Barkat Ali Zaidi, J.

1. The accused-appellants have preferred this appeal being aggrieved with the judgment and order order dated 14.5.2005, passed by Addl. Sessions Judge, Court No. 1 Fatehpur in S.T. No. 339 of 1995, whereby he convicted the accused-appellant Faheem Khan under Section 302 I.P.C. and accused appellant Kafeel @ Chaina under Section 302/34 I.P.C, for intentionally causing the death of one Miswahuddin and sentenced each of them to undergo life imprisonment and also to pay a fine of Rs. 5,000/- each in default to further undergo a term of oho month imprisonment.

2. Accused Mola expired before commencement of Trial in the Sessions Court and only remaining two accused faced trial.

3. Heard Sri V.P. Srivastava, Senior Advocate and Sri Jagdish, Singh Sengar, Advocate for the appellants and the Addl. Government Advocate for the State.

4. According to the prosecution version, on the night between 1/2.5.1994 around 9.30 Oclock one Miswahuddin deceased aged about 30 years and real brother of P.W. 1 Khwaja Salahuddin went to the house of one Raza Uddin in village Andauli to see Video. All the three accused were also seeing the Video. From there, the deceased Miswahuddin went to the house of Saleem and all the three accused surreptitiously followed him, because there was suspicion that Miswahuddin had illicit relations with the wife of Saleem, who is brother of accused Faheem. The fact that Saleem was the real brother of accused Faheem, has not been disclosed in the F.I.R. but became clear from the record, including the statement recorded under Section 313 Cr.P.C. These accused saw deceased Mishwahuddin talking to the wife of Saleem. It was around 11.30 Oclock in the night. All the three accused thereafter cornered the deceased Miswahuddin and the accused Faheem is said to have pierced a Karauli in his abdomen. Deceased ran crying from there and fell down on the door steps of the house of one Buddhu Shah, near by in an injured condition. There, he is said to have narrated the whole incident to P.W. 1 Khwaja Salahuddin, P.W. 2 Maqbool and P.w. 3 Ajaz Ahmad and other persons, who had come there and also said that his Chappals and Torch were left at the house of Faheem.

5. The investigation of the case was assigned to S.I. Raj Bahadur Pathak, P.W. 7 by P.W. 8 Hari Shanker Dubey, Inspector P.S. Kotwali, in whose presence the case was initially registered under Section 307 I.P.C., to which the police converted under Section 302 I.P.C. after the death of the injured Miswahuddin and then the investigation of the case was taken over, by Inspector Hari Shanker Dubey P.W. 8 himself. S.I. Raj Bahadur Pathak, P.W. 7, after the investigation was assigned to him, copied out the injury report of injured Miswahuddin in the case diary and recorded the statement of Head Moharrir H.N. Ram, who had prepared the chick F.I.R. and the G.D. He went to the spot on 3.5.1994 and prepared a site plan Ex. Ka-7 and also recorded the statement of injured in District Hospital Fatehpur. He also recorded the statement of other witnesses.

6. P.W. 10 S.I. Tulsi Ram Shakyawar who was S.H.O. Swaroop Nagar, Kanpur had received the death memo of deceased Mishwahuddin on 3.5.1994 from the L.L.R. Hospital, had gone to its mortuary and prepared the inquest report of the dead body.

7. The initial injuries of the deceased were examined by P.W. 5 Dr. Dinesh Chandra Medical Officer, District Hospital, Fatehpur on 2.5.1994 at 2 Oclock in the night and the injuries on his body were found as hereunder:

(1) Abrasion 3 cm x 3 cm on Rt. Fact 1 cm below Rt. Eye soft crust present.

(2) Stab wound 2.5 cm w 1 cm on Rt. Side abdomen 7 cm Rt. Lateral from umbilicus margins clean cut. Loop of" intestine & part of omentum came out through wound. Bleeding present through wound. Placed obliquely Horizantal.

(3) Abrasion 6.5 x 1 cm on front of Rt. Leg 14 cm below Rt. Knee soft curst present.

(4)Abrasion 2 x 2 cm on front of Lt. Knee.

(5)Abrasion 1 x 5 cm on front of Lt. Leg 12 above Lt. Ankle.

Adv. X-Ray Abdomen.

