Israr and Another (In Jail) vs State of U.P.

U.S. Tripathi, J.—This appeal has been directed against the judgment and order dated 22.1.1981 passed by 5th Additional Sessions Judge, Muzaffarnagar in Sessions Trial No. 161 of 1980 convicting Appellants Afzal alias Patel and Israr u/s 302 read with 34, I.P.C. and sentencing each of them to undergo imprisonment for life.

The prosecution story briefly stated was as under:

Zamil Ahmad deceased had his grocery shop in mohalla Gali Darjiyan, Police Station, Kotwali, Muzaffarnagar city. Appellant Afzal had forcibly demanded money from Kalloo younger brother of Zamil Ahmad deceased, Kalloo had told this fact to Zamil Ahmad deceased and when he complained to Appellant Afzal he threatened to kill him.

On the night of 4.10.1979 at about 9.30 p.m. Zamil Ahmad deceased after closing his shop was returning to his house in mohalla Khala Bazar along with Imran (P.W. 2). When he reached in front of Masjid Kumharan near mohalla Khala Bazar Appellant Afzal alias Patel and his uncle Israr met him in Gullar wali Gali and they started saying that he had got them arrested and no body would save them. Saying it Israr Appellant caught hold Zamil from his back and Afzal Appellant inflicted knife blows on him. Zamil Ahmad raised alarm and hearing his alarm Noor Ilahi (P.W. 3), Iqbal (P.W. 4) and Sayeed (P.W. 5) rushed to the spot and saw the occurrence. On the challenge given by the witnesses the Appellants ran away flashing knife. Imran (P.W. 2) took Zamil Ahmad to District Hospital, Muzaffarnagar, where his injuries were examined by Dr. R. K. Tandon who found three incised wounds on his person and prepared injury report (Ext. Ka-17).

After admitting Zamil Ahmad in District Hospital, Muzaffarnagar, Imran (P.W. 2) prepared written report (Ext. Ka-2) and came to police station Kotwali where he lodged written report at 11.15 p.m. On the basis of written report chik F.I.R. (Ext. Ka-9) was prepared by Constable Rajendra Singh (P.W. 7), who made an endorsement of the same at G.D. report (Ext. Ka-10) and registered a case against the Appellants u/s 324, I.P.C. Imran (P.W. 2) also deposited blood stained bush-shirt of Zamil Ahmad which was taken into possession by Constable Rajendra Singh vide recovery memo (Ext. Ka-3).

The investigation of the case was taken by Sri Fateh Singh, Investigating Officer (P.W. 8). He interrogated Constable Rajendra Singh (P.W. 7) and arrested the Appellants. On receipt of injury report the case was altered u/s 307, I.P.C. on 6.10.1979.

The dying declaration of Zamil Ahmad deceased was recorded on 7.10.1979 by Sri Jag Prasad, Executive Magistrate, Muzaffarnagar (C.W. 1). The condition of Zamil Ahmad deceased was serious and therefore, on the night of 8/9.10.1979 he was shifted to All India Institute of Medical Sciences, New Delhi, where he died on the night of 9/10.10.1979 at 11.15 p.m. Information regarding his death was received at police station, Vijay Nagar, New Delhi. S.I. Ram Niwas (P.W. 6) of police station Vijay Nagar, New Delhi came to All India Institute of Medical Sciences, New Delhi, where he conducted inquest of dead body of the deceased and prepared inquest report (Ext. Ka-5) and other relevant papers. He sealed the dead body of the deceased and sent the same for post-mortem.

Autopsy on the dead body of the deceased was conducted at Delhi on 10.10.1979 by Dr. P. C. Dixit (P.W. 1) who found two stitched wounds and one incised wound as ante-mortem injury and cause of death due to peritonitis and broncho pneumonia. He prepared post-mortem report (Ext. Ka-1). On receipt of post-mortem report the case was altered u/s 302, I.P.C.

The Investigating Officer, Fateh Singh (P.W. 8) interrogated witnesses on 28.3.1980. He inspected place of occurrence and prepared site plan (Ext. Ka-13) and on completion of remaining investigation submitted charge-sheet against the Appellants.

Cognizance of the case was taken by the Magistrate who committed the case to the Court of Sessions, where the Appellants were tried.

Both the Appellants Israr and Afzal were charged with the offence punishable u/s 302 read with Section 34, I.P.C.

