Nagar Singh and Anr. vs State of U.P.

G. P. Mathur, J.—This appeal has been filed against the judgment and order dated 7579 passed by the Ulrd Addl. Sessions Judge, Ballia by which the appellants Nagar Singh and Rajdeo Singh were convicted under Section 302, I. P. C. read with Section 34, I. P. C. and were sentenced to imprisonment for life. Besides the two appellants, eight other accused were also tried in the same sessions trial but they were acquitted.

The case of the prosecution is as under:

Complainant Murlidhar Yadav is resident of village Pakaria alias Nawapura. His cow had come in heat on 27375 and was taken by his brother and uncle to the eastern side of the village where other cattle of the village were grazing and a public bull of Sarai Bharati was also present his brother and uncle wanted to bring the cow and the public bull to the village but accused Mangala Singh objected to it. This was resented by the complainant''s brother and uncle on which exchange of words took place between them. Mangala Singh went to words his village after giving threats and the complainant''s brother and uncle brought the cow and the bull to their house. Shortly thereafter accused Nagar Singh and Rajdeo Singh, Mangala Singh, Ram Bachan, Brahma Deo Singh, Sheo Shanker Singh, Pakildeo Singh, Babu lal Singh, Kuber Singh and Mahendra Singh, all residents of village Nayapura, came to the village of the complainant armed with lat his and spear. They wanted to take away the bull but it was strongly opposed. However the village people intervened in the matter and then they started returning to their own village. Complainant''s uncle Shri Kishan Ahir, who had taken the cattle for grazing was returning to his house at abut 4.00 p. m. The aforesaid ten persons (accused) met him on the road near the crossing of the railway line and exchange of words and abuse took place between them. Thereafter all the accused charged him and surrounded him towards the west of the road going towards Sarai Bharati and thereafter started assaulting him. Accused Nagar Singh and Sheo Shanker Singh assaulted him with spear and accused Rajdeo Singh assaulted him with lathi. On the alarm raised by Shri Kishan the complainant Murlidhar, his brother Jai Mangal and uncle Radha rushed to save him but the accused surrounded them and assaulted them with lathis. Sri Kishan received spear injury in his abdomen and fell down. Thereafter the accused ran away. Murlidhar Yadav lodged a written first information report of the incident at 5.30 p. m. on 27375 at P. S. Rasra which is four miles from village Nayapura. On the.basis of the F. I. R. lodged by Murlidhar a case was registered as Crime No. 84 under Sections 147, 148, 149, 307, 324 and 323, I. P. C against the ten accused named in the F. I. R.

In the incident four persons, namely Shri Kishan, Murlidhar, Radha and Jai Mangal recefved injuries. They were medically examined between 6.00 and 6.10 p. m. on 27375 in the Government hospital, Rasra, Shri Kishan Ahir succumbed to his injuries at 1.30 p. m. on 29375 in the district hosipital, Ballia. Thereafter the case was converted into one under Section 302, I. P. C.

After the usual investigation charge sheet was submitted against the ten accused. The learned Magistrate committed the case to the Court of Sessions. The learned 3rd Addl. Sessions Judge, Ballia, who tried the case, framed charges under Sections 147 and 302/149, I. P. C. against all the ten accused. Nagar Singh and Sheo Shanker Singh accused were further charged under Section 148, I. P. C.

The accused denied the prosecution case. Appellant Nagar Singh further stated that some dispute had arisen regarding the Managing Committee of Pakwa Inar High School in which Sarju Giri and Keshav Singh were against him and they had got the accused implicated in a false case. Appellant Rajdeo Singh stated that Murlidhar and Jai Mangal had assaulted the grandfather of Kapil deo in the year 1970 in which he was a prosecution witness and therefore he had been implicated in the present case.