Dr. Chandra opined Injury Nos. 1, 3, 4, 5 simple, No. 2 dangerous to life and Nos. 1;3,4,5 caused by friction with hard object & No. 2 by sharp object.

8. The post mortem of the deceased was conducted by P.W. 4 Dr. R,K, Dixit, S.H.S. V.H.M. Hospital, Kanpur on 3.5.1994 around 2 P.M. and he found him dead on 3.5.1994 at 1.50 A.M. Vide Enclosure No. 5. The ante mortem injuries on his body were found as hereunder:

Ante Mortem Injuries:

(1) Surgical stitch. Wound 17 cm long. With 16 stitches on abdomen 11 cm below the G.P. Sternum (lower and sternal margin)

(2)Stitched wound 3 cm long with 3 stitches present on lateral side of Rt. Side abdomen 4 cm above from iliac crest.

(3)Stitched wound 1 cm long with one stitch present with plastic Tube 3 cm lateral to Inj. No. (2)

(4) Stitched wound 1 cm long with one stitches present with plastic Tube on lateral side of left side abdomen 5 cm above from left iliac crest.

(5) M. Abraded contusion 18 cm x 4 cm on inner aspect of Rt. Knee & leg.

(6) Abraded contusion 0.5 cm x 0.5 cm on front of left leg 8 cm above (Sic) left ankle joint.

Dr. Dixit opined cause of death shock and Haemorrhage due to Ante Mortem Injuries

9. At the Trial P.W. 1 Khwaja Salahuddin, P.W. 2 Maqbool Ahmad, P.W. 3 Ajaz Ahmad and P.W. 6 Mrs. Fahmida were examined as eye witnesses to the occurrence and 4 police personnel being H.M. Ram Sunder Tripathi P.W. 9, who instituted the case crime and prepared the chick F.I.R. and had made an entry in the G.D. on 2.5.1991 and thereafter, on 3.5.1994 after receiving the written information from Khwaja Salahuddin had converted the case from Section 307 I.P.C. to Section 302 I.P.C. and had entered in the G.D. as Ex. Ka.11 to this effect.

10. P.W. 7 S.I. Raj Bahadur Pathak, P.W. 8 Inspector Hari Shanker Dubey, P.W. 10 S.H.O. Tulsi Ram Shakyawar, P.W. 5 Dr. Dinesh Chandra and P.W. 4 Dr. R.K. Dixit were examined who proved the injury report and post mortem report, Ex. Ka-2 prepared by them respectively.

11. The learned trial judge while recording, the judgment of conviction and sentence, relied upon the evidence of P.W. 1, P.W. 2 and P.W. 3 who were eye witnesses to the occurrence.

12. In their statement under Section 313 Cr.P.C, accused-appellants have denied the charge levelled against them and have said that the deceased was a criminal and many criminal cases were by pending against him and some, people killed him and it would be wrong to say that he could speak thereafter.

13. Two witnesses being from the police department have, been examined in defence. Substance of their evidence is that 7 criminal cases were pending against the deceased. The suggestion from the side of the defence, therefore, is that since the deceased was a criminal and had many enemies and adversaries, he was killed by some of them and the accused have been falsely implicated.

14. The case depends upon the acceptance or otherwise of the evidence of the three eye witnesses i.e. P.W. 1 Khwaja Salahuddin, P.W. 2 Maqbool Ahmad and P.W. 3 Ajaz Ahmd.

15. P.W. 6 Smt. Fahmida did not support the Prosecution story and was, therefore, keclared hostile in cross examination by the prosecution. Her statement is, therefore, of no help to the prosecution and needs to be ignored.

16. P.W. 1 Khwaja Salahuddin has repeated the prosecution story as given in the first information report and has stated that after the deceased had fallen out side the house of Buddhu Shah, he narrated to the people, present there that, he had gone to the house of Raza Uddin to see the Video and the three accused in the case, including the deceased were present there and that after a little while, he left the place of Raza Uddin and went to the house of Saleem where all the three accused followed him, because they suspected, that he had illicit relation with the wife of the brother of Faheem-accused. He has further said that while he was talking to the wife of the brother of Faheem, two accused Kafeel and deceased accused Mo la caught hold of him while accused Fahim pierced a Karauli into his abdomen and from there he ran away crying and subsequently, fell down in front of the house of Buddhu Shah.