The Appellants pleaded not guilty. Appellant Israr contended that Noor Ilahi (P.W. 3) and Yunus had caused injuries to Afzal on 15.5.1979. Afzal was his real nephew. Noor Ilahi (P.W. 3) was witness against Afzal in a case u/s 25, Arms Act. They had got challaned him in the said case and became witnesses. Appellant Afzal contended that Iqbal (P.W. 4) was friend of Noor Ilahi (P.W. 3) and had lodged report against him.

The prosecution in support of its case examined Dr. P. C. Dixit (P.W. 1), Imran (P.W. 2), Noor Ilahi (P.W. 3), Iqbal (P.W. 4), Sayeed (P.W. 5), S.I. Ram Niwas (P.W. 6), Constable Rajendra Singh (P.W. 7) and Fateh Singh, Investigating Officer (P.W. 8). Jag Prasad, Executive Magistrate (C.W. 1) and Dr. T. N. Mathur (C.W. 2) were examined as court witnesses, Imran (P.W. 2), Noor Ilahi (P.W. 3), Iqbal (P.W. 4) and Sayeed (P.W. 5) were witnesses of fact while evidence of remaining witnesses was formal in nature.

The Appellant examined Rahmat Ilahi (D.W. 1) in their defence.

The learned Sessions Judge on considering evidence of prosecution held that the prosecution successfully proved its case against the accused persons and both had committed murder of Zamil Ahmad deceased in furtherance of their common intention. With these findings he convicted and sentenced them as mentioned above.

Aggrieved with their above conviction and sentence the Appellants have preferred this appeal.

We have heard Sri V. P. Srivastava learned Counsel for the Appellants and learned A.G.A. for the Respondent and have gone through the entire evidence on record.

There is no dispute regarding injuries on the person of deceased, his death and cause of death.

Dr. R. K. Tandon initially examined the deceased on 4.10.1979 at 10.00 p.m. and prepared injury report (Ext. 17). The learned Counsel for the Appellants admitted the genuineness of above injury report before the trial court. The above injury report shows that Zamil Ahmad had sustained following injuries:

(1) Incised wound 8 cm. x 3 cm. x depth not probed, on the right side chest outer aspect middle region.

(2) Incised wound 3 cm. x 1 cm. x depth not probed on the right side chest, 8 cm. below injury No. 1.

(3) Incised wound 5 cm. x 0.25 cm. x skin-deep left side fore-arm back lower region.

Injuries were simple in nature caused by sharp edged weapon and were fresh in duration.

Since the condition of Zamil Ahmad was serious, therefore, he was shifted to All India Institute of Medical Sciences, New Delhi, where he expired on the night of 9/10.10.1970 at 11.15 p.m.

Dr. P. C. Dixit (P.W. 1) conducted autopsy on the dead body of the deceased and found following ante-mortem injuries on his person:

(1) Stitched wound obliquely placed 8 cm. in the right infra axillary region 9 cm. down wards and lateral to right nipple and 15 cm. lateral to right side of midline.

(2) Stitched stab wound 3.5 cm. vertically placed on the right side chest, 12.5 cm. right to midline, and 20 cm. above the ante-superior iliac spine and 7 cm. below the injury No. 1 entering into chest cavity, by passing downwards and medially in 7th intercostals space.

(3) Incised wound on left forearm, dorsal aspect, obliquely placed 6 cm. x 0.2 cm. x 0.1 cm. falling in towards the elbow joint.

The injuries were ante-mortem and about 5 days old before death.

Internal examination showed that Broncho pneumonia was present in both lungs. There was foul smelling and yellowish pus present in peritoneal cavity. Mesentry inserted in small intestine. Signs of peritonitis were present in small intestine. A layer of pus was present on the upper surface of liver. Cause of death was due to peritonitis and broncho pneumonia.

The above medical evidence has not been challenged and therefore, the prosecution has established injuries on the person of deceased, his death and cause of death.

Before adverting to the points raised by learned Counsel for the Appellants we would like to give the gist of the evidence relied on by the prosecution.

