SHYAM KUMAR SINGH v. STATE OF U P — 1993 DIGILAW 447 (ALL)

O. P. PRADHAN, J. This is a regular appeal under Section 379, Cr, P. C. by appellant Shyam Kumar Singh alias Pappi. The appellant together with his father, Vishnu Saran was tried for the murder of Amar Nath Agrawal by the learned Sessions Judge, Kanpur who by means of his judgment and order dated 12-7-1979 convicted the appellant under Section 302, 1. P. C. and sentenced him to life imprisonment but acquitted Vishnu Saran of the offence under Section 302 read with Section 34,1. P. C. 2. The prosecution case is a follows : The appellant is the son of accused Vishnu Saran, since acquitted. Vishnu Saran owned building No. 43/38 at Chowk Sarrafa, Kanpur. A shop on the ground-floor of this building was in the tenancy of Ram Swaroop Agrawal (PW 2) who is the complainant of this case and father of the deceased Amar Nath Agrawal. The upper por tion of this building was occupied by the appellant and his father, Vishnu Saran. This shop was in the tenancy of Ram Swaroop Agrawal since 1969 and its rent was increased from time to time and it was Ks. 125 per month about 3 year before the occurrence which took placa on 6-4-1978. The land-lord, Vishnu Saran wanted to get this shop vacated but the tenant, namely. Ram Swaroop Agrawal was not willing to vacate the same. The appellant gave a beating to Ram Swaroop Agrawal on 25-2-1978 at 4. 30 p. m. and the latter lodged a report about the incident at Police Station, Kotwali, Kanpur the same day at 6. 45 p. m. Likewise, the appellant had Beaten Amarnath Agrawal about 12 or 13 days prior to 25-2-1978 and Ram Swaroop Agrawal had sent a written report on 26-2-1978 to the Incharge of Police Station, Kotwali. Infuriated, the appellant threatened Ram Swaroop Agrawal who again sent a written complaint dated 28-2-1978 to the lacharge, Police Station, Kotwali and copies to higher authorities by post. The landlord, Vishnu Saran had also given notice of eviction dated 10-3-1978 to the tenant. Ram Swaroop Agrawal who sent a reply dated 6-4-1978 through his counsel, Sri R. B. Mathur, Advocate who had been instructed for the purpose on 5-4-1978. 3. On 6-4-1978 at about 9. The landlord, Vishnu Saran had also given notice of eviction dated 10-3-1978 to the tenant. Ram Swaroop Agrawal who sent a reply dated 6-4-1978 through his counsel, Sri R. B. Mathur, Advocate who had been instructed for the purpose on 5-4-1978. 3. On 6-4-1978 at about 9. 30 a,m. Ram Swaroop Agrawal (PW 2) and his son, Amarnath Agrawal who lived at 81/85, Dbankutti, Kanpur were proceeding to their shop situated at 43/38, Chowk Sarrafa, Kanpur. Amarnath Agrawal was ten paces ahead of his father, Ram Swaroop Agrawal. When they reached the road on which the said shop existed, the appellant together with his father, Vishnu Saran came from the side of their house, Vishnu Saran caught hold of Amarnath Agrawal by his neck and the appellant gave a knife blow which landed on the right side of the abdomen of Amar nath Agrawal. Ram Swaroop Agrawal raised an alarm whereupon several persons reached the place of occurrence. The assailants then fled from the scene of occurrence. 4. Ram Swaroop Agrawal lost his nerves on seeing this occurrence and the victim Amarnath Agrawal was, therefore, picked up by Sushil Kumar Gaur and taken on a rickshw to Ursula Hospital, Kanpur. Virendra Kumar Agrawal (PW 8) also followed the rickshaw upto the hospital. While Sushil Kumar Gaur got busy in paying off the rickshaw charges, it was Virendra Kumar Agrawal who took the victim, Amarnath Agrawal to the Emergency Unit of the said hospital. Dr. Nafisul Hasan (PW 5) who was a Medical Officer on the Emergency duty examined the injuries of Amarnath Agrawal and admitted him for treatment in the hospital. Following injuries were noticed by Dr. Nafisul Hasan (PW 5) at 9. 55 a. m. on 6-4-1978, when he examined the victim Amarnath Agrawal: (1) Incised wound 2. 5 cm X 1 cm X abdominal cavity deep. Omen-turn coming out, 7. 5 cm outward and upward from umbilicus on right side. (2) Abraded contusion 1 cm X 3/4 cm, left arm, upper and outer part. Injury No. 1 was pronounced grievious while injury No. 2 as simple. Dr. Nafisul Hasan (PW 5) also sent a note to Police Station, Kotwali about this medico-legal case and for arranging the recording of dying declara tion of the victim, Amarnath Agrawal. 