The prosecution in support of its case examined nine witnesses including four eyewitnesses. The accused examined two witnesses and two others were examined as court witnesses. The learned Sessions Judge after examining the evidence on record, held that the prosecution case was established against the appellants Nagar Singh and Rajdeo Singh and convicted and sentenced them as stated earlier. The remaining eight accused were given benefit of doubt and were acquitted. It may be stated here that the state thus not challenged the acquittal of Mangal Singh, Ram Bachan, Brahmadeo Singh, Sheo Shanker Singh, Kapildeo Singh, Kumber Singh, Babu lal and Mahendra Singh and as such the same has become final.

The prosecution in support of its case examined four eyewitnesses namely PW1 Murlidhar Yadav, PW 4 Sheo Poojan, PW 6 Radha and PW 7 Raju, Murlidhar Yadav has given the details of the prosecution case in his examinationinchief. He has stated that his cow, which was in heat, was taken to he out skirts of village Nawapura by Jai Mangal and Radha where public bull of Sarai Bharati was present. They brought the bull towards east of the abadi which was objected to by Mangala Singh accused and he had given threats Radha and Jai Mangal told about threats given by Mangala Singh accused to this witness. After the bull was brought near the house of the complainant the ten accused came there and said that they would take away he bull The village people intervened and the accused started returning On the way they met Shri Kishan with whom they talked about the bull and subsequently exchange of abuses took place. Shri Kishan run towards the village but the accused chased him and assaulted him towards west of Sarai Bharftl road in the fied adjoining to the field of Jagdish Gosain. Nagar Singh and Shanker assaulted him with spear while Rajdeo assaulted him with lathi. On the alarm rased by Shri Kishan he along with Radha and Jai Mangal rushed there to save him when the remaining seven accused surrounded and assaulted them with lathi. Shri Kishan fell down and then the accused ran away the spot where the incident took place is at a distance of 11 1/2 furlongs from his village and the village of the accused is at a distance'' of 5 6 furlong from that place. In his crossexamination he admitted that the accused belonged to six families. He also admitted that his house was at a distance of one furlong from the house of Shri Kishan.

8 His cow and the bull were at a distance of about 3840 paces from the house of Shri Kishan and Jai Mangal and Radha were near the cow. He further admitted that the assault was made at a distance of little less than one furlong from his house and no one was assaulted at the house of Shri Kishan. He also stated that he did not see any accused getting injured in the incident. He denied the defence suggestion that his family members had gone to the west of village Newapure at about 9.10 a.m. for bringing. He further denied the defence suggestion that he along with radha, shri kishan, jai mangal and others, armed with lathi, spear and gandasa, forcibly borught the bull and in this incident marpit took place in which they also received injuries. Regarding the events subsequent to the assault he stated that after about 10 or 15 minutes he along with other injured proceeded to rasra on a rickshaw. He further stated that he was not accompanying shri Kishan on the rickshaw and that he had no talks with him Shri kishan remained on the Rasra Hospital for some time and thereafter he was brought to Ballia Hospital. We have carefully examined the statement of this witness. He was medically examined at 6.50 p.m. on 27375 in Rasra Hospital and the doctor had found five injuries on his bodies which were fresh in duration. The testimony of this Witness has not been shaken in any manner in his crossexamination From his testimony it is fully established that the ten accused had come for taking away the bull and while they were returning after the village people had intervened they met Shri Kishan near the railway crossing with whom exchange of abuses took place. Thereafter Nagar Singh and Sheo Shanker armed with spears and Rajdeo Singh armed with lathi assaulted Shri Kishan whereas remaining seven accused assaulted him, Radha and Jai Mangal.

