Kamlesh Kumar Dixit v. State — 1981 DIGILAW 316 (ALL)

Judgment P.N. Goel, J. 1. KAMLESH Kumar Dixit, a young man of about 18 years has been convicted and sentenced under section 307 IPC to undergo RI for 5 years. 2. BRIEFLY stated, the facts leading to the -conviction of the appellant are these In the year 1973-74 the appellant was a student of Marwari College, Collectorganj, Kanpur. On 6-12-1974 at about 8 A. M. he came to the College to obtain transfer certificate. On that day he met Som Nath Seth, PW 4, a student of the College and demanded Rs.10/- from him. Som Nath told him that he did not have money. Thereupon the appellant gave him abuses. In the meantime Rakesh Bajpai, PW 3 reached there and asked the appellant as to why he was giving abuses to him. Some exchange of abuses took place between the two. The appellant took out a knife, Rakesh Bajpai ran towards the room of Sri Kanhaiya Lal Agrawal, Principal, PW 2. The appellant ran after him and assaulted him with a knife. Just a little later a constable came there. Rajendra Kumar Gupta, PW 1 a student of the College and the Constable took injured Rakesh Bajpai in a rickshaw to police station. As the condition of Rakesh Bajpai was serious, Purna Nand, a student of the College immediately took away injured Rakesh Bajpai to K. P. P. Hospital, Kanpur. Verbal report of Rajendra Kumar was not recorded at the police station. He was advised to give report in writing. Consequently Rajendra Kumar wrote a report and handed it over at the police station at 8.30 A.M. On the date of occurrence at 8.40 A. M. Dr. J. P. Yadav PW 7 examined Rakesh Bajpai and found following injuries on his person : 3. DR. J.P. Yadav referred injured Rakesh Bajpai to LLR Hospital for further observation and treatment. 4. AZMAT Ullah Khan, SI P. W. 6 entered upon investigation. He interrogated Rakesh Bajpai on 4-1-1975. It appears that on 6-12-1974 at 12-10 P. M. a Magistrate recorded the dying declaration of Rakesh Bajpai ia the hospital (Ex. Kha. 1). 5. KAMLESH Kumar Dixit, appellant reached the K. P. K. Hospital on the date of occurrence at about 8.30 A. M. Dr. He interrogated Rakesh Bajpai on 4-1-1975. It appears that on 6-12-1974 at 12-10 P. M. a Magistrate recorded the dying declaration of Rakesh Bajpai ia the hospital (Ex. Kha. 1). 5. KAMLESH Kumar Dixit, appellant reached the K. P. K. Hospital on the date of occurrence at about 8.30 A. M. Dr. J. P. Yadav, PW 7 examined him and found following injury on his person;;- Stab wound 1/2"x 1/4"x muscle deep on the upper 1/3rd of left upper arm on the medial aspect, oblique, directing upwards, margins clean-cut and bleeding. 6. ON the date of occurrence Dr. V. S. Matraja, PW 8, X-rayed some of the injuries of Rakesh Bajpai. ON the same day he was operated upon by Dr. N. D. Tehliani. Dr. Dinesh Pratap P. W. 9 House Surgeon attended him. The injuries of Rakesh Bajpai were X-rayed on 9-12-1974 and 26-12-1974 also. Defence of the appellant was that on the date and time of occurrence quarrel was going on between Rakesh Bajpai and some students, that he began to intervene, that some person in the crowd gave a knife blow at his arm, that he became unconscious and that he was (taken away to the hospital by some body and that he has been falsely implicated because he might falsely implicate Rakesh. 7. ON facts the prosecution examined Rajendra Kumar, Kanhaiya Lal Agarwal, Rakesh Bajpai and Somnath PWs 1 to 4. No witness was examined in defence. 8. ON an appraisal of the entire material on record, the V Additional Sessions Judge, Kanpur found that the appellant had assaulted Rakesh Bajpai and that the appellant received injury with his own hand at the time he was assaulting Rakesh Bajpai with a knife. Hence the appellant was convicted. Learned counsel for the parties have been heard at length and the entire record has been carefully examined. 9. THE appellant's counsel raised a legal objection against the conviction of the appellant. THE objection that the commitment of the case by the Magistrate under section 209 of the Cr. P.C. 1973 hereinafter called the new Code, was sot proper i.e. legal, that therefore, the learned Additional Sessions Judge should have referred the matter to the High Court for orders, that he should not have proceeded to try the appellant and consequently convicted him and that therefore the trial leading to the conviction of the appellant was vitiated. 10. P.C. 1973 hereinafter called the new Code, was sot proper i.e. legal, that therefore, the learned Additional Sessions Judge should have referred the matter to the High Court for orders, that he should not have proceeded to try the appellant and consequently convicted him and that therefore the trial leading to the conviction of the appellant was vitiated. 10. RECORD shows that the police submitted charge-sheet against the appellant on 6-3-1975. The appellant was not before the Magistrate on that day. As soon as the Magistrate perused the charge-sheet and perhaps other papers, he passed order committing the case to the court of session. The appellant's counsel pointed out, that in view of the provisions of section 209, the Magistrate could not have committed the case to the court of Sessions in the absence of the accused appellant. This section clearly lays down that in a case instituted on a police report or otherwise, the accused appears or li brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall commit the case to the Court of Sessions. According to the appellant's counsel there are two ingredients of this section (1) the accused appears or is brought before the Magistrate and (2) if it appears to the Magistrate that the offence is triable exclusively by the Court of Session. 