17. Let us first examine the credibility of the testimony of these witnesses and the legal aspect of their evidence, about its admissibility, can be considered subsequently.

18. The Statement of P.W. 1 is in conformity with the F.I.R. lodged by him and there are no inconsistencies and contradictions. The F.I.R. itself was lodged without any delay because it was lodged at the same night at 1.30 P.M. at Kotwali, Fatehpur and the distance of the police station from the village of occurrence is 5 Km. There seems no reason for the real brother of the deceased to falsely implicate innocent persons in the commission of the crime, because being the brother of the deceased, he would be interested in the real culprits being punished. There was no reason for him to falsely implicate the accused unless he had been informed by his brother, that they were the person who have assaulted him. No substantial short-coming could be pointed out, in the statement of P.W. and the trial court is also found his testimony fully dependable and reliable. There seems no sufficient reason to reject his evidence, and we must fall in line with the view of the Trial Court, that he has given a full and true account of what transpired.

19. The second witness is P.W. 2 Maqbool Ahmad. He has also narrated the same version as given by P.W. 2 and has clearly stated that at the door of the house of Buddhu Shah, he found the accused in an injured condition, where he had gone after hearing the noise and then the deceased narrated the same story before him as has already been given above. The house of the witness is only 4-5, houses away from the place of occurrence and he went there on hearing noise because the noise can reach his house also. The Trial Court rightly relied upon his evidence because there is no such thing in his evidence f which may induce the court to suspect the veracity of his testimony. There were suggestions from the side of the accused of ill will between him but there is no tangible evidence about the same and they are mere suggestions. It was also suggested to him that he is witness in number of cases but he has categorically stated that besides this case, he is not a witness in any other case. There are no such contradictions or variations in his statement which may make his testimony doubtful. His house is near the place of occurrence and he could hear the noise emanating from the place of occurrence and that is why he went there and he cannot, therefore, be said to be an unnatural witness. There seems no reason for him for falsely implicate the accused in the commission of the offence.

20. The Third witness P.W. 3 Ajaz Ahmad is the father-in-law of f, the deceases brother. He has also narrated the same story as given by the witnesses P.W. 1 and P.W. 2 and the deceased narrated the aforementioned version before him also naming the accused as his assailants. His testimony is largely free from blemishes and being the father-in-law of the brother of deceased, there was no reason for him to falsely implicate the accused in the commission of the crime and in the circumstances, there seems no sufficient reason to suspect his testimony.

21. Coming to the legal aspect of the evidence of the witnesses, it was argued by the counsel for the accused that this evidence cannot be taken as a dying declaration and is ultimately not admissible in evidence. The evidence need not be taken as a dying declaration because the evidence is one of res-gestea and is admissible under Explanation-1 to Section 6 of the Evidence Act. The deceased has narrated to the people present there soon after the incident what had transpired and also named the assailants, and that was part of the same transaction, and that is why the evidence becomes admissible under Explanation-1 to Section 6 of the Evidence Act.

22. It was also argued that the dying declaration of the deceased was not recorded by any Magistrate because he died two days after the occurrence in the hospital, and it was also pointed out that the Investigating Officer has not collected any blood stained earth from the place of occurrence, and that the evidence is that there was no blood seen on the blanket in which the accused was earned to the hospital.

23. If the dying declaration was not recorded and if the blood stained earth was not collected from the spot, these were lapses on the part of the investigation, which will not help the accused because mere lapses of investigation are not sufficient to throw out a case where the evidence is dependable and reliable.

24. The learned Counsel for the appellant has referred to the case of V.P. Radhakrishna v. State of Karnataka (XLVII) 2003 A.C.C. 507 but that case relates to the dying declaration and it has already been held, that this is not a matter, where the question of dying declaration is involved.

25. It was also argued from the side of the accused that none of these persons who were present at the house of Raja Uddin and were seeing the Video alongwith the deceased, have been examined. It was further argued that Saleem with whose wife, there are allegations of illicit relations with the deceased, has not been examined. It is not for the Court to be guided by what evidence has not been produced. The court has to see whether the evidence which has been adduced in the case is credible and is sufficient to justify conviction. The non-examination of these persons makes no substantial difference to the case.