PW 4 Sheo Poojan stated that at about 3.45 p. m. on the date of incident he was present in the grove of Sheo Prasad along with Raja and Bishwanath when he heard the alarm of Shri Kishan, he rushed towards the southwest of the railway crossing where altercation was going on and Nagar Singh and Sheo Shanker, armed with spears and Rajdeo armed with lathi, were assaulting Shri Kishan. The remaining accused had surrounded Murlidhar, Radha and Jai Mangal and were assaulting them. The assault took place in the Khanti (field from where earth is taken out) towards southwest of Sarai Bharati road where Shri Kishan fell down and the accused ran away. The injured where taken on the rickshaw. Shri Kishan was putting on only a dhoti at the time of the incident and his wound was tied with a kurta. In his crossexamination he has admitted that he was the first cousin of Murlidhar PW 1 but on account of some dispute over land his relations with Shri Kishan and Murlidhar were strained. He also stated that he did not know as to who had brought the bull from Nawapurs as at that time as he was harvesting the crop towards west of the village and had arrived in the grove about half an hour before the incident. The assault had taken place after he had reached there. He also admitted that altercation had taken place near the railway crossing but the actual assault took place when he reached there. He had seen the altercation while he was in the grove. He further admitted that the SubInspector of Police recorded his statement on the same day and he had also accompanied him to the spot. He denied the defence suggestion that he was giving wrong statement as he belonged to the family of Gulzar and he was not present on the spot. We have examined the statement of this witness carefully and nothing has come out in his crossexamination which may throw any doubt regarding his presence on the spot or show that had not seen the occurrence. It is true that he is the first cousin of PW 1 Murlidhar but that fact alone is not sufficient to discard his statement. There is other evidence on record which corroborates his testimony.

PW 6 Radha has stated that the cow of his nephew Murlidhar was in heat. He along with Jai Mangal went to the out skrits of village Nawapura where publicbull of Sarai Bharati was present. He brought the bull to his village in the afternoon in spite of the objections raised by Mangal Singh accused. After about 11 1/2 hours the ten accused came and started taking away the bull which was resented by him. The accused lost temper but on the intervention of some people of the village they started returning. The accused met his brother Shri Kishan near the railway crossing at about 4 p. m. where exchange of abuses took place between them. Shri Kishan ran towards south but all the ten accused surrounded him in the Khanti where Nagar Singh and Sheo Shanker assaulted him with spear and Rajdeo assaulted him with lathi. He along with Jai Mangal and Murlidhar rushed to save him but they were also assaulted by the remaining seven accused with lathis. Shri Kishan received spear injury and fell down on the spot and thereafter the accused ran away. After the assault they went to the police station and then to hospital where they were medically examined. This witness was medically examined at 6.30 p. m. on 27375 and the doctor found nine injuries on his body. In his crossexamination he has stated that they had not forcibly brought the bull to their village but the bull had come of its own following the cow, when the accused came some exchange of hot words took place but no one was assaulted there. He further stated in his crossexamination that on hearing alarm of Shri Kishan he rushed to the spot without carrying any weapon when he reached the spot he saw Nagar Singh, Sheo Shanker and Rajdeo accused assaulting Shri Kishan. After he reached the spot he, Murlidhar and Jai Mangal were assaulted by the remaining seven accused. He went to rasra along with Murlidhar and others. He was questioned by the Station Officer at about 7.00 p. m. in Rasra Hospital. He denied the defence suggestion that the incident, did not take place in the manner stated by him. He further denied the defence suggestion that he was assaulted by some unknown persons when he along with Murlidhar and Jai Mangal and Shri Kishan were forcibly trying to snatch the bull. This witness has received injuries in the incident and, therefore, his presence on the spot cannot be doubted in any manner. His testimony has remained completely unshaken in crossexamination.