Imran (P.W. 2) resident of mohalla Khalapar stated that he was knowing the Appellants Israr and Afzal who were also residents of mohalla Khalapar. On the night of occurrence at about 9.30 p.m. after taking meal he was walking. When he reached near Masjid Kumharan in mohalla Khalapar in the Gali he saw Zamil deceased standing on the road. He had sustained knife injuries. He had not seen any person causing knife blows on him. The witness was declared hostile but in his subsequent cross-examination he admitted that he along with three other persons had taken the deceased to the hospital and Noor Ilahi (P.W. 3) and Iqbal (P.W. 4) had also gone with him. Thereafter, he went to the police station and lodged report and deposited blood stained shirt of Zamil.

Noor Ilahi (P.W. 3) stated that on the night of occurrence at about 9.30 p.m. he and Iqbal (P.W. 4) were returning to their house after closing their shop. When they reached in Kumharan Gali near mosque he heard cries coming from eastern side. He rushed to the place and saw that Appellant Israr had caught hold Zamil deceased from his back and Appellant Afzal was inflicting knife blows on him. The knife blows were caused on chest and abdomen of the deceased. His clothes were smeared with blood. Sayeed (P.W. 5) also came to the spot and saw the occurrence. The occurrence took place in front of Masjid Kumharan. There was electric pole light on the spot and light of Masjid was also there. Night of occurrence was also moonlit. He and other witnesses tried to catch hold the Appellants but they threatened them on the point of knife, therefore, they could not proceed further. He and other persons took Zamil deceased to the hospital. The report of the occurrence was lodged by Imran (P.W. 2) Zamil Ahmad deceased was subsequently shifted to Delhi where he died after 4-5 days.

Iqbal (P.W. 4) stated that on the night of occurrence at about 9.30 p.m. he along with Noor Ilahi (P.W. 3) was returning from Sabzi Mandi. When they reached in Kumharan Gali near Masjid he heard cries and rushed towards the spot and saw that Appellant Israr had caught hold Zamil deceased on the road in front of Masjid and Afzal Appellant was inflicting knife blows on his chest and abdomen. Sayeed (P.W. 5) also came to the spot. Imran (P.W. 2) was also present on the spot and he and other witnesses tried to catch hold the Appellants, but they threatened them on the point of knife. There was electric pole light on the spot as well as light of Masjid. Night of occurrence was also moonlit. Zamil Ahmad was taken to the hospital and thereafter, Imran (P.W. 2) lodged report of the occurrence at the police station. Zamil Ahmad was shifted to Delhi where he died after 6 days.

Sayeed (P.W. 5) stated that on the night of occurrence he was going to his house from nai abadi and when he reached near Masjid he heard shrieks. He rushed to the spot and saw that Appellant Israr had caught hold Zamil Ahmad and Appellant Afzal was inflicting knife blows on him, which hit on his chest and abdomen. Noor Ilahi, Iqbal and Imran also saw the occurrence. They chased the Appellants but they threatened them on the point of knife and therefore, they receded back. That Imran took the deceased to the hospital. There was road light, light of Masjid as well as moonlight on the spot. Imran prepared report and lodged the same at the police station. Zamil Ahmad was subsequently shifted to Delhi where he died after 4-5 days.

S.I. Ram Niwas (P.W. 6) was posted at P.S. Vijay Nagar, New Delhi, and he conducted inquest of the dead body of the deceased on 9.10.1979. He prepared inquest report and other relevant papers.

Constable Rajendra Singh (P.W. 7) is the scribe of chik report (Ext. Ka-9) and G.D. report (Ext. Ka-10). He also stated that blood stained bush-shirt of the deceased was deposited at the police station, which he took into possession sealed it and prepared recovery memo. He further stated that the case was initially registered u/s 324, I.P.C. It was altered u/s 307, I.P.C. on 6.10.1979 and ultimately u/s 302, I.P.C. on 10.10.1979.

Fateh Singh, S.I. (P.W. 8) is the Investigating Officer of the case. He stated that he interrogated witnesses, visited place of occurrence, prepared site plan and on completion of investigation submitted charge-sheet against the Appellants.

Jag Prasad (C.W. 1) Executive Magistrate stated that on 7.10.1979 he recorded dying declaration of the deceased after obtaining certificate of fitness from Dr. T. N. Mathur (C.W. 2). He proved dying declaration (Ext. Ka-15).

Dr. T. N. Mathur (C.W. 2) stated that on 7.10.1979 he had examined deceased in District Hospital, Muzaffarnagar and certified his fitness.