5. After Ram Swaroop Agrawal had regained his composure, he reached the hospital and found the doctors attending his injured son. Dr. Nafisul Hasan (PW 5) also sent a note to Police Station, Kotwali about this medico-legal case and for arranging the recording of dying declara tion of the victim, Amarnath Agrawal. 5. After Ram Swaroop Agrawal had regained his composure, he reached the hospital and found the doctors attending his injured son. He waited in the hospital for about half an hour and thereafter prepared a written-report of the occurrence and carried it to Police Station, Kotwali, Kanpur where it was lodged at 11 a. m. on the same day. On the basis of this written-report, a case under Section 307, I. P. C. was registered at the Police Station and the investigation followed. The Investigating Officer inter rogated the complainant, Ram Swaroop Agrawal and thereafter went to the hospital where he was told by the doctors that the injured was not in a fit condition to make a statement to him. Het therefore, reached the scene of occurrence and interrogated the other prosecution witnesses. He also prepared a site-plan of the place of occurrence and went out in search of the culprit. 6. The dying declaration of Amarnath Agrawal was recorded by Sri Nand Kishore Mkhraipw 4> at about 1. 30 p. m. at the hospital on 6-4-1978. However, Amarnath Agrawal on 7-4-1978 at 9. 55 a. m. succumbed to the fatal injury received on his abdomen. On the death of Amarnath Agrawal, the case was altered from 307,1. P. C. to Section 302,1. P. C. on 7-4-1978. Autopsy of the dead body was conducted by Dr. R. B. Verma (PW 1) on 7-4-1978 at 4. 10 p. m. The accused surrendered in Court on 14-4-1978. After completing the investigation, the chargesheet was submitted for prosecution of the aforesaid two accused persons. 7. During trial before the learned Sessions Judge, Kanpur, the appel lant was charged for the offence under Section 302,i. P. C. while his father, Vishnu Saran was charged for the offence under Section 302 read with Section 34, I. P. C. Both of them pleaded not guilty and disputed the place of occurrence. 8. 7. During trial before the learned Sessions Judge, Kanpur, the appel lant was charged for the offence under Section 302,i. P. C. while his father, Vishnu Saran was charged for the offence under Section 302 read with Section 34, I. P. C. Both of them pleaded not guilty and disputed the place of occurrence. 8. The learned Sessions Judge after consideration of the oral and documentary evidence adduced in the case found that the occurrence had taken place on the road near about the shop of the complainant and relying upon the dying declaration of the victim, Amarnath Agrawa), further found that the appellant had fatally stabbed Amarnath Agrawal with the help of a knife. Since Vishnu Saran was not named by the victim in his dying declaration, the learned Sessions Judge held the charge not established against Vishnu Saran and acquitted him. However, the appellant was held guilty under Section 302, I. P. C. and sentenced to undergo life imprisonment in connection with the offence under Section 302,1. P. C. Feeling aggrieved by this order of conviction and sentence, this appeal has been preferred by Shyaro Singh. 9. We have heard the learned Counsel for the appellant as also the learned Counsel for the State and perused the record. 10. Learned Counsel for the appellant has contended that the learned Sessions Judge even though disbelieved the oral evidence of Ram Swaroop Agrawa] (PW 2) and Ravi Shanker (PW 7) chose to place implicit reliance on the sole dying declaration of the victim as recorded by Sri Nand Kishore Misra (PW 4 ). In this behalf, it has been straneously contended by the learned Counsel for the appellant that the learned Sessions Judge did not test the reli-abilty of the dying declaration inthe backdrop of the settled principles of law. According to the learned Counsel for the appellant, the dying declaration does not stand the test of reliability and, therefore, cannot be made the foundation for the conviction of the appellant. 11. The prosecution case, therefore, rests on the basis of the dying declaration of the victim, Amarnath Agrawal, as recorded by Sri Nand Kishore Mishra (PW4) at 1. 30 p. m. on 6-4-1978. Conviction on dying declaration along is legal if it is found true, voluntrary, conscious, and made with normal understanding and if the making was in a fit physical and metal condition to make the declaration. 