PW 7 Raja, a resident of village Pakaria, has stated that he was present in the grove along with PW 4 Sheo Poojan and Bishwanath at about 4.00 p. m. He heard the alarm of Shri Kishan from near the railway crossing and rushed to that place where he saw nine accused out of whom Nagar Singh and Sheo Shanker armed with spaars and Rajdeo Singh armed with lathi were assaulting Shri Kishan. Remaining accused were assaulting Radha, Jai Mangal and Murlidhar. Shri Kishan fell down after receiving injuries and thereafter all the accused ran away. In crossexamination he frankly admitted that he had brought a case regarding Banjar land against Babu lal accused about 34 years back. He further stated that his house is at a distance of 10 steps from the grove and he had reached the aforesaid grove about 10 minutes before he heard the alarm of Shri Kishan. In para 5 he reiterated that he had seen only nine accused out of whom three were assaulting Shri Kishan. Shri Kishan was armed with lathi with which he was trying to save himself but he did not see any injury on any one of the accused. He denied that he belonged to the family of PW 1 Murlidhar and stated that they did not dine at each others place. In his examination in chief this witness has named Babu lal as one of the accused but has named only nine persons. In his crossexamination also he emphatically stated that he had seen only nine accused and not ten. Though the other three eye witnesses have stated that Babu lal was also present and was assaulting with lathi but this witness has omitted his name. In his crossexamination he has admitted that he had fought a litigation with Babu Lal. The fact that though he was inimical to Babu lal and yet he did not nominate him as one of the accused shows that his is a truthful witness and did not want to implicate anyone falsely or give a false version. In case he had not seen the incident or wanted to implicate anyone falsely he would not have omitted the name of Babu Lal. On the contrary he would have assigned a specific role to Babu lal accused in order to fasten liability upon him. He is a resident of the same village Pakaria where the incident took place. Nothing has come out in his crossexamination which may cast doubt upon his testimony. His statement is quite reliable and proves the participation of the accused in the incident in which assault was made by them upon Shri Kishan and others.

PW 5 Dr. Fateh Bahadur Singh was the Medical Officer Incharge of the Government Hospital at rasra on 27375. He has stated that he examined Shri Kishan (deceased1, PW 1, Murlidhar, PW 6 Radha and Jai Mangal between 6.00 p. m. and 7.10 p. m. He has proved the injury reported of the aforesaid persons which are Exts. Ka 8 to Ka 11 on the record. In his opinion the injuries received all the four injured were fresh in duration. The three injured other than Shri Kishan had received injuries by blunt weapon while injury Nos. 3 and 4 of Shri Kishan were by sharp pointed weapon like spear. Shri Kishan had sustained six injuries out of which three were punctured wounds, two contusions and one lacerated wound. Radha had received nine injuries out of which three were lacerated wounds and three contusions. Murlidhar had received five injuries including four contusions and one lacerated wound. Jai Mangal had received four injuries including one lacerated wound and three contusions.

PW 2 Dr. Diwaker Misra, Surgeon in the District Hospital, Ballia has stated that he performed postmortem examination on the body of Shri Kishan at 11.45 a. m. on 30376 Shri Kishan had died in the District Hospital at 1.30 a. m. on 29375. He found three punctured wounds, two brushes and one lacerated wound on the body of the deceased. He has stated that the punctured wounds could have been caused by a spear. The death of Shri Kishan took place on account of antemortem injuries received by him specially injury No. 3 which was sufficient in the ordinary course of nature to cause death.

The testimony of the eyewitnesses finds complete corroboration from the medical evidence on record. The four eyewitnesses have stated that Nagar Singh and Sheo Shanker accused armed with spears and Rajdeo Singh armed with lathi had assaulted Shri Kishan. The testimony of both the doctors, namely PW 2 and PW 5, show that there were three punctured wounds, one lacerated wound and two contusions (bruises) on the body of Shri Kiihan. The eye witnesses have further stated that the remaining accused assaulted Murlidhar, Radha and Jai Mangal with lathis. These three injured have received in all 18 injuries which in the opinion of the doctor were all caused by blunt weapon. Thvs the eyewitness account of the incident find complete corroboration from the medical evidence on record.

PW 8 Rekha Ram, Head constable has proved the hand writing of Gauri Shanker Tewari who was posted as Head Constable at P. S. Rasra on 27375 and who had prepared the chik first information report and had made necessary entries in the general dairy. PW 3 Abdul Ahmad has stated that ho was posted as S. I. at P. S. Kotwali, Ballia and he had prepared the inquest on the dead body of Shri Kishan in the District Hospital, Ballia.