Sri V. P. Srivastava learned Counsel for the Appellants contended that there was no light on the spot and presence of prosecution witnesses on the spot is doubtful. The evidence of motive is conflicting. The dying declaration is not reliable as there was no certificate of fitness prior to its recording. The dying declaration was not recorded in question and answer form and cause of death was peritonitis but there was no injury on the peritoneum and injuries were not direct cause of death and therefore, the case falls only u/s 326, I.P.C. He further argued that participation of Israr is doubtful as he was assigned role of catching hold the deceased which was not necessary to inflict injury on him.

So far the date, time and place of occurrence is concerned there is no serious dispute from the side of Appellants. The ocular witnesses have stated that the occurrence took place on the night of 4.10.1979 at about 9.30 p.m. on the road in front of Kumharan Masjid in mohalla Khalapar, P.S. Kotwali, Muzaffarnagar. After occurrence the deceased was taken to District Hospital, Muzaffarnagar, where he was medically examined by Dr. R. K. Tandon at 10.00 p.m. who prepared injury report (Ext. Ka-17). Formal proof of above injury report was waved by the learned Counsel for the accused/Appellants before the trial court and injuries were not challenged. The duration of injuries as mentioned in the injury report was fresh. The report of the occurrence was lodged at 11.15 p.m. No doubt the Investigating Officer had not collected any blood from the spot but the non-action of the Investigating Officer in this regard will not affect the date, time and place of occurrence as it has not been challenged.

The motive alleged by the prosecution in the F.I.R. was that Afzal and Israr were arrested by the police and they were suspecting that they were arrested on the instigation of Zamil deceased. It is true that Imran (P.W. 2) the informant has not supported the prosecution case regarding the motive alleged in the F.I.R. but in the dying declaration, the deceased had stated that Afzal had forcibly demanded money from his younger brother Kalloo and when he complained about it to Afzal he threatened him to kill. The prosecution has not filed any document regarding any report lodged by the deceased against Afzal or Afzal was arrested by the police in some case on the report of Zamil deceased and since Imran had not supported the prosecution story the motive alleged in the F.I.R. and stated by the deceased in his dying declaration do not appear consistent with each other and there is no evidence regarding actual motive. But in this case, the prosecution has relied on ocular testimony of witnesses and therefore, the question of motive is not very much material.

The learned Counsel for the Appellants contended that the occurrence took place in the night and there was no light on the spot, therefore, the assailants could not be recognized. It is true that in the F.I.R. no source of light has been mentioned, but the ocular witnesses Noor Ilahi (P.W. 3), Iqbal (P.W. 4) and Sayeed (P.W. 5) have categorically stated that there was streetlight on the spot. The light of Masjid was also flashing on the spot and night of occurrence was moonlit. It is not disputed that occurrence took place in the city of Muzaffarnagar and there is presumption that streetlight was there. Noor Ilahi (P.W. 3) had denied the suggestion of the Appellants that there was dark on the spot. No such suggestion was given to Iqbal (P.W. 4) and Sayeed (P.W. 5). The Investigating Officer had shown in the site plan (Ext. Ka-13) the electric pole on the road in front of Kumharan Gali. The situation of electric pole was shown by the Investigating Officer on his personal observation. He further stated in his cross-examination that the electric pole shown in the site plan was fitted with bulb. However, he stated that he had not tested the bulb. He denied the suggestion that he had wrongly shown the evidence of light on the spot. The place of occurrence is in front of Masjid Kumharan and the ocular witnesses have further stated that the light of Masjid was also lighting road and the night of occurrence was moonlit and these facts have not been challenged. Considering the situation of the place of occurrence the omission of source of light in the F.I.R. does not rule out the presence of light. From the above evidence, it is, therefore, established that there was sufficient light on the spot and the Appellants who were fully known to the witnesses from before could be easily recognized in the above light.

Noor Ilahi (P.W. 3) has given reasonable and plausible explanation of his presence on the spot. The witness was carrying the business of vegetables and according to his evidence on the night of occurrence after closing his shop he was returning to his house. It is not the case of the Appellants that his house did not fall in between the shop and his house. He has also stated that he along with other person had taken the deceased to the hospital. The presence of witness is also mentioned in the F.I.R. It is true that in his cross-examination he stated that Zamil deceased was son of his maternal brother, but he also stated that Appellant Afzal Ahmad is son of his maternal sister and Appellant Israr was husband of his maternal sister. Therefore, the witness was equally related with the deceased as well as the Appellants. It was suggested to the witness that he was witness in a case u/s 25 of Arms Act against the Appellant Afzal, but the witness denied the above suggestion and no documentary evidence was produced from the side of Appellants to prove this fact.