11. THE learned counsel for the appellant next pointed out that the Court of Session can take cognizance of an offence only if the case has been committed to it by a Magistrate as laid down in section 193. This section says. No Court of Session can take cognizance of an offence....unless the case has been committed to it by a Magistrate. 12. THE appellant's counsel urged that the Court of Session can take cognizance if the case has been properly committed to it. In this connection the learned counsel for the appellant mentioned that in the present case, the appellant was not remanded to custody jail according to law and that therefore, in habeas corpus petition no. 3643 of 1975 filed by the appellant, it was held that the detention of the appellant was illegal and therefore by order dated 5-8-1975 the appellant was released from jail. 3643 of 1975 filed by the appellant, it was held that the detention of the appellant was illegal and therefore by order dated 5-8-1975 the appellant was released from jail. The appellant's counsel further pointed out that this Court deciding the habeas corpus petition did not hold the detention of the appellant in jail (legal despite the fact that the case had been committed to the Court of Session. This Court held that the detention was illegal and it was not curable irregularity under section 465 Cr. P.C. because the appellant was not present before the Magistrate on the date of commitment. 13. THE learned State counsel on the: other hand, urged that the commitment of the case to the Court of Sessions in the absence of the accused by the Magistrate was curable error under section 445 Cr. P.C. He further urged that the appellant should have raised this contention 'before the Additional Sessions Judge to whom the case was transferred for trial. THE trial Judge could have discharged the appellant under section 227 of the new Code or he could have refrained from framing charge against him under section 228. 14. THE appellant's counsel placed reliance on two cases :- (1) Emperor v. Mohd. Mehdi, AIR 1934 Alld. 963 F. B.-In this case Mohd. Mehdi was tried for an offence under section 82 of the Registration Act without the sanction of the authorities mentioned in section 83 of the said Act. Section 83 clearly provided that a prosecution for any offence under the Act could be commenced by or with the permission of the Inspector General, the Branch Inspector General, the Registrar or the Sub-Registrar in whose territories, district or sub-district as the case may be, the offence was committed. It was held that the permission under section 83 was necessary before an accused could be prosecuted and that the permission subsequently accorded by the Inspector General of Registration did not validate the Sessions trial because the commitment to the Sessions Court was itself illegal. Consequently the trial was held vitiated. In the course of the judgment it was observed :- "A Magistrate can take cognizance of an offence on complaint filed before him but a Sessions Judge can take cognizance of a case only when a case has been properly committed to his Court. Consequently the trial was held vitiated. In the course of the judgment it was observed :- "A Magistrate can take cognizance of an offence on complaint filed before him but a Sessions Judge can take cognizance of a case only when a case has been properly committed to his Court. If the commitment is wholly illegal and is not merely irregular, so that the defect cannot be cured by him, the Sessions Judge has no option, but to refer the case to the High Court. THE High Court therefore has ample powers under the section (i. e. u/S. 215 of old Code) to quash the commitment on a question of law; when a matter is brought before the High Court and it appears that the order of commitment was illegal, the High Court will of course quash the commitment and may either drop the proceedings altogether or act under Sec. 439 read with Sec. 423 of the Code and order a fresh inquiry." It was also said in this case that the [learned Sessions Judge should not have gone on with the trial, that he should have reported the case to the High Court for the quashing of the order of commitment. It will be seen from the above that as the prosecution could not be launched without the requisite permission, the commitment by the Magistrate was illegal and the trial by the Sessions Court was also illegal. Absence of requisite permission went to the root of the matter. (2) P.O. Gulati v. Lajya Ram, AIR 1966 SO 595. THE question which required determination is this case was whether the High Court could transfer a case pending before a Magistrate to the Court of Additional Sessions Judge. In the course of the judgment the Supreme Court observed: "When a case is committed to the Court of Sessions the Court of Sessions has first to determine whether the commitment of the