PW 9 Awadh Raj Singh is the Investigating Officer of the case. He has stated that he was present at P S. Rasra at 5.30 p.m. on 27375. When the case was registered. He sent the four injured for treatment to the Rasra Hospital. He also reached the hospital at 6.15 p. m. and recorded the statement of Murlidhar, Radha and Jai Mangal and also of Dr. F. B. Singh, M.O. Incharge. He reached the spot in village Pakaria at 8.40 p. m. and recorded the statement of PW 4 Sheo Poojan and PW 7 Raja the same night. He has further stated that next day in the morning he inspected the spot and took in his possession plain and blood stained earth from the Khanti which was situated at a distance of 52 paces southwest of railway crossing. He has further stated that at 3.15 p. m. on 1475 he had received a cross FIR on the basis of which crime No. 84A had been registered under Sections 147, 148, 323 and 324, I. P. C.

Apat from the testimony of the eyewitnesses and the medical evidence the prosecution has also brought on record the dying declaration of the deceased Shri Kishan. PW 5 Dr. Fateh Bahadur Singh has stated that the condition of Shri Kishan was bad and he could have died any moment. It was doubtful whether any Magistrate could be summoned within time. Accordingly before examining him medically he thought it proper its record his dying declaration. As such he recorded the statement of Shri Kishan at 5.45 p. m. on 27375. He has stated that he recorded the statement of Shri Kishan in his own words and at that time he was in complete Censes. He was in a position to understand the things and give reply. He has further stated that after recording the statement the same was read over to Shri Kishan and then his thumbimpression was obtained. At the time of recording his statement neither any police personnel nor any other person was present there. At that time apart from him only the compounder was present. The statement of Shri Kishan is Ex. Ka 12 on the record. In his statement Shri Kishan has stated that some persons had come to take away the public bull from his door. He told them that after the cow was crossed he would return the bull. Thereafter Nugar Singh, Mangal Singh, Ram Bachan, Rajdeo, Dharamdeo and Brahma Deo and several others started abusing and chased to assault him. Nagar Singh assaulted him with a spear. Meanwhile his family members arrived there and they were also assaulted. At that time Nagar Singh was armed with spear, Mangal Singh with gandasa and the remaining persons were armed with lathis.

It appears that another dying declaration of Shri Kishan deceased was recorded at 11.45 a. m. on 29375 by Indradeo Singh, NaibTahsildar. The prosecution did not examine him as a witness to prove the aforesaid dying declaration. The accused have, however, examined Indradeo Singh, NaibTehsildar, as a defence witness. He has stated that he recorded the statement of Shri Kishan in the District Hospital and at that time he was in a fit mental condition. He has also proved the certificate of Dr. G. S. Chaturvedi on the dying declaration to the effect that Shri Kishan was in a condition to give statement. He has further stated that after the statement was recorded the same was read over to Shri Kishan and thereafter his thumbimpression was obtained. The statement is Ex. Kha 1 on the record. In this statement Shri Kishan has stated that on the Thursday, 27375, he had brought a bull for getting his cow crossed. Nagar Singh, Rajdeo Singh, Kuber and Ram Bachan (accused) came to his house and demanded the bull. They were asked to take the bull after the cow had been crossed. Thereafter Nagar Singh assaulted on his intestines by a spear and Rajdeo Singh assaulted with a lathi. Dharamdeo and Brahmadeo also assaulted with lathi.

So far as the first dying declaration recorded by PW 5 Fateh Bahadur Singh is concerned it may be noticed that the same was recorded within two hours of the incident PW 5 has stated that at that time neither any police personnel nor any other person was present there. Shri Kishan had no talks with the Investigating Officer or any other police personnel by that time. The time and the manner in which the statement was recorded shows that there had been no tutoring and it was own statement of the deceased. In this statement the deceased has clearly stated that he had been assaulted by Nagar Singh with spear. Therefore from this dying declaration it is fully established that Nagar Singh assaulted the deceased with spear. The second dying declaration has been brought on record by the accused themselves by examining a defence witness. Even in this dying declaration Shri Kishan has clearly assigned the role of causing spear injury to his intestines to Nagar Singh accused and has further stated that Rajdeo accused assaulted him with lathi. This dying declaration also establishes that Nagar Singh had assaulted the deceased with spear. In our opinion the dying declarations are the own statements of the deceased Shri Kishan and they can be safely relied upon as against the appellant Na gar Singh.