Iqbal (P.W. 4) was also returning to house of Noor Ilahi (P.W. 3). This witness and Noor Ilahi (P.W. 3) were jointly carrying the business of vegetables and on the night of occurrence he was going to the house of Noor Ilahi to take dinner with him. No enmity, ill-will or grudge of the witness has been suggested with the Appellants. No doubt it was suggested that he was deposing falsely on the pressure of Noor Ilahi, but Noor Ilahi was equally related with the Appellants and he was not expected to pressurise the witness.

Sayeed (P.W. 5) stated that he was carrying fruit shop in front of post office and on the night of occurrence after closing his shop he was going to the house of his maternal uncle where he used to take his meals and when he reached near the place of occurrence he heard shrieks, rushed there and saw the occurrence. It was suggested that the witness had settled marriage of his sister with the younger brother of the deceased but the witness denied the above suggestion and there is no evidence to prove the same. No enmity, ill-will or grudge has been suggested with the witness.

Thus, the presence of above witness on the spot was natural and probable. The evidence of the witnesses finds support from medical evidence, F.I.R. and other circumstances of the case and therefore, they are reliable witnesses.

No doubt Imran (P.W. 2) had not supported the prosecution story and had denied to have seen the occurrence and to lodge the report but in his cross-examination he admitted that he had taken the deceased to the hospital and Noor Ilahi and Iqbal had also gone with him ; that he had gone to lodge the report. The evidence of witness cannot be discarded simply on the ground that he has been declared hostile and it is settled law that evidence of hostile witness also can be relied upon to the extent to which it supports the prosecution version. The evidence of such witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base conviction upon his testimony if corroborated by other reliable evidence. (Vide Koli Lakhmanbhat Chanabhai v. State of Gujarat, AIR 2000 SC 210). It was further observed by the Apex Court in the case of State of Rajasthan v. Bhawani and Anr. 2003 (3) CCSC 1115: 2003 AIR SCW 3953, that the fact the witness was declared hostile by the Court at the request of the prosecuting counsel and he was allowed to cross-examine the witnesses, no doubt furnishes no justification for rejecting en bloc the evidence of the witness. The evidence of the witness as mentioned above shows that he had lodged report at the police station showing his presence on the spot and had also admitted that he took deceased to the hospital along with Noor Ilahi and Iqbal. Therefore, this part of the statement of the witness is reliable even though he was declared hostile.

In this way the ocular testimony of above named witnesses is worthy of credence.

Besides above ocular evidence the prosecution has also relied on dying declaration of the deceased recorded in the hospital by the Executive Magistrate. It is settled that dying declaration if reliable can be the basis of conviction.

Sri Jag Prasad (C.W. 1), Executive Magistrate stated that on 7.10.1979 he recorded dying declaration of Zamil Ahmad S/o Yunus resident of mohalla Khalapar district Muzaffarnagar in District Hospital, Muzaffarnagar at 3.10 p.m. The fitness certificate of declarant was given by Dr. T. N. Mathur of District Hospital, Muzaffarnagar. The declarant was mentally fit to give statement and voluntarily gave statement. The statement given by him was recorded which he proved as Ext. Ka-15. The above statement also contained certificate of Dr. T. N. Mathur that Zamil Ahmad was in a fit state of mind to give any statement.

Dr. T. N. Mathur (C.W. 2) stated that on 7.10.1979, he was Medical Officer, District Hospital, Muzaffarnagar, and on that day dying declaration of Zamil Ahmad was recorded by Jag Prasad, Deputy Collector, Muzaffarnagar, at 3.10 p.m. Prior to recording the dying declaration he had examined the patient and found that he was in a fit state of mind to give statement. He was talking and was fully in senses. He had given fitness certificate at that time. He proved the above fitness certificate as Ext. Ka-16.