case is proper. If it be of opinion that the commitment is bad on a point of law, it has to refer the case to the High Court which is competent to quash the proceeding under Sec. 215 of the Code. It is only when the Sessions Court considers the commitment to be good in law that it proceeds with the trial of the case. It is only when the Sessions Court considers the commitment to be good in law that it proceeds with the trial of the case. It is in this context that the Sessions Court has to take cognizance of the offence as a Court of original jurisdiction and it is such a cognizance which is referred to in Sec. 193." It will be noticed that in this case the Supreme Court has expressed the same position of law which was expressed in the case Emperor v. Mohd Mehdi (supra). THE learned State counsel has also referred to two cases :- (1) Basdeo v. Emperor, 1945 AWR (HC) 142. There were two cross cases, one was triable by a Court of Sessions and the other was triable by a Magistrate because the accused persons were charged with offence punishable u/Secs. 147 and 323/149 IPC. THE Magistrate without observing that he would not be able to adequately punish the accused persons committed the case under sections 147 and 323/149 IPC to the Court of Session. It was urged that the commitment was not proper, legal and that therefore the conviction under section 147 and 323/149 IPC by the Court of Session be set aside. This contention was not accepted and it was observed: "There is no doubt that the Magistrate in this case was duly empowered to commit cases to a Sessions Court in the sense that, provided he followed the procedure of the Criminal Procedure Code, that was a general power vested in him. Once a case was committed by the Magistrate to the Sessions Court in accordance with the procedure of the Code, then the Sessions Court was placed in a position of taking "cognizance" of it. Now, what has happened in the present case is that the learned Magistrate; has done something that he had a general power to do, but he has done it in disregard of certain provisions of the Criminal Procedure Code which, if he had observed them, would have prevented him from doing so. But, to my mind, the only effect of that is that under Sec. 193 the Sessions Court is, or might, be prevented from taking "cognizance'' of the case committed to it by the Magistrate. But, to my mind, the only effect of that is that under Sec. 193 the Sessions Court is, or might, be prevented from taking "cognizance'' of the case committed to it by the Magistrate. There is, I think a great deal of difference between a case in which the Sessions Court is enjoined in certain circumstances not to take cognizance of an offence and a case in which the Sessions Court is not a Court of "competent jurisdiction" in relation to that offence. A committal by a Magistrate to another Court does not confer jurisdiction on that other Court. Jurisdiction is given to Courts by the statutes which create them. Jurisdiction is the definition of their legal powers in contra - distinction to the machinery and procedure in accordance with which those legal powers are to be exercised. Moreover, "cognizance" of an offence of a case is, I think something quite different from jurisdiction to deal with that case. A Court may very well be a Court of competent jurisdiction in regard to any particular offence or any particular case without being in a position to take "cognizance" of it and, to my mind it is a confusion of ideas to treat competence to take cognizance of an offence as the same thing as competence in respect of jurisdiction in relation to that offence. THE two things are, as I see it, quite different. For these reasons I am inclined to the view that there has been no such irregularity in this case, even assuming that everything that the appellant say is true, as could have rendered the Sessions Court of Muttra a Court incompetent in respect of jurisdiction to try the case." (2) THE State v. Baij nath, AIR 1953 Alld. 191 :- "In this case the Magistrate committed the case to the Court of Sessions without framing charge against the accused. THE Sessions Judge made a reference to the High Court. THE High Court pointed out that in view of the provisions of section 226 of the old Code, if the accused was committed for trial without a charge, the Sessions Court could have framed the charge. Then it was observed that a distinction between illegality and irregularity had been obliterated as a result of the decision of the Privy Council in the case of Abdul Rahman v. Emperor, AIR 1927 (PC) 44. Then it was observed that a distinction between illegality and irregularity had been obliterated as a result of the decision of the Privy Council in the case of Abdul Rahman v. Emperor, AIR 1927 (PC) 44. As the case was at a very initial stage, the High Court accepted the reference and directed the Magistrate to frame a proper charge and then proceed according to law." At this stage reference may be made to the case of Abdul Rahman (supra). In this case there was breach of tie provisions of Sec. 360 and 361 of the old Code. Sec. 360 provided that as the evidence of each witness was completed it would be read over to him in the presence of the accused and if necessary corrected. Sec. 361 provided that whenever any evidence was given in a language not understood by the accused and he was present in person, it would be interpreted to him in open court in a language understood by him. The Privy Council held that the non-compliance of the provisions of Secs. 360 and 361 did not by itself vitiate the trial. The Privy Council observed, "To sum up the view which their Lordship takes of the several sections of the Code of Criminal Procedure, the bare fact of such an omission or irregularity as occurred in the case under appeal, unaccompanied by probable suggestion of any failure of justice having been thereby occasioned, is not enough to warrant the quashing of a conviction which in their Lordship view, may be supported by the curative provisions of Secs. 535 and 537." 