30 p. m. on 6-4-1978. Conviction on dying declaration along is legal if it is found true, voluntrary, conscious, and made with normal understanding and if the making was in a fit physical and metal condition to make the declaration. The Court must, in order to test the reliability of a dying declaration, keep in view the circumstances like the opportunity of the dying man for observation for example, whether there was sufficient light, whether the capacity of the declarant to remember facts stated by him had not been impaired at the time he was making the statement by drcumstances beyond his control, either due to the nature of the injuries or for any other cause and whether the statement has been made at the earliest opportunity and was not the result of tutoring by interested persons. The Court has also to be satisfied that the deceased had a clear opportunity to observe and identify the accused and that he made the statement with out any influence or rancour. Once the court is satisfied that the dying declaration was true and voluntary, it is sufficient to find conviction on its basis even without any corroboration. It would be opposite to extract here the dictum laid down by the Honble Supreme Court in the case of Kundula Bala Subrahmanyam and another v. State of Andhra Pradesh, JT 1993 (2) SC 559: "section 32 (1) of the Evidence Act is an exeception to the general rule that hearsay evidence is not admissible evidence and unless evidence is tested by cross-examination, it is not creditworthy. Under Section 32, when a statement is made by a person, as to the cause of death or to any of the circumstance which result in his death, in case in which the cause of that persons death comes into question, such a statement, oral or in writing, made by the deceased to the witness is a relevant fact and is admissible in evidence. The statement made by the deceased, called the dying declaration, falls in that category provided it has been made by the deceased while in a fit mental condition. A dying declaration made by person op the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The statement made by the deceased, called the dying declaration, falls in that category provided it has been made by the deceased while in a fit mental condition. A dying declaration made by person op the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself if the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mount of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the courts, it becomes a very important and a reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment, such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corrobo-ration. " 12. The reliability of the dying declaration (Ex. K. a-11) has, therefore, to be tested in the light of the aforesaid principles. First of all, it has to be seen if the victim, Amar Nath Agrawal was in a fit mental state to make the declaration. In this behalf we have the testimony of Nand Kishore Mishra (PW 4) who recorded the dying declaration of the said victim. PW 4 Additional City Magistrate at Kanpur on 6-4-1978 and he proceeded to record the dying declaration on receipt of the message. His evidence discloses that he went to Ursula Hospital, Kanpur where the victim, Amar Nath Agrawal was already admitted for treatment. He further deposed that be fore recording the dying declaration, he got Amar Nath Agrawal examined by the doctor with regard to his mental state. Not only this, PW 4 also satisfied himself regarding the fit mental state of the patient by putting hip 2. 4. questions. It was thereafter that he recorded bis dying declaration in the form of questions and answers. The statement was read over to the declarant who testified to the same and thereafter he was made to affix his thumb-mark on the same. 4. questions. It was thereafter that he recorded bis dying declaration in the form of questions and answers. The statement was read over to the declarant who testified to the same and thereafter he was made to affix his thumb-mark on the same. PW 4 has further deposed that the injured remained throughout in a fit state to make the statement. 