The certificate of the doctor as well as statement of Executive Magistrate shows that the declarant was in a fit state of mind to give statement and his statement was voluntarily. In his above dying declaration Zamil Ahmad deceased stated that on the night of 4.10.1979 at about 10.00 p.m. he was going to his house. It was dark near the Masjid. Israr s/o not known, resident of Gular Wali Gali caught him hold. Afzal s/o Nisar resident of Gular Wali Gali inflicted knife blows on him. He sustained injuries. He (Afzal) was forcibly demanding money from his younger brother Kalloo. He had told him and then he asked Afzal who told that he would kill him. It was night of Thursday (Zumerat). He became unconscious. He did not know who brought him to hospital. Israr was laying ambush besides Masjid. He came out from behind the Masjid and caught him hold. Afzal came out from the lane (gali) and asked him how much money was in his pocket. He told that money was lying in the shop. And then he started inflicting knife blows on him. He recognized both of them. Prior to 6-7 days he had slapped him and he (Zamil) saying nothing came to his house. He had never talked him. He could sign.

In the above statement the deceased has assigned role of catching hold to Israr and role of causing knife injury to Afzal.

The learned Counsel for the Appellants contended that from the above dying declaration identity of Afzal Ahmad had not been established and according to above dying declaration Afzal was son of Nisar while in the F.I.R. parentage of Afzal was given as Iqbal Ahmad and, therefore, the deceased named some other Afzal in his dying declaration. He further contended that Rahmat Ilahi (D.W. 1) stated that there were 7-8 persons named Afzal in mohalla Gular Wali Gali Khalapar and there are 5-7 persons named Israr. It is true that in the F.I.R. parentage of Afzal has been given as Iqbal Ahmad and in his dying declaration the deceased mentioned parentage of Afzal as Nisar, but this controversy was clarified by Iqbal (P.W. 4) in his evidence and he stated that the parentage of Appellant Afzal is Iqbal alias Nisar and this fact was not challenged as there is no cross-examination on this point. Therefore, parentage of Afzal Ahmad Appellant was Iqbal alias Nisar and there is no discrepancy in his parentage.

It was further contended by the learned Counsel for the Appellants that dying declaration was not recorded in question and answer form and therefore, it is not admissible. This contention has no force as no form for recording dying declaration has been prescribed and it is not essential that dying declaration must be recorded only in question and answer form.

As mentioned above the Executive Magistrate, who recorded dying declaration had satisfied that the deceased was in a fit state of mind and this was also proved by Dr. T. N. Mathur (C.W. 2). Sri Jag Prasad Executive Magistrate (C.W. 1) further stated that the declarant made the declaration voluntarily. There is nothing to show that the declarant was tutored or influenced by some one to give statement. In these circumstances the declaration can be acted upon as it has been established that the same was made voluntarily and is truthful. Therefore, it has been established that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination and that the deceased was in a fit state of mind and had opportunity to observe and identify the assailants.

The next contention of learned Counsel for the Appellants was that the cause of death was not direct result of the injuries sustained by the deceased and therefore, the case does not come within the purview of Section 302, I.P.C. and at the most it comes within the purview of Section 326, I.P.C. assuming that the complicity of the Appellants is established in causing the injuries. He pointed out that the injury Nos. 1 and 2 of the deceased were on chest and injury No. 3 was on elbow joint but the case of death as stated by Dr. P. C. Dixit (P.W. 1) was peritonitis and broncho pneumonia. The peritonitis is caused by inflammation of peritoneum and by bacteria spread via the blood stream. That there was no injury on peritoneum or peritoneal cavity and therefore, cause of death was not direct result of injuries, which were on chest, above the peritoneal cavity.

Section 300, I.P.C. carves out two segments, one is culpable homicide amounting to murder and the second segment consists of culpable homicide not amounting to murder. Four clauses enumerated in the section are enveloped in the first segment. What is set apart for the second segment is compendiously described as "except in the cases hereinafter excerpted" from out of the first segment. For the purpose of this case we deem it necessary to quote only the second clause in Section 300, I.P.C.

Secondly.-If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused....

Therefore, the only question to be answered is whether the Appellants did the act with the intention of causing such bodily injury, as they knew "to be likely to cause death of the deceased". It is also to be considered whether the death was on account of injuries caused on the deceased. The cause of death stated by Dr. P. C. Dixit (P.W. 1) is peritonitis and broncho pneumonia.

Peritonitis as defined in the Pocket Medical Dictionary by L. M. Harrison, First Indian Edition, 1986, is as below:

Peritonitis.-Inflammation of the peritoneum. Primary peritonitis is caused by bacteria spread via the bloodstream.