15. THE view expressed in the above case was followed in the case of Pulukuri Kottoya v. Emperor, AIR 1947 P.C. 67. In this case statements of the prosecution witnesses recorded by the Sub Inspector under Sec. 162 Cr. P.C. at the earliest opportunity were not supplied to the accused. In this way there was breach of the provisions of law. Statements recorded by the Circle Inspector on the same day were supplied. There was no inconsistency between the statement recorded by the Sub-Inspector and those recorded by the Circle Inspector. Held that no prejudice was occasioned to the accused by the failure to supply statements recorded under Sec. 162 Cr. P.C. and as such trial was not vitiated. 16. Statements recorded by the Circle Inspector on the same day were supplied. There was no inconsistency between the statement recorded by the Sub-Inspector and those recorded by the Circle Inspector. Held that no prejudice was occasioned to the accused by the failure to supply statements recorded under Sec. 162 Cr. P.C. and as such trial was not vitiated. 16. THEIR Lordships of the Privy Council observed :- "The distinction drawn in many of the cases in India between an illegality and an irregularity is one of degree rather than of kind " The learned counsel for the appellant referred to two more cases : - (1) Magga v. State of Rajasthan, AIR 1953 SC 174 -In this' case substitution of one assessor by another and an addition to the number of assessors initially appointed were held to vitiate the trial. Its obvious reason is that this illegality went to the root of the trial. (2) Pyare Lal v. State of Punjab, AIR 1962 SC 690 -In this case the successor special Judge proceeded to try the case from the stage at which his predecessor left it. It was held that he had no authority under law to do so and as such the trial was vitiated. The scheme of the Code of Criminal Procedure was that all witnesses should be examined by the judge who decides the case. 17. IT is apparent from the case cited above that there is a thin distinction between irregularity and illegality, that every illegality or breach of an express rule of procedure does not vitiate the trial held by a competent court and that breach of rule of procedure which goes to the root of the case and materially affects the competence or jurisdiction of the Court to try the case will vitiate the trial. Whether a particular breach of the rule of procedure will or will not vitiate the trial depends upon the fads of each case and the rules of procedure applicable to it. 18. IT will be noticed that the cases cited above are based on the provisions of the old Cr. P.C. The new Code has made several changes in the procedure. Some changes relevant for the purpose of this case may be indicated :- (1) Schedule II of the old Cold confers concurrent jurisdiction on Magistrate and Court of Sessions to try certain offences. P.C. The new Code has made several changes in the procedure. Some changes relevant for the purpose of this case may be indicated :- (1) Schedule II of the old Cold confers concurrent jurisdiction on Magistrate and Court of Sessions to try certain offences. Schedule I of the new Code has done away with the concurrent jurisdiction of Magistrate and Court of Sessions. In this schedule the offence which are triable by a Magistrate are quite distinct from the offences triable by a Court of Sessions. (2) Chapter XVIII of the old Code required the Magistrate to hold an enquiry into the cases triable by Court of Session. The Magistrate was required to record evidence of the prosecution witnesses and frame a charge against the accused and then commit the case. This procedure has been completely done away with by the new Code. In the new Code the Magistrate takes cognizance of all the offences in the same way in which he used to take cognizance in the old Code. But if the Magistrate is of the opinion that the offence is triable exclusively by the Court of Sessions he is not required to make any enquiry. He has simply to pass an order committing the case to the court of Sessions vide Sec. 209 Cr. P.C. (3) Under Sec. 215 of the Code, the High Court could quash the commitment on a point of law. There is no corresponding section in the new Code. In the new Code the High Court in exercise of its inherent power under Sec. 482 can pass an order to secure the ends of justice. It will be noticed that if a case is committed to the Court of Sessions under the new Code, the Sessions Court will assume that the offence is triable by it and