26. The motive was about the existence of illicit relations between the wife of elder brother of Faheem and the deceased and that is said to be the reason why the deceased was assaulted. There was as such a motive also, though, the motive is not always necessary.

27. In view of the aforesaid facts and circumstances of the case, it could be unhesitatingly said that the findings of the Trial court are justified.

ORDER

28. The conviction is, therefore, upheld and the appeal is dismissed.

S.S. Kulshreshtha, J.

29. After reading the draft judgment prepared by my esteem brother Zaidi, J supported by reasons forcefully and lucidly advanced, while concurring with his views I feel inclined to give a brief narration of the evaluation of the evidence adduced by the prosecution.

30. The details of the various aspects of the prosecution are to be found in the judgment of Honble B.A. Zaidi, J and it is, therefore, not necessary for me to dwell or dilate on the comprehensive facts, of the case and the circumstances which led to the conviction of the appellants by the learned Sessions Judge in ST. No. 339/95, State v. Kafeel @ Chaina and Anr. and sentencing the accused appellant Kafeel @ Chaina for the offence under Section 302 IPC and the other Faheem Khan for the offence under Section 302 read with Section 34 IPC and the fine of Rs. 5000/- with the default stipulation. On 1.5.1994 at about 9.30 p.m. Khwaja Miswauddin (deceased) and accused Kafeel @ Chaina, Faheem Khan and Bholla were seeing video film at the house of Razauddin. After some time the deceased left that place for going to the house of Saleem. The accused followed him silently as they had suspicion that he would visit the house of Saleem as he had illicit relations with his wife. Accused had seen the deceased talking with the wife of Saleem and so they overpowered him at about 11.00 p.m. and accused Khafeel @ Chaina gave blow at his abdomen by Karauli. The deceased making cries ran away from that place and fell down in front the dcor of Buddhu Shah. Hearing his cries Khwaja Salahuddin (PW-1), Maqbool Ahmad (PW-2) and Ajaz Ahmad (PW-3) came at that place. Entire incident was narrated by the deceased to them. It was also told by him that his chappal and torch have been left at the house of Faheem Khan.

31. Prosecution examined Dr. Dinesh Chandra (PW-5) who had done the medical examination of the injuries sustained by the deceased on 2.5.1994 at g District Hospital, Fatehpur. He was reported to have died on 3.5.1994 and the autopsy on his dead body was done by Dr. R.K. Dixit (PW-4) at 2.00 p.m. in LLR. Hospital, Kanpur. Other formal witnesses namely R.B. Pathak (PW-7), H.S. Dubey (PW-8) and Tutsi Ram Shakyawar (PW-10) were also examined by the prosecution. Their evidence has already been dealt by Honble Sri B.A. Zaidi, J. Prosecution examined Khwaja Salahuddin (PW-1) who is the brother of the deceased and has also lodged the report of this incident at P.S. Kotwali Sadar, Fatehpur in the night intervening 1/2.5.1994 at about 1.30 a.m., which is at a distance of 5 kms from the place of occurrence in Village Andauli. This witness categorically asserted that all the accused namely Kafeel @ Chaina, Faheem and Bholla were seeing video film. After sometime when deceased left that place for going to the house of Saleem, the accused persons surreptitiously followed him as if they had suspicion as he was having illicit relations with his wife. It was about 11.30 p.m. all the accused overpowered the deceased and struck at his abdomen with a Karauli inflicting a serious injury. He ran away for the safety from that place and fell down in front of the house of Buddhu Shah. After hearing his cries, this witness also reached at the place of occurrence. Entire incident was narrated by m the victim to this witness. The aforesaid statement given by the deceased is admissible under Section 6 of the Evidence Act on account of its proximity of time to the act of murder. Illustration A to Section 6 makes it clear. It reads thus:

A is accused of the murder of B by beating him. Whatever was said or done by A or B or the bystanders at the beating or so shortly before or after it as to form part of the transaction is a relevant fact.