The accused also examined two witnesses in defence. DW 1 Bamdeo Sharma, Record Keeper in the S. P. Office, Ballia, has stated that the diary maintained at the police station, for recording noncognizable offences is sent to S. P. Office after three years and it is not further retained there but is weeded out. He has further stated that the register of noncognizable offences of 12775 must have been weeded out and will not be available. DW 2 Indradeo Singh, NaibTahsildar, has been examined by the accused to prove the second dying declaration recorded by him and his testimony has already been referred to earlier.

The Court also examined two witnesses, namely, Sukhdeo Chaube CW 1 and Surendra Nath Rai CW 2, CW 1 Sukhdeo Chaube has stated that he was the Sessions Clerk in the court of the District Judge, Ballia, in 1975. He has tried to prove the carbon copy of the order passed by the learned Sessions Judge on the bail application of Nagar Singh accused and the copy of the said order has been brought on record as Ex. CW 1. CW 2 Surendra Nath Rai has proved the handwriting of Gauri Shanker Tiwari, Head Constable of P. S. Rasra at the relevant time. He has stated that in the general diary of the Police Station it is mentioned that a written FIR of Mangala Singh was received at 12.45 hours on 1475. He has also proved the chik FIR prepared by Gauri Shanker Tewari Head Constable on its basis and the same in Ex. C 4 on the record.

By the testimony of the aforesaid two court witnesses it is sought to be established that Mangal Singh accused also lodged a FIR giving cross version of the incident and such a cross version was also set up in the bail application moved by Nagar Singh accused. What is attempted to be brought on record is that at that stage the accused did not deny the incident but set up some sort of a counter version admitting their presence on the spot. In our opinion the evidence of both the court witnesses as well as the documents filed by them are wholly irrelevant and we are placing no reliance upon the same for the decision of the present case. The plea taken by one of the accused in the bail application moved at the initial stage is not admissible in evidence. Similarly in the absence of the original FIR of Mangala Singh, which has not been brought on record, it is not legally permissible to prove the same by proving the copy of the chik FIR alleged to have been prepared on its basis by the Head Constable of the police station.

Learned counsel for the appellant has contended that there is conflict between the testimony of the witnesses and the dying declaration in so far as the place of occurrence is concerned and, therefore, the prosecution case has not been proved beyond reasonable doubt and the accused are entitled to be acquitted. Learned counsel drew the attention of the court towards the last sentence of the first dying declaration where the deceased stated that the incident took place at his door and also to the fact that in the second dying declaration the deceased stated that the accused came to his house demanding the bull. According to the learned counsel the dying declarations show the place of the incident as the door of the deceased whereas the eyewitnesses have stated that the deceased was assaulted in the Khanti near the railway crossing and thus there was serious conflict regarding the place of occurrence. If we examine the testimony of the eyewitnesses and the dying declaration carefully it will be revealed that there is no real conflict between the two versions. According to the eyewitnesses the accused came to the house of the victim for taking back the bull which was objected to by the complainant and others. When the village people intervened the accussed returned and while going back they met Shri Kishan near the railway crossing. There exchange of abuses took place and the accused chased Shri Kishan and assaulted him in the Khanti. Therefore the whole incident took place in two parts. The first one was when the accused came to the house of the victim demanding the bull and the second one was the actual assault upon the deceased and the members of the complainant party. In the second dying declaration Shri Kishan has stated that the accused had come to his house for taking away the bull. He has not stated that assault was made upon him at his house. Therefore, so far as the second dying declaration is concerned there is no conflict at all with the testimony of the eyewitnesses. In the first dying declaration Shri Kishan has stated that the incident (GHATANA) took place at his door. He has not stated that he was assaulted at his door. The first part of the incident, namely, demand of bull had certainly taken place at the door of the victim. Thus it is apparent that there is no conflict regarding place of incident between the eyewitnesses account and the dying declaration.