that the case has been properly committed to it because the Magistrate under the new Code is not required to hold an enquiry as provided in the old Code. 19. WHY the presence of the accused has been provided in Sec. 209 of the new Code be visualised. The scheme of the Code is that all the proceedings should be in the presence of the accused at his counsel unless the personal attendance of the accused has been exempted. The accused should have full information of the fact and circumstances coming against him. The scheme of the Code is that all the proceedings should be in the presence of the accused at his counsel unless the personal attendance of the accused has been exempted. The accused should have full information of the fact and circumstances coming against him. At the stage of commitment he can of course urge before the Magistrate that the case is not exclusively triable by the Court of Sessions and that it is triable by him. If the accused takes such a plea before the Magistrate, the Magistrate will have to focus his attention to the first information report, in jury report and the details of investigation. 20. IN the present case injuries 2 to 5 of Rakesh Bajpai were quite serious and on vital part of the body. Dr. J. P. Yadav immediately referred him to L. L. R. Hospital. The first information report and the injury report clearly indicated that it was a case exclusively triable by Court of Session. Hence in this case even if the appellant had been present before the Magistrate and urged that it was not a case exclusively triable by the Court of Session, the Magistrate was bound to commit it. IN this aspect of the matter the absence of the accused appellant on the date of commitment has not caused any prejudice to him. To put more appropriately, in the present case the commitment of the case was just a legal formality. The learned counsel for the appellant could not show, that any prejudice was really caused to the appellant because the case was committed to the Court of Sessions in the appellant's absence. It may be indicated here that even if the appellant had pointed out to the Additional Sessions Judge that the case was committed by the Magistrate in his absence, the Additional Sessions Judge could not have discharged him under Sec. 227. The Sessions Judge can discharge the accused only if he finds that there was no sufficient ground for proceeding against him. The Additional Sessions Judge could of course refrain from framing a charge under Sec. 228 and refer the matter" to the High Court. On the facts of the present case the High Court would have simply directed the Magistrate under Sec. 482 Cr. P.C. to pass a fresh commitment order in the presence of the accused. The Additional Sessions Judge could of course refrain from framing a charge under Sec. 228 and refer the matter" to the High Court. On the facts of the present case the High Court would have simply directed the Magistrate under Sec. 482 Cr. P.C. to pass a fresh commitment order in the presence of the accused. This would have simply delayed the trial and caused some harassment to the parties. In the present case the High Court could have discharged or acquitted the appellant after quashing the order of commitment dated 6-3-1975, 21. THE position which now requires consideration is whether the omission of the Additional Sessions Judge to refer the matter to the High Court for regularising it goes to vitiate the trial or mot. THE Code of Criminal Procedure has made specific provisions under which a trial is vitiated and under which it is not vitiated. Section 461 enumerates those cases in which the trial by a Magistrate is vitiated. THE present case is not covered by this section, Section 460 enumerates those cases in which the trial is not vitiated. This section lays down that if any Magistrate not empowered by law to do any of the things mentioned therein erroneously in good faith does that thing, his proceeding shall not be set aside merely on the ground of his not being so empowered. Clause (e) of this section relates to taking cognizance on complaint or a police report. It will further be noticed that section 462 prohibits the setting aside of an order passed by a Court of Sessions of a wrong sessions division unless it was shown that a failure of justice had taken place. This section reads "No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived or passed, took place in a wrong sessions division-.........it appears that such error has in fact occasioned a failure of justice." 22. IN this connection reference may also be made to sections 464 and 465. IN this connection reference may also be made to sections 464 and 465. Section 464 lays down that no finding, sentences or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charge, unless in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. Then section 463 further provides that no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any enquiry or other proceedings under this Code, or any error or irregularity in any sanction for the prosecution unless in the opinion of that Court a failure of justice has in fact been occasioned thereby. This section further provides that in determining whether any error, omission, or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Code shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. Keeping this provision in view the learned State counsel has in the instant case urged that the appellant should have pointed out to the Additional Sessions Judge that the case was committed by the Magistrate in his absence and that he cannot take this plea in this Court. 