32. I Here the act of the assailants following the deceased from the house of Razauddin, victims identification of the assailants, as they all were named by him ill in his statement given before PW-1 Khwaja Salahuddin, PW-2 Maqbopl Ahmad |H and PW-3 AJaz Ahmad, his pronouncement that he was overpowered by all the three accused and Faheem Khan stuck with Karauli on his abdomen, all are circumstances so intertwined with each other by proximity of time and space that if the statement of the deceased became part of the same transaction. Hence it is admissible under Section 6 of the Evidence Act. A fact of this note may also be taken that the testimony of PW-1 Khwaja Salahuddin remained intact on the point of making this statement by the deceased that after running from the house of Saleem he fell down in front of the house of Buddhu Shah. Statement of PW-2 Maqbool Ahmad was assailed on the ground that when he reached at the spot where the deceased was lying he did not ask from anybody with regard to the incident. However, the witness has stated that he did not talk to the deceased when he reached at the spot and made arrangement for carrage to shift him for medical treatment. Such clarification given by the witness would not be construed to mean that the deceased did not make the narration of the incident to this witness. The witness has also emphasised that when he reached, others were also talking that the deceased was assaulted with Karauli there inside the house of Saleem. Ajaz Ahmad (PW-3) also reiterated that when he reached in front the house of Buddhu Shah he found the deceased lying and he made the narration of the sequence of the incidence. The testimony of this witness also remained consistent. The witness has, however, clarified that he did not verify about the incident from other persons at the spot. This would not be sufficient to discard the categorical statement of this witness that the deceased stated all about the incident to him. In our view the reasoning and appreciation made by the trial court do not suffer from a legal error. The statements so made by these witnesses are admissible as they form part res gestae. It may further be added that the deceased made the statement before PW-1 Khwaja Salahuddin, PW-2 Maqbool Ahmad and PW-3 Ajaz Ahmad that accused Faheem Khan stuck at his abdomen with Karauli and the other accused also overpowered him. Such statement given by the deceased has subsequently been tuned out to be a circumstance which intimately related to the transaction which resulted in his death. In the case of Sharad Birdhi Chand Sarda the following principle was also laid down by the Apex Court:

The collocation of the words in Section 32(1) "circumstances of the transaction which resulted in his death" is apparently of wider amplitude than saying "circumstances which caused his death." There need not necessarily be a direct nexus between "circumstances" and death. It is enough if the words spoken by the deceased have reference to any circumstance which has connection with any of the transactions which ended up in the death of the deceased. Such statement would also fall within the purview of Section 32(1) of the Evidence Act. In other words, it is not necessary that such circumstance should be proximate, for, even distant circumstances can also become admissible under the sub-section, provided it has, nexus with the transaction which resulted in the death.

There is ample evidence on record to show that the deceased made the narration of the sequence of incident and also spelled out the participation of each accused. Such statement even apart from Section 32(1) of the Evidence Act is also admissible under Section 6 of the Evidence Act. Reliance may also be placed in the case of Rattan Singh v. State of H.P. : 1997CriLJ833 .

33. As regard the contention that the witnesses on fact examined by the prosecution shall not be relied upon as they are interested witnesses, it may be mentioned that interestedness of the witnesses for furthering prosecution version, shall not be a factor to affect the credibility of the witnesses. It is more often than not that the relation would not conceal the actual culprit and make allegations against innocent person. In the case of Dalip Singh and Ors. v. The State of Punjab : [1954]1SCR145 it has been laid down as under:

A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before its as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.

34. The above decision has since been followed in Guli Chand v. State of Rajasthan : 1974CriLJ331 and Sudershan Reddy and Ors. v. State of A.P. : 2006CriLJ4033 .

35. I have carefully perused the evidence of the witnesses on fact. Their evidence appears to be natural having a sign of truth. Much was sought to be made of minor discrepancies in the evidence of eye witnesses, which have been discarded as contradictions. Some variation in matters of detail is but natural and much depend on the capacity of a witness to observe and remember events, particularly in matters of minor details. Moreover all the three witnesses on fact came from different directions and they may have observed the incident at different stages but their stand is consistent on the point that the deceased had narrated the sequence of events and he was also struck with Karauli at his abdomen. However, certain minor discrepancies would not warrant the rejection of these witnesses.

36. For the reasons stated above, I am of the view that there is no merit in the appeal. It deserves to be dismissed.