13. Learned Course! for the appellant contended that PW 4 did not make a memorandum of the questions and answers put by him with a view to ascertain the mental state of the injured Amar Nath Agrawal. It may be pointed out that it was not elicited from PW 4 during his cross-examination as to why such a memorandum was not prepared by him. Our attention was not drawn to any provision of law or rule which enjoins a duty upon the Executive Magistrate to make such a memorandum. If PW 4 was satisfied on the questions and answers put in this behalf, nothing further remained to be done, having regard to the fact that PW 4 was a responsible public servant who had no axe to grind in the matter. 14. Learned Counsel for the appellant further contended that the certificate appended by the doctor on the margin of the dying declaration regarding the mental state of the injured is also not wholly reliable, inasmuch as it appears to have been scribed at one and the same time after the dying declaration was recorded by the Executive Magistrate. It may be apt to extract here the certificate of the doctor : "certified that the patient is in a ft state of mind to give a declara tion and remained fit throughout the declaration. " 15. Learned Counsel for the appellant pointed out that PW 4 initially staled that this certificate was recorded by ihe doctor before he started taking down the dying declaration but when PW 4 was confronted with (the contents of the said certificate, he proceeded to say that the first part of the certificate was scribed by the doctor before the dying declaration was recorded and the second part of the certificate was recorded by him after the dying declaration was over. Learned Counsel for the appellant urged that this statement of the Executive Magistrate cannot be accepted, particularly when the certificate appears to have been written in one stroke. Learned Counsel for the appellant urged that this statement of the Executive Magistrate cannot be accepted, particularly when the certificate appears to have been written in one stroke. It may be pointed out that the certificate was appended on 6-4-1978 while PW 4 gave his evidence in the lower Court on 6-3-1979. It appears that PW 4 made an attempt to reconcile the situation when be was confronted with the contents of the said certificate. It is certain from the evidence of PW 4 that the dying declaration of Amar Nath Agrawal was recorded during the presence of the doctor. It appears more likely that the doctor had told the Magistrate that the injured Amarnath Agrawal was in a fit state of mind to make the declaration and after the dying declaration had been recorded, the doctor appended the said certificate on the margin of the declaration (Ex. Ka-Il ). In our view, nothing of particular importance turns upon this aspect inasmuch as the ultimate satisfac tion had to be make by the Executive Magistrate (PW 4) regarding the fit mental state of the injured Amar Nath Agrawal. It may also be pointed out that Dr. S. K. Govil who had recjrded the said certificate, had gone to Libiya for two years and was, therefore, not available for evidence during trial. S, I. Taran Singh (PW 9) in paragraph 7 of his statement recorded by the trial Court testified to this fact and further stated that he was not likely to come back to India in near future. This witness also proved the writing and signature or Dr. Covil vis-a-vis the said certificate. It is noteworthy that this part of his statement has gone unchallenged during cross-examination. Apart from this the injury sustained by Amarnath Agarwal in his abdomen as a result of the knife blow which ultimatedl) proved fatal, does not appear to be such as might have impaired his mental faculties. There is no iota of any other medical evidence on record to indicate that injured Aroar Nath Agrawal was really not in a mental position to make the statement (Ex. Ka-11) 16. It further appears tbat the declarant, Amar Nath Agrawal had initially spoken about the residence of assailant Shyam Singh at Dbankutti but later on, he got it rectified by saying that his residence was at Chowk Sarrafa. Ka-11) 16. It further appears tbat the declarant, Amar Nath Agrawal had initially spoken about the residence of assailant Shyam Singh at Dbankutti but later on, he got it rectified by saying that his residence was at Chowk Sarrafa. This factum has been clearly brought out on record in para 3 of the statement of ths Executive Magistrate (PW 4 ). Learned Counsel for the appellant conten ded that the Executive Magistrate ought to have made a meojormdum about this correction having been m?de at the instance of