23. THE position that easily follows from the above provisions is that ordinarily no finding or order passed by, a court of competent jurisdiction can be reversed by a court of appeal, simply on the ground of error or omission in following the procedure unless it was shown that a failure of justice had been occasioned thereby. 24. IN the present case the learned counsel for the appellant has not shown that because the appellant was tried by the Additional Sessions Judge there had taken place any failure of justice. 24. IN the present case the learned counsel for the appellant has not shown that because the appellant was tried by the Additional Sessions Judge there had taken place any failure of justice. Therefore, in the present case, omission on the part of the Additional Sessions Judge to refer the case to the High Court cannot be said to have vitiated the trial. The first information report and the injury report of Rakesh Bajpai clearly indicated that it was a Case exclusively triable by a Court of Sessions. The Additional Sessions Judge was competent to try the appellant for the offence punishable under section 307 IPG. It will be noticed that section 209 Cr. P.C. does not lay down that the Magistrate would not commit the case to the Court of Sessions in the absence of the accused. It means that section 209 does not lay down any prohibition. This section is in affirmative form. It simply says that when the accused appears before the Magistrate and the Magistrate is of the opinion that the case is exclusively triable by a Court of Sessions, he will commit the case. Therefore, if the Magistrate commits the case in the absence of the accused, the defect or breach of the provision of section 209 does not go to the root of the case because the case has to be tried by a Court of Sessions. The accused gets full opportunity to meet the case of the prosecution in the Court of Session. There can be certain illegalities or breaches of the provisions of law which go to the root of the case and, therefore, vitiate the entire proceedings and trial. IN the present case neither the commitment of the case by the Magistrate in the absence of the appellant nor the omission of the Additional Sessions Judge to refer the case to this Court goes to the root of the case so as to vitiate the trial. In the result I am unable to accept the contention of the learned counsel for the appellant. 25. In the result I am unable to accept the contention of the learned counsel for the appellant. 25. ON the merits of the case the learned counsel for the appellant urged that the prosecution had not given a correct version of the occurrence because it had not explained the injury of the appellant, that the prosecution version was not a probable one, that the medical opinion did not support the case of the prosecution, and that, therefore, the occurrence appears to have taken place in a manner other than the non-asserted by the prosecution. Statements of all the 4 eye witnesses of the occurrence have been carefully read. The statement of the appellant has also been perused. None of the 4 eye witnesses produced by the prosecution had any animus whatsoever to depone against the appellant. The appellant has not examined any witness to show that Rakesh Bajpai was in fact injured by some other person. The evidence of the prosecution witnesses shows that while the appellant was assaulting Rakesh Bajpai, he received injury on his arm with his own knife. I may, however, mention that reliance cannot fully be placed on the statement of sri Kanhaiya Lal Agrawal, the Principal, because of one glaring discrepancy appearing in his statement and in the statements of the other three prosecution witnesses including the injured. Kanhaiya Lal Agrawal has stated that Rakesh Kumar was sitting on the bench and when he was sitting on the bench he was assaulted by the appellant. This fact has not been stated by any of the other three witnesses. According to the other 3 witnesses Rakesh Bajpai was assaulted from the back side when he was standing. This version, however, does not belie the testimony of Rakesh Bajpai, Rajendra Kumar Gupta and Somnath Seth. There is nothing to show that the medical opinion about the injuries of Rakesh Bajpai do not support the prosecution version. Correctly speaking the injury report af Rakesh Bajpai fully goes to Corroborate the prosecution story. Dr. J. P. Yadav has stated that the appellant could have himself caused the injury which was found on his left upper arm Then he stated that it could not have been caused by him. Then he stated that his injury could be self inflicted. Then he stated that ordinarily the assailant himself could not have caused injury on his left upper arm. Then he stated that his injury could be self inflicted. Then he stated that ordinarily the assailant himself could not have caused injury on his left upper arm. It is thus evident that he has not given a definite opinion. There is positive evidence of uninterested prosecution witnesses that in the course of assaulting Rakesh Bajpai, the appellant could cause injury on his left upper arm with his own knife, in these circumstances the appellant's counsel is not correct in saying that the occurrence took place in some other manner and not in the manner alleged by the prosecution. It is undisputed that the occurrence took place in broad day light. It is evident from the statement of the prosecution witnesses that the appellant was the only assailant of Rakesh Bajpai. Therefore, the case of prosecution is fully proved against the appellant. 