consideration to the contention of Mr. Lal and we find ourselves in complete agreement with him. It would be noticed that the appellant or for that matter off act Mohan Lal who has been acquitted had no enmity with the deceased. Appellant no motive to commit this crime. They were rather friendly with the deceased. The appellant was near-about 18 years of age on the day of commission offence. The knife used in the commission of offence is small one (SIC) ordinarily people keep on their person for day to day use. There (SIC) grappling between Mohan Lal and the deceased in which Mohan Lal called brother appellant who was standing nearby asking him 'bat sun' and in (SIC) of madness he suddenly inflicted the blow with small knife which unfortunately fell on the fatal part of the body and resulted in the death of Pawan Kumar. From all accounts it cannot be said that there was any premeditation or there was any intention to cause this type of injury. Under these circumstances the appellant can at the most be said to be possessed of knowledge that his action might cause death of the deceased. The case as such does not attract the provisions of Section 302 IPC and is covered squarely by Section 304 Part II IPC. We accordingly acquit the appellant of the offence under Section 302 IPC and convict him under Section 304 Part II. The appellant is sentenced to undergo various imprisonment for five years. The appeal is disposed of accordingly.