the declarant. PW 4 has stated that he secured out Dhankutti when it was pointed out by the declarant that the residence of the assailant was at Chowk Sarrafa and he initialled the cutting. The very fact that the declarant had pointed out that dhankutti was not the correct address of the assailant and that Chowk Sarrafa was his correct address, goes to indicate tbat he was mentally alert during the relevant time. 17. Learned Counsel for the appellant then pointed out that the address of the declarant as noted on the top of the dying declaration (Ex. Ka-l 1) is also wrong inasmuch as the declarant was a resident of 81/85, Dhankutti, Kan pur. It appears from ihe dying declaration (Ex. Ka-l!) that the address of the declarant. Amar Nath Agrawal was noted as 43/34, Chowke Sarrafa. The learned Counsel for the appellant, therefore, contended that the declarant was not mentally alert, otherwise he would have got this address also rectified. So far as this contention goes, it may be pointed out that the Executive Magistrate (PW 4) had read out Ihe contents of the statement made by the injured, Amar Nath Agrawal after the same had been recorded by him and it was not elicited from the Executive Magistrate that the particulars noted by him regarding the name, parentage and address of the declarant at the top of the dying declara tion were also read over to the declarant. Normally, it is the statement which is read over to the person making the same and the name, parentage and address of the person concerned are not treated as part of the statement, Consequently, the learned Counsel for the appellant cannot be allowed to build up an argument on this score, in the absence of any material on record to indi cate that the particulars of the declarant including his address noted at the top of the statement (Ex. Ka-11) were also read over to the declarant. More over, it is borne out from the evidence on record that the shop which was in the tenancy of Ram Swaroop Agrawal (PW 2) who is the father of the deceas ed Amar Nath Agrawal was in the aforesaid premises of Chowk Sarrafa and, therefore, it might have been loosely described as the address of the injured, Amar Nath Agrawal. In this connection, it may also be pointed out that the same address had been noted in the injury report of Amar Nath Agrawal per Ex Ka-12. In this behalf, it is worthy of mention that injured Amar Nath was actually taken to the Emergency Ward of the Ursual Hospital by Vrendra Kumar Agrawal (PW 8) w. o stated in the lower Court that he had taken the injured Amar Nath Agrawal from rickshaw to the doctor on Emer gency duly while Sushil Kumar who had brought the injured on the rickshaw ; ot busy in paying the rickshaw charges to the rickshaw puller. Virendra Knmar (PW 8) has his own shop at 43/36, Chowfc Sarrafa which is in the vicinity of the shop of the complainant Ram Swaroop Agrawal. It is, therefore, quite likely that Virendra Kumar Agrawal gave out the address of the injured as that of his shop at Chowk Sarrafa. Normally, it is the attendant who give out these paticulars to the doctor concerned at the time of the admission of the injured/patient in the hospital. Therefore too, no capital can be permitted to be made of this aspect and in any case, it does not go to the extent of indicating that injured Amar Nath Agrawal was not in a fit state of mind at the iclevant time. 18. Amar Nath Agrawal, according to the prosecution evidence, was stabbed in the abdomen by means of a knife at about 9. 30 a. m. on 6-4-1978. 18. Amar Nath Agrawal, according to the prosecution evidence, was stabbed in the abdomen by means of a knife at about 9. 30 a. m. on 6-4-1978. He was rushed to the Ursula Hospital where he was medically examined at 9. 55 a m. on the same day by Dr. Nafisul Hasan (PW 5 ). The dying declara tion came to be recorded by the Executive Magistrate at about 1. 30 p. m. on the same day in the Emergency ward of the said hospital. According to PW 4 he finished the dying declaration at 1. 45 p. m. A perusal of the dying declara tion (Ex. Ka-11) indicates that it must have been recorded within 15 minutes or so. During the interregnum (9 a. m. to 1. 