26. THE appellant's counsel then pointed out that the Investigating Officer recorded the statements of the prosecution witnesses with delay and that the first information report was not recorded at the time shown by the prosecution. Statement of Azmat Ullah Khan Investigating Officer shows that Rajendra Kumar P.W. 1 was interrogated soon after the report and that-Sri Kanhaiya Lal Agrawal, Principal was also interrogated on the date of occurrence. Then he went to the hospital. He found the condition of Rakesh Bajpai serious and he was not able to speak. Therefore, he did not interrogate him on the date of occurrence. It is true that Somnath and Rakesh Bajpai were interrogated late, but it will be noticed that the police was not inimical to the appellant, that, Somnath and Rakesh were a lso not inimical to him from before the occurrence. THE dying declaration of Rakesh Bajpai Ex. Kha. 1 was recorded on the date of occurrence. This dying declaration clearly shows that the appellant only had assaulted Rakesh Bajpai. There is no material to show that the first information report was not lodged at the time shown by the prosecution. Rajendra Kumar has clearly stated that the police desired that report should be given in writing and that therefore, he wrote out the report and lodged it at the police station, his evident that as the condition of Rakesh Bajpai was serious, he was immediately taken away by a student to the hospital. In these circumstances there is no merit in the contention of the appellant's counsel. In these circumstances there is no merit in the contention of the appellant's counsel. The appellant's counsel next unged that in the circumstances of the case the appellant was not guilty of the offence punishable under section 307 IPC and that he could only be convicted under section 324 IPC. This contention is wholly without force. It is not a case of single injury. Rakesh Bajpai was given as many as 8 blows with a knife. A knife is one of the deadly weapons. Moreover 4 injuries were caused at the: neck and the back of the chest. Statement of Dr. Dinesh Pratap PW 9 shows that the lung was injured that it had bled and that there was emphysema, that blood and air were found in the pleural cavity of the right lung and that en account of sufficient air and blood in the pleural cavity death can occur. He has clearly stated that the possibility of death in the instant case could not tee ruled out. It appeals that the stamina of Rakesh Bajpai because of young age and almost prompt medical aid saved his life. Looking to the nature and number of the injuries caused there is no doubt that the offence of the appellant squarely falls under section 307 IPC. 27. LASTLY, the appellant's counsel pointed out that the appellant was a young lad of about 18 years at the time of occurrence, that he had no particular motive to cause the death of Rakesh Bajpai, that he had married after the occurrence and that in these circumstances lenient view should be taken in the matter of sentence. 28. THE present case falls within the 2nd part of section 307. In this part the maximum sentence is imprisonment for life. THE Additional Sessions Judge has awarded 5 years imprisonment to the appellant. THE appellant wanted to have Rs. 10/- from Som Nath. He did not have the money. He told the appellant accordingly. As a reasonable man he should not have indulged in giving abuses to Som Nath. Rakesh Bajpai was not at all wrong in asking the appellant not to give abuses. Instead of restraining himself the appellant began to give abuses to him. Then there took place some exchange of abuses between Rakesh Bajpai and the appellant. THE appellant took out a knife. Rakesh Bajpai was not at all wrong in asking the appellant not to give abuses. Instead of restraining himself the appellant began to give abuses to him. Then there took place some exchange of abuses between Rakesh Bajpai and the appellant. THE appellant took out a knife. On seeing the knife Rakesh Bajpai ran towards the room of the principal. THE appellant was not satisfied. He ran after Rakesh Bajpai and gave a number of knife blows to him. THE entire conduct of the appellant was far from satisfactory. Such a young man deserved no leniency specially in view of the injuries caused by him to the victim. Therefore, it is not a fit case in which this Court should interfere with the sentence awarded by the learned trial Judge. In the result the appeal is dismissed and the conviction and sentence of the appellant under section 307 IPC recorded by the V Additional Sessions Judge, Kanpur are affirmed. The appellant is on bail. He will forthwith be taken into custody to serve out the sentence. Appeal dismissed.