Learned counsel has further submitted that FIR of the incident was lodged at 5.50 p. m. as stated by PW 9 Avadh Raj Singh, S. O. of P. S. Rasra, but the dying declaration shows that the same was recorded at 5.45 p. m. According to the learned counsel the dying declaration could not have been recorded prior to the lodging of the FIR and therefore if was not a reliable document and was liable to be rejected. It appears that PW 9 has wrongly stated that the FIR was lodged at 5.50 p. m. the documents on record, namely, the original copy of FIR and the statement of PW 3 Rekha Ram Head Constable shows that the FIR was actually lodged at 5.30 p. m. The evidence on record further shows that the deceased Shri Kishan was immediately sent to Rasra Hospital. PW 5 Dr. F. B. Singh has stated that as the condition of Shri Kishan was serious he recorded his statement first before examining his injuries. Thus the genuineness of the dying declaration cannot be doubted only on the ground that the same was recorded within 20 minutes of the lodging of the FIR.

We have already held above that the eyewitnesses have given truthful version of the incident. Out of four, two eyewitnesses have received injuries in the incident and their presence cannot at all be doubted. Their testimony finds corroboration from the medical evidence on record and also from recovery of blood from the place of occurrence. That apart there is evidence of dying declaration as well, in which the deceased has stated that Nagar Singh assaulted him with spear. In the second dying declaration recorded by the NaibTahsildar which was brought on record by the accused them selves, deceased has said that Nagar Singh assaulted him with spear in his intestines. Thus it is fully established that it was Nagar Singh who gave the spear blow to the deceased in the region of intestines. The fact that the deceased received spear injury in his abdomen by which injuries were caused to the intestines is fully established by the statements of the two doctors PW 2 and 5, PW 2 Dr. Diwakar Misra has stated that death took place on account of injury No. 3 which is a punctured wound 5 cm X 2 1/2 cm X abdominal cavity deep over the left side chest from which omentum was coming out. He has further stated that this injury was sufficient in the ordinary course of nature to cause death. Therefore, Nagar Singh has committed the offence under Section 302. I. P. C. It may be mentioned here that remaining eight accused of the case have been acquitted by the learned Sessions Judge and the state has not challenged their acquittal by filing appeal and the same has become final,

So far as Rajdeo Singh accused is concerned he is not alleged to have caused any injury to the deceased in the first dying declaration. In the second doing declaration Shri Kishan said that Rajdeo assaulted him with lathi on his abdomen. Learned counsel submitted that if the document is read correctly it will show that Rajdeo is alleged to have assaulted on the leg of the deceased. The post mortem report shows that the deceased did not sustain any injury by blunt weapon either in his legs or in the abdomen. Thus the medical evidence does not corroborate the role attributed to Rajdeo Singh in the second dying declaration. In this view of the matter we do not consider it safe to uphold the conviction of Rajdeo Singh and accordingly give him benefit of doubt.

The learned Sessions Judge has convicted Nagar Singh under Section 302, I. P. C. read with Section 34, I. P. C. and has sentenced him to imprisonment for life. We alter the conviction of Nagar Singh to one under Section 302, 1. P. C. and affirm the sentence of life imprisonments awarded to him.

The appeal of Rajdeo Singh is accordingly allowed. His conviction under Section 302/34, I.P.C. and the sentence imposed upon him by the learned Sessions Judge is set aside. He is on bail. He need not surrender. The appeal of Nagar Singh is dismissed with the modification that his conviction is altered to one under Section 302, I. P. C. for which he is sentenced to imprisonment for life. He is on bail. He shall surrender forthwith to undergo the sentence imposed on him.