30 p. m.) the injured must have been attended by the doctors and a perusal of the post-mortem-examination report indicates that surgical treatment was also accorded to the injured Amar Nath Agrawal. Dr. Nafisul Hasan (PW 5) also stated during his evidence that he had intimated Station Officer, Kotwali also vide his communication (Ex. Ka-3 ). A perusal of the statements of C. W. 1 and C. W. 1 would indicate how the message about the recording of dying declaration of injured Amar Nath Agrawal by an Executive Magistrate was communicated to the authorities concerned. 19. From what has been said above, we save reached the conclusion that the injured Amar Nath Agrawal was in a fit state of mind during the time he gave his statement as per Ex. Ka-11 to the Executive Magistrate (PW 4) and that this dying declaration came to be recorded at the earliest possible opportunity. 20. The occurrence took place at about 9. 30 a. m. on 6-4-1978. It is also in evidence that the assailant stabbed at the abdomen of the victim, Amar Nath Agrawal by means of a knife. The victim, therefore, had clear oppor tunity to observe and identify the assailant who was none other than the son of the landlord of the shop tenanted by the victims father Ram Swaroop Agrawal (PW 2 ). It is also in evidence that the assailant stabbed at the abdomen of the victim, Amar Nath Agrawal by means of a knife. The victim, therefore, had clear oppor tunity to observe and identify the assailant who was none other than the son of the landlord of the shop tenanted by the victims father Ram Swaroop Agrawal (PW 2 ). It is also in evidence that the appellant and his father Vishnu Saran lived on the upper storey of the same building in which the tenanted shop of the complainant Ram Swaroop Agrawal was situate and that the appellant had also be laboured complainant Ram Swaroop Agrawal and the deceased Amar Nath Agrawal in the month of February, 1978. Since he wanted the shop to be vacated for his own business being carried there. There fore, the appellant was already known to the victim, Amar Nath Agrawal from before and the knife blow having been inflicted at the abdomen of the victim in the broad day-light. It was easy for the victim to identify his assailant. The victim, Amarnath Agarwal has named the appellant as his assailant in his dying declaration (Ex. Ka-11 ). It may also be pointed out that the victim Amar Natb Agrawal did not name Vishnu Saran who, according to tbe first information report, had held the victim by tbe neck from the rear side. This goes to indicate that the victim made no embellishment in his dying declaration by naming a person whom he actually did not observe at the relevant time, since he is said to have held him (victim) by the neck from the rear side. This further lends assurance to the fact that the victi n Amar Nath Agrawal was not tutored to say in his dying declaration that Vishnu Saran had also helped the real assailant in the commission of the crime by holding him (victim) by the neck. Learned Counsel for the appellant contended that the Executive Magistrate (PW 4) had removed some persons from the side of the patient before be proceeded to record his dying declaration and, therefore, the possibility could not be ruled out that these persons would have pursuaded tbe patient to spin out the version given in the dying declaration. So far as this contention goes, it may be pointed out that it has not been elicited during cross-examination as to who these persons were. So far as this contention goes, it may be pointed out that it has not been elicited during cross-examination as to who these persons were. It is clear from the evidence of Ram Swaroop Agrawal (PW 2) that he had no access to his injured son during the relevant period and likewise there is nothing on record to indicate that Sushil Kumar who had taken the victim on a rickshaw to the hospital and Virendra Kumar Agrawal (PW 8) had any animus or notive to pursuade the victim to falsely involve the appellant in this heinous crime. We are, therefore, of the considered opinion that the victim Amar Nath Agrawal had clear opportunity to observe and identify his assailant and that he (victim) made the dying declaration without any influence or rancour. Likewise, we are also of the view that the dying declaration (Ex. Ka-11) which says that the victim Amar Nath Agrawal was stabbed at his abdomen by the appellant by means of a knife while he was going towards his shop on the fateful day, is his true and voluntary statement. Not only this, the medical evidence in the form of the statement of Dr. Nafisual Hasan (PW 5) read with injury report (Ex. Ka-12) further corroborates the dying declaration that the victim, Amar Nath Agrawal was inflicted a knife blow at his abdomen on the fateful day some time before 9. 