In Guyton''s Textbook of Medical Physiology, Eighth Edition, 1991, "Peritonitis" is described as below:

Peritonitis.-(1) Peritonitis caused by spread of infection from the uterus and fallopian tubes, frequently resulting from instrumental abortion.

(2) Peritonitis resulting from rupture of the gut, some times caused by intestinal disease and sometimes by wounds.

In Butterworths Medical Dictionary, Second Edition Peritonitis is defined as below:

Peritonitis is inflammation of the peritoneum caused by bacterial infection. Acute generalized peritonitis. Peritonitis secondary to infection from neighbouring organ, as from the bursting of an appendical abscess or the perforation an ulcer of the stomach or bowel.

Thus, it is clear that peritonitis may be caused from infection in peritoneum, other organs situated in peritoneal cavity as well as from neighbouring organ. Dr. P. C. Dixit (P.W. 1) has clearly stated in his statement and has also mentioned in his post-mortem report that there was a layer of pus present on the upper surface of liver. Liver is situate in right upper part of peritoneal cavity. Any infection in the liver thus, may also cause peritonitis as liver is a part of peritoneum. Dr. Dixit (P.W. 1) has categorically stated that the cause of death was broncho pneumonia and peritonitis developed from the (ante-mortem) injuries. Thus, there was categorical evidence of Dr. Dixit (P.W. 1) that peritonitis has developed due to ante-mortem injuries and no cross-examination was made from Dr. Dixit on this point. It is true that at the time of evidence of Dr. Dixit, no counsel of the Appellants was present as Sri R. K. Tyagi, who had filed vakalatnama on behalf of Appellants had stated that he had no instruction but the record shows that subsequently other witnesses were recalled by the learned Counsel for the Appellants before the trial court but no attempt was made to recall to Dr. P. C. Dixit (P.W. 1).

Moreover, injury No. 2 a stab wound of 3.5 cm. was vertically placed on right side chest 12.5 cm. right to midline, 20 cm. above the anterior superior iliac spine and 7 cm. below entering into chest cavity by passing downwards and medially in 7th inter costal space ; 7th inter costal space is lower part of chest near the liver. Therefore, in all probabilities the above injury had affected the liver resulting in formation of layer of pus on its upper part.

Therefore, it is established from the medical evidence that layer of pus was also present on the liver which in all probabilities was due to infection caused by injuries on the chest, and said infection spread in peritoneal cavity resulting into peritonitis. As such the cause of death, i.e., peritonitis was a result of injuries caused on the deceased. Therefore, the fact that the deceased died due to peritonitis, evacuate the act out of the contours of the secondly clause of Section 300, I.P.C. specially when there is also categorical evidence of Dr. Dixit that the injury Nos. 1 and 2 (on the chest of deceased) were grievous and fatal.

Lastly, it was contended by the learned Counsel for the Appellants that the role assigned to Appellant Israr was only of catching hold and there was no necessity of catching hold of the deceased for causing knife injuries and therefore, participation of Appellant Israr appears doubtful. All the ocular witnesses have categorically stated that Appellant Israr caught hold the deceased from his back and then the Appellant Afzal inflicted knife blows on him. Dying declaration of deceased was that Israr had laid ambush behind mosque and came out from there and Afzal came from lane. Injuries on the deceased were on chest and left forearm which could be caused if the victim was caught hold from back side. The evidence on record further shows that both the Appellants had made a plan to murder the deceased and for this purpose they had laid ambush waiting the deceased. The act of Afzal clearly indicates that by catching hold the deceased he facilitated the Appellant Afzal in causing fatal injuries on him. Undisputedly, Appellant Israr is the uncle of Appellant Afzal and in these circumstances, it is established that Appellant Israr had also shared common intention and his complicity is also established.

In view of our above discussions and observations we arrive at an irresistible conclusion that the prosecution has successfully established the guilt of both the Appellants for the offence punishable u/s 302 read with Section 34, I.P.C. In the result, we find no force in the appeal.

The appeal is accordingly dismissed. The conviction and sentence of the Appellants u/s 302 read with Section 34, I.P.C. are confirmed. The Appellants are on bail. They shall surrender before the C.J.M. concerned to serve out the sentence. The C.J.M., Muzaffarnagar is directed to procure the arrest of the Appellants by adopting all modes available under law and send them to jail to serve out the sentence.

Copy of order be sent to C.J.M., Muzaffarnagar, for compliance and report.