55 a. m. when the victim was medically examined by Dr. Nafisul Hasan PW 5. It may also be pointed out that the evidence of Dr. Nafisul Hasan PW 5 was not challenged during the cross- examination. He clearly stated that the abdominal injury could be caused by means of a knife and that it was fresh when he examined the same. 21. Learned Counsel for the appellant further contended that the dying declaration (Ex. Ka-11) has been recorded in the form of questions and answers and not the narrative form. He, therefore, urged that the dying declaration may not be taken to be in the precise words of the declarant. So far as this contention goes, it may be pointed out that the form by itself in which the dying declaration is recorded, is not important and the value of a dying declaration is not detracted simply because it is either recorded in the question and answer form or in the narrative form. So far as this contention goes, it may be pointed out that the form by itself in which the dying declaration is recorded, is not important and the value of a dying declaration is not detracted simply because it is either recorded in the question and answer form or in the narrative form. We are fortified in this behalf by the dictum of the Supreme Court laid down in the case of Ganpat Mahadeo Mnev. State of Maharashtra, reported in JT 1992 (6) SC 1977, Therefore nothing of particular importance turns upon this contention of the learned Counsel for the appellant. 22 We are, accordingly, of the opinion that the learned Sessions Judge was perfectly justified in convicting the appellant on the basis of the sole dying declaration (Ex. Ka-11 ). 23. Some argument was also raised on behalf of the appellant regarding the place of occurrence and it was pointed out that no blood was found by the Investigation Officer at the place of occurrence. So far as this contention goes, it may be pointed out that the post-mortem examination report (Ex. Ka-11) read with the evidence of Dr. R. P. Verma (PW 1) would indicate that there was internal bleeding as a result of the abdominal injury, inasmuch as 500 grams of fluid blood was found present in the abdominal cavity. It, therefore, appears that there was no prefuse bleeding from this abdominal injury and in any case, the blood which might have oozed out did not fall on the ground inasmuch as the victim soon after receiving this injury sat on the ground and pressed this wound with his hand. He was also rushed to the hospital soon after the occurrence. It is, therefore, nothing strange if no blood was actually found on the place of the occurrence. Moreover, it was a busy road and the evidence of Virendra Kumar Agarwal (PW 8) also goes to indicate that he heard a hue and cry at his shop at about 9. 30 a. m. saw that the injured Amar Nath Agarwal was being carried on a rickshaw by Sushil Kumar and he, therefore, also followed the rickshaw upto the hospital. The testimony of Virendra Kumar Agarwal (PW 8), therefore, also indicates that the occurrence took place near about his shop at Chowk Sarrafa. 30 a. m. saw that the injured Amar Nath Agarwal was being carried on a rickshaw by Sushil Kumar and he, therefore, also followed the rickshaw upto the hospital. The testimony of Virendra Kumar Agarwal (PW 8), therefore, also indicates that the occurrence took place near about his shop at Chowk Sarrafa. In the dying declaration (Ex, Ka-11) also the deceased gave out that he was inflicted knife blow by the assailant on that day while he was going to his shop. There is no iota of evidence on record to indicate that the occurrence had taken place at any place other than the one alleged by the prosecution. We are, therefore, satisfied from the material placed on record that occurrence took- place at some distance from the crossing of Chowk Sarrafa as alleged by the prosecution. 24. For the reasons indicate above, we find that the conviction and sentence recorded by the learned Sessions Judge against the appellant is well-founded and no interference is required in that appeal which is accordingly dismissed. The appellant is on bait. His bail bonds are cancelled. He shall be taken into custody forthwith to serve out the sentence of life imprisonment